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            IN THE COURT OF APPEALS OF THE STATE OF ALASKA


ALASKA PUBLIC DEFENDER AGENCY ,
                                                      Court of Appeals No. A-12053
                           Applicant,                Trial Court No. 3AN-14-3122 CR

                    v.
                                                              O P I N I O N
SUPERIOR COURT, THIRD JUDICIAL
DISTRICT, ANCHORAGE,
                                                       No. 2444 — February 27, 2015
                           Respondent.




            Original Application for Relief from the Superior Court, Third
            Judicial District, Anchorage, Kevin M. Saxby, Judge.

            Appearances: Douglas O. Moody, Assistant Public Defender, and
            Quinlan Steiner, Public Defender, Anchorage, for the Applicant.
            Dani Crosby, Dani Crosby Law Office, Inc., Anchorage, for the
            Respondent.

            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).
            In this original application for relief, we are asked to interpret AS 18.85.­
100(a), the Alaska Public Defender Agency’s “enabling” statute — i.e., the statute that
defines the Agency’s authority to provide counsel to indigent litigants. The question is
whether the Agency can be appointed to serve as “standby” or “advisory” counsel in
criminal cases in which defendants have waived their constitutional right to counsel and
chosen to represent themselves.
            For the reasons explained here, we conclude that this enabling statute does
not authorize the appointment of the Public Defender Agency for this purpose. We
therefore vacate the superior court’s order directing the Public Defender Agency to serve
as standby counsel in this case.


      Factual background and procedural history
            The defendant in this case, Grant Matthisen, is charged with two counts of
criminal non-support.1 Although Matthisen is indigent and qualifies for the appointment
of counsel at public expense, he has chosen to waive his constitutional right to counsel
and to represent himself.
            To assist Matthisen in representing himself, the superior court appointed the
Alaska Public Defender Agency to “act in a consultative capacity.” Specifically, the
superior court ordered the Agency to provide an attorney to sit through Matthisen’s trial
“to provide ongoing legal advice and to ensure that [Matthisen] follows appropriate rules
and makes appropriate objections and arguments.”




      1
          AS 11.51.120(d).

                                          –2–                                      2444
             The Public Defender Agency objected to this appointment, arguing that it
exceeded the scope of representation permitted by the Agency’s enabling statute.2 The
superior court disagreed, finding that the appointment was within the scope of the
Agency’s authority and that the appointment was properly based on considerations of
fairness and due process.
             The Agency then filed this original application for relief under Alaska
Appellate Rule 404(a).3


       A note on terminology
             To begin our analysis of this case, we wish to clarify the terminology that
we will be using. We will use the term “standby counsel” to describe an attorney who
assists or advises a criminal defendant who has waived his right to counsel and is
representing himself.
             We have previously referred to this type of arrangement as a form of “hybrid
representation.”4 But this is a misleading term because an attorney serving as standby




       2
           See AS 18.85.100(a).
       3
            Appellate Rule 404(a) provides that “[a]n original application for relief may be
filed ... whenever relief is not available from any other court and cannot be obtained through
the process of appeal, petition for review, or petition for hearing.” This procedure was
approved as the proper vehicle for the Agency to seek relief from a judgment it considers
adverse to its statutory obligations in Alaska Public Defender Agency v. Superior Court, 584
P.2d 1106, 1108-09 (Alaska 1978). In that case, the issue was whether the Agency had
statutory authority to represent an indigent criminal defendant charged with violating a
municipal ordinance (as opposed to a state statute).
       4
           See Ortberg v. State, 751 P.2d 1368, 1375 (Alaska App. 1988).

                                            –3–                                         2444

counsel is not engaged in the “representation” of a criminal defendant as that term is
generally understood.5
             The term “hybrid representation” more accurately describes an entirely
different arrangement, one in which a criminal defendant is represented by counsel but
acts as co-counsel in a subordinate role to his or her court-appointed attorney. In this
sort of arrangement, the attorney’s role is accurately described as “representation” of the
defendant because the attorney is still in charge of the case, and the defendant
participates in the defense only in limited ways with the attorney’s acquiescence — for
instance, by filing supplemental motions or by cross-examining certain witnesses.6
             We have previously recognized the crucial legal distinction between this
form of co-counsel “hybrid representation” and true self-representation.           Before
defendants are allowed to represent themselves, the trial court must obtain a formal
waiver of their right to counsel — after advising them of their right to counsel, the
benefits of counsel, and the dangers of self-representation.7 But in cases of co-counsel
hybrid representation, the trial court does not necessarily need to obtain the defendant’s
waiver of the right to counsel because the attorney remains in charge of the litigation,
and the defendant remains represented.8




       5
           See id.
       6
           See Christian v. State, 276 P.3d 479, 484-85 (Alaska App. 2012).
       7
           See Gladden v. State, 110 P.3d 1006, 1009-12 (Alaska App. 2005).
       8
           See Ortberg, 751 P.2d at 1375.

                                            –4–                                      2444

      Why we conclude that appointment of the Public Defender Agency as
      standby counsel is not authorized under AS 18.85.100(a)
             We have previously held that an indigent defendant has no constitutional
right to the assistance of standby counsel.9 But we have never resolved the issue of
whether a trial court is authorized to appoint the Public Defender Agency, over the
Agency’s objection, to serve as standby counsel for a defendant who has waived his right
to counsel and elected to represent himself.
             The Public Defender Agency’s enabling statute declares that an indigent
criminal defendant is “entitled ... to be represented, in connection with the crime or
proceeding, by an attorney to the same extent as a person retaining an attorney is
entitled.”10 Alaska Administrative Rule 12(d) further provides that the Public Defender
Agency may only accept a court appointment to represent an indigent defendant if “the
basis of the appointment is clearly authorized”; otherwise, the Agency must move to
withdraw.
             The Public Defender Agency argues that AS 18.85.100(a) does not authorize
the appointment of the Agency to serve as standby counsel because, when serving as
standby counsel, the Agency does not “represent” the defendant. We agree.
             The Alaska Supreme Court has stated (in the context of a claim of
ineffective assistance of counsel) that a lawyer who assists a pro se litigant by
functioning as standby counsel “does not serve the function of representing the litigant
as an attorney” — at least not unless the lawyer “oversteps his limited role and assumes
a degree of control consistent with legal representation.”11

      9
           See id.; Annas v. State, 726 P.2d 552, 557 (Alaska App. 1986).
      10
           AS 18.85.100(a)(1).
      11
           Alyssa B. v. State, Dep’t of Health and Soc. Servs., Div. of Family & Youth Servs.,
                                                                                (continued...)

                                            –5–                                         2444
               We acknowledge that in Cano v. Anchorage we stated that trial courts had
broad discretion under Alaska Criminal Rule 39 to appoint standby counsel.12 But this
statement in Cano was based on language that has since been deleted from Criminal Rule
39.13 Prior to this change, Criminal Rule 39(b)(4) gave courts the discretion to appoint
counsel “in any case in which appointment best serves the interest of justice.”14 That
language was deleted from the rule after the director of the Office of Public Advocacy
objected that the provision opened the door “to a myriad of appointments not now
specified in the Public Defender and Office of Public Advocacy statutes.”15
              In its brief to this Court, the Superior Court argues that even if the Public
Defender Agency’s statutory obligation is limited to “representing” indigent defendants,
we should construe the word “represent” broadly. The Superior Court points to a Florida
Supreme Court decision that held that trial judges have the authority (under Florida’s
public defender statute) to appoint standby counsel for an unrepresented defendant in
“the limited circumstances where such action is necessary to preserve orderly and timely
proceedings.”16 The Florida statute in question states that “[t]he public defender shall



       11
        (...continued)
165 P.3d 605, 613 (Alaska 2007); see S.B. v. State, Dep’t of Health and Soc. Servs., Div. of
Family & Youth Servs., 61 P.3d 6, 15 (Alaska 2002).
       12
            Cano v. Anchorage, 627 P.2d 660, 663 & n.5 (Alaska App. 1981).
       13
            See Supreme Court Order No. 1088 (eff. July 1, 1992).
       14
            Cano, 627 P.2d at 663 n.5; see Supreme Court Order No. 157 (eff. Feb. 15, 1973).
       15
           Memorandum from Christine Johnson, Court Rules Attorney, Alaska Court
System, to the Justices of the Alaska Supreme Court. (Oct. 29, 1990) (on file with the Office
of the Court Rules Attorney) (summarizing comments on proposed revisions to Criminal
Rule 39).
       16
            Behr v. Bell, 665 So.2d 1055, 1056 (Fla. 1996).

                                            –6–                                        2444

represent ... any person who is determined by the court to be indigent.”17 Thus, the
Florida Supreme Court gave a broad interpretation to the word “represent.”18
               We find the Florida court’s statutory analysis unpersuasive. As previously
explained, the Alaska Supreme Court has already determined that a lawyer serving as
standby counsel does not represent a litigant.19 Thus, although we recognize that having
standby counsel present in the courtroom to assist pro se defendants may facilitate
orderly and efficient proceedings, and that trial judges (and prosecutors) might view the
attorney’s presence as a benefit, nothing in the Alaska Public Defender Act authorizes
the appointment of the Agency’s attorneys for any purpose other than representation.20
               Furthermore, we note that requiring the Public Defender Agency to provide
standby counsel for pro se litigants could adversely affect the Agency’s mission — its
obligation under the statute to provide representation to indigent defendants who exercise
their right to counsel — by apportioning scarce resources to defendants who do not want
to be represented by the Agency’s attorneys.
               For these reasons, we VACATE the superior court’s order appointing the
Public Defender Agency as standby counsel in this case.




       17
            Id. (quoting former Fla. Stat. § 27.51 (1996)).

       18
            See Behr, 665 So.2d. at 1056.

       19
          Alyssa B. v. State, Dep’t of Health and Soc., Servs., Div. of Family & Youth Servs.,

165 P.3d 605, 613 (Alaska 2007).
       20
          See AS 18.85.010-.180; cf. Harris v. State, 687 A.2d 970, 975-77 (Md. 1997)
(holding that standby counsel for pro se defendant is not authorized by Maryland’s Public
Defender Act, which is limited to appointments for “representation” of indigent defendants).

                                             –7–                                         2444

            We wish to clarify that the only decision we reach in this case is that the
Public Defender Act does not authorize a trial court to appoint an Agency attorney to
serve as standby counsel to assist a defendant who has chosen to represent himself. We
express no opinion as to whether trial judges have the authority to appoint non-Agency
lawyers to serve as standby counsel for self-represented defendants.




                                        –8–                                       2444

