Opinion
Court of Appeals No. A-9941.
April 15, 2009.
Appeal from the Superior Court, Third Judicial District, Dillingham, Fred Torrisi, Judge, Trial Court No. 3DI-05-24 CI.
Joseph R. Faith, Dillingham, for Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Two Public Defender Agency attorneys represented James Alexie on separate charges of sexual assault and sexual abuse in Dillingham and Bethel at the same time that one of these attorneys represented M.G., the alleged victim in the Bethel case. The agency attorneys negotiated a joint plea and sentencing agreement covering both the Dillingham and Bethel cases. Alexie filed for post-conviction relief arguing that he had received ineffective assistance of counsel. The superior court dismissed the application. But we conclude that the defense attorneys' potential conflicts of interest raise a dispute sufficient to require further proceedings on Alexie's application for post-conviction relief.
Background
In the spring of 2003, James Alexie's three stepdaughters, M.G., V.N. and A.G. reported that Alexie had sexually assaulted them. V.N. reported that she had been sexually assaulted by Alexie at the family home near Dillingham during the summer of 2002. In June 2003, Alexie was indicted in Dillingham for one count of second-degree sexual assault for his alleged conduct against V.N. and one count of second-degree sexual abuse of a minor for misconduct allegedly committed against her sister, A.G., in March 1989. Assistant Public Defender Steven Wells was assigned to represent Alexie in the Dillingham case.
AS 11.41.420(a)(3)(B).
AS 11.41.436(a)(1).
M.G. reported that Alexie had sexually assaulted her in the summer of 1999 and again in the spring of 2000, while they were living in Atmautluak. In July 2003, Alexie was indicted in Bethel for four counts of second-degree sexual assault for his alleged misconduct involving M.G. Assistant Public Defender Marvin Hamilton was assigned to represent Alexie on the Bethel charges.
AS 11.41.420(a)(3)(B) (C).
Eventually, Wells and Hamilton negotiated a plea and sentence bargain with the State that covered both the Dillingham and Bethel cases. In the Dillingham case, Alexie agreed to plead no contest to the charge of sexual assault in the second degree in return for a sentence including 2 years to serve and the State's agreement to dismiss the charge of sexual abuse of a minor. On March 16, 2004, Alexie was sentenced to a term of 6 years' imprisonment with 4 years suspended.
Alexie also agreed to plead no contest to one count of second-degree sexual assault in the Bethel case. The Bethel judge sentenced Alexie to 6 years' imprisonment with 4 years suspended, to be served consecutively to the sentence in the Dillingham case.
In February 2005, Alexie filed an application for post-conviction relief seeking to withdraw his plea of no contest in the Dillingham case. His amended application alleged that his attorneys at his Dillingham change-of-plea hearing were ineffective by failing to provide him with a Yup'ik interpreter. Alexie also alleged that his public defenders in the Dillingham case had conflicts of interest that they failed to disclose.
The State filed a motion to dismiss Alexie's application, contending that he had failed to plead a prima facie case for relief. The trial court treated the motion to dismiss Alexie's application as a motion for summary disposition and dismissed the application (with the exception of one claim related to the sentencing hearing). Alexie now appeals to this court.
The State's motion to dismiss relied on considerable material outside the application for post-conviction relief, so Judge Torrisi properly treated the motion as a motion for summary disposition. A motion for summary disposition under Alaska Criminal Rule 35.1(f)(3) is substantially identical to an Alaska Civil Rule 56 motion for summary judgment. The court may grant a summary disposition of an application for post-conviction relief if "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." In other words, Alexie's only burden under Criminal Rule 35.1(f)(3) was to raise a genuine issue of material fact requiring a hearing. We review this type of order de novo, viewing the evidence and all reasonable inferences in the light most favorable to the non-moving party. Alexie's Attorneys May Have Had A Conflict of Interest.
See Phillips v. Gieringer, 108 P.3d 889, 892 (Alaska 2005) (holding that under Alaska Civil Rule 12(b), if the court does not exclude materials outside of the pleading when deciding a motion to dismiss, the motion is treated as a motion for summary judgment).
State v. Jones, 759 P.2d 558, 566 (Alaska App. 1988).
Cf. Wasser Winters Co. v. Ritchie Bros. Auctioneers (Am.), Inc., 185 P.3d 73, 77 (Alaska 2008) (reviewing summary judgment granted under Civil Rule 56).
The right to effective assistance of counsel protected by the Alaska and United States Constitutions includes the right to an attorney "undeflected by conflicting consideration[s]." Under Alaska law, the conflict that arises when a law firm represents codefendants in the same criminal case is especially serious, and may be considered an "inherent" conflict of interest. As we have noted before, this type of conflict
Risher v. State, 523 P.2d 421, 424 (Alaska 1974).
Moreau v. State, 588 P.2d 275, 284 (Alaska 1978); State v. Celikoski, 866 P.2d 139, 141-42 (Alaska App. 1994).
potentially infects every major aspect of the representation: planning the defense strategy, investigating the case, deciding whether to seek or accept a negotiated settlement, deciding how to present and argue the case, and (if the client is convicted) deciding how to approach sentencing.
Newby v. State, 967 P.2d 1008, 1013 (Alaska App. 1998).
The defendant is entitled to relief from an inherent conflict of interest unless he waives the conflict or the prosecution proves the absence of prejudice beyond a reasonable doubt.
Moreau, 588 P.2d at 284; Celikoski, 866 P.2d at 142.
Similarly, many courts have held that a law firm has an inherent conflict of interest when it simultaneously represents both a criminal defendant and an alleged victim or a key prosecution witness. This is the potential problem in Alexie's case.
See People v. Spreitzer, 525 N.E.2d 30, 34-35 (Ill. 1988) (listing cases); Austin v. State, 609 A.2d 728, 734-35 (Md. 1992) (listing cases); Littlejohn v. State, 593 So. 2d 20, 22-23 (Miss. 1992); State ex rel. S.G., 814 A.2d 612, 618 (N.J. 2003); see also Restatement (Third) of the Law Governing Lawyers § 129 cmt. d, reporter's note (2000) ("The rule that a defense lawyer may not simultaneously represent the prosecutor or a prosecution witness is well settled and has been applied in cases where no actual prejudice to the defendant has been shown." (citations omitted)).
Alexie has raised factual disputes that suggest that he may be able to establish this type of inherent conflict of interest in two ways. First, Alexie may be able to establish that Wells had an inherent conflict arising from the fact that M.G. was apparently a key prosecution witness in the Dillingham case. As noted above, Wells represented Alexie in the Dillingham case where M.G.'s sisters were the complaining witnesses. Wells also represented M.G. in unrelated misdemeanor cases. If Alexie's Dillingham case had gone to trial, then the State could likely have called M.G. as a witness to describe Alexie's assaults against her.
See A. R. E. 404(b)(3) (4).
But Wells could not use any confidential information he received from M.G. for cross-examination or to otherwise impeach her credibility. And Wells could have been required by his loyalty to M.G. to avoid discovery disputes and litigation positions that would involve an attack against her. Consequently, if Alexie's case had gone to trial, Wells's representation of Alexie may have been materially limited by his concurrent representation of M.G.
See Alaska R. Prof. Conduct 1.6(a).
Alaska Rule of Professional Conduct 1.7(b) provides:
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by thelawyer's own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
Secondly, Alexie may be able to establish an inherent conflict of interest arising from the fact that Wells and Hamilton both worked for the Alaska Public Defender Agency. As noted above, Hamilton represented Alexie in the Bethel case where M.G. was the alleged victim. Wells and Hamilton worked together to negotiate a plea and sentence bargain that covered both cases. Hamilton also assisted Alexie with the change-of-plea hearing in the Dillingham case. Hamilton's representation of Alexie was directly adverse to M.G. who was also a client of the Public Defender Agency.
See Alaska R. Prof. Conduct 1.7(a) ("A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation."); see also Alaska R. Prof. Conduct 1.7 cont., para. 2 ("[A] lawyer ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is wholly unrelated.").
The general rule is that when one lawyer of a firm is prohibited from representing a client, all of the other lawyers at the firm are also prohibited from doing so. In other words, if two lawyers working for the Public Defender Agency are considered to be lawyers in the "same firm" for purposes of this conflict-of-interest rule, it may have been improper for Hamilton to represent Alexie at the same time that Wells was representing M.G., the alleged victim in the Bethel case.
See Alaska R. Prof. Conduct 1.10(a); Richard B. v. State, Dep't of Health and Soc. Servs., 71 P.3d 811, 821(Alaska 2003).
The commentary to Alaska Professional Conduct Rule 1.10 suggests that the question of whether a legal services organization constitutes a single law firm should be resolved on a case-by-case basis:
Lawyers employed in the same unit of a legal service organization constitute a firm, but not necessarily those employed in separate units. As in the case of independent practitioners, whether the lawyers should be treated as associated with each other can depend on the particular rule that is involved, and on the specific facts of the situation.
Alaska R. Prof. Conduct 1.10 cmt., para. 3.
The Alaska Supreme Court has reached differing results on similar questions involving lawyers working for the Alaska Attorney General's Office and Alaska Legal Services Corporation, depending on the facts of each case.
Compare Skvorc v. State, Personnel Bd., 996 P.2d 1192, 1206 (Alaska 2000) (finding no conflict of interest where one assistant attorney general advised an agency board while another assistant attorney prosecuted a claim before the same board because the attorneys were from offices in different cities and the first attorney merely gave the board advice on procedural matters), with Flores v. Flores, 598 P.2d 893, 896-97 (Alaska 1979) (holding that Alaska Legal Services Corporation could not represent both sides in a divorce unless they developed special regulations for record keeping, access to files, supervision, and physical separation of offices).
Many other states likewise employ a case-by-case analysis of whether separate public defenders are members of the same law firm for the purpose of imputing a conflict of interest. At a minimum, Alexie has raised a material dispute as to whether Hamilton was disqualified because of Wells's representation of M.G.
See Asch v. State, 62 P.3d 945, 952-53 (Wyo. 2003) (listing cases).
In summary, we are required to view the facts concerning Wells, Hamilton, and their employer in the light most favorable to Alexie, the non-moving party. Viewed in this light, the evidence submitted by Alexie is sufficient to raise issues of fact about: (1) whether Wells had an inherent conflict of interest (since M.G. could have been a key prosecution witness in the Dillingham case); and (2) whether Wells and Hamilton had an inherent conflict of interest when they represented both Alexie and M.G., the alleged victim in the Bethel case (since Wells and Hamilton arguably could be considered members of the same firm). Alexie was never advised about these conflicts. If Alexie proves one of these inherent conflicts of interest, then he may be entitled to relief unless the State proves the absence of prejudice beyond a reasonable doubt.
Moreau, 588 P.2d at 284; Celikoski, 866 P.2d at 142.
Alexie also argues that another public-defender attorney, Patricia Douglass, rendered ineffective assistance by her failure to prepare for the sentencing hearing. In view of the sentence bargain, we agree with the trial court's ruling that Alexie has failed to show any prejudice that would require separate relief on this issue. Alexie May Have Needed An Interpreter to Understand His Plea.
See Jones, 759 P.2d at 573 (holding that to prevail on a claim of ineffective assistance of counsel, a post-conviction applicant must show that counsel's incompetence had some actual, adverse impact on the case).
Generally, in order to establish ineffective assistance of counsel, an applicant for post-conviction relief must show: (1) that his counsel's performance fell below the minimal level of competency (that is, by failing to perform as well as a lawyer with ordinary training and skill in the criminal law); and (2) that his counsel's poor performance actually contributed to the applicant's conviction. When evaluating such a claim, the court must apply a strong presumption of competence. Considering these standards, we agree with Judge Torrisi's decision that the evidence was insufficient to raise an issue of fact regarding whether Alexie's attorneys rendered ineffective assistance of counsel for their failure to use an interpreter at the change-of-plea hearing. But we conclude that the evidence of Alexie's difficulty with English may be relevant to another issue: whether Alexie's attorneys faced a conflict of interest that adversely affected their performance at the change-of-plea hearing.
See Risher, 523 P.2d at 424-25.
See Jones, 759 P.2d at 569.
During Alexie's change-of-plea hearing, Judge Torrisi asked both public defenders whether Alexie needed an interpreter. Both Hamilton and Wells assured the judge that they had been able to talk to Alexie without an interpreter. But when he filed his application for post-conviction relief, Alexie presented a report from a Yup'ik language expert that disputed the attorneys' assurances about Alexie's understanding of English. The expert asserted that, "although Mr. Alexie knew that he was in trouble, he did not completely understand many of the proceedings and technical terms used in the court."
If Alexie can establish that his attorneys had a conflict of interest, then the language expert's report raises a material issue concerning whether counsels' conflict of interest adversely affected their performance at Alexie's change-of-plea hearing.
See Cuyler v. Sullivan, 446 U.S. 335, 348-49, 100 S. Ct 1708, 1718-19, 64 L. Ed. 2d 333 (1980); Newby, 967 P.2d at 1012.
The State argues that Alexie is estopped from litigating the interpreter issue in his application for post-conviction relief because the court denied his pro se motion to withdraw his plea of no contest that raised the same issue in January 2005. Collateral estoppel applies to issues that have been fully and fairly determined in previous proceedings. But Judge Torrisi's order denying the motion to withdraw Alexie's plea specifically recognized that he was acting pro se, and directed him to use an application for post-conviction relief to litigate his claims of ineffective assistance of counsel. We therefore conclude that these issues were not so fully litigated as to bar Alexie from raising them in this case. The Motion for Production of Confidential Records Was Untimely.
See AS 12.72.020(a)(5); Brown v. State, 803 P.2d 887, 888-89 (Alaska App. 1990).
See In re Adoption of T.N.F., 781 P.2d 973, 976 n. 6 (Alaska 1989).
The briefing on the State's motion to dismiss was completed on June 22, 2006 when the State filed its reply memorandum. Alexie then filed a motion for production of confidential records on July 31, 2006, seeking access to M.G.'s files at the Public Defender Agency and Alaska Psychiatric Institute, as well as to the court file relating to her civil commitment proceedings. Alexie asserted the need to use these confidential records to pursue his claims of ineffective assistance of counsel, the same claims that were under consideration in the motion to dismiss.
Judge Torrisi decided the motion to dismiss by entering summary disposition on August 11, 2006, before briefing had been completed on the motion for production of confidential records. The judge then denied the motion for production of confidential records on September 15, 2006, ruling that the motion was untimely because it was filed after the motion to dismiss had been submitted for decision. Finally, Judge Torrisi denied Alexie's motion to vacate the summary disposition, noting that Alexie's motion "[did] not articulate what might be found in the records" that would affect the order.
Under the similar provisions of Alaska Civil Rule 56, a party may request a continuance to conduct the discovery necessary to respond to a motion for summary judgment. But a party must satisfy three requirements for this type of continuance: "the party (1) must unambiguously request relief on those grounds, (2) must not have been dilatory during discovery, and (3) must provide adequate reasons why additional time is needed."
Hymes v. Deramus, 119 P.3d 963, 965 (Alaska 2005).
Here, Alexie failed to satisfy the first requirement because he did not make any request for a continuance to respond to the motion to dismiss. Alexie also fell short of satisfying the second requirement because his request for production was made over eight months after he filed his amended application for post-conviction relief and only a month before the scheduled trial. Furthermore, Alexie did not establish that he had formally requested the discovery from the agencies involved as required by Alaska Civil Rule 37(a)(2)(B), a step that could have been critical to protect M.G.'s interest in this confidential material. Therefore, Judge Torrisi did not abuse his discretion when he denied the motion for production. Conclusion
See C.R.B. v. C.C., 959 P.2d 375, 383 n. 19 (Alaska 1998) (explaining that discovery rulings are reviewed for abuse of discretion).
We conclude that Alexie has raised factual disputes that require further proceedings on the issues we have identified in this opinion. We therefore REVERSE the order dismissing the application for post-conviction relief and REMAND this case to the superior court for further proceedings.