Alexie v. State, Court of Appeals No. A-9941 (Alaska App. 4/15/2009), Court of Appeals No. A-9941.

• Court: Court of Appeals of Alaska
• Writing for the Court: Bolger
• Parties: JAMES ALEXIE, Appellant, v. STATE OF ALASKA, Appellee.
• Decision Date: 15 April 2009
• Docket Number: Court of Appeals No. A-9941.

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JAMES ALEXIE, Appellant,
v.
STATE OF ALASKA, Appellee. Court of Appeals No. A-9941. Court of Appeals of Alaska. 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

BOLGER, Judge.

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

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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 assault¹ for his alleged conduct against V.N. and one count of second-degree sexual abuse of a minor² 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.

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 assault³ for his alleged misconduct involving M.G. Assistant Public Defender Marvin Hamilton was assigned to represent Alexie on the Bethel charges.

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.

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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.⁴ 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.⁵ 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."⁶ In other words, Alexie's only burden under

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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.⁷

Alexie's Attorneys May Have Had A Conflict of Interest.

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]."⁸ 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.⁹ As we have noted before, this type of conflict

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.[¹⁰

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.¹¹

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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.¹² This is the potential problem in Alexie's case.

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.¹³

But Wells could not use any confidential information he received from M.G. for cross-examination or to otherwise impeach her credibility.¹⁴ 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,

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Wells's representation of Alexie may have been materially limited by his concurrent representation of M.G.¹⁵

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.¹⁶

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

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so.¹⁷ 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.

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...