Perez v. State, A-13666

CourtCourt of Appeals of Alaska
Writing for the CourtALLARD, JUDGE
PartiesJEREMIAH MIGUEL PEREZ, Petitioner, v. STATE OF ALASKA, Respondent.
Docket NumberA-13666
Decision Date18 November 2022

JEREMIAH MIGUEL PEREZ, Petitioner,
v.

STATE OF ALASKA, Respondent.

No. A-13666

Court of Appeals of Alaska

November 18, 2022


Petition for Review from the Superior Court, Trial Court No. 3AN-19-04280 CR Third Judicial District, Anchorage, Kevin M. Saxby, Judge.

John M. Murtagh, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Petitioner.

Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniff en Jr., Acting Attorney General, Juneau, for the Respondent.

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

OPINION

ALLARD, JUDGE

In May 2019, an Anchorage grand jury indicted Jeremiah Miguel Perez and eight co-defendants on an eighty-three count indictment alleging a series of felony property crimes. At Perez's arraignment, the trial court appointed the Alaska Public

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Defender Agency to represent him. Despite this appointment, the Public Defender Agency did not assign an individual attorney to represent Perez for over five months. During those five months, the court repeatedly continued Perez's case and tolled the Alaska Criminal Rule 45 speedy trial clock at the request of various assistant public defenders who were in the courtroom when the court called Perez's case. Three of those public defenders noted that there was a potential conflict of interest in the Agency's representation of Perez because the Agency had also been appointed to represent some of Perez's co-defendants. Over time, the Agency withdrew from representing Perez's co-defendants so that ultimately the Agency was only representing Perez.

In October 2019, an individual assistant public defender finally filed an entry of appearance in Perez's case. Approximately a month later, the Public Defender Agency moved to withdraw, citing a conflict of interest, and a contract attorney with the Office of Public Advocacy entered his appearance. That attorney subsequently filed a motion to dismiss under Criminal Rule 45. In the motion, the attorney asserted that the various assistant public defenders who had requested continuances in Perez's case were not authorized to do so because of the "obvious" conflict of interest caused by the Agency's simultaneous representation of multiple co-defendants. The attorney argued that the trial court had therefore erred in tolling Perez's Rule 45 time based on those continuance requests, and that Perez's case should be dismissed with prejudice because the Rule 45 time for a speedy trial had otherwise run.

The trial court denied the motion to dismiss, finding that the various public defenders had apparent authority to waive Rule 45 time on Perez's behalf. This petition for review followed.

Because the record in this case affirmatively indicates that the tolling of Rule 45 was done with Perez's knowledge and consent, we conclude that the motion to dismiss was properly denied. We nevertheless granted this petition and are issuing this

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decision to ensure that trial courts recognize their own duty to act when a defense agency does not act diligently to enter an appearance or resolve a potential conflict.

As we emphasized in a recent opinion, "The Constitution's guarantee of assistance of counsel cannot be satisfied by mere formal appointment."[1] Thus, when a trial court becomes aware that a defendant who is represented by public counsel has not been assigned an individual attorney, the trial court must take affirmative steps to ensure that the situation is immediately rectified. Likewise, when the Public Defender Agency informs a trial court that it may have a conflict of interest, the court should actively monitor the case to ensure that the potential conflict is resolved, or substitute counsel appointed, within a reasonable period of time.

Background facts and proceedings

On May 2, 2019, an Anchorage grand jury returned an eighty-three count indictment. The indictment charged nine defendants, including Perez, with a series of felony thefts and burglaries that resulted in over $25,000 worth of stolen property. Perez was arraigned on the twenty-six counts that pertained to him on May 6, 2019. At the arraignment, the trial court appointed the Alaska Public Defender Agency to represent Perez. The assistant public defender who was present at that arraignment waived reading of the indictment and advisement of rights and entered not guilty pleas on Perez's behalf.

On May 28, the grand jury returned a supplemental indictment in the nine-co-defendant case. Perez was arraigned on the additional count that pertained to him on May 31, 2019. The assistant public defender who was present at the arraignment informed the court that the Agency had been appointed to represent multiple co-

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defendants and that there was an ongoing "evaluation of the conflict" to determine which case the Agency would retain.

On June 10, the trial court conducted the first pretrial conference. Five of the nine co-defendants were present. (The other four co-defendants had outstanding bench warrants.) Three of the five co-defendants were still represented by the Public Defender Agency. No entry of appearance had been filed for Perez. At this point, Perez had been in custody for more than a month on this case.[2]

The assistant public defender who was present at the pretrial conference informed the court that the Agency was currently appointed to represent Perez and two other co-defendants (Blake Millhouse and William Ratliff), but there were conflict issues with the multiple defendants that would need to be resolved. The attorney noted that both Millhouse and Ratliff had been assigned assistant public defenders but Perez had not yet been assigned an attorney. The attorney suggested that the cases be set for the next available pretrial conference. The court responded that the next available conference was July 8, and that 39 days had run under Rule 45. The attorney stated that this was "okay" with Ratliff, Perez, and Millhouse.

Perez was present in the courtroom when the assistant public defender said that Perez and the other co-defendants were "okay" with the continuance to July 8. Perez was also present when the court stated that 39 days of the Rule 45 speedy trial time had run and that the speedy trial time would toll until the next pretrial conference on July 8.

On July 8, the court held the next pretrial conference. At this point, the Public Defender Agency only represented two of the co-defendants-Perez and Ratliff.

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(Conflict counsel had been appointed for Millhouse.) But there was still no entry of appearance for Perez. Perez had been in custody for two months on this case.

At the outset of the July 8 hearing, an assistant public advocate who was representing one of the other co-defendants informed the court that Perez appeared to be unrepresented. The judge then asked Perez if he had an attorney, and Perez responded, "Not so far, your Honor." Instead of taking affirmative steps to determine why Perez remained without an assigned attorney more than two months after his initial arraignment, the court simply "appointed" the Public Defender Agency (which had already been appointed) and asked that an attorney from the Agency go speak to Perez. The assistant public defender who was present apparently then spoke to Perez, and this attorney subsequently told the court that he was there "on behalf of Mr. Perez and Mr. Ratliff."

At the hearing, the attorneys for the other co-defendants complained about discovery issues and asked that the cases be continued until August 5, with Rule 45 time tolling. The assistant public defender representing Perez and Ratliff agreed to the continuance and the tolling of the time. There was no discussion of the potential conflict with the Public Defender Agency representing both Perez and Ratliff nor was there any discussion of the fact that there was still no individual attorney assigned to Perez's case.

The next pretrial conference was held on August 5. At that point, Perez had been in custody for 92 days on this case and still no attorney had entered an appearance on his behalf. Notably, by this time, the Public Defender Agency had withdrawn from representing Ratliff, and it appears that the Agency remained appointed only to Perez's case.

However, when the court called Perez's case, no attorney responded. Perez himself responded and informed the court that "for three months ... nobody's here for me. I haven't had an attorney yet." The court agreed that the situation "need[ed] to be

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fixed." After consulting the file, the court found that the Public Defender Agency had been appointed, and a note in the file said that there was a "conflict check" going on. An assistant public defender who was present for other matters agreed to speak with Perez.

Later in the hearing, the assistant public defender asked when the Agency had been appointed and whether the Agency already had a conflict at the time they were appointed. The attorney asserted that the Public Defender Agency could not waive Rule 45 time on Perez's behalf if it had a conflict, and she argued that the prior waivers may have been invalid. The court responded that it was not going to rule on any challenges to the prior Rule 45 waivers and that a motion should be filed if there was a disagreement with the court's calculation that only 39 days had run.

The court then ruled that it would continue all of the other cases until October 7 except for Perez's case, which would be scheduled for the following week so that the court could address the representation issue. Near the end of the hearing, the court repeated that Perez's case would be heard on August 12. The following exchange then occurred:

Attorney: Judge, Mr. Perez now tells me he is comfortable waiving from today until the next court date.
Court: Oh, do you want to come back next week?
Perez: No.
Attorne
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