Christopher E. Cleveland v State of Alaska

In the Court of Appeals of the State of Alaska
Christopher Cleveland,
Appellant,
v.
State of Alaska,
Appellee.
Court of Appeals No. A-13181
& A-13182
Order
Reconsider Single-Judge Order
Calvin Akeya,
Appellant,
v.
State of Alaska,
Appellee. Date of Notice: 4/22/2019
Trial Court Case No. 2KB-15-00419CR & 2NO-14-00193CR
[Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.]
Alaska Appellate Rule 521 authorizes an appellate court to relax or
dispense with a rule of appellate procedure — such as a filing deadline — if strict
adherence to the deadline will work injustice. However, Appellate Rule 521 also states
that, “in a matter involving the validity of a criminal conviction or sentence,” the rule
“does not authorize an appellate court . . . to allow the notice of appeal to be filed more
than 60 days late.” See also Appellate Rule 502(b).
The question presented in these two cases is whether this Court has the
authority to accept an appeal that is filed more than 60 days late when the attorney
representing the defendant declares that the lateness of the appeal is due entirely to the
attorney’s ineffective assistance — i.e., due to the attorney’s improper neglect of the

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April 22, 2019
defendant’s case.
The State contends that even when the attorney’s improper neglect of the
case is undisputed, this Court has no authority to accept the late-filed appeal — that,
instead, a defendant in these circumstances must file an application for post-conviction
relief in the trial court, asking the trial court to find counsel ineffective and to authorize
the filing of the appeal.
For the reasons explained in this order, we reject the State’s position that
a defendant’s only remedy in these circumstances is to petition the trial court for post-
conviction relief. Rather, we hold that an appellate court has the authority to grant the
defendant’s motion to accept a late appeal when the undisputed facts establish that the
defendant is entitled to such relief. Thus, absent notice from the State that it intends to
contest the underlying facts in these two cases, we will grant the motions for late-filed
appeals in both of these cases.
Underlying facts
The underlying claims of attorney neglect in these two cases are virtually
indistinguishable. The Office of Public Advocacy was appointed to represent Cleveland
and Akeya in their criminal cases. The Office of Public Advocacy contracted with the
law firm Gazewood & Weiner, who in turn contracted with attorney Robert S. Noreen
to handle this representation. Attorney Noreen represented both defendants at their trials.
According to Noreen’s later submitted affidavits, both defendants requested
that Noreen appeal their case. However, despite these requests, Noreen failed to file a
timely notice of appeal in either case. Noreen provides no explanation for this failure

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other than his own neglect and “procrastination.” Noreen attributes his neglect to
moving residences and to time spent unsuccessfully negotiating with Gazewood &
Weiner and the Office of Public Advocacy for greater compensation for his services.
In June 2018, Noreen finally filed a motion to accept late-filed notice of
appeal in both cases. By this point, the notices of appeal were well outside the 60-day
limit established by Appellate Rule 521. The judgment against Calvin Akeya was
distributed on May 17, 2016, making Noreen’s notice of appeal in that case two years
late. The judgment against Christopher Cleveland was distributed on March 15, 2017,
making Noreen’s notice of appeal in that case almost fourteen months late. The motions
to accept late-filed notices of appeal in Akeya’s and Cleveland’s cases were accompanied
by Noreen’s affidavits, in which he affirmed under oath that both Akeya and Cleveland
had timely requested an appeal in their cases and that neither Akeya nor Cleveland were
responsible for the resulting delay.
This Court responded to these pleadings by ordering a supplemental
affidavit by Noreen in each case to explain the delay. This Court then directed the Office
of Public Advocacy — the agency ultimately responsible for representing Akeya and
Cleveland — to secure a new attorney to investigate the situation. This Court indicated
that if this attorney’s investigation confirmed that the delay was solely attributable to
neglect on the part of Noreen and/or the law firm of Gazewood & Weiner (who had
contracted with Noreen for his services), then the Office of Public Advocacy would be
allowed to file a renewed motion to accept the late-filed notices of appeal in these cases,
despite the length of the delays that occurred here.
Attorney Brooke Berens, a staff attorney with the Office of Public

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Advocacy, was assigned to Akeya’s and Cleveland’s cases. Berens filed renewed
motions to accept the late-filed notices of appeal in both cases. According to the motions
and accompanying affidavits, Berens investigated the cause of the delay, reviewing the
files and pertinent hearings and speaking with Calvin Akeya, Christopher Cleveland,
Robert Noreen, Jason Weiner (the managing partner of Gazewood & Weiner), and Chad
Holt, the director of the Office of Public Advocacy.
With regard to Akeya’s late-filed notice of appeal, Berens confirmed that
Akeya had informed Noreen at sentencing that he wanted to appeal. The audio recording
of the sentencing hearing in Akeya’s case corroborated that Noreen had spoken to Akeya
about appealing and that Noreen understood that it was his responsibility to file the
paperwork, even if he was not going to be the attorney on the appeal. According to
Berens’s motion, Akeya called Noreen at least once after the sentencing hearing to
discuss the appeal, and Noreen again confirmed that he would file one. The next time
Akeya heard from Noreen was when Noreen mailed him a copy of the documents he
filed to try to open the appeal — over two years after the sentencing. Akeya called
Noreen to thank him.
With regard to Cleveland’s late-filed notice of appeal, Berens confirmed
that Cleveland and Noreen had initially discussed an appeal at the end of trial, before
sentencing, and that they had discussed the matter again at sentencing, at which point
Cleveland indicated that he wanted to appeal his convictions and his sentence. There
was also a meeting at the jail in which they discussed the appeal. According to Berens’s
motion, Cleveland called Noreen several times after sentencing inquiring about the
appeal and Noreen assured Cleveland that he was working on opening it. Cleveland also
inquired in May or June 2018 about the status of the appeal. Noreen informed Cleveland

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that the appeal was ongoing and mailed Cleveland a copy of the motion he filed in June
to accept the late-filed notice of appeal.
According to Berens, the investigation had shown that the late filing was
due solely to ineffective assistance of counsel, and nothing in her investigation suggested
that the late filing was attributable to Akeya or Cleveland in any way. She therefore
requested that this Court grant the renewed motion to accept the late-filed appeals,
despite the fact that they were filed outside the 60-day window contemplated by
Appellate Rule 521.
Policy considerations and the State’s opposition in the current cases
Historically, this Court has allowed defendants to file late notices of appeal,
even outside the 60-day window, when the uncontested facts demonstrated that the delay
was caused by ineffective assistance of counsel. See, e.g., Custer v. State, File No.
11901 (124 days late; State took no position); Stacy v. State, File No. 12668 (75 days
late; no opposition by the State); Hoehne v. State, File No. A-12815 (222 days late; State
took no position); Backford v. State, File No. A-12995 (91 days late; no opposition by
the State); Nyako v. State, File No. A-13157 (393 days late; no opposition by the State).
This Court has also previously accepted late-filed notices of appeal, even over the State’s
opposition. See, e.g., Byrd v. State, File No. A-11443 (142 days late; accepted, over
State’s opposition based on Appellate Rules 502(b) and 521, due to the uncontested
nature of counsel’s ineffectiveness).
This policy derives from the fact that an attorney who fails to file a notice
of appeal after being instructed to do so by the defendant is considered per se ineffective

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April 22, 2019
under both state and federal law. See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000);
United States v. Witherspoon, 231 F.3d 923, 926 (4th Cir. 2000); Harvey v. State, 285
P.3d 295, 297 (Alaska App. 2012). As the United States Supreme Court explained in
Roe v. Flores-Ortega, “filing a notice of appeal is a purely ministerial task,” and “a
defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to
file the necessary notice.” Flores-Ortega, 528 U.S. at 477.
Moreover, where it is uncontested that a defendant timely asked for an
appeal to be filed, and their attorney failed to complete the simple ministerial task of
filing a notice of appeal, no additional showing of prejudice is required. Instead,
prejudice is presumed under these circumstances. Flores-Ortega, 528 U.S. at 483;
United States v. Snitz, 342 F.3d 1154, 1156 (10th Cir. 2003) (presuming prejudice where
counsel disregarded defendant’s specific instructions to appeal and finding it irrelevant
that defendant’s attorney conceded that any appeal would be futile).
In other words, a defendant is not required to show that the appeal, if it had
been timely filed, would have been successful. Instead, the defendant is only required
to show that (1) they made their desire to appeal evident to their attorney, and (2) their
attorney’s negligence resulted in forfeiture of that right to appeal. See Flores-Ortega,
528 U.S. at 485; see also Broeckel v. State, 900 P.2d 1205, 1208 (Alaska App. 1995)
(holding that prejudice is presumed when ineffective assistance of counsel consists of an
attorney’s failure to preserve the right of a client to appeal and that automatic remedy in
such instances is restoration of the right to appeal).
In Akeya’s and Cleveland’s cases, however, the State has opposed this
Court granting any relief. Despite an invitation to do so in Akeya’s case, the State has

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April 22, 2019
not indicated that it disputes any of the underlying facts. Nor has it offered any reason
to disbelieve Noreen’s admissions of professional neglect — admissions that are directly
against Noreen’s personal interest and have resulted in this Court referring these two
matters to the Alaska Bar Association.
Instead, the State’s position appears to be that, even when the attorney
neglect is uncontested and the legal remedy is clear, the defendant must nevertheless
pursue this remedy through an application for post-conviction relief in the lower courts.
According to the State, this Court cannot accept any appeal that is over the 60-day limit,
even when doing so is in the interests of justice and judicial economy.
We disagree. Given the circumstances presented here, we conclude that we
should be guided by the Alaska Supreme Court’s decision in Amos v. State, 46 P.3d 1044
(Alaska 2002). In Amos, it was uncontested that a defense attorney had improperly
neglected to pursue a sentence appeal on behalf of his client — taking no action to
pursue the sentence appeal until after this Court issued our initial decision in Amos’s
case. See id. at 1045.
This Court initially denied Amos’s attempt to brief the sentencing issue
after his case returned to the Court. But a majority of the supreme court held that, in
these circumstances, an appellate court has the authority to grant relief without requiring
the defendant to file an application for post-conviction relief in the trial court. Amos, 46
P.3d at 1046. The supreme court concluded that the appellate attorney’s affidavit
admitting the attorney’s own negligence constituted “conclusive evidence” of the
attorney’s incompetence. Id. Given the attorney’s concession that he was at fault in
failing to pursue the sentence appeal, the supreme court concluded that it would be an

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April 22, 2019
inefficient use of judicial resources to require Amos to litigate a petition for post-
conviction relief in the trial court. Id.
These same considerations govern Akeya’s and Cleveland’s cases. It is at
this point undisputed that Akeya and Cleveland both timely told their attorney that they
wished to appeal, and it is further undisputed that the failure to file a timely notice of
appeal in both cases was the fault of their attorney (and, potentially, of the law firm that
subcontracted for this attorney’s services). The State has not requested an evidentiary
hearing on any of these facts nor does there appear to be any material facts that are in
dispute. Cf. Jordan v. Watson, 407 P.3d 497, 498 (Alaska 2017) (“[An evidentiary]
hearing is not necessary if there is no genuine issue of material fact before the court.”)
(internal quotations and citations omitted).
What is clear, however, is that requiring a post-conviction relief proceeding
when there are no material facts in dispute would lead to further delay — delay that is
against the interests of everyone involved in the criminal justice system, including crime
victims and the State itself. It is also clear that it would lead to some administrative
difficulties for the trial court. Because defendants are only entitled to one application for
post-conviction relief challenging their convictions, see AS 12.72.020(a)(6), the
attorneys assigned to such post-conviction relief cases would need to either (1) review
the entire criminal record in order to determine whether there are other issues that should
be simultaneously raised and litigated (at the risk of being forfeited), or (2) request that
the post-conviction relief proceeding be bifurcated — with litigation on the late-filed
appeal occurring immediately and litigation on all other claims potentially being stayed
for years during the pendency of the appeal. Either option would seemingly only
exacerbate the significant backlog of post-conviction applications currently pending in

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April 22, 2019
the trial courts. See Uniform Administrative Order Establishing a Statewide Central
Calendaring Judge for Criminal Rule 35.1 Cases Assigned to Certain Public Defender
Agency/Office of Public Advocacy Counsel (eff. Feb. 15, 2017), available at
https://public.courts.alaska.gov/web/jord/docs/calendar -cases2-17.pdf.
Given all this, we conclude, similar to the supreme court in Amos, that post-
conviction relief litigation is not required when it will serve no purpose other than to
increase the delay that has already occurred. Here, the real question is not whether we
have the authority to hear an appeal that is filed beyond the limit set out in Appellate
Rule 521 as a result of attorney neglect. The question is whether we have the procedural
authority to accept such an appeal when the facts of the attorney’s neglect are
undisputed. We conclude that we do.
Accordingly, absent notice from the State that it intends to contest the
underlying facts in the renewed motions to accept late-filed appeals, we intend to accept
the late-filed notices of appeal in these cases and to proceed with a briefing schedule.
For these reasons, IT IS ORDERED:
1. On or before May 10, 2019, the State shall advise this Court if it wishes
to contest the factual assertions contained in the pleadings related to Akeya’s and/or
Cleveland’s motions to accept late-filed appeal. If so, this Court will remand the
pertinent case(s) to the trial court with directions to convert the motion into an
application for post-conviction relief, allow for bifurcation of this issue from any other
post-conviction relief issues that Akeya or Cleveland may wish to pursue, and expedite
action on this matter.

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File No. A-13181
April 22, 2019
2. If the State does not file any further response on or before May 10, 2019,
this Court will affirm the single-judge order granting Akeya’s and Cleveland’s renewed
motions to accept late-filed appeal.
Entered at the direction of the Court.
Clerk of the Appellate Courts
________________________________
Sarah E Anderson, Deputy Clerk
cc: Court of Appeals Judges
Court of Appeals Staff Attorney
Judge E. Smith
Judge R. DiBenedetto
Kotzebue Trial Court Clerk
Nome Trial Court Clerk
Distribution:
Mail:
Berens, Brooke V., Office of Public Advocacy
Ringsmuth, Eric
Davis, Olena K, OPA - Contract