Amos v. State

CORRECTED OPINION

EASTAUGH, Justice.

1. What remedy is appropriate if a erimi-nal defendant's appointed appellate attorney fails to brief and argue the defendant's intended excessive sentence appeal along with his merit appeal? Because allowing the sentence appeal to go forward is the most effective use of judicial resources to correct counsel's failure, we vacate the order of the court of appeals denying the defendant's motions seeking an opportunity to brief his sentence appeal.

2. Steve Amos entered a plea of no contest to one count of first degree robbery and one count of first degree sexual assault on January 22, 1998. Several weeks later Amos's newly appointed public advocate filed a motion to withdraw Amos's plea. The superior court denied Amos's motion to withdraw his plea and sentenced him to twenty-five years in prison, fifteen for the sexual assault and ten for the robbery.

3. Amos commenced a combined merit and sentence appeal in the court of appeals on January 4, 1999. The docketing statement, notice of appeal, and statement of points on appeal all indicated that Amos intended to appeal the denial of his motion to withdraw his plea as well as the sentence imposed. - But Amos's brief did not address the sentencing issue. In June 2000 Amos moved for leave to supplement his appeal with an argument that the sentence was excessive; he supported his argument with an affidavit from his lawyer, who stated that he had neglected to brief the sentencing issue because he was unaware that his client wished to appeal his sentence. The court of appeals denied the motion for leave to supplement Amos's appeal. Amos's lawyer filed a second affidavit to accompany Amos's motion for full-court reconsideration of the motion for leave to supplement. Counsel's see-*1046ond affidavit revealed that Amosg's file showed Amos's intent to challenge his sentence and admitted that The lawyer's own "excusable neglect" resulted in the failure to brief the sentencing issue. The court of appeals denied the motion to reconsider.

4. Amos filed a petition for hearing seeking reversal of the court of appeals's refusal to allow supplemental briefing on the sentencing issue.

5. We hold that it was an abuse of discretion not to allow Amos to supplement his merit appeal with briefing on the sentencing issue.1 Amos made out a colorable claim of ineffective assistance of appellate counsel when his appellate attorney admitted that he had failed to submit a sentence appeal as his client expected him to. Ineffective assistance claims must include evidence sufficient to overcome the strong presumption that the alleged error was a sound tactical decision.2 In this case, the appellate attorney's second affidavit is conclusive evidence that his failure to brief the sentence appeal was the result of negligence, not tactics. The' attorney admitted that upon reviewing his files, the docketing statement, the notice of appeal, the statement of points on appeal, the designation of transcript, the clerk's opening notice, and his own correspondence with Amos, Amos's intention to appeal his sentence was clear. The attorney further admitted that he "somehow failed to recognize that the brief should have included a sentencing argument." He concluded that

the failure to brief the sentence issue on appeal resulted from counsel's excusable neglect. I certainly intended to brief the sentencing issue at the outset, and I never intended to abandon the issue by failing to brief the argument. Although in retrospect I understand how the error arose, I recognize the seriousness of the mistake and assume full responsibility for its occurrence.

It is evident from the affidavit that Amos's appellate counsel was ineffective. It was therefore an abuse of discretion not to allow supplemental briefing.

6. The only remaining issue is whether appellate counsel's ineffective assistance prejudiced Amos. Because that issue requires consideration of the merits of Amos's would-be sentence appeal, the best use of judicial resources is to remand to the court of appeals to allow Amos to present his sentence appeal, rather than to consign the issue to a separate post-conviction relief proceeding asserting ineffective assistance. We consequently GRANT the petition for hearing and VACATE the order denying Amos's motion seeking an opportunity to brief the sentence appeal and REMAND to the court of appeals.

. We will determine that there was an abuse of discretion if, after considering the entire record, we are left with a definite and firm conviction that the lower court erred in its ruling. See Hallam v. Holland America Line, Inc., 27 P.3d 751, 753 (Alaska 2001) (reviewing denial of leave to amend); see also C.L. v. P.C.S., 17 P.3d 769, 771 (Alaska 2001) (reviewing motion to consolidate); Reese v. Geiermann, 574 P.2d 445, 446-47 (Alaska 1978) (reviewing motion for continuance).

. State v. Jones, 759 P.2d 558, 569-70 (Alaska App.1988) (citation omitted).