Brown v. State, 414 P.3d 660

Background

Rory Brown was convicted of sexual abuse of a minor and incest and sought a petition for hearing after the court of appeals affirmed his convictions.
Brown claims (1) his appellate counsel had a conflict/was ineffective and (2) Judge John Suddock, a pro tem appellate judge who had previously awarded Brown custody in related custody proceedings, should have been disqualified for bias; Brown received no pre-decisional notice of Suddock’s participation.
The State responded that both claims are more appropriately raised in Brown’s pending post-conviction relief (PCR) application and that factual disputes make PCR the suitable forum.
The court, following the State’s suggestion, denied Brown’s petition for hearing without deciding the bias claim on the merits, but indicated both claims may be resolved via the post-conviction process.
Justice Winfree concurred in part but dissented in part: he agreed ineffective-assistance-on-appeal belongs in PCR but argued the court should either decide the novel legal question about concealed panel membership and recusal or refer Brown’s petition to the court of appeals as a motion to recuse Judge Suddock.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate counsel had a conflict/was ineffective on appeal	Brown: appellate counsel was ineffective and had a conflict; claim should be reviewed now	State: claim can and should be raised in pending PCR where factual development is available	Court: Denied petition; agreed claim may be raised in PCR
Whether Judge Suddock should have been disqualified from the appellate panel for bias	Brown: Suddock was biased because he previously presided over custody of the same children and participation should have been disclosed and recused	State: Procedural route is PCR; factual issues complicate immediate review	Court: Denied petition; did not resolve bias claim on merits and suggested PCR process; Justice Winfree would have addressed or referred the recusal motion
Whether concealment (or lack of notice) of an appellate panel member deprives litigant of opportunity to seek recusal under AS 22.20.020(a)(9) and what the remedy is	Brown: Concealed identity of a panel member until decision deprived him of the opportunity to seek recusal, presenting a legal question of first impression	State: Prefer resolution in PCR; not for immediate supervisory review	Court: Did not decide; declined to take up question now and directed PCR route; Winfree urged direct consideration or referral
Appropriate procedural avenue for resolution and court’s duty to assist pro se litigant	Brown: As a self-represented litigant, he should receive procedural assistance and an avenue to raise the recusal claim now	State: PCR is the appropriate avenue; respondent implicitly argues no supervisory action required	Court: Denied petition but acknowledged PCR as proper forum; concurrence argued for court assistance and referral to allow a recusal motion to be considered sooner

Key Cases Cited

Wetherhorn v. Alaska Psychiatric Institute, 156 P.3d 371 (Alaska 2007) (standards on post-conviction relief and ineffective-assistance claims)
Lindeman v. State, 244 P.3d 1151 (Alaska App. 2011) (post-conviction reopening of appeal for ineffective assistance of appellate counsel)
Kaiser v. Sakata, 40 P.3d 800 (Alaska 2002) (court duty to assist pro se litigants by identifying proper procedures)
Luker v. Sykes, 357 P.3d 1191 (Alaska 2015) (statement on extrajudicial-bias requirement)
Jerry B. v. Sally B., 377 P.3d 916 (Alaska 2016) (recusal issues where judge’s prior involvement raises fairness concerns)
Grace L. v. State, Dep’t of Health & Soc. Servs., 329 P.3d 980 (Alaska 2014) (appearance of bias from a judge’s prior intrajudicial actions)
R.J.M. v. State, Dep’t of Health & Soc. Servs., 946 P.2d 855 (Alaska 1997) (recusal when judge presided over related proceedings)
Cook v. State, 36 P.3d 710 (Alaska App. 2001) (disqualification concerns when judge previously acted in related matters)