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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Justin A. D. Nelson v. State of Alaska (4/19/2019) sp-7355
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JUSTIN A. D. NELSON, )
) Supreme Court No. S-16719
Petitioner, )
) Superior Court No. 3DI-11-00216 CR
v. )
) O P I N I O N
STATE OF ALASKA, )
) No. 7355 - April 19, 2019
Respondent. )
)
P
etition for Hearing from the Court of Appeals of the State of
Alaska, on appeal from the Superior Court of the State of
Alaska, Third Judicial District, Dillingham, Fred Torrisi,
Judge.
Appearances: J. Adam Bartlett, Anchorage, for Petitioner.
Timothy W. Terrell, Assistant Attorney General, Anchorage,
and Jahna Lindemuth, Attorney General, Juneau, for
Respondent. Douglas O. Moody, Deputy Public Defender,
and Quinlan Steiner, Public Defender, Anchorage, for
Amicus Curiae Public Defender Agency.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
MAASSEN, Justice.
I. INTRODUCTION
A defendant pleaded guilty to attempted first-degree sexual abuse of a
minor. On the day of sentencing he moved to withdraw his plea, arguing that he had not
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understood theterms oftheagreement and had received ineffective assistanceofcounsel.
The superior court declined to appoint a different lawyer to represent him on the motion
to withdraw his plea and denied the motion. The court of appeals affirmed these
1
decisions.
We accepted Nelson's petition for review on the question whether he was
entitled to conflict-free counsel on the motion to withdraw his plea. We adopt a per se
rule requiring conflict-free counsel in the context of plea withdrawals and therefore
reverse the decision of the court of appeals. We remand to the superior court to decide
Nelson's plea-withdrawal motion while he is represented by conflict-free counsel.
II. FACTS AND PROCEEDINGS
In 2011 Justin A. D. Nelson was indicted on three felony counts of sexual
abuse of a minor. He was initially represented by attorneys Patricia Douglass and
Alexander Foote, both of the Dillingham office of the Alaska Public Defender Agency.
At the start of the first day of trial, Douglass informed the court that Nelson
"want[ed] to take the deal" that the State had offered him.2
The court took a brief recess
so Nelson could confer with his attorneys. After the break the court talked about the
details of the plea agreement and the applicable sentencing ranges. Douglass confirmed
that she had gone over the plea agreement with Nelson; she believed he understood the
situation and was competent to proceed. In a brief allocution, Nelson said he was
1 Nelson v. State , 397 P.3d 350 (Alaska App. 2017).
2 The agreement - made pursuant to Alaska Rule of Criminal Procedure 11
- required Nelson to plead guilty to one reduced count of attempted sexual abuse of a
minor in the first degree, in exchange for which the State would dismiss the other two
counts. The agreed sentence was 30 years imprisonment with ten suspended; the
agreement also included terms of probation.
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accepting the Alaska Criminal Rule 11 offer because he was "trying to look for the
minimum time possible . . . and it just looks like this is it." The court accepted Nelson's
plea.
On the day set for sentencing, Foote, on Nelson's behalf, filed a combined
motion seeking to withdraw the plea and asking that the Public Defender Agency be
allowed to withdraw from representing Nelson. According to the motion, Nelson
believed that the Public Defender Agency had "been ineffective as counsel," that
Douglass "was not supportive of his defense," and that Nelson had not understood "the
full ramifications of the Rule 11 agreement" at the time he agreed to it. The motion also
informed the court that Nelson "may have additional argument he wishes to make that
counsel is unaware of, as our office was only recently informed of Mr. Nelson's
objective, and communication has proven difficult due to Mr. Nelson's incarceration."
Nelson was not present at the sentencing hearing, apparently due to a
transportation glitch. Before discussing rescheduling, the court asked about Nelson's
motion, focusing first on the assertion that Nelson might have "additional argument" as
to why he should be allowed to withdraw his plea. Foote explained the difficulty he and
Douglass were having communicating with their client. The court observed that the
defense motion seemed "insufficient at this point," asked that it be supplemented within
two weeks (and "[i]f you need more time, ask for it"), and postponed the sentencing
hearing until further notice. The motion was never supplemented. The court denied the
request to withdraw the guilty plea on March 8 and the request that the Public Defender
Agency be allowed to withdraw as counsel on March 13. The court set sentencing for
March 16.
On March 14 the court received a handwritten letter from Nelson dated
February 25. In the letter, Nelson told the court that he had no productive
communication withhis PublicDefender Agency attorneys, thathedid not "knowwhat's
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going on," and that he was "confused about a lot of things in [his] case." He complained
that Douglass often hung up on him "while [he] was trying to explain [his] case," that he
did not know if any motions had been filed on his behalf, and that all he "wanted [was]
a fair trial, a fair attorney that will listen to what [he had] to say."
In response, the court provided Nelson with "[c]opies of all 2012 pleadings
and orders" and ordered defense counsel to meet with him within the next two days. On
March 16, the day set for sentencing, a response to the court's order was filed by Robert
Meachum, another attorneyintheDillinghamPublicDefender Agency office. Meachum
reported that Nelson did "not want to proceed with sentencing as scheduled" and asked
that the court consider his February 25 letter "as reasons why he should be allowed to
withdraw his plea."
Nelson was present at the hearing that afternoon, represented by Meachum.
The court explained that it had reviewed Nelson's February 25 letter but saw "nothing
that justifies a change of plea or a withdrawal of the change of plea," though "[i]t may
justify withdrawal of counsel." According to the court, the most the letter showed was
"a change in [Nelson's] mind" about the plea agreement, which fell short of "a fair and
just reason to withdraw his plea." The court reiterated its denial of Nelson's motion to
withdraw his plea. The court was willing, however, to allow Nelson "to move for
reconsideration, . . . to delay sentencing, . . . [or] to renew his motion for a different
attorney." But Meachumsuggested that the appropriate procedural route was for Nelson
to wait and allege ineffective assistance of counsel in a motion for post-conviction relief,
and in the meantime "perhaps [they] ought to just go ahead with sentencing."
The court next heard a statement read by the victim's father. The court then
reiterated its intent to deny Nelson's motion to withdraw his plea, finding that there was
not "a fair reason, a just reason" for withdrawal, that it "would prejudice the State," and
that "it would harm the victims." At Nelson's request, the court agreed to postpone
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sentencing another week to give him time to talk to his attorney, though Meachum told
the court that he had already spoken with Nelson in February and "twice in the past
week" and did not know what Nelson could tell him that he did not know already. The
court again noted that "it may be that [Nelson] need[s] another attorney appointed sooner
rather than later," but it did not again address the Agency attorneys' request to withdraw.
When the superior court held the sentencing hearing the following week,
Meachum informed the court, "I was ready to go last week, I'm ready to go today," and
said he had not spoken to Nelson since the last hearing because he thought they had
nothing new to say to each other. Nelson told the court he had been expecting Meachum
to visit him because he had "some things that [he] needed for [Meachum] to say"; he also
complained that he had not seen any discovery, transcripts, or other documents related
to his case. He said, "[T]he reason I took a deal is because of ineffective assistance, and
the reason why I took it back is because of ineffective assistance." The court explained,
however, that it had gone back over the record of the plea agreement and remained
unconvinced that there was any reason to allow the plea's withdrawal. And Meachum
reiterated his view that a claim of ineffective assistance of counsel should be "litigated
in post-conviction relief."
The court proceeded with sentencing over Nelson's continued objections
that he wanted a representation hearing instead. The court recognized the Public
Defender Agency's conflict, however, and after sentencing it relieved the Agency of its
duty to represent Nelson any further; the court said it was "appointing new counsel at
this time, OPA or OPA contractor, for purposes of reviewing for appeal or post[-]
conviction relief."
Represented by new counsel from the Office of Public Advocacy, Nelson
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3
appealed to the court of appeals. The court held in an unpublished opinion that while
Nelson should not have been required to wait until after sentencing to litigate his claim
of ineffective assistance of counsel, the superior court did not err by denying his motion
4
to withdraw his plea because he had not articulated a "colorable basis" for withdrawal.
Nelson petitioned for rehearing.5 On rehearing the court of appeals held that, while "the
appointment of conflict counsel will often be the appropriate action in these
circumstances, particularly because a different standard applies to a presentencing
motion to withdraw a plea as opposed to a post-sentencing motion to withdraw a plea,"
deference to the superior court's discretion was appropriate given Nelson's inability "to
articulate or substantiate any specific assertions of how he had been incompetently
represented" and the fact that sentencing "had already been delayed multiple times."6
Nelson filed a petition for hearing, which we granted.
III. STANDARD OF REVIEW
"We review constitutional questions using our independent judgment, . . .
adopting the rule of law that is most persuasive in light of precedent, reason, and
policy."7 Whether a conflict of interest exists under the Alaska Rules of Professional
Conduct is an issue of law also reviewed de novo under the independent judgment
3 Nelson v. State, No. A-11259, 2016 WL 7422690 (Alaska App. Dec. 21,
2016).
4 Id. at *4.
5 See Nelson, 397 P.3d 350.
6 Id. at 351-52.
7 Treacy v. Municipality of Anchorage , 91 P.3d 252, 260 (Alaska 2004).
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8
standard. Finally, whether to grant or deny a motion to withdraw a plea is within the
9
trial court's discretion, and we review its decision for abuse of discretion.
IV. DISCUSSION
In thediscussion that follows,wefirst identify theconflict ofinterest shared
by Nelson's three Public Defender Agency lawyers. We next conclude that Nelson was
10
entitled to conflict counsel immediately after the conflict of interest arose - that is,
when Nelson first raised his claim, in the context of his plea-withdrawal motion, that his
Agency lawyers provided ineffective assistance of counsel. Finally, we conclude that
it was an abuse of discretion to deny the plea-withdrawal motion under these
circumstances.
A. Nelson's PublicDefenderAgency Lawyers HadAConcurrentConflict
Of Interest Under Rule Of Professional Conduct 1.7.
At the sentencing hearing the superior court recognized that the Public
Defender Agency had a conflict of interest which required the appointment of a lawyer
without that conflict - though the superior court applied the new counsel remedy only
to appellate and post-conviction proceedings. As the first step in our analysis of the
issues raised in this petition, we agree there was a conflict of interest.
Alaska Rule of Professional Conduct 1.7 mandates that "a lawyer shall not
represent a client if the representation involves a concurrent conflict of interest." A
8 See Burrell v. Disciplinary Bd. of Alaska Bar Ass'n , 702 P.2d 240, 242-43
(Alaska 1985) (reviewing record in attorney disciplinary proceedings de novo and
holding that attorney had a conflict of interest and violated applicable rules of
professional conduct).
9 McClain v. State, 742 P.2d 269, 271 (Alaska App. 1987).
10 We follow the shorthand convention by which conflict-free counsel is
referred to as "conflict counsel."
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concurrent conflict exists when "there is a significant risk that the representation of one
or more clients will be materially limited by the lawyer's responsibilities to another
11 One
client, a former client, or a third person or by a personal interest of the lawyer ."
such "personal interest" that may risk "materially limit[ing]" the lawyer's representation
is the lawyer's interest in defending the professional competency of that representation.
The District of Columbia Court of Appeals found a violation of Rule 1.7 under
circumstances similar to those presented here: A lawyer continued representing a
defendant on his motion to withdraw a guilty plea following allegations that the lawyer
had coerced the defendant into pleading guilty.12 The court agreed with the bar
disciplinary body that the lawyer's representation of his client "was materially limited
by his own interests."13 The court explained: "Because [the defendant] alleged coercion
and ineffective assistance of counsel as grounds for his motion to withdraw his guilty
plea, [the lawyer] could not argue the motion to withdraw without possibly admitting
14
serious ethical violations and subjecting himself to possible liability for malpractice."
This left the client "unrepresented by counsel on the issue relating to the request to
withdraw the guilty plea."15
11 Alaska R. Prof. Conduct 1.7(a)(2) (emphasis added).
12 In re Ponds, 888 A.2d 234, 236, 239 (D.C. 2005).
13 Id. at 239.
14 Id.
15 Id. ; see also People v. Lepe, 211 Cal. Rptr. 432, 433 n.1, 434-35 (Cal. App.
1985) (affirming order disqualifying entire county prosecutor's office from prosecuting
defendant whom lead prosecutor had defended while in private practice, when issues
included "constitutional infirmity" of earlier guilty plea "for lack of proper lawyering");
Carey v. State, 902 P.2d 1116, 1118 (Okla. Crim. App. 1995) (holding that requiring
(continued...)
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The same conflict existed in this case for Douglass and Foote, Nelson's
original attorneys from the Dillingham office of the Public Defender Agency. Although
Nelson's specific complaints were directed primarily at Douglass, his more general
complaints - confusion, poor communication, and lack of information - involved his
representation as a whole, thus necessarily including Foote. Had Douglass and Foote
represented Nelson on his motion to withdraw his plea, they would have been required
to argue their own ineffectiveness and lapses of professional duty, against their own
personal interest. We recognize a "significant risk" that this personal interest would
16
"materially limit[]" their representation of Nelson in that context.
As explained above, however, it was another attorney in the Dillingham
office, Meachum, who took up Nelson's representation after Foote filed the motion to
withdraw the guilty plea and to allow the Public Defender Agency's withdrawal from
representation. But public defenders may be conflicted even when, like Meachum, they
did not take part in the challenged proceedings and were not themselves alleged to be
17 lawyers who "are
ineffective. Under Alaska Rule of Professional Conduct 1.10(a),
associated in a firm" should not "knowingly represent a client when any one of them
15 (...continued)
attorney to represent defendant in evidentiary hearing on motion to withdraw plea, in
which petitioner testified that attorney "tried to coerce himinto pleading guilty," unfairly
forced attorney "to proceed in representing [defendant] against his own interests").
16 See Alaska R. Prof. Conduct 1.7(a)(2).
17 Public defenders' potential conflicts of interest are governed by Rule 1.10
rather than Alaska Rule of Professional Conduct 1.11 - relating to conflicts of interest
of former and current government employees - because, although paid by the
government, "public defenders do not represent the government or a public agency" but
rather "work on behalf of private individuals." Richard B. v. State, Dep't of Health &
Soc. Servs., Div. of Family & Youth Servs., 71 P.3d 811, 822-23 (Alaska 2003).
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practicing alone would be prohibited from doing so by Rule[] 1.7" except under the
following condition: "the prohibition is based on a personal interest of the prohibited
lawyer and does not present a significant risk of materially limiting the representation of
the client by the remaining lawyers in the firm." The next question to answer, therefore,
is whether there was "a significant risk" that Meachum's representation of Nelson would
be "materially limited" by the personal interest of his prohibited colleagues.
18 Some, including the
Courts have taken different approaches to this issue.
United States Court of Appeals for the Tenth Circuit and state courts in Illinois, New
Jersey, New Mexico, Ohio, and Rhode Island, follow a case-by-case rule: whether one
public defender's conflict is imputed to others in the same office "will turn on the
specific circumstances."19 Relevant circumstances include such things as the physical
proximity of the lawyers' offices, office culture, and the individual lawyer's history of
raising ineffective assistance claims.20 The State endorses this case-by-case rule. It
argues that a presumption of conflict in the public defender context is unwarranted for
several reasons: (1) public defenders have less financial incentive than private lawyers
to avoid ineffective assistance claims because their pay is not dependent on the results
of individual cases; (2) the agency's reputation is in fact bolstered when one employee
pursues ineffective assistance allegations against another; and (3) loyalty to colleagues
18 See Christopher M. Johnson, Not for Love or Money: Appointing a Public
Defender to Litigate a Claim of Ineffective Assistance Involving Another Public
Defender, 78 M ISS. L. J. 79, 80 (2008).
19 See Cannon v. Mullin , 383 F.3d 1152, 1173 (10th Cir. 2004), abrogated in
part on other grounds , Simpson v. Carpenter, 912 F.3d 542 (10th Cir. 2018); see also
People v. Banks, 520 N.E.2d 617, 621 (Ill. 1987); State v. Bell, 447 A.2d 525, 528-29
(N.J. 1982); Morales v. Bridgforth, 100 P.3d 668, 669 (N.M. 2004); State v. Lentz, 639
N.E.2d 784, 786 (Ohio 1994); Simpson v. State, 769 A.2d 1257, 1271 (R.I. 2001).
20 See Cannon, 383 F.3d at 1173-74.
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is unlikely to cloud public defenders' judgment, as they have a "unique duty of loyalty
to their clients."
Other states follow a per se rule, under which a "mere allegation of
ineffective assistance is sufficient to create a conflict of interest disqualifying the public
21 It is this rule that Nelson endorses, and it is the rule we prefer.
defender."
We recognize that public defenders, like any other lawyers, may feel
strongly loyal to individual colleagues; public defenders, like any other lawyers, may
fear social or bureaucratic consequences in the workplace from their pursuit of an
argument that acoworker or supervisor acted incompetently. Individuals vary, ofcourse,
but none should be asked to face "the dilemma of [either] vigorously asserting the
petitioner's claim or defending the professional reputation of [their] office."22 And trial
judges would be placed in a difficult position if they were required to decide on a case-
21 State v. Veale , 919 A.2d 794, 799 (N.H. 2007), abrogated in part on other
grounds, State v. Thompson , 20 A.3d 242 (N.H. 2011); see also Hill v. State , 566 S.W.2d
127, 127 (Ark. 1978) (deciding that regardless of merit of post-conviction petition, when
allegations of ineffective assistance of counsel are raised, the "better practice" is to
appoint counsel "who does not practice law on a day to day basis with the lawyer against
whom the allegations are made"); Angarano v. United States , 329 A.2d 453, 458 (D.C.
1974) (stating it is "obvious" that if there is a hearing on allegations of ineffectiveness,
non-public defender service attorney "should be appointed if the original trial counsel
was with that agency"); Adams v. State , 380 So. 2d 421, 422 (Fla. 1980) (observing that
attorney has "a hopeless conflict of interest" where appeal is predicated on ineffective
assistance of another public defender in same office); Ryan v. Thomas , 409 S.E.2d 507,
509 (Ga. 1991) (holding that different attorney in same public defender's office cannot
reasonably be expected to properly assert ineffectiveness of another member; to hold
otherwise would "permit one member of the firm to shield his fellow member against
accusations of ineffectiveness at the expense of the rights of the defendant");
Commonwealth v. Moore , 805 A.2d 1212, 1215 (Pa. 2002) (restating rule that, so as to
ensure zealous advocacy on defendant's behalf, public defender may not assert
ineffective assistance claim against another public defender in same office).
22 Adams, 380 So. 2d at 422.
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by-case basis whether individual public defenders were detached enough from their
colleagues to zealously pursue ineffective assistance claims without being "materially
limited" under Rule 1.10(a).
We therefore hold that a public defender has a conflict of interest when the
petitioner raises a claim of ineffective assistance of counsel against another public
defender in the same office. Under this per se rule, Meachum had an imputed conflict
of interest because he worked in the same office of the Public Defender Agency as
23
Douglass and Foote.
B. Nelson Should Have Been Appointed Conflict Counsel After He Filed
A Motion Arguing Ineffective Assistance Of Counsel.
Wenowexaminewhether thesuperior courtshould haveappointed conflict
counsel immediately rather than first sentencing Nelson and appointing conflict counsel
only for purposes of appellate or post-conviction review. The State concedes that
conflict counsel will be necessary "[i]f a trial court opts to fully litigate a plea-withdrawal
motion predicated on ineffective assistance of counsel," that is, if it decides that there are
disputed issues of material fact that need to be aired in an evidentiary hearing. But the
State contends that a plea-withdrawal motion will only reach that stage if the motion
states a prima facie claim of ineffective assistance - raising "specific, non-conclusory
allegations that if credited would permit the court to find facts by a preponderance of the
evidence that support the conclusion that counsel was ineffective and that this was a
significant factor in the defendant's decision to enter a plea." It is only if the motion
survives this preliminary inquiry that original counsel is "suspended" and conflict
23 We do not preclude the possibility that a public defender may have a
conflict of interest based on the representation by a public defender in a different
geographic location. On the case before us, however, we are not prepared to apply the
per se rule to the Public Defender Agency statewide.
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counsel is appointed for purposes of the evidentiary hearing. The State suggests that
original counsel must withdraw only if and when "the court finds ineffective assistance
and grants plea withdrawal."
Nelson, in contrast, argues that the right to conflict counsel arises
immediately when a motion based on ineffective assistance of counsel is filed "because
the right to counsel is a fundamental right." He argues that whenever the appointment
of conflict counsel "requires that a defendant meet a specific burden of proof, the
defendant necessarily finds himself acting pro se and advocating against his own
attorney"in contraventionoftheSixthAmendment'sright-to-counselguarantee. Nelson
argues that the State's proposed two-step process requires that a defendant proceed on
a complex topic essentially without counsel, and that this will ensure that "only the most
articulate and eloquent of defendants will be able to assert their rights." Nelson
minimizes the procedural downside of an immediate and automatic appointment of
conflict counsel.
The Sixth Amendment guarantees the right to the assistance of counsel in
24 This guarantee applies to state proceedings by virtue of the Fourteenth
a criminal case.
Amendment.25 "Once [the] right attaches, the defendant is entitled to the presence of
counsel at 'any "critical stage" of postattachment proceedings.' "26 A proceeding on a
motion to withdraw a guilty plea is a "critical stage."27 We must agree with those courts
24 U.S. Const. Amend. VI; Risher v. State, 523 P.2d 421, 423 (Alaska 1974).
25 Risher, 523 P.2d at 423 (citing Gideon v. Wainwright, 372 U.S. 335
(1963)).
26 Forster v. State, 236 P.3d 1157, 1168 (Alaska App. 2010) (quoting
Rothgery v. Gillespie Cty., Texas, 554 U.S. 191, 212 (2008)).
27 E.g., Fortson v. State, 532 S.E.2d 102, 104 (Ga. 2000).
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that have found a violation of a defendant's Sixth Amendment right to counsel when the
defendant has had to pursue a plea withdrawal motion based on ineffective assistance of
28 And we reject the idea that the right to
counsel without the help of conflict counsel.
conflict counsel depends on the defendant's ability to first cross a "prima facie case"
threshold while essentially unrepresented.
Finally, fairness favors a per se approach to the appointment of conflict
counsel in this context because of the different standards of proof required before and
after sentencing. Alaska Rule of Criminal Procedure 11(h) addresses motions to
withdraw guilty pleas. Under Rule 11(h)(2), the court must grant a presentencing motion
28 See United States v. Gonzalez, 113 F.3d 1026, 1029 (9th Cir. 1997)
(holding that, when trial court questioned defendant's attorney about merits of
defendant's claim that plea was coerced, defendant's Sixth Amendment rights were
violated because "the court invited [the attorney] to contradict his client and to
undermine his veracity, [and the defendant] in effect 'was left to fend for himself,
without representation by counsel' " (emphasis omitted)); United States v.
Sanchez-Barreto, 93 F.3d 17, 22 (1st Cir. 1996) ("[T]he views expressed by [defense
counsel] at the plea-withdrawal hearing directly contradicted the position advocated by
[the defendant] in the pro se motion to withdraw his guilty plea. Thus, the . . . hearing
record leaves no doubt that [the defendant] was left to fend for himself, without
representationby counsel."(emphasis omitted)); United States v.Ellison , 798 F.2d 1102,
1106-08 (7th Cir. 1986) ("[D]efendant was effectively without counsel atthehearing and
was forced to present his motion without the assistance of counsel. Defendant's
testimony was unclear and, because he was without counsel, there was no
cross-examination of his attorney. Thus, defendant not only was without conflict-free
representation at the hearing but also was in effect without the assistance of counsel at
all . . . ."); Carey v. State , 902 P.2d 1116, 1118 (Okla. Crim. App. 1995) ("Petitioner's
interests at the evidentiary hearing were to testify against his lawyer to establish that his
guilty plea was given involuntarily . . . . During the evidentiary hearing, Petitioner had
no attorney taking part in promoting his interests which were in actual conflict with the
interests of [his attorney]. An attorney representing Petitioner's interests would have
placed [his attorney] under cross-examination. Petitioner's own appointed defense
counsel acted as his adversary.").
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to withdraw a guilty plea if "withdrawal is necessary to correct manifest injustice," but
the court may grant the motion for "any fair and just reason" provided that the
prosecution has not been substantially prejudiced. Under Rule 11(h)(3), in contrast, a
defendant may withdraw a guilty plea after sentencing only through an application for
post-conviction relief, which may be granted only if the defendant proves that
29 Given the
"withdrawal [of the plea] is necessary to correct a manifest injustice."
significantly higher burden post-sentencing, the appointment of conflict counsel only for
purposes of appeal and post-conviction relief cannot make up for a lack of conflict
counsel before sentencing.
In its helpful amicus brief, the Public Defender Agency explains that the
Agency and OPA "have a system in place for dealing with the imputation of conflicts
[30]
[from one Agency attorney to others in the Agency] under Richard B. " but that "the
system broke down in this case." According to the Agency, "[w]hen a client wants to
withdraw his plea prior to sentencing, the Agency transfers the case to OPA for the
limited purpose of representing the client on that issue." If the client abandons the
motion or loses it, then "the Agency will take the case back from OPA and reassign it to
the original trial attorney." But if "the client pursues his motion and wins," then "the
Agency will take the case back and assign it to a new attorney." In any scenario, the
client's expressed wish to withdraw the plea prompts a change in counsel for purposes
of litigating at least that issue. As explained, the system appears to be consistent with the
per se approach and demonstrates the approach's feasibility in practice.
29 See AS 12.72.010-.040.
30
Richard B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 71 P.3d 811, 822-23 (Alaska 2003).
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We hold that a defendant is entitled to conflict counsel immediately after
raising an ineffective assistance of counsel claimin the context of an attempt to withdraw
a plea.
C. Reversal For Reconsideration Of The Plea-Withdrawal Motion Is
Automatic Under These Circumstances.
Nelson argues that because his ineffective assistance claims were not
investigated by a conflict-free attorney, we should presume prejudice - and that,
because the superior court was aware of the conflict but failed to remedy the situation,
reversal should be automatic. This is consistent with our case law. In Risher v. State we
noted that "where there is ineffective assistance of counsel due to the deliberate conduct
of the trial judge, as in the appointment of counsel where there is a known conflict of
31
interest, the deterrence rationale remains applicable, and reversal will be automatic."
Here the superior court did not "appoint" counsel known to have a conflict of interest (as
the conflict arose some time after the appointment), but the court accurately identified
the conflict and yet failed to appoint conflict counsel except for purposes of post-
conviction relief and appeal.
The United States Supreme Court has similarly held that "[i]n certain Sixth
Amendment contexts, prejudice is presumed. Actual or constructive denial of the
32 In the
assistance of counsel altogether is legally presumed to result in prejudice."
context of plea withdrawals specifically, "[t]he vast majority of courts that have
addressed the denial of the right to counsel at this critical stage in a criminal proceeding
have reversed and remanded to the trial court with instructions to appoint counsel and
31 523 P.2d 421, 425 n.19 (Alaska 1974) (citations omitted).
32 Strickland v. Washington, 466 U.S. 668, 692 (1984).
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33
conduct a new hearing." Consistent with Risher and the majority approach, we
presume prejudice in this case and remand for reconsideration of Nelson's plea-
withdrawal motion with the involvement of conflict counsel.
V. CONCLUSION
We REVERSE the decision of the court of appeals and REMAND to the
superior court for the appointment of conflict counsel and reconsideration of Nelson's
motion for withdrawal of his plea.
33 Fortson v. State, 532 S.E.2d 102, 105 & n.3 (Ga. 2000) (footnotes omitted).
-17- 7355
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