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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


JUSTIN A.D. NELSON,
                                                      Court of Appeals No. A-11259
                            Appellant,                Trial Court No. 3DI-11-216 CR

                     v.
                                                             O P I N I O N
STATE OF ALASKA,                                            Order on Rehearing

                            Appellee.                   No. 2549 — April 21, 2017


              Appeal from the Superior Court, Third Judicial District,
              Dillingham, Fred Torrisi, Judge.

              Appearances: Brooke Berens, Assistant Public Advocate, and
              Richard Allen, Public Advocate, Anchorage, for the Appellant.
              Timothy W. Terrell, Assistant Attorney General, Office of
              Criminal Appeals, Anchorage, and Michael C. Geraghty,
              Attorney General, Juneau, for the Appellee.

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

              Judge ALLARD.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
             As part of a plea agreement with the State, Justin A.D. Nelson pleaded
guilty to attempted first-degree sexual abuse of a minor.1 Later, before sentencing,
Nelson sought to withdraw his plea. Nelson alleged that he entered his guilty plea
without fully understanding the terms of the plea agreement. Nelson also alleged that he
had received ineffective assistance of counsel from the assistant public defender who
represented him at the change of plea hearing.
             Nelson asked the superior court to delay his scheduled sentencing hearing
and to appoint him conflict counsel so that he could fully litigate his alleged claim of
ineffective assistance of counsel. The superior court ruled that Nelson had shown no
“fair and just reason” to withdraw his plea. The superior court also denied Nelson’s
requests for a delay of sentencing and for the immediate appointment of conflict counsel.
Instead, the court appointed Nelson conflict counsel after sentencing occurred.
             In our earlier decision in this case — Nelson v. State, 2016 WL 7422690
(Alaska App. Dec. 21, 2016) (unpublished) — we upheld the superior court’s handling
of these matters and we affirmed Nelson’s conviction. Following the issuance of our
decision, Nelson filed a petition for rehearing in which he asked us to reconsider these
matters. We now announce our decision on rehearing.
             In Nelson’s case, the question facing the trial judge was whether to delay
the sentencing proceedings, appoint conflict counsel, and permit Nelson to fully litigate
his claim of ineffective assistance of counsel before holding the sentencing hearing —
or, instead, to deny Nelson’s request for the immediate appointment of conflict counsel.
This second option would effectively delay any litigation of Nelson’s ineffective
assistance of counsel claim until after Nelson’s sentencing, when Nelson could pursue
any such claims in an application for post-conviction relief.



   1
       AS 11.41.434(a)(1) and AS 11.31.100(a).

                                          –2–                                      2549

               Before making this decision, the superior court undertook considerable
efforts to obtain a clearer understanding of Nelson’s ineffective assistance of counsel
claim. When Nelson proved unable to articulate or substantiate any specific assertions
of how he had been incompetently represented, the trial judge chose to rule on Nelson’s
involuntariness claim and proceed with sentencing (which had already been delayed
multiple times), thereby deferring the litigation of Nelson’s ineffective assistance of
counsel claim until later.2 On this record, we concluded that the superior court did not
abuse its discretion when it denied Nelson’s request for the immediate appointment of
conflict counsel.3
               In his petition for rehearing, Nelson appears to advocate a bright-line rule
which would require trial judges to automatically appoint conflict counsel whenever a
defendant files a presentencing motion to withdraw their plea based on allegations of
ineffective assistance of counsel. Such a bright-line approach certainly has benefits in
terms of judicial economy and efficiency. We also agree that the appointment of conflict
counsel will often be the appropriate action in these circumstances, particularly because
a different standard applies to a presentencing motion to withdraw a plea as opposed to
a post-sentencing motion to withdraw a plea.4


   2
       In his petition for rehearing, Nelson asserts that he alleged multiple bases for a claim
of ineffective assistance of counsel. But the most substantive basis that he lists — that he
had been told he would only serve one-third of his time — was raised only after sentencing
had occurred.
   3
       Nelson v. State, 2016 WL 7422690, at *4 (Alaska App. Dec. 21, 2016) (unpublished).
   4
        Compare Alaska R. Crim. P. 11(h)(2) with Alaska R. Crim. P. 11(h)(3). Criminal
Rule 11(h)(2) addresses presentencing motions to withdraw a guilty plea; it requires a trial
court to allow a defendant to withdraw a plea if the defendant proves that withdrawal of the
plea is necessary to correct a manifest injustice, and it grants a trial court discretion to allow
withdrawal of a plea prior to sentencing for any “fair and just reason” unless the prosecution
                                                                                    (continued...)

                                              –3–                                          2549

              But we are also concerned that an inflexible rule would invite abuse by
defendants who simply want to delay or disrupt the sentencing proceedings. The vast
majority of jurisdictions hold that the question of whether to appoint conflict counsel in
these circumstances is a matter entrusted to the discretion of the trial court.5 Although
an immediate appointment of conflict counsel will often be the proper action, we agree
with these jurisdictions that deference to the trial court is appropriate. And based on the
totality of circumstances presented by Nelson’s case, we do not find that the trial court’s
actions constituted an abuse of discretion.
              In his petition for rehearing, Nelson also argues that this Court failed to
address his claim that he received ineffective assistance of counsel from the assistant
public defenders who represented him in the post-plea and presentencing proceedings.
Nelson is correct that we did not directly address this claim, and we therefore do so now.




   4
       (...continued)
has been substantially prejudiced by reliance on the defendant’s plea. Criminal Rule 11(h)(3)
addresses post-sentencing motions to withdraw a guilty plea; it requires a defendant to pursue
the motion in the form of an application for post-conviction relief, and it requires the
defendant to prove that withdrawal of the plea is necessary to correct a manifest injustice.
Ineffective assistance of counsel constitutes manifest injustice under Criminal Rule
11(h)(4)(A).
   5
        See, e.g., People v. Smith, 863 P.2d 192, 200 (Cal. 1993), as modified on denial of
reh’g (Feb. 3, 1994) (applying an abuse of discretion standard of review and requiring a
defendant to make a “proper showing” that there are adequate grounds for the ineffective
assistance of counsel claims); State v. Cooper, 738 A.2d 1125, 1132-33 (Conn. App. 1999)
(declaring that whether to appoint conflict counsel in connection with plea-withdrawal
proceedings rests in the sound discretion of the trial court); State v. Millett, 718 A.2d 1100,
1102 (Me. 1998); Brunsen v. State, 281 P.3d 1157 (Nev. 2009) (holding that a defendant is
entitled to an evidentiary hearing and the immediate appointment of conflict counsel if the
defendant’s plea-withdrawal motion includes specific factual allegations of ineffective
assistance of counsel).

                                            –4–                                          2549

              In his briefing on appeal, Nelson acknowledges that Alaska appellate courts
normally will not consider an ineffective assistance of counsel claim for the first time on
appeal because “the record of the trial proceedings will seldom conclusively establish
incompetent representation.”6 However, Nelson contends that the record in his case is
sufficient, as it stands, to establish that the assistant public defenders who represented
him post-plea provided him with ineffective assistance of counsel.7 We disagree with
Nelson that the record is adequate to support such a conclusion. We also disagree with
Nelson’s underlying contention that these attorneys were required to proceed as though
they had been appointed to fully litigate his ineffective assistance of counsel claim.
Separate conflict counsel would need to be appointed if the claim was going to be fully
litigated.8
              Accordingly, we DENY Nelson’s petition for rehearing, and we again
AFFIRM the judgment of the superior court.




   6
       Burton v. State, 180 P.3d 964, 969 (Alaska App. 2008).
   7
       See, e.g., Tazruk v. State, 67 P.3d 687, 688 (Alaska App. 2003).
   8
      See, e.g., Cole v. State, 1994 WL 16196666, at *2 (Alaska App. Dec. 14, 1994)
(unpublished).

                                           –5–                                       2549
