CRIMINAL LAW
Court of Appeals of Alaska (2023)
Katie Raya
In Mack v. State, 523 P.3d 1235 (Alaska Ct. App. 2023), the court of appeals held that an appellate attorney has a duty to consult with their client regarding the possibility of filing an appeal or petition for hearing, and that the failure to consult can form the basis for an ineffective assistance of counsel claim. (Id. at 1246). In 2002, Mack was convicted of first-degree murder. (Id. at 1238). After several unsuccessful appeals, Mack filed a second application for post-conviction relief, claiming incompetence of his appellate attorneys and seeking restoration of his right to file petitions for hearing. (Id.). Mack argued that his attorneys’ failure to inform him about filing a petition for hearing prevented him from pursuing further appeals. (Id. at 1239). The superior court initially dismissed Mack’s application, stating that he was entitled to meaningful consultation but did not find lack of fulfillment of this obligation nor demonstrated prejudice. (Id.). The court of appeals reasoned that the failure to fulfill the ethical duty to inform a defendant about the right to file a petition for hearing can constitute ineffective assistance of counsel. (Id. at 1244). The court reasoned that the petition is a crucial part of the appellate process, has a limited time frame for filing, and denial of effective consultation at this stage goes against the principles of fair and efficient justice, aligning with precedents in other jurisdictions. (Id.). Further, the court extended the test for ineffective counsel claims, concluding that in a post-conviction relief proceeding, a defendant can file a belated petition for hearing without proving the merits of the underlying issues if the application is deemed timely, the defendant shows the appellate attorney’s failure to consult about the petition for hearing was unreasonable, and there is a reasonable possibility that this failure was the cause of not filing the petition for hearing. (Id. at 1248). The court further reasoned that the decision to appeal is ultimately a decision for the defendant after consultation with counsel, and that failure to file a petition for hearing deprives the defendant of the benefit of an entire proceeding. (Id. at 1252). Thus, the court of appeals concluded Mack had established a prima facie case of ineffective assistance and remanded the case, establishing that an appellate attorney has a duty to consult with their client regarding the possibility of filing an appeal or petition for hearing, and failure to do so can constitute an ineffective assistance of counsel claim. (Id.)
