Mack v. State

• Decision Date: 06 January 2023
• Docket Number: Court of Appeals No. A-12672
• Parties: Marlon MACK, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

523 P.3d 1235

Marlon MACK, Appellant,

v.STATE of Alaska, Appellee.

Court of Appeals No. A-12672

Court of Appeals of Alaska.

January 6, 2023

Shelley K. Chaffin, Law Office of Shelley K. Chaffin, Anchorage, for the Appellant.

Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.

OPINION

Judge WOLLENBERG.

The Alaska Court of Appeals is an intermediate appellate court with jurisdiction over criminal and post-conviction relief cases. Under Alaska law, if a party receives an adverse final decision in this Court, the party may file a petition for hearing in the Alaska Supreme Court. Although the supreme court has absolute discretion whether to grant or deny the petition for hearing — i.e. , whether to hear the petitioned case on the merits — a party nonetheless has the right to file the petition seeking review of this Court's decision.

In this appeal from a successive post-conviction relief action, Marlon Mack argues that he established a prima facie case of ineffective assistance of counsel based on his previous appellate attorneys’ alleged failure to inform him of his right to file a petition for hearing in the Alaska Supreme Court — first, after he lost his direct appeal in this Court, and then, after he lost his first post-conviction relief appeal in this Court. Because we conclude that Mack's case requires further proceedings, including an evidentiary hearing on at least one of his claims, we vacate the superior court's dismissal of his most recent post-conviction relief application and remand for further proceedings consistent with this opinion.

General factual overview and summary of our decision

In 2002, Mack was convicted by a jury of first-degree murder for strangling and killing his girlfriend.¹ Mack was represented by court-appointed counsel. Mack later challenged his conviction and sentence in this Court, and we affirmed.² Mack's appellate counsel did not file a petition for hearing in the Alaska Supreme Court.

After losing his appeal, Mack filed an application for post-conviction relief, challenging the effectiveness of his trial attorney. The superior court rejected Mack's claim; he appealed to this Court, and we again affirmed.³ Mack's post-conviction relief appellate counsel did not file a petition for hearing in the Alaska Supreme Court.

Mack subsequently filed a second application for post-conviction relief — i.e. , a " Grinols " application.⁴ In the Grinols application, Mack raised two primary claims. First, Mack challenged the competence of his post-conviction appellate attorney — i.e. , the attorney who represented him before this Court in his first post-conviction relief appeal. He argued that this appellate attorney had incompetently failed to file a petition for hearing or at least inform him of that option after he lost his post-conviction relief appeal in this Court. Second, Mack raised a "layered" post-conviction relief claim. In this layered claim, Mack argued that his post-conviction relief attorney in the superior court had incompetently failed to include, as one of the claims for post-conviction relief, that Mack's attorney on direct appeal had a duty to file a petition for hearing or at least inform Mack of that option.

Mack argued that the failure of his two appellate attorneys to inform him about the possibility of filing a petition for hearing precluded him from further pursuing his issues on appeal and later seeking habeas corpus relief in federal court (because he had failed to exhaust his state remedies).⁵ Mack argued that, to establish prejudice, he was not required to show a reasonable possibility that the supreme court would have ruled in his favor on either petition; he only needed to show a reasonable possibility that, but for the deficient representation of his appellate attorneys, he would have filed a petition for hearing.⁶ Mack alleged that he met this standard, and he therefore asked the superior court to restore his right to file petitions for hearing in both of his prior appeals.

Upon the State's motion, the court dismissed Mack's application. The court agreed with Mack that he was entitled to "meaningful consultation" from his appellate attorneys regarding his right to file a petition for hearing in the supreme court. But the court nonetheless concluded either that this obligation had been fulfilled or that Mack could not show prejudice. Mack now appeals that dismissal.

We have previously addressed an attorney's duty to consult with a criminal defendant or post-conviction relief applicant about their right to appeal a final judgment to this Court. We have held that an attorney has a legal duty to engage in meaningful consultation with a defendant regarding a direct appeal in one of two circumstances — when the defendant indicates an interest in pursuing an appeal, or when the defendant's attorney knows or reasonably should know that a rational person in the defendant's situation might want to appeal.⁷ In the context of a first post-conviction relief proceeding, we have similarly held that counsel has "the obligation to ascertain whether the defendant wishes to appeal and, if so, the obligation to initiate appellate proceedings."⁸

Mack's case requires us to examine whether this obligation should extend to petitions for hearing — i.e. , to requests for relief filed in the supreme court after a defendant loses in this Court.⁹ More specifically, we must determine (1) the scope of an attorney's legal duty to inform a defendant who loses an appeal in this Court about the option of filing a petition for hearing in the supreme court, and (2) the circumstances under which a defendant is entitled to reinstatement of their right to file a petition for hearing if the attorney fails to fulfill this duty.

For the reasons explained in this opinion, we conclude that Mack was entitled to meaningful consultation from each of his attorneys regarding the resolution of his case in this Court and his right to file a petition for hearing challenging our decision. We additionally conclude that, under the circumstances of this case, further proceedings in the superior court are necessary.

An attorney's duty to advise a criminal defendant or post-conviction relief applicant about the right to file an appeal

We begin by discussing the right of appeal in Alaska criminal cases, and a defense attorney's duty to advise a criminal defendant regarding this right.

In Alaska, a criminal defendant convicted after a trial has the right to appeal their criminal conviction(s) directly to this Court. The defendant's appeal to this Court from a final criminal judgment is a "matter of right."¹⁰ That is, the defendant has both the right to file the appeal, and the corresponding right to a decision on the merits by this Court.¹¹

Indigent criminal defendants are entitled to the assistance of court-appointed counsel both in the trial court and on direct appeal.¹² And all criminal defendants are entitled to the effective assistance of counsel at both stages.¹³ The law is well-settled that, in the context of a direct appeal, effective assistance of counsel includes the duty to file a notice of appeal if directed to do so by the defendant.¹⁴ This obligation also exists under the Alaska Rules of Professional Conduct.¹⁵

The first major case in Alaska addressing an attorney's obligation to file a notice of appeal on behalf of a criminal defendant is Broeckel v. State .¹⁶ In Broeckel , the defendant's court-appointed attorney failed to file a notice of appeal, even though it was clear that the defendant intended to appeal.¹⁷ Relying on the rules of professional responsibility and the appellate rules, we held that defense counsel had acted incompetently in functionally withdrawing from the case without doing anything to preserve the defendant's right to appeal.¹⁸

We further held that, in the context of an attorney's incompetent failure to preserve a criminal defendant's right to appeal, a defendant did not need to establish that they would have prevailed on the merits of any of the appellate issues as a prerequisite to having the appeal reinstated.¹⁹ We adopted this approach for several reasons. First, we noted that "an attorney who incompetently fails to file a notice of appeal deprives the client of the right to an appeal, not just the right to a successful appeal."²⁰ Second, we observed that requiring a showing of prejudice before permitting an appeal to proceed would necessarily entail almost the same analysis that would be required in simply deciding the appeal on its merits. Finally, we pointed out that requiring a particularized showing of prejudice "would be of questionable value, since it would impose on the trial court the essentially circular task of reviewing the propriety of its own legal decisions."²¹ We also noted that the federal courts were nearly unanimous in concluding that a showing of traditional prejudice — i.e. , that the appeal would have been successful — was not required under these circumstances.²²

Five years later, in Roe v. Flores-Ortega , the United States Supreme Court addressed this same issue in a case where the criminal defendant had not given a clear directive to file an appeal.²³ At the outset, the Supreme Court identified the two ends of the spectrum defining defense counsel's obligation to file an appeal: At one end, a defense attorney "acts in a manner that is professionally unreasonable" if the attorney fails to file an appeal after being expressly instructed by the defendant to do so.²⁴ At the other end, an attorney does not act incompetently when the attorney fails to file a notice of appeal after being explicitly told not to do so by the defendant.²⁵

The Court then addressed the middle-ground situation in which the defendant has not affirmatively indicated, one way or another, whether the defendant wishes to appeal. In that...