Opinion
Court of Appeals No. A-8854.
February 28, 2007.
Appeal from the Superior Court, First Judicial District, Juneau, Larry R. Weeks, Judge, Trial Court No. 1JU-03-743 Civ.
Daniel C. Wayne, Juneau, and David E. George, Anchorage, for the Appellant. W. H. Hawley Jr., Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
In February 2003, Richard D. Williams Sr. pleaded guilty to second-degree sexual abuse of a minor. Four months later, while he was awaiting sentencing, Williams sent two pro se letters to the superior court, asking to withdraw his plea on the basis that his trial attorney's preparation of the case had been incompetent. In response to Williams's action, his attorney filed two motions: a formal request that Williams be allowed to withdraw the plea, and a request to withdraw as Williams's attorney. The superior court denied both of these motions.
Following his sentencing, Williams filed a petition for post-conviction relief. In this petition, Williams alleged that his attorney had been ineffective in his litigation of these two motions, and also ineffective for failing to file an appeal (or advise Williams to file an appeal) after the two motions were denied.
The superior court held an evidentiary hearing on Williams's petition and, based on the testimony presented at that hearing, denied the petition. Williams now appeals the superior court's decision. For the reasons explained here, we agree with the superior court that Williams failed to prove that his attorney was ineffective, and we therefore affirm the superior court's denial of Williams's petition.
Underlying facts: the pre-sentencing proceedings in the superior court, the post-conviction relief litigation, and the superior court's findings of fact and conclusions of law
A Juneau grand jury indicted Williams on two counts of first-degree sexual abuse of a minor. Assistant Public Defender Robert Meachum was assigned to represent Williams. Williams eventually agreed to resolve these charges through a plea bargain: in February 2003, pursuant to that plea agreement, Williams pleaded guilty to a single count of the lesser offense of second-degree sexual abuse of a minor.
1AS 11.41.434(a).
Four months later, on June 1, 2003, while Williams was awaiting sentencing, he sent a personal letter to Superior Court Judge Larry R. Weeks. In this letter, Williams sought permission to withdraw his guilty plea, and he asked Judge Weeks to appoint a new attorney for him. Williams contended that Meachum had not represented him effectively, and that Meachum had not "fully informed [him] of [his] rights". Williams asserted that he needed a new attorney who would protect his rights.
On June 4, 2003, Judge Weeks held a hearing in response to Williams's letter. Judge Weeks declined to rule on either of Williams's requests ( i.e., his request to withdraw his plea, and his request for a new attorney) until Williams offered a fuller explanation of his complaints against Meachum. The judge directed Meachum to help Williams draft an affidavit that would detail Williams's criticisms of Meachum's handling of the case.
During the ensuing ten days, Meachum spoke with Williams four or five times (both in person and by telephone) concerning the need to prepare Williams's affidavit to support Williams's pending requests to withdraw his plea and to obtain a new attorney. Williams refused to discuss these matters with Meachum. He told Meachum that he had already said everything he had to say about these matters, he refused to provide any more details of why he was dissatisfied with Meachum's representation, and he refused to cooperate in preparing an affidavit.
During this same time, Williams (again acting pro se) wrote another letter to Judge Weeks. In this second letter, dated June 8th, Williams listed eleven complaints against Meachum. However, with one exception, all of these complaints were cursory and conclusory, and Williams's letter was not written under oath.
On June 13th, having concluded that Williams was not going to supply the required affidavit, or even the information needed to prepare the affidavit, Meachum nevertheless filed formal motions asking the superior court to allow Williams to withdraw his plea, and asking the superior court to allow Meachum to withdraw from the case. Because Williams refused to provide the information for an affidavit to support these motions, Meachum simply attached copies of Williams's two letters to the superior court, plus a copy of a letter that Williams had written to the Public Defender Agency on June 8th.
Because Williams declined to explain his complaints against Meachum in an affidavit, Judge Weeks denied Williams's motion to withdraw his plea, and he also denied Meachum's motion to withdraw from the case. Meachum thus remained Williams's attorney through the sentencing hearing.
On August 5, 2003, Judge Weeks entered judgement against Williams. The judge sentenced Williams to 7 years' imprisonment with 4 years suspended.
After the sentencing, Williams telephoned M eachum to ask him about postconviction relief. Meachum mailed Williams a copy of the judgement, as well as copies of the court system forms for seeking post-conviction relief.
On September 10, 2003, Williams (acting pro se) filed an application for post-conviction relief, asserting that Meachum had represented him ineffectively and that he should be allowed to withdraw his plea. Judge Weeks appointed the Office of Public Advocacy to represent Williams in this post-conviction relief litigation.
Williams's new attorney ultimately filed an amended petition for postconviction relief, asserting that Meachum had represented Williams ineffectively during the litigation of the two pre-sentencing motions — the motion to allow Williams to withdraw his plea, and the motion to allow Meachum to withdraw from the case.
First, Williams claimed that Meachum was incompetent for failing to support these two motions with an affidavit. Williams asserted that it was Meachum's decision not to file an affidavit — that Meachum concluded that he could not ethically assist Williams in preparing an affidavit that would question the competency of his work in Williams's case.
Second, Williams claimed that Meachum was incompetent for continuing to represent Williams through the sentencing hearing, when Meachum was burdened by this purported ethical conflict of interest.
Third, Williams claimed that Meachum was incompetent for failing to immediately "appeal" — i.e., seek interlocutory review — after Judge Weeks denied the two pre-sentencing motions.
Fourth, Williams claimed that Meachum failed to tell him, after the entry of judgement at the sentencing hearing, that Williams now had the right to file an appeal challenging Judge Weeks's rulings on the two pre-sentencing motions.
Both Williams and Meachum filed affidavits addressing Williams's claims for post-conviction relief. To resolve the issues presented by these affidavits, Judge Weeks held an evidentiary hearing on June 14, 2004.
Meachum took the stand at this evidentiary hearing and testified about his dealings with Williams during the litigation of the two pre-sentencing motions. In particular, Meachum described Williams's refusal to help him draft the affidavit that was needed to support the two motions. (Meachum's testimony on this subject has already been summarized above.)
Meachum also described his dealings with Williams following Williams's sentencing hearing. With regard to Williams's claim that Meachum never apprised him of his right to appeal Judge Weeks's rulings on the two pre-sentencing motions (now that a final judgement had been entered), Meachum conceded that he probably did not speak to Williams about his right to appeal, although he did speak to Williams about the possibility of seeking post-conviction relief. Meachum had no specific memory on this point, but he believed that it was more likely that he did not discuss an appeal with Williams — because Williams was, for the most part, refusing to talk to him (apart from their conversation about post-conviction relief).
After Meachum gave this testimony, Williams declined to testify.
At the conclusion of the hearing, Judge Weeks concluded that Williams had failed to prove that he was entitled to post-conviction relief.
With regard to Meachum's efforts in connection with the two pre-sentencing motions (the motion to withdraw Williams's plea, and the motion for Meachum to withdraw from the case), Judge Weeks found that Meachum's account of these events was credible. In particular, Judge Weeks found that Meachum repeatedly tried to get Williams to provide information for the affidavit that was needed to support these two motions, that Williams refused to cooperate with Meachum, and that Meachum, faced with his client's refusal to cooperate, did the best he could by filing motions that were supported by Williams's unsworn letters. In other words, Judge Weeks rejected Williams's assertion that Meachum had refused to prepare the affidavit because of a perceived ethical conflict. Instead, Judge Weeks declared that it was Williams's fault that no affidavit was prepared, and that Meachum's handling of this matter was "adroit", given Williams's refusal to aid his attorney.
With regard to the claim that Meachum had failed to apprise Williams of his right to file a merit appeal challenging Judge Weeks's rulings on the two pre-sentencing motions, Judge Weeks noted that Meachum was unsure whether he had spoken to Williams about an appeal, but the judge further noted that Meachum specifically recalled speaking to Williams about the alternative course of seeking postconviction relief. Based on this testimony, and based on the fact that Williams bore the burden of proof on this issue, Judge Weeks concluded that Williams had failed to prove his claim that Meachum never advised him of his right to appeal.
Finally, Judge Weeks concluded that, even assuming for purposes of argument that some of Meachum's actions were incompetent, Williams had failed to prove that there was any reasonable possibility that Meachum's purported deficiencies made any difference to the outcome of Williams's case.
With regard to the two pre-sentencing motions, Judge Weeks concluded that these motions never would have been granted, despite an attorney's best efforts, because (1) some of the claims listed in Williams's letter to the court were demonstrably false and, in any case, (2) Williams's claims were not supported by an affidavit, and the absence of this required affidavit was Williams's fault, not Meachum's.
With regard to Meachum's failure to seek immediate interlocutory review of Judge Weeks's rulings on the two pre-sentencing motions, Judge Weeks concluded that even if Meachum had filed a petition for discretionary pre-judgement review of these rulings, this Court would not have granted the petition.
And, with regard to Meachum's alleged failure to apprise Williams of his right to appeal the superior court's rulings on these two pre-sentencing motions, Judge Weeks concluded that Williams had failed to show that he was prejudiced — because Williams had failed to show that there were any arguable grounds for appeal. That is, even though Williams had been given the opportunity (in the post-conviction relief litigation) to air and pursue all of his claims, aided by a new attorney, Williams still had failed to show that he had any ground for withdrawing his plea.
Williams's arguments on appeal
As explained earlier in this opinion, after Williams wrote his first letter to Judge Weeks (the letter of June 1st) expressing dissatisfaction with Meachum and asking to withdraw his plea, Judge Weeks held a hearing to discuss Williams's concerns. At that hearing of June 4th, Meachum asked Judge Weeks for permission to withdraw as Williams's attorney, but Judge Weeks deferred a decision on this request until Williams submitted an affidavit detailing his complaints about Meachum. That affidavit never materialized.
On appeal, Williams argues that Judge Weeks should have allowed Meachum to withdraw from the case on June 4th — i.e., as soon as it became clear that Williams was dissatisfied with Meachum's performance. But Williams does not attack Judge Weeks's ruling directly; rather, Williams attacks Meachum's actions following that June 4th ruling.
According to Williams, after Judge Weeks directed Meachum to help Williams draft the affidavit, Meachum was placed in an ethical bind: the judge had ordered Meachum to assist Williams in drafting the affidavit, but Meachum had a conflict of interest that prevented him from zealously performing this task, because he was being asked to criticize his own performance. According to Williams, Meachum should either have immediately petitioned this Court to review Judge Weeks's ruling, or Meachum should have diligently labored with Williams to produce the required affidavit. Instead, according to Williams's brief, Meachum "chose a path in between" by complying only "partially" with Judge Weeks's order. As described in Williams's brief,
[Meachum] went to the jail to meet with [Williams, but this] meeting . . . completely failed because they were unable to get past personal issues and discuss the [matters that] the court had ordered [them to discuss].
Thus, Williams argues, Meachum's conflict of interest obstructed him from helping Williams to prepare the required affidavit — and, because of the lack of this affidavit, Judge Weeks's later denied Williams's motion to withdraw his plea.
We disagree with Williams's argument on both legal and factual grounds.
First, Judge Weeks could properly defer his ruling on Meachum's request to withdraw from the case until after Williams offered a detailed explanation of his reasons for wanting a new attorney. Meachum was Williams's court-appointed attorney. An indigent defendant who has a court-appointed lawyer does not have the right to dismiss that lawyer at will.
Jerrel v. State, 851 P.2d 1365, 1372 (Alaska App. 1993); Monroe v. State, 752 P.2d 1017, 1020 (Alaska App. 1988). See also Coleman v. State, 621 P.2d 869, 878 (Alaska 1980) (an indigent defendant has no right to choose the attorney who will be appointed to represent them).
It is true that a court should replace a court-appointed attorney if there has been an irreparable breakdown in the attorney-client relationship — that is, if "relations between attorney and client [have] deteriorated to the point where [the attorney is] incapable of effective communication [with the client] or objective decision[-]making [about the case]". Mute v. State, 954 P.2d 1384, 1385 (Alaska App. 1998). See also Moore v. State, 123 P.3d 1081, 1094 (Alaska App. 2005) (Mannheimer, J., concurring).
But as Judge Weeks noted in his written decision, an indigent defendant will not be allowed to engineer the breakdown in the attorney-client relationship by refusing to cooperate with their lawyer for no good reason. We confronted a similar situation in Jerrel v. State, 851 P.2d 1365 (Alaska App. 1993).
The defendant in Jerrel asked the superior court to replace her court-appointed attorney just before sentencing; she claimed that she had conflicts of interest with both the Public Defender Agency and the Office of Public Advocacy, and that therefore the superior court should appoint a private attorney to represent her at sentencing — or, at least, to represent her for the limited purpose of advising her regarding these purported conflicts and, if need be, presenting her arguments to the court on this issue. The superior court rejected Jerrel's request because her claims of conflict were vague.
Jerrel, 851 P.2d at 1372.
Id.
On appeal, Jerrel argued that the superior court should have immediately appointed a private attorney to assist her in establishing the existence of the purported conflicts of interest. We rejected that argument — holding instead that the superior court could properly require Jerrel to give a more detailed explanation of the purported conflicts before the court acceded to her request for new counsel:
Id.
Apart from establishing Jerrel's obstinate resolve to avoid cooperating with counsel from either the [Public Defender Agency] or the [Office of Public Advocacy], Jerrel's allegations of conflict revealed nothing more than her vague dissatisfaction with the level of representation she believed those agencies had provided [to] her sons in other [legal] matters. Because Jerrel failed to articulate or substantiate any colorable ground for a legal conflict between her own interests and other interests actively advocated by [the two agencies], she was not entitled to the appointment of private counsel, either for purposes of representing her interests generally or for purposes of counseling her on the existence of potential conflicts.
Jerrel, 851 P.2d at 1372-73.
Judge Weeks faced a similar situation in Williams's case. Meachum had represented Williams following his indictment, and through the negotiation of a plea bargain that allowed Williams to plead to a reduced charge, with no apparent problems in the attorney-client relationship. Then, with Williams facing sentencing, Williams wrote two letters to the court, complaining that Meachum had not protected his rights, and asking that the plea bargain be rescinded. Under these circumstances, Judge Weeks could properly defer a ruling on Williams's request for a new attorney until Williams gave a detailed explanation of his complaints about Meachum's performance.
When Judge Weeks ordered Meachum to help Williams prepare the affidavit detailing his complaints about Meachum's performance, Meachum was hesitant to undertake this role. We acknowledge that, in certain circumstances, it might be difficult or even impossible for an attorney to zealously assist a client in formulating complaints about the attorney's own performance.
Williams argues that such was the case here — that Meachum failed to help him prepare the required affidavit because Meachum could not ethically "investigate himself", and because the personal relationship between Meachum and Williams had broken down. But the testimony presented at the evidentiary hearing proved otherwise.
Meachum testified that he repeatedly contacted Williams, both by telephone and in person, and urged Williams to work on the affidavit. Despite Meachum's efforts, Williams refused to work on the affidavit or talk to Meachum about this matter. Thus, as Judge Weeks found, the failure to produce the affidavit had nothing to do with any ethical difficulties on Meachum's part; rather, it was due to Williams's utter failure to cooperate in this endeavor.
As Judge Weeks pointed out in his decision, and as we pointed out in Jerrel, a defendant can not refuse to cooperate with their attorney for no good reason, and then claim that their attorney failed to competently present their case.
In his brief to this Court, Williams argues that his relationship with Meachum had deteriorated to the point where the two men could no longer meaningfully communicate, and Williams further argues that he would have been able to produce the required affidavit if he had been dealing with a different attorney. But during the litigation of Williams's petition for post-conviction relief, Williams presented no evidence to support these assertions.
As we explained earlier, Williams declined to take the stand at the evidentiary hearing. Thus, he offered no explanation for his refusal to work with Meachum to prepare the affidavit. Meachum, for his part, testified that he was willing to help Williams organize and articulate his complaints, but Williams would not discuss these matters with him, even after Meachum explained and emphasized the importance of producing the affidavit.
It was Williams's burden to prove that the failure to produce the affidavit stemmed from Meachum's incompetence or conflicting loyalties. There was no evidence of this. The only evidence was that Williams, for unexplained reasons of his own, refused to provide the information necessary to draft the affidavit.
Moreover, it was also Williams's burden to prove that he was prejudiced by Meachum's purported ineffective representation. But when Judge Weeks held the evidentiary hearing on Williams's petition for post-conviction relief, Williams failed to offer any evidence concerning what he would have said in the affidavit if he had had the opportunity to prepare it with the assistance of an attorney other than Meachum. Thus, even if we assume (for purposes of argument) that Meachum was hampered by ethical considerations from diligently assisting in the preparation of the affidavit, Williams failed to offer proof that he suffered any detriment.
For many of these same reasons, we reject Williams's contention that Meachum was incompetent for failing to immediately seek interlocutory review when Judge Weeks denied the two pre-sentencing motions — Williams's motion to withdraw his plea, and Meachum's motion to withdraw from the case. Both of these motions ultimately hinged on Williams's making at least colorable assertions of Meachum's incompetence — and W illiams refused to provide an affidavit containing such assertions. Accordingly, Judge Weeks could properly deny both of these motions, and Meachum could competently conclude that this Court was not going to grant interlocutory review and reverse Judge Weeks's rulings.
This brings us to Williams's contention that, after Judge Weeks entered judgement against Williams, Meachum incompetently failed to tell Williams that he now had the right to appeal Judge Weeks's rulings on the two pre-sentencing motions — in particular, the right to appeal Judge Weeks's denial of Williams's motion to withdraw his plea.
The first obstacle to Williams's argument is that Williams bore the burden of proving that Meachum failed to advise him of his right to appeal — and Judge Weeks found that Williams failed to meet that burden. As explained above, the testimony presented at the evidentiary hearing was inconclusive as to whether Meachum had told Williams of his right to appeal Judge Weeks's rulings. Judge Weeks declared that, although he believed it was likely ( i.e., more probable than not) that Meachum had failed to apprise Williams of his right to appeal, the judge could not find that Williams had proved this fact by clear and convincing evidence — the standard of proof specified in AS 12.72.040.
This statute declares: "A person applying for post-conviction relief must prove all factual assertions by clear and convincing evidence."
In his brief to this Court, Williams cites Meachum's testimony from the evidentiary hearing — Meachum's testimony that he did not think he advised Williams of his right to appeal. But Williams does not address Judge Weeks's finding that, despite this testimony, when the evidence was considered as a whole, Williams failed to prove this fact by clear and convincing evidence. Because Williams does not address Judge Weeks's finding or argue why it might be clearly erroneous, this contention is waived.
Moreover, Williams failed to show how he might have been prejudiced by Meachum's purported failure to advise him of his right to appeal Judge Weeks's rulings on the two pre-sentencing motions. As we explained above, both of these motions ultimately hinged on Williams's making at least colorable assertions of Meachum's incompetence. Williams refused to provide an affidavit containing any such assertions, and Judge Weeks could therefore properly deny both of the motions.
Even assuming that Williams had filed a timely appeal after he was sentenced, challenging Judge Weeks's denial of the two motions, there is nothing in the present record to suggest that Judge Weeks was wrong when he insisted on an affidavit, or wrong when he denied Williams's motions after Williams refused to supply the affidavit. As we have explained, when Judge Weeks denied Williams's motions, the judge did not reach any conclusion about the ultimate merits of Williams's complaints about Meachum's handling of the case. Rather, Judge Weeks ruled that Williams had failed to meet the procedural requirements for pleading a prima facie case of attorney incompetence.
Even now, Williams does not contend that Judge Weeks committed error when he required Williams to provide an affidavit explaining his dissatisfaction with Meachum and his reasons for wishing to withdraw his plea. Rather, Williams argues that his ability to supply this affidavit was defeated by Meachum's incompetence and conflicting loyalty. That is, Williams's argument ultimately hinges on the same underlying contention as his other arguments: the contention that Meachum did not give him effective representation.
Williams could not have presented such an argument on direct appeal, even if he had filed a timely appeal following his sentencing. Rather, Williams had to litigate this claim in a petition for post-conviction relief — because Williams's arguments ultimately rested on factual matters outside the record of the trial court proceedings. Because of this, even if Meachum failed to advise Williams of his right to appeal, Williams failed to show that he was prejudiced — that is, he failed to show that he had any colorable claim for relief that could have been raised in a direct appeal.
See Sharp v. State, 837 P.2d 718, 722 (Alaska App. 1992); Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984).
Williams's final argument on appeal does not concern the substance of Judge Weeks's decision on Williams's petition for post-conviction relief, but rather the particular evidence that Judge Weeks heard during the evidentiary hearing on that petition.
As explained above, Meachum was the sole witness at this evidentiary hearing. When Williams's new attorney was questioning Meachum, he asked Meachum about his response to the situation after it became clear that Williams was not going to cooperate in drafting the affidavit to support the two pre-sentencing motions. In particular, Williams's attorney asked Meachum why Meachum had not drafted an affidavit on his own, and then simply asked Williams to sign it. Meachum responded that this would not have been feasible, since only Williams knew the specific reasons why he was dissatisfied with Meachum's representation, and Meachum was not privy to this information — since Williams refused to discuss it with him.
Dissatisfied with Meachum's response, Williams's new attorney pressed Meachum to concede that some of the cursory allegations in Williams's letter to the superior court might have been specific enough, standing on their own, to warrant inclusion in the proposed affidavit. In particular, Williams's attorney suggested that three of the allegations in Williams's letter were specific enough, without any further clarification, to be included in the affidavit: the allegation that Meachum did no work on the case for eight months, the allegation that Meachum never visited Williams in jail to discuss plans for the defense, and the allegation that Meachum never contacted any potential witnesses.
A few minutes later, Judge Weeks cross-examined Meachum on this point, asking Meachum if any of these allegations were true. Meachum declared that he had, in fact, discussed plans for the defense with Williams. Meachum further declared that, although his investigator was the main person in charge of interviewing witnesses, Meachum had personally sat down with Williams to discuss potential witnesses, but none of Williams's suggested witnesses had any relevant testimony to offer.
Then, in further answer to Williams's assertion that Meachum had never sat down with him to discuss plans for the defense, Meachum began to outline the defense that he discussed with Williams: "The defense that we talked about was, well, [the victim] was going to be . . . testifying about things that. . . ." Before Meachum could finish this sentence, Williams's attorney objected that Meachum was now describing matters that went beyond the scope of the matters raised in Williams's petition for postconviction relief — and thus, the attorney argued, Meachum's disclosures would violate Williams's attorney-client privilege.
Judge Weeks disagreed. The judge pointed out that when a lawyer is asked to prepare an affidavit for a client's signature, a competent lawyer's response to this request will reasonably be affected by the lawyer's knowledge that the assertions of fact to be included in the proposed affidavit are demonstrably false.
In other words, when Williams's new attorney raised the question of why Meachum had not simply prepared an affidavit containing Williams's three allegations, and then had Williams sign the affidavit, one relevant factor explaining why a competent attorney in Meachum's position might not follow this course was Meachum's knowledge that the three allegations were false, and could be proved false. As Judge Weeks noted in his written decision, a competent attorney in Meachum's position would take into account the fact that, by asking Williams to sign such an affidavit, he would be subjecting his client to potential charges of perjury.
Moreover, we again note that Williams's underlying claim was that he received ineffective assistance of counsel in connection with his request to withdraw his plea. Williams claimed that if Meachum had represented him competently, Meachum would have been able to prepare a successful motion for plea withdrawal, or would have been able to prepare a successful motion to withdraw from the case, so that Williams could procure a new attorney who could then prepare a successful motion for plea withdrawal.
These assertions ultimately hinge on proof that Williams had at least an arguable basis for withdrawing his plea — i.e., an arguable basis for claiming that Meachum's investigation and preparation of the case was incompetent. Meachum's answers were pertinent to this underlying issue.
For these reasons, we agree with Judge Weeks that Meachum's answers were relevant to the issues raised by Williams's post-conviction relief attorney — and, thus, Meachum did not violate Williams's attorney-client privilege when he gave those answers.
Conclusion
The judgement of the superior court is AFFIRMED.