285 P.3d 295
Alaska Ct. App.2012Background
- Harvey, convicted of sexual-abuse offenses, was represented by privately retained counsel Wiggins in the trial court only.
- Wiggins’s retainer stated he did not handle appeals, creating a potential gap if Harvey pursued post-judgment relief.
- Harvey sought post-conviction relief alleging ineffective assistance due to lack of meaningful consultation about post-judgment remedies after sentencing.
- Gernat (ADAs) had previously promised a sentencing recommendation no more than six years, but Harvey ultimately received seven years.
- At sentencing, Wiggins allegedly indicated a possible ground for appeal, yet he did not file or pursue an appeal, and he advised Harvey to contact the Public Defender when considering post-judgment relief.
- Superior Court found no reasonable expectation of an appeal and that Wiggins’s role ended with trial representation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Flores-Ortega apply to privately retained counsel? | Harvey argues Flores-Ortega governs all trial counsel, including private retainers. | Wiggins contends Flores-Ortega should be limited to certain attorney-circumstances and not universally applied to private counsel. | Flores-Ortega applies to privately retained counsel. |
| Did Wiggins have a duty to meaningfully consult about post-judgment remedies? | Harvey asserts a duty to discuss appeal options, likelihood of success, and consequences. | Wiggins posits no duty beyond informing Harvey of a right to appeal. | Wiggins violated the duty to meaningfully consult Harvey about post-judgment remedies. |
| Was there a duty to preserve Harvey's appellate rights after sentencing? | Harvey needed steps (e.g., filing a notice of appeal) to protect rights if not yet with substitute counsel. | No duty to preserve appeal rights unless an appeal would be pursued with other counsel. | There is a duty to preserve appellate rights when a defendant may want to appeal and lacks substitute counsel. |
| What remedy is appropriate for the Flores-Ortega violation? | Harvey should be placed back to the post-judgment status and allowed to consult an attorney and pursue appeal or other remedies. | No further relief beyond addressing the alleged ineffective assistance. | Harvey is entitled to return to status quo ante, with opportunity to consult counsel and pursue post-judgment remedies. |
Key Cases Cited
- Roe v. Flores-Ortega, 528 U.S. 470 (U.S. Supreme Court 2000) (two Flores-Ortega criteria for duty to consult)
- Santobello v. New York, 404 U.S. 257 (U.S. Supreme Court 1971) (government promise to recommend sentence; enforceability)
- Puckett v. United States, 556 U.S. 129 (U.S. Supreme Court 2009) (specific performance when government fails to honor plea promises)
- Hiatt v. Clark, 194 S.W.3d 324 (Ky. 2006) (private counsel duties to cooperate with post-conviction claims)
- Commonwealth v. Ross, 289 Pa. Super. 104, 432 A.2d 1073 (Pa. Super. 1981) (duty to protect defendant's right of appeal may extend to preserving the appeal)
- Raney v. State, 986 So.2d 468 (Ala. Crim. App. 2007) (Flores-Ortega standard applied to privately retained counsel)