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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


CLIFFORD F. MURRAY,
                                                      Court of Appeals No. A-11191
                            Appellant,                Trial Court No. 2NO-09-321 CI

                     v.
                                                             O P I N I O N
STATE OF ALASKA,

                            Appellee.                   No. 2445 —March 20, 2015


              Appeal from the Superior Court, Second Judicial District,
              Nome, Ben Esch, Judge.

              Appearances: Dan S. Bair, Assistant Public Advocate, Appeals
              and Statewide Defense Section, and Richard Allen, Public
              Advocate, Anchorage, for the Appellant. Mary A. Gilson,
              Assistant Attorney General, Office of Special Prosecutions and
              Appeals, Anchorage, and Michael C. Geraghty, Attorney
              General, Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,
              District Court Judge. *

              Judge MANNHEIMER.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
              The defendant in this case, Clifford F. Murray, was indicted on two counts
of first-degree sexual assault. He ultimately agreed to plead guilty to one count of the
lesser offense of second-degree sexual assault. But now Murray seeks post-conviction
relief, contending that his decision to enter this plea was contrary to his best interests.
More particularly, Murray contends that his decision was the product of mental illness,
and that his attorney acted ineffectively — that is, in violation of her ethical duty under
Alaska Professional Conduct Rule 1.14 — by failing to prevent him (or at least trying
to prevent him) from entering this guilty plea.
              For the reasons explained here, we conclude that Murray has failed to set
out a prima facie case that his attorney acted incompetently.


       The events leading up to Murray’s guilty plea and sentencing


              Because the question to be decided on appeal is whether Murray set forth
a prima facie case of ineffective assistance of counsel, the following is a description of
all the well-pleaded facts contained in his petition for post-conviction relief.
              In early 2007, Clifford Murray was charged with two counts of first-degree
sexual assault in connection with the rape of an elderly woman in the village of Elim.
Because Murray had two prior felony convictions (for non-sexual offenses), he faced a
presumptive sentencing range of 40 to 60 years’ imprisonment for these sexual assault
counts. 1




   1
       AS 12.55.125(i)(1)(E).

                                           –2–                                        2445

              In addition, Murray was on felony parole at the time he committed these
assaults, so aggravating factor AS 12.55.155(c)(20) applied to his case. This meant that
Murray faced a maximum sentence of 99 years’ imprisonment. 2
              The State offered Murray two favorable plea bargains. Murray, who has
an extensive history of mental illness and aberrant behavior, rejected both of these offers.
              The State initially offered a plea bargain that called for Murray to receive
a sentence of 20 years to serve. This sentence — fifty percent of the low end of the
applicable presumptive range — was the absolute minimum term of imprisonment that
the superior court could impose under AS 12.55.155(a)(2), assuming one or more
mitigating factors were proved.
              Murray’s attorney advised him to accept the State’s offer, but Murray
refused. He insisted on going to trial, despite the considerable evidence against him, and
he told his attorney that he did not care if he ended up serving 99 years in prison.
According to the attorney’s later affidavit, she “[did] everything within her power to
dissuade [Murray] from this decision”, but Murray was adamant.
              Then, in December 2008, Murray told his attorney that he wanted to plead
guilty to both counts of first-degree sexual assault, without the benefit of any plea
bargain. Murray insisted that he wanted to change his plea immediately and go “straight
to sentencing”.
              In response, Murray’s attorney hurriedly negotiated a second plea bargain
with the State. Under the terms of this second bargain, the State offered to let Murray
plead guilty to the class C felony of attempted second-degree sexual assault (i.e.,
attempted non-consensual sexual contact), with sentencing left “open” — i.e., with

   2
        See AS 12.55.125(i) (providing a 99-year maximum term of imprisonment for all
felony forms of sexual assault) and AS 12.55.155(a) (providing that when one or more
aggravating factors are proved, a sentencing judge may impose any term of imprisonment up
to the statutory maximum).

                                           –3–                                        2445

Murray’s sentence to be determined by the court, without any constraints on the
sentencing judge’s decision. 3 Because of his two prior felony convictions, Murray
would face a presumptive sentencing range of 15 to 25 years if he was convicted of
attempted second-degree sexual assault 4 (and, because of the aggravating factor, a
maximum of 99 years).
               But when Murray’s attorney explained this new plea bargain, Murray
became angry with her and refused to accept the bargain. He then demanded to go to
trial.
               Then, the next day, Murray changed his mind again. He directed his
attorney to propose a new plea bargain to the State — one that was less advantageous to
him than the offer he had just rejected. Under Murray’s proposal, he would plead guilty
to second-degree sexual assault (not just the attempted crime), again with open
sentencing, upon the condition that his sentencing would take place immediately.
               Although pleading guilty to second-degree sexual assault was obviously not
as advantageous to Murray as pleading guilty to attempted second-degree sexual assault,
Murray’s proposal did reduce the applicable presumptive sentencing range to 20 to 35
years’ imprisonment — down from the 40- to 60-year range he would have faced if he
was convicted of first-degree sexual assault. 5
               Although Murray’s attorney thought that Murray was acting against his
own best interest, the attorney promptly contacted the superior court and scheduled a
change-of-plea hearing. At this hearing, Murray’s attorney informed the court that
Murray was entering this guilty plea against her advice, but the court ultimately accepted


    3
      See AS 11.41.420(b) (second-degree sexual assault is a class B felony) and
AS 11.31.100(d)(4) (an attempt to commit a class B felony is a class C felony).
    4
         AS 12.55.125(i)(4)(D).
    5
         AS 12.55.125(i)(3)(D).

                                          –4–                                        2445

Murray’s plea to second-degree sexual assault. The court imposed a sentence of 38
years’ imprisonment with 3 years suspended — i.e., 35 years to serve.


      The post-conviction relief litigation


             In November 2009, Murray initiated post-conviction relief proceedings.
In his petition for post-conviction relief (as ultimately amended), Murray asserted that
his assistant public defender had represented him incompetently.
             More specifically, Murray claimed that his attorney should have known that
he was “irrational and impulsive”, that he was “prone to making self-destructive
decisions”, and that his decision to plead guilty to second-degree sexual assault was
likely “the product of his mental illness”, and “neither knowing nor voluntary”. Thus,
Murray concluded, his attorney was ethically required to prevent Murray from pleading
guilty to the reduced charge of second-degree sexual assault, or at least to warn the
superior court that Murray was probably incompetent to enter this plea.
             Murray’s trial attorney, Assistant Public Defender Michele Murphy, filed
an affidavit responding to Murray’s claims. She acknowledged that she knew Murray
suffered from mental illness and that his behavior was at times erratic. For this reason,
Murphy secured the services of a mental health professional “to counsel Mr. Murray on
a regular basis during the time leading up to his ... decision to [plead guilty].” Murphy
declared that “at no time” did this mental health professional indicate that Murray was
mentally incompetent.
             According to the attorney’s affidavit, when Murray told her that he had
decided to plead guilty and that he wished to demand an immediate sentencing hearing,
the attorney “adamantly opposed Mr. Murray’s decision”. But after seeing that she could




                                          –5–                                       2445

not dissuade him, the attorney concluded that she should fulfill her role “as an advocate
for [his] wishes”.
              Based on the foregoing record, the State filed a motion asking the superior
court to dismiss Murray’s petition for post-conviction relief for failing to state a prima
facie case for relief.
              The State acknowledged that Murray had presented a sufficient case that
he was mentally ill, but the State argued that the real issue was whether Murray was so
ill that he lacked the mental competence to enter a guilty plea. On the question of
Murray’s competence to enter a plea, the State asserted that Murray had failed to present
specific details showing that he lacked a basic understanding of his choices, or that he
lacked the mental capacity to evaluate those choices. Instead, Murray had presented only
conclusory assertions — assertions that the court could lawfully disregard when
assessing whether Murray had set forth a litigable claim for relief. See LaBrake v. State,
152 P.3d 474, 481 (Alaska App. 2007).
              In his opposition to the State’s motion to dismiss, Murray’s post-conviction
relief attorney, David Allen, backed away from the earlier suggestions that Murray was
not competent to change his plea. Allen now told the court that the issue was not
whether Murray was competent or incompetent to enter his plea. Rather, Allen argued,
the question was whether Murray was so noticeably impaired that his former attorney
(Murphy) was ethically required to take “protective action” under Alaska Professional
Conduct Rule 1.14 to prevent Murray from “compromising his own ... rights”.
              Allen pointed out that Murray’s petition set forth a prima facie case that
Murphy “knew ... that her client was impaired in his decision-making”. Thus, Allen
argued, even though Murray may not have been “formally incompetent” to assist in his
own defense or to enter a guilty plea, Murray’s mental difficulties were so obvious that
Murphy violated Rule 1.14 by “surrender[ing] her critical judgment and her legal


                                          –6–                                        2445

responsibility [toward her client]”, and by “simply [throwing] up her hands” when she
was “unable to deal effectively with a difficult client.” Allen argued that, at the very
least, Murphy should have asked the superior court to delay the change-of-plea hearing
so that Murray could have a “cooling-off period”.
              Allen then cited several death-penalty cases where defendants refused to
appeal their death sentence, or tried to have their habeas corpus petitions dismissed, and
the courts found that the defendants’ lawyers had a duty to disobey their clients’ wishes
(to ensure that the validity of the death sentences would be fully litigated). Relying on
these court decisions, Allen argued that Murray’s case presented an analogous situation
— because, by pleading guilty, Murray surrendered his most important procedural rights
against his attorney’s advice.
              The superior court rejected these arguments and granted the State’s motion
to dismiss Murray’s petition for post-conviction relief.
              The superior court noted that Murray (through his attorney, Allen) was not
claiming that he had been incompetent to enter the guilty plea — only that he was
impaired, and that Murphy (knowing of this impairment) had been under an ethical duty
to prevent him from entering his guilty plea. And the superior court rejected Murray’s
contention that, under these circumstances, his attorney was ethically required to act
contrary to his wishes.
              The court noted that, at the change-of-plea hearing, Murphy informed the
court that Murray was acting contrary to her advice. But the court rejected the notion
that Murphy was required to actively thwart Murray’s desire to plead guilty. The court
declared that “[if] a defendant is competent to proceed, [then] he is able to make the
decision to enter a plea of guilty regardless [of] whether his attorney thinks it is a good
[or] bad ... choice.”




                                           –7–                                        2445

              With respect to Allen’s argument that Murphy should have asked for a
delay of the change-of-plea hearing, to give Murray a “cooling off” period, the superior
court noted that Murray failed to offer any evidence that he would have reconsidered his
decision if his attorney had succeeded in getting the court to delay the hearing.


       Why we uphold the superior court’s ruling


              At the heart of this case is the question of how far an attorney must go in
respecting the autonomy of a client, even when the attorney is convinced that the client
is making bad choices — and, conversely, to what extent an attorney has a duty to take
action to protect a client from himself. More technically, this case presents a question
regarding the relationship between two ethical rules that govern the legal profession.
              The first of these rules, Alaska Professional Conduct Rule 1.2(a), directs
defense attorneys to abide by their clients’ decisions “as to [the] plea to be entered”, and
“whether to offer or accept a [plea bargain]”.
              But the Comment to Rule 1.2 declares that “[when a] client appears to be
suffering impaired [mental] capacity, the lawyer’s duty to abide by the client’s decisions
is to be guided by [Professional Conduct] Rule 1.14.”
              This second rule, Professional Conduct Rule 1.14, addresses an attorney’s
ethical obligations when a client’s decision-making capacity is impaired by youth, or by
mental deficiency, or for any other reason.
              Subsection (a) of Rule 1.14 echoes the principle codified in Rule 1.2(a):
even when a defendant has impaired capacity to make “adequately considered decisions”
in connection with the case, the defense attorney must still, “as far as reasonably
possible, maintain a normal [attorney-client] relationship with the [defendant].”




                                           –8–                                        2445

              But subsection (b) of the rule authorizes the attorney to take “reasonably
necessary protective action” if the attorney reasonably believes that, as a result of the
defendant’s impaired capacity, (1) “the [defendant] is at risk of substantial physical,
financial, or other harm unless action is taken”, and (2) “the [defendant] cannot
adequately act in [their] own interest”.
              Subsection (b) then suggests two types of “protective actions” that an
attorney might take when a client’s decision-making capacity is substantially impaired.
First, the lawyer may “consult[] with individuals or entities that have the ability to take
action to protect the client” — and the lawyer is authorized to divulge client confidences
and secrets for this purpose under subsection (c) of the rule. Second, “in appropriate
cases,” the lawyer may “seek[] the appointment of a guardian ad litem, conservator[,] or
guardian [for the defendant].”
              As we have explained, Murray’s trial attorney responded to his mental
impairment by taking action that was similar in nature to the first suggestion listed in
Rule 1.14(b): she secured the services of a mental health professional to counsel Murray
on a regular basis during the course of the representation.
              Murray argues that this was not enough to satisfy the trial attorney’s duty
to him under Rule 1.14 — that the attorney should have actively impeded Murray after
he announced that he wished to plead guilty to second-degree sexual assault.
              Murray’s argument rests on two premises: (1) that his lawyer failed to
abide by a duty imposed by Rule 1.14, and (2) that Rule 1.14 establishes the standard of
competent representation in these circumstances. Both of these premises are question­
able.
              With regard to Murray’s first premise, the only duty imposed by
Professional Conduct Rule 1.14 is the duty prescribed in subsection (a) of the rule: a




                                           –9–                                        2445

lawyer “shall” maintain a normal attorney-client relationship with the impaired client as
far as reasonably possible.
              By comparison, the types of protective action listed in subsection (b) of the
rule are not described as mandatory. They are instead described as permissible responses
to the problem of an impaired client: “the lawyer may take reasonably necessary
protective action”. (Emphasis added) Similarly, the fifth paragraph of the Comment to
Rule 1.14 states that “paragraph (b) [of the rule] permits the lawyer to take protective
measures deemed necessary.” (Emphasis added)
              This, in turn, casts doubt on Murray’s second premise: that Professional
Conduct Rule 1.14 was intended to establish the standard for competent representation
of an impaired client. Rule 1.14 does not, on its face, prescribe a mandatory course of
conduct or define a standard of competent representation. Rather, the apparent purpose
of Rule 1.14 is to address an issue of professional ethics. The wording of Rule 1.14 and
its accompanying Comment indicates that Rule 1.14 was mainly intended to insulate a
lawyer from professional discipline when a lawyer decides to take action to protect an
impaired client in circumstances where the attorney’s action might arguably be viewed
as antagonistic to the client’s wishes or interests.
              But even if we assume that Rule 1.14 at least helps to define the scope of
competent representation in situations where a criminal defendant has an impaired
capacity to make decisions, the record in this case indicates that Murray’s trial attorney
did comply with Rule 1.14: she recognized that Murray was mentally ill, and she
retained a mental health professional to counsel Murray.
              In the superior court, Murray’s post-conviction relief attorney relied on
several court decisions holding that defense attorneys are sometimes ethically required
to act directly contrary to their clients’ wishes, even in matters where Rule 1.2(a) says
that the client’s decision governs. But all of the cases cited by the post-conviction relief


                                          – 10 –                                      2445

attorney involved defendants who were sentenced to death, and who wished to acquiesce
in that sentence even though they still had legal avenues for challenging it.
             Cases of this type are addressed separately in the American Bar Associa­
tion’s annotation to Model Rule of Professional Conduct 1.14. See American Bar
Association, Annotated Model Rules of Professional Conduct (Seventh Edition, 2011),
Annotation to Model Rule 1.14, p. 237 (“Criminal Proceedings”) and pp. 237-38
(“Client’s Refusal to Contest Death Penalty”).
             The ABA’s discussion of Rule 1.14 (as it applies to criminal cases) focuses
on the problem of what a defense attorney should do when the attorney has good reason
to believe that their client is incompetent. The annotation suggests that death penalty
cases fall into a special category because, when a client decides to forego legal
challenges to a death sentence, that very decision (by itself) may potentially provide the
lawyer with good reason to conclude that the client is incompetent and suicidal. Ibid.
Thus, the lawyer may have an ethical duty to disregard the client’s expressed wishes.
             But, as we have explained, Murray is not claiming that he was incompetent
to make decisions about the plea agreement.
             Nor is this a situation where Murray’s attorney ignored his mental illness
or disregarded the principles codified in Rule 1.14(b). Murray’s trial attorney was aware
that Murray was mentally ill — and, for this reason, she followed the precept of Rule
1.14(b) by “consulting ... individuals ... [who had] the ability to take action to protect
[her] client”. Specifically, she retained a mental health professional to observe and aid
Murray during the criminal case.
             The record shows that Murray’s trial attorney strongly disputed the wisdom
of her client’s decision to plead guilty, and that she did her best to dissuade him from a
course of action that was seemingly so contrary to his interests — but Murray insisted.
Murray does not now assert that he was incompetent to make this decision. And if


                                         – 11 –                                      2445

Murray was competent, both Rule 1.2(a) and Rule 1.14(a) directed Murray’s trial
attorney to honor his wishes with respect to what plea to enter, and whether to offer or
accept a plea bargain.
              See, e.g., People v. Howard, 824 P.2d 1315, 1346-47 (Cal. 1992) (rejecting
a claim of ineffective assistance of counsel when, in a capital case, the defense attorney
honored the defendant’s decision not to present a mitigation case during the penalty
phase, since there was no doubt that the defendant was competent, and because the
defendant’s preference for a death sentence does not, by itself, raise a reasonable doubt
as to the defendant’s competence); People v. Medina, 799 P.2d 1282, 1300-01 (Cal.
1990) (holding that there was no error where a competent defendant first withdrew an
insanity plea, then reinstated this plea against the advice of counsel; the court held that
a presently sane defendant has control over this decision); Ancona v. Warden,
unpublished, 2009 WL 1958728, *8-12 (Conn. Super. 2009) (rejecting a claim that the
attorney representing a mentally ill defendant who faced up to 120 years’ imprisonment
on sexual assault charges violated Connecticut Professional Conduct Rule 1.14 by failing
to petition the court to appoint a guardian for the defendant, after the defendant rejected
a plea agreement that would have allowed him to serve only 2 years (10 years with
8 years suspended)).
              (But see Christopher Slobogin & Amy Mashburn, The Criminal Defense
Lawyer’s Fiduciary Duty to Clients with Mental Disability, 68 Fordham Law Review
1581 (1999). The authors suggest that there may be “narrow circumstances” in which
a lawyer should disregard or override a competent client’s decision — circumstances
where an admittedly competent defendant’s decision-making is so impaired and so self-
defeating as to jeopardize “compelling state interests in assuring the reliability or dignity
of the proceedings”. Id. at 1585.)




                                           – 12 –                                      2445

              Thus, even assuming that Professional Conduct Rule 1.14 helps to define
the pertinent standard of competent representation, and viewing the record in the light
most favorable to Murray’s claim, Murray’s attorney abided by Rule 1.14(b) when she
retained a mental health professional to help Murray cope with his mental illness and to
give her insight into Murray’s level of competence. Murray does not claim that he
lacked competence to plead guilty. Accordingly, his attorney was not required to go
further and affirmatively prevent him from entering his plea. Even if we were to adopt
the view of the authors cited in the preceding paragraph, this is not a situation where
Murray’s decision was so nonsensical or outrageous as to jeopardize the fundamental
reliability or dignity of the judicial proceedings.
              We therefore uphold the superior court’s ruling that Murray’s petition for
post-conviction relief failed to state a prima facie case for relief.


       Conclusion


              The judgement of the superior court is AFFIRMED.




                                           – 13 –                                  2445

