Opinion
Court of Appeals No. A-10438.
December 8, 2010.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-05-10005 CI.
David K. Allen, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Fred A. Baker appeals from an order dismissing his application for post-conviction relief. Baker argues that both the Public Defender Agency and the assistant public defender assigned to represent him were ineffective in their response to an order scheduling his case for trial on one day's notice. He contends that his attorney incompetently tolled the speedy trial rule by filing a notice that she would be on annual leave beginning on the second day of the scheduled trial. Baker further contends that the agency was ineffective in failing to assign another attorney to handle his trial.
We agree with the trial court's conclusions that Baker's assistant public defender had no duty to refrain from filing the notice of her unavailability and that the agency had no duty to assign an attorney on such short notice to avoid a continuance of trial. We therefore affirm the denial of Baker's application for post-conviction relief.
Background
Baker was originally charged with felony driving while intoxicated, refusal to submit to a chemical test, driving with a suspended license, and criminal mischief in the third degree. The Public Defender Agency was appointed to represent him.
District Court Judge Natalie K. Finn held trial call on Monday, October 11, 1999. Baker's attorney told the court that she would be on leave and unavailable for trial from October 13-26. The prosecutor stated that some of the State's witnesses would also be unavailable during that period. Baker objected to any delay of the trial. Judge Finn set jury selection for Friday, October 15, with evidence to be presented on October 19 and 20. Baker's attorney informed the court that she would have to ask her supervisors if another agency attorney could handle Baker's trial, as it was not common practice to switch attorneys just days before a felony trial.
Later that afternoon, presiding Superior Court Judge Elaine M. Andrews issued an order setting Baker's trial for the very next day, Tuesday, October 12. Baker's attorney responded by filing a notice of her unavailability beginning October 13, and the prosecutor filed a notice listing when the State's witnesses were unavailable. Based on these notices, Judge Andrews recalculated the Criminal Rule 45 deadline for Baker's trial and set trial for December 7.
Baker moved to dismiss his case for violation of Alaska Criminal Rule 45. The trial court denied the motion, and Baker was eventually convicted after a jury trial. On direct appeal, we upheld the denial of Baker's Rule 45 motion.
Baker v. State, 110 P.3d 996, 999 (Alaska App. 2005) (quoting Jeske v. State, 823 P.2d 6, 8 (Alaska App. 1991)).
Baker then filed this application for post-conviction relief. Baker asserted that his trial attorney informed the court that the trial could go forward with a different attorney, but then filed a notice of her unavailability without his consent. He alleged that the Public Defender Agency denied him effective assistance of counsel because "[t]he unavailability of [his trial attorney], due to a planned vacation, was an inadequate basis on which to deny Baker the services of a different [agency attorney], in order to preserve his right to a timely trial date."
The State moved to dismiss the amended application, arguing that the trial attorney's notice of unavailability did not qualify as ineffective assistance of counsel. Superior Court Judge Michael L. Wolverton granted the State's motion, concluding that Baker had failed to make a prima facie case for post-conviction relief. Judge Wolverton ruled that it was appropriate for Baker's attorney to file a notice of unavailability, and that it was "not reasonable for the Agency to expect another attorney to come in on less than 24-hours notice to handle a multi-count felony trial and ethically represent the client." Baker now appeals.
Discussion
Baker renews his claim that the Public Defender Agency and his assigned attorney acted incompetently by failing to protect his objection to any further delay of his trial. In reviewing the denial of an application for post-conviction relief, we accept as true all of the properly pleaded allegations in the application and inquire whether those facts, if proven, would entitle the applicant to the relief sought. To state a prima facie case of ineffective assistance of counsel, the applicant is required to allege "a level of performance that no reasonably competent attorney would provide."
Hampel v. State, 911 P.2d 517, 524 (Alaska App. 1996).
State v. Jones, 759 P.2d 558, 568 (Alaska App. 1988).
Baker initially argues that his attorney's notice of unavailability constituted either an unauthorized waiver of his right to a speedy trial or an unauthorized implied representation that he consented to a continuance. We do not read the notice of unavailability as an unauthorized representation that Baker consented to a continuance. And in Baker's direct appeal we stated that "it is unnecessary to decide whether Baker needed to consent to the continuance to resolve the present case." Regardless of the defendant's consent, the unavailability of trial counsel will ordinarily constitute "good cause" for a short delay of a trial.
Baker, 110 P.3d at 999.
See Alaska R. Crim. P. 45(d)(7); Cook v. State, Mem. Op. J. No. 5113, 2006 WL 2578646 (Alaska App. Sept. 6, 2006) (holding that the time limit for trial is tolled during a period of unavailability of counsel); cf. Keller v. State, 84 P.3d 1010, 1011 (Alaska App. 2004) (holding that the unavailability of a substitute trial judge was good cause for a short delay).
Baker also argues that his assistant public defender misrepresented that the agency would make another attorney available to represent him. During trial call, when Baker initially objected to a continuance, his attorney stated that Baker had the choice to have another attorney pick up his case and go to trial the following day. But when the judge asked Baker's attorney whether the Public Defender Agency could assign another attorney on such short notice, the attorney responded more equivocally: "I've never been in this position. . . . I guess we'll take it to our supervisors and ask them what happens when we're in this position. It's certainly not the way we normally operate." With this clarification, the attorney's remarks cannot be taken as the type of misrepresentation that would support a claim of ineffective assistance of counsel.
Baker also contends that his assistant public defender was not authorized to file the notice of her unavailability. But notification of counsel's schedule is not one of the important choices reserved for the defendant in a criminal case. It follows that a lawyer retains the ultimate authority to decide on how and when to notify the court of unavailability for trial. Any other rule could be inconsistent with an attorney's duty of candor to the tribunal and could seriously interfere with the effective management of the trial court's calendar.
Alaska R. Prof. Conduct 1.2(a) ("In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, whether the client will testify, and whether to take an appeal.").
See Simeon v. State, 90 P.3d 181, 184 (Alaska App. 2004).
See Alaska R. Prof. Conduct 3.3(a)(1).
Baker argues that the Public Defender Agency was ineffective in failing to make substitute counsel available on one day's notice. Baker does not cite any cases supporting this proposition, and we cannot infer such a duty on this record. Such a duty would be inconsistent with an attorney's obligation to make the preparations reasonably necessary to represent a client competently. Numerous cases recognize that it may be an abuse of discretion to require new counsel to proceed without an adequate opportunity to prepare for a trial or hearing.
See Alaska R. Prof. Conduct 1.1(a).
See Doe v. State, 487 P.2d 47, 57 (Alaska 1971); Klockenbrink v. State, 472 P.2d 958, 965-66 (Alaska 1970); Vinson v. Hamilton, 854 P.2d 733, 735-36 (Alaska 1993); Barrett v. Gagnon, 516 P.2d 1202, 1204 (Alaska 1973).
We add a few words about the issues we are not deciding. We are not deciding that the trial court was required to grant a continuance based on counsel's notice of unavailability. We are simply deciding that counsel breached no cognizable duty when she filed the notice.
Also, we are not suggesting that the Public Defender Agency could have declined to represent Baker if the court had insisted that the trial go forward on short notice. We are simply deciding that the agency had no duty to volunteer to undertake this difficult task.
Accordingly, we AFFIRM the superior court's decision dismissing the application for post-conviction relief.