*1 рurposes, deny persons proposed adoption those ac- and whether the is in the practical judicial system. agree We cess best interests the minor.”14 necessarily Moore that “absence” statute, Professor adoption 20.15.100(j), is AS also to absence from the 100-mile radius. refers guardian for the provides appointment of a similarly persuaded by are the Second We person litem for a be who adopted ad to is a reasoning in Richmond v. Brooks Circuit’s minor.15 If trial court believes it is proceed by deposition the decision to necessary, provides Civil Rule 53 a mecha- utilize party qualified otherwise to whereby nism can appoint court mas- be 32(a)(3)(B) Civil Rule should within the to evidentiary hearing. ter conduct an Fi- of that party. Accordingly, sole discretion nally, should the trial court find that it is adopt interpretation given we Pro- personally essential that it observe de- Moore, fessor Richmond v. Brooks and its witness, meanor of the the court could hold progeny, and hold that the “unless” clause hearing or trial within a 100-mile radius 32(a)(3)(B) applies only where the Thus, of the witness’ we residence. con- party offering deposition causes a wit- nothing clude that non-adversarial ness, including party, go to outside a particular proceed- nature of these adoption of the place 100-mile radius trial or hear- ings special or the court’s duty respect Thus, ing. it is the task of the trial court to welfare children domiciled in Alas- make the factual determinations with re- precludes given ka the interpretation Civil rule, but if spect use of 32(a)(3)(B) today. previously finds conditions enumerated proceedings Reversed and remanded for satisfied, party to have been must be opinion. in accordance with this the deposition. allowed utilize We thus the superior conclude that court’s orders J., ERWIN, participating. denying proceed the A’s and W’s motions to by deposition constituted error. 20.15.120(a)
We note also that AS
provides: of the presence petitioner and the adopted
person required on the hearing petition unless ordered
by the court. provision presumptive- While this is worded David D. LEWIS ly in favor of the of the it parties, absence for allows discretion on the court. In situations covered Civil Rule STATE of Alaska. 32(a)(3)(B), today’s will significant- decision No. 2603.
ly circumscribe the statutory discretion of Nevertheless, the court. we think that the Alaska. duty court’s to render decisions in the best person interests of the to bе adopted13 June 1977. impinged upon. 20.15.100(d) pro- AS procedure by vides a the Department
of Health and qual- Social Services other person agency
ified conduct an in-
vestigation to ascertain “whether adop- home
tive is a suitable home the minor 20.15.120(c). generally opinion Veazey Veazey, AS See DeHart v. 15. Our P.2d Layman, (Alaska 1977), extensively deals with the guardian duties of the litem. ad cases, superior these court entered providing investigations. orders for these
§47 Weidner, Miracle, *3 Phillip P. J. Barbara Defenders, Asst. Public and Brian C. Shor- ten, Defender, Anchorage, Public for appel- lant. Anderson,
Glen C. Asst. Dist. Atty., Jo- Balfe, D. seph Atty., Anchorage, Dist. and Gross, Gen., Juneau, Avrum M. Atty. appellee.
OPINION J., BOOCHEVER, Before C. and RABI- NOWITZ, CONNOR, BURKE, ERWIN and JJ.
CONNOR, Justice.
Pursuant to a bargain, on July 1974, David D. Lewis pleaded guilty to re- ceiving and concealing property, stolen carrying a weapon, operating concealed and a motor vehicle while Imposi- intoxicated. suspended, tion sentence was and he was placed on probation.
I later, April Almost on ten months 1975, Lewis moved to vacate his convictions on pleas1 and withdraw trial court had not ground followed procedure specified Criminal Rule 11 guilty pleas were to insure that know- voluntary. and ing charge receiving and On concealing property, exchange stolen among the court, Lewis, Mr. his counsel was as follows: “THE Is your COURT: client ready to enter a at this time informa- tion? Yes, is,
MR. WEIDNER: he Your Hon- or. It is my understanding wishes to enter a of guilty to the information charged. as goes receiving 1. The motion concealing weapon charges, and concealed charge. the OMVI House, Inc. program Mr. Lewis. Future right, All THE COURT: you to the information if fail you plead you How do understand that Now filed with receiv- just charging you before you’re going to be back concealing property? stolen ing for sentencing? Honor. Guilty,
MR. LEWIS:
Your
Yes,
Honor.”
MR. LEWIS:
Your
now. The
right,
THE COURT: All
carrying
a concealed
On
are
i?
you
pleading
reason
follows:
proceedings
were as
weapon,
are,
fact,
you
guilty.
because
II,
“THE COURT: Now as
Count
Yes,
Honor.
MR. LEWIS:
Your
change your plea.
you
understand
wish to
rea-
There’s no other
THE COURT:
II?
as to Count
you plead
How do
now
your
you fully
Do
understand
son?
Honor.
Your
Guilty,
MR. LEWIS:
trial,
right
to a
right
jury
—
II
All
on Count
right,
THE COURT:
witnesses,
confronted
*4
going
not
you guilty
find
and I’m
I’ll
counsel and so forth?
The state’s
through your
again.
Yes, Your Honor.
MR. LEWIS:
imposi-
was
suspended
recommendation
a
by
represented
THE COURT: You’re
months?
tion for six
he
counsel.
satisfied
competent
you
Are
correct,
That’s
Your
MR. AGI:
Honor.”
rights,
his
Mr. Weidner?
understands
The state concedes that
am,
Yes,
Your Hon-
MR. WEIDNER:
the procedure specified
court did not follow
or.
however,
argues,
It
11(c).2
Rule
that
the
to
going
All
I’m
right.
THE COURT:
harmless and
Lewis does not
error was
that
in accord-
guilty
find you
follow the —I’ll
injustice required
the
demonstrate
manifest
year
one
plea
with
and order
your
ance
32(d)(1)
Rule
for a withdrawal
by Criminal
on the
sentence
imposition of
suspended
plea.3
hearing
After a
at which
successfully complete
guilty
of a
you
that
condition
(ii)
necessary
is
11(c) provides:
Withdrawal
to correct a
Rule
2. Criminal
injustice whenever the defendant
manifest
Guilty
(c)
The
or
Pleas of
Nolo Contendere.
that:
demonstrates
accept
guilty
plea
or nolo
of
not
a
court shall
contendere
addressing
(aa)
denied
assistance
He was
the effective
without first
from a defendant
constitution,
guaranteed
by
personally
counsel
to him
and
of
the defendant
rule, or
determining
the
statute or
(1)
he understands
that
(bb)
plea
charge;
was
or ratified
The
not entered
the
and
of
nature
guilty
by
plea
person
informing
by
(2)
him
his
or а
authorized to so
that
the defendant
right
behalf,
trial
to
he waives
or
nolo contendere
act in his
or
by judge
to be
jury
involuntary,
a
(cc)
plea
trial
or
or was en-
him;
against
charge
the witnesses
knowledge
confronted
and
the
or
tered without
that
actually
imposed
sentence
could be
the
informing
(3)
(i)
him:
imposed, or
punish-
mandatory
minimum
the
(dd)
charge
He
or sen-
did
receive the
pun-
possible
ment,
any, and the maximum
if
plea
contemplated
tence concessions
defining
provided
the statute
ishment
agreement, and
offered,
plea
and
is
to which the
offеnse
(A)
prosecuting attorney
seek
failed to
right to
(ii)
has the
the defendant
opposed
promised
or
concessions
plea
persist
if it
plead
guilty
in that
or to
plea agreement or
guilty.
made,
plead
already
to
been
or
has
(B)
being
no
after
that the court
advised
upon
longer
being
concurred and
32(d) provides
pertinent
after
called
Rule
3. Criminal
plea,
withdraw
to affirm or
he did
as follows:
plea.
affirm his
(d)
Withdrawal.
Plea
(iii)
may
The defendant
move for with-
to
(1)
defendant
The court shall allow the
alleging
is inno-
of his
drawal
cent of the
without
guilty
conten-
nоlo
withdraw his
plea has been
to which the
timely
defendant, upon a
dere whenever
motion
entered.
withdrawal, proves
with-
(2)
accepted
has been
injus-
Once
necessary
manifest
drawal is
to correct
showing
a
withdrawal
and absent
court
is
tice.
injustice,
necessary
timely
to correct a manifest
and
(i)
foi
is
A motion
plea of
subsequent
not withdraw his
defendant
not barred because made
right.
guilty
matter of
or nolo contendere as a
judgment
with due
if it is made
sentence
diligence.
Weidner,
appealable
a witness Mr.
order.
In this
called as
state of the rec-
state
the time he entered the
counsel at
ord,
Lewis’
Ap-
we will exercise our power under
the court denied the motion.
pleas,4
pellate Rule 46 to relax our rules in the
from denial of the motion.
appeals
Lewis
justice.
interest of
McCracken
P.2d 269
the state asserts that
Preliminarily,
13, 1975,
timely.
June
is not
On
appeal
urges
The state
us to
affirm
denied Lewis’ motion.
orally
trial court
against
court’s decision
Lewis because he
trial court
indicate that
records of the
diligence
pursuing
did not act with due
(the
cases 73-635
re-
the decision covered
post-conviction
remedies.
ten
Nearly
ceiving
concealing charge)
and
and 74-2695
months elapsed
guilty pleas
between his
weapon charge). On June
(the concealed
filing
of the motion to withdraw
again orally denied the motion
32(d)(l)(i)
them. Criminal Rule
states that:
July
in case number 73-635. On
“A
motion for withdrawal
plea]
[of
order,
June 26
appeal
filed an
from the
timely
.
.
if
.
it is made with due
cases 73-635 and 74-
appeal
purported
diligence.”
concealing
receiving
both the
By July
convictions.
weapon
the concealed
Whether or not Lewis acted with suffi-
period
aрpeal
30-day
cient diligence
satisfy
question
expired.
had
order entered on June 13
address,
which we do not
we note that his
motion is
35(b),
also based on Criminal Rule
appeal
respect
We consider
*5
provides
post-conviction
which
for
relief.
far from
The record is
to both convictions.
35(d) permits
post-conviction
Rule
a
relief
relationship
between
concerning
clear
proceeding
any
to be commenced at
time.
26 orders.
the June 13 and June
Counsel
32,
principally
relied
on Rule
rather
good
could
faith
have believed
proceedings below,
order
final and
than Rule
of the 26th was
but
Hellen,
counsel,
objected
to all of
This case differs from Flores
Lewis’
Mr.
475
testimony
attorney-
Weidner’s
based on the
P.2d 37
Flores filed a motion
privilege.
objection
post-conviction
alleging
client
The
was overruled.
relief
ineffective as-
Weidner,
testimony,
during
course of his
sistance of counsel. The trial
court and his
questions
type
refused to answer
about the
new counsel both told him that he must either
clients,
generally gives
again
attorney-client privilege
advice he
in-
waive the
have
voking
privilege.
cоurt
The
sustained his
motion denied. He refused to waive. We held
voluntarily
refusal to answer.
that he had
abandoned his claim of
Lewis,
ineffective assistance.
case,
in the instant
party
point
appeal,
Neither
discusses the
on
expressly
did not
refuse to waive the
but we take this occasion to note that Lewis
manner,
privilege in
not
and the state does
privilege
respect
waived the
to his discus
prejudiced
it was
because he was
assert
by filing
sions with Weidner
the motion which
put
not
to the choice.
put
on its face
in issue what advice he did or
hand,
the othеr
Lewis’ waiver did not
On
did not receive from Weidner. See State v.
concerning
Bastedo,
extend to
the ad-
the information
253 Iowa
111 N.W.2d
260
ordinarily gives
(1961);
his clients.
Peyton,
vice which Weidner
F.Supp.
Pruitt v.
909
require
(E.D.Va.1965);
Wigmore,
Waiver
lawyer
one client is insufficient to
8 J.
Evidence
§
questions.
trial
(McNaughton
to answer such
at 638
rev.
Since the
court, therefore,
ruling
privilege belongs
was correct in
that the
to the client and not the attor
ney,
privilege protected
though
to answer
it was
Weidner’s refusal
waived even
Weidner was
attorney
questions.
not the
these
who filed the motion on Lewis’
id,
phy
purpose
behalf. See
differences between
2327. The
Because of the
§§
attorney-client privileges,
implying
sician-patient
the rule
waiver in this
situation is
essentially
greater
opposing party—
with which
latter
fairness to the
solicitude
here,
emphasize
permitted
privilege
regarded,
the state. Lewis
we
that it is
cannot be
put
issue,
motion,
filing
his discussions with counsel in
but the actual
then
not the mere
placing
deny
proba
to the state the evidence which is
in issue of confidences covered
bly
probative
Pruitt,
question.
attorney-client
privilege,
privi
most
on thе
waives the
supra
909;
Court,
Therefore,
Superior
lege.
physi
at
Merritt v.
9 Cal.
our discussion of
App.3d
Cal.Rptr. 337,
(1970).
cian-patient privilege
342-43
in Trans-World Invest
generaily Comment,
Drobny,
(Alaska 1976),
See
on
ments v.
35. Since While a motion to withdraw a guilty plea court, the trial court ad- 32(d)(1) to Rule must be pursuant made contentions, noth- dressed the merits of his diligence,” “due a defendant can also by our attention ing gained would be guilty plea seek to withdraw his in a post- we issue under Rule and so timeliness proceeding conviction relief under Rule to the merits. proceeded doing here. As we 35(b), as Lewis have above, 35(d) explicitly provides Rule
noted
proceeding may
instituted at
that such
II
If
rule
any time.
werе
trial court did
Lewis contends that
who knew that
adopted, a defendant
Rule
11(c),
comply
with Criminal
with in his
11(c)
complied
had not been
case
judge
that the
address the defend-
requires
before
years
filing
could wait for months
whether
personally
ant
to determine
relief.
post-conviction
action for
He
an
the nature of
defendant understands
then withdraw
could
that the record
charge. The state concedes
take his case to
the state to
trial
require
11(c),
compliance
with Rule
does
reflect
key
when
witnesses cannot be locat-
a time
af-
аrgues
that we should nevertheless
This,
and memories have faded.
ed
we
firm the trial court because the error
believe,
is far too drastic
sanction when
harmless.
11(c)
is not major.
the violation
United States
should not be
opinion
interpret
This
held that a failure of the trial court to
has
judges
as
indication
ed
that we
in Federal
procedure specified
follow the
compliance
with Rule 11(c)
do
consider
*6
11(c), similar to
Rule of Criminal Procedure
reiterate
important. We
what we have said
se
number,
per
is
our rule of that same
compliance
11(c)
before —that
with Rule
is
McCarthy v. United
reversible
error.
necessary to insure that a defendant who is
States,
459, 468-72,
1166,
89
394 U.S.
S.Ct.
is
pleading guilty
aware of the nature of
418,
426-29
22 L.Ed.2d
charges against
him and
possible
believe, however,
adoption
that
of such
We
of
consequences
plea,
both the rights he
se rule is
and that
unnecessary
giving up
and the sentence he
re
may
consequences
type
of this
of error would
g.
State,
ceive. E. Barrett v.
When this, Recognizing criminal de- experienced companied by drafters of the Uni- the court that assured form Rules of attorney fense who Criminal Procedure would with Lewis apply he had discussed rule of automatic re- knowingly pleading that Lewis was if versal accepted was with- “[t]he never made attorney Yet his competently. compliance” out substantial with their the proce- his belief known to the court 11(c). of Rule equivalent Uniform Rule of being followed. 11(c)were dures 444(e)(2)(i) (1974) (em- Criminal Procedure court would have so, the trial Had he done added); Comment, phasis see id. at 189. the error at to correct opportunity had the expense reasons, of this time and we have once, and the For these deter have been might proceeding of Criminal collateral mined to treat violatiоns Rule would be expense time and 11(c) avoided. as other in the same manner errors apply McCarthy were we greater far of constitutional dimension8—reversi for further remand reverse and rule and if affect substantial they ble justice would system proceedings. the defendant. permitted by a rule be ill served whether, We now consider instant counsel to obtain with skilled defendants case, 11(c) Rule violation of Criminal the fact for long after automatic reversals harmless error. was could have presumably errors which counsel speaking up.7 prevented merеly by complains emphasize every defendant 11(c) We questioning court violated Rule courts, fairly by the is entitled to be treated understanding concerning him to have his opportunity and is entitled to an rights he was charges nature of the Yet courts allegations of error considered. him the up, informing and not giving recognized have that a defendant is long punishment pro maximum and minimum not entitled to an automatic reversal on he appeal, vided law. In his brief on appeal when the commits any trial court pleaded guilty he have suggests that error, however whether or not he slight and brother, protect who had been either State, prejudiced g. Wright it. E. co-defendant, entry or to obtain named as a 1972); 501 P.2d (Alaska Love v. program. into a treatment Yet drug never asserts this as a fact. His actually 47(a) Criminal provides: supported motion to withdraw the
(a)
error, defect,
Harmless
Any
Error.
else,
affidavits,
anyone
no
from Lewis or
irregularity or variance which does not
testimony at the
presented
and he
no oral
*7
rights
affect substantial
shall be disre-
motion. The statement
hearing on the
garded.
negative:
the brief is framed as a double
“Thus,
nothing to indicate that
Finally, we note that at the time of the
there is
decision,
of a factual basis
11(c)
pled
rule
David
not because
federal
either,
much
his brother
guilt
protect
less
the federal
but to
detailed than
receiving
concealing
or the
today.
opportuni-
admitting
Alaska rule is
The
to
understand,
clear,
harmless,
and to
ty
good-faith
viola-
information he didn’t
problems.”
help
personal
tions of the
courts is much
for his
rule
trial
secure
Nevertheless,
State,
1976),
(concurring opinion).
(Alaska
it
In Else v.
ing McCarthy se reversible pleaded Lewis error, felony. He which we have declined to do. had originally been indicted for burglary Moreover, difficulty we have some relat- a dwelling. As of the plea bargain, 11(c) ing types the violations of Rule to the the indictment was dismissed and Lewis Lewis claimed to prejudice suffer. A pled guilty to an information charging re- plea agreement negotiated; had been had ceiving concealing. He claims on ap- judge refused to sentence him in ac- peal that he was denied his right under Art. agreement, cordance with that he could I, 8 of the state Section Constitution to be have withdrawn his of guilty. Crimi- grand indicted jury. 11(e)(4). nal Rule Hence the maximum statute penalty prescribed by was irrele- We do not consider this conten insisting vant. Far from on a detailed ex- tion, Lewis because raises it for the first of the planation charge, elements of the appeal. below, time on In the court reading Lewis’ counsel waived the never asserted that his right to indictment information and immediately thereafter no- been only had violated. The mention of tified the prepared court that Lewis was this issue in the record is in the state’s plead. Lewis then assured court that answer to his motion to withdraw his reason he was pleading guilty was There, plea for other reasons. the state that he was in fact His guilty. counsel told noted that Lewis should be held to have the court he was satisfied that Lewis under- waived many rights, including rights. stood his rights indictment as well as the other claimed to have been denied. Pursuant to only speculate We can about the our usual we will practice, not address on possible prejudice suffered, Lewis may have appeal presented issues not relationship and its to the violations of Rule See, g., court. e. Lumbermens Mutual Cas. 11(c). record, On this we have concluded Co., P.2d Co. v. Continental Cas. Lewis’ substantial were not af purpose of this rule was, therefore, fected and that the error presented if the issue was served harmless. decision in an below for adversari In addition to presenting argu al in a substantially context and form simi ments based on Rule Lewis contends lar to in which it is presented us. that he process was denied due of law purpose meaningful is to allow initial *8 applies only petitioner 9. This is in with the accord rule which state after the had made an post-conviction proceedings generally, evidentiary that showing extensive of diminished petitioner alleging the proving by preponderance has the burden of capacity pleading guilty. mental at the time of a of the evidence the point, At that the state had the burden of dem- necessary facts to set aside the conviction. onstrating that the error was harmless. In the State, 231, (Alaska Merrill v. 457 P.2d 234 case, instant Lewis has not carried his initial 1969). proof imposed by burden of 32(d)(1). Criminal Ingram (Alaska In v. 163 1969), proof the burden of was shifted to the a guilty рlea truly consideration of the issue the trial court. defendant’s volun- Brandt, Maloney (7th Second, 123 F.2d the Rule is intended to tary. Cir. Mere mention of the issue produce complete a record at the time the opposing party apparent the out of an is entered of the factors relevant to of caution is abundance not sufficient to Thus, this voluntariness determination. requirement. meet this meticulously the Rule is ad- the more to, discourage, hered the more it tends to AFFIRMED. expeditious or at least to enable more of, disposition the numerous and often RABINOWITZ,Justiсe, with whom BOO- post-conviction frivolous attacks on the CHEVER, Justice, joins, dissenting. Chief validity guilty pleas. constitutional of agree majority’s rejec- cannot with the By . the personally interrogating espoused tion of the rule the Supreme defendant, not will the only judge be Court of the in McCarthy United States better able the plea’s to ascertain volun- States, United 394 U.S. 89 S.Ct. tariness, develop he also will a more (1969). Supreme L.Ed.2d 418 There the complete support record to determina- Court held that a failure on the trial court’s subsequent post-conviction tion at- comply sрecified proce- with the (footnotes omitted) tack.2 dures of Rule Federal Rules of Criminal adopted by majority The rule under- Procedure was se reversible error per enti- cuts the dual rationales of Rule 11 and does tling the defendant to anew. Essen- plead much denigrate importance of com- tially for the reasons advanced Chief pliance by judges Alaska’s trial with Rule Warren, Justice that persuaded I am rule, 11. adopting per Instead of se adoption se rule for McCarthy majority has decided that the consequences violations of Alaska’s Criminal Rule 11 is of flowing non-compliance error from preferable majority’s approach Rule 11 should be on case-by- considered case at bar and overall would have had a basis, ease reversible if such error af- more salutary effect on the administration rights fects “substantial” of the defendant. justice of in Alaska. view, In my majority's test not In McCarthy argued government signals to the trial bench that this court will despite the of Rule express directives 11 the upon “ not insist strict adherence to the man- District assume properly ‘could date of Rule 11 but will undoubtedly result the petitioner entering with a in more post-conviction numerous attacks in complete understanding ” the future on obtained after convictions against (emphasis original)1 him.’ pleas or nolo contendere have been rejecting this argument, Supreme Court entered. noted posi- that to accept government’s tion would require ignoring pur- two Further, I think the majority’s test miss- poses of Regarding pur- Rule 11. the dual impos- es the central focus of Rule 11 which poses Court stated: court, counsel, upon es duty personally addressing the defendant
First, although procedure embodied advising specified him of certain in Rule 11 has not been held to be consti- mandated, tutionally it order to ascertain voluntariness of designed to as- sist the judge making district the con- in the context of the accused’s stitutionally required relinquishment important determination that constitutional States, 459, 464, v. United 394 U.S. Id. at 22 L.Ed.2d at S.Ct. 1166, 1170, 89 S.Ct. 22 L.Ed.2d 424-25. *9 Thus, presence4 my opinion, in rights.3 R.D.S.M, Appellant, Matter of to- In the should be counsel of defense actions inquiry fact in an after the irrelevant
tally v. any focus of proper voluntariness. into OFFICER, INTAKE State pf the be an evaluation must inquiry such Alaska, Appellee. the standard of against court’s actions No. 2821. in Rule ll.5 its duties established Supreme Court of Alaska. state has conceded at bar the In the case July proce- follow the did not the trial court this 11(c). Given in Rule specified dures the record
concession, would hold that compliance
fails to show substantial the convictions in therefore and vacated, must
question, opportu- permitted, guilty pleas pro- further trial and pleading for new
nity
ceedings given.
Court,
Supreme
referring
4. See Else v.
in
to the two
3. The
J.,
purposes
McCarthy
(Alaska 1976) (Rabinowitz,
concurring).
that:
stated in
genesis
purposes
have their
These two
rule,
formulating
Suрreme
guilty plea.
its
se
A
who
the nature of a
defendant
simultaneously
McCarthy
approval
waives
enters such a
cited
including
rights,
constitutional
opinion
several
in Heiden v. United
Ninth Circuit’s
compulsory
privilege against
tion,
self-incrimina-
States,
(9th
par-
More
353 F.2d
Cir.
right
by jury,
right
to trial
ticularly,
Court said:
For this waiver to be
confront his accusers.
designed
any
Rule 11 is
to eliminate
need
Clause,
under the Due Process
it must
valid
be ‘an
ment of a known
fact-finding proceeding
to resort to a later
‘in
relinquishment
intentional
or abandon-
highly subjective
Heiden Unit-
area.’
privilege.’
Johnson
States, supra,
‘cоntem-
ed
at 55. The Rule
Zerbst,
304 U.S.
58 S.Ct.
understanding
plates
disputes
as to the
1461, 1466,
(1938).