Vickie Leake v. State of Alaska

In the Court of Appeals of the State of Alaska
Vickie Leake and Gary C. Leake,
Petitioners,
v.
State of Alaska,
Respondent.
Court of Appeals Nos. A-14693/
A-14694
Order
Petition for Review
Date of Order: 7/23/2025
Trial Court Case Nos. 4FA-22-00494/382CR
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges
Vickie and Gary Leake filed a joint petition seeking review of the superior
court’s order denying their retained attorneys’ joint motion to withdraw from
representation. For the reasons explained in this order, we GRANT the petition for
review and AFFIRM the superior court’s order as within its discretion given the
information that was provided by the Leakes’ attorneys.
Background facts
This petition involves a case that has been pending in pretrial status for
more than three years. Vickie Leake is charged with multiple felony counts related to
allegations that she assaulted and endangered the welfare of her children. Her husband,
Gary Leake, is charged as a co-defendant on some of the counts. Both Leakes are
represented by retained counsel. Vickie Leake is represented by Robert John, who has
represented her since June 27, 2022. Gary Leake is represented by Jason Beatty, who
has represented him since September 15, 2023.
In June 2024, the State indicated that it was ready to go to trial, and the
State objected to any further continuances. The superior court subsequently set a trial

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date for April 2025. However, it became clear the April trial date would need to be
vacated because Mr. John had made a mistake about his availability.
On February 21, 2025, Mr. John and Mr. Beatty alerted the superior court
that the Leakes might not be able to afford to pay for their services if trial were to be
rescheduled in the near future. They indicated, however, that the Leakes might be able
to get the necessary money if they were given more time and trial was set off sometime
into the future.
At a pretrial conference on March 25, the defense attorneys told the court
that the Leakes had consented to their withdrawal because the Leakes could not
“reasonably afford continued representation.” The attorneys did not provide any further
detail about the Leakes’ finances, how the retainers had been structured, or how this
situation had developed.
The superior court expressed concern about allowing the attorneys to
withdraw at this late date. The court informed the attorneys that they would need to file
written motions seeking to withdraw, and the court set a representation hearing for
April 8.
Mr. John filed a pro forma one-page motion to withdraw that stated only
that his client, Vickie Leake, had consented to his withdrawal and that she was aware
of the next court date. Mr. Beatty filed a similar pro forma one-page motion that stated
only that Gary Leake had consented to his withdrawal and was aware of the next court
date. It does not appear that either motion was accompanied by an affidavit from the
attorney or the defendant.
The State filed a response to the motions to withdraw. In the response, the
State pointed out that the Leakes’ case would soon be subject to an Alaska Supreme
Court order which would become effective on May 12, 2025, and which limited the
tolling of Rule 45 for continuances in older criminal cases. The Office of Victims’

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Rights filed a lengthy opposition to the motions to withdraw, arguing that any further
delay violated the rights of the child victims under the Alaska Constitution.
At the April 8 representation hearing, Mr. John referred generally to the
financial reasons for withdrawing. He also asserted that he would be unable to provide
effective assistance of counsel for Vickie Leake because he was “overloaded” and was
still recovering from hip surgery. Although Mr. John referred to his concerns regarding
his own burnout, he did not claim that he was physically or mentally incapable of
representing Ms. Leake. Nor did he provide a clear accounting of his other cases or why
withdrawal from any of those cases was not possible. Mr. Beatty referred solely to
financial reasons for withdrawing. He argued that requiring the private attorneys to
proceed with a trial for which their clients could not pay amounted to holding them as
“indentured servants.” Neither attorney provided any details about their clients’
financial situation.
The prosecutor opposed any withdrawal, pointing out the age of the case
and the lengthy delay that would result from a substitution of counsel. The prosecutor
argued that the withdrawal requests were being made on “the eve of trial” because the
parties still had the April trial date (although it was understood that this date would be
vacated and a new trial date would be set).
The attorney from the Office of Victims’ Rights also opposed the
withdrawal requests, arguing that the excessive delay was particularly traumatizing for
the child victims.
In rebuttal, Mr. John emphasized that he was a solo practitioner without
any other lawyers to help him. He asserted that he would be unable to work on
Ms. Leake’s case until July given his scheduling with other cases. He also asserted that
he would be unable to provide effective assistance of counsel to Ms. Leake (even if she
were able to pay) given his commitment to his other cases. He requested that trial be set

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for February 2026. Mr. Beatty indicated that he, like Mr. John, was a solo practitioner
whose business interests would be harmed if he was required to work for free.
The superior court acknowledged that this was a difficult decision with
many competing interests. But ultimately, given the long history of the case, the many
continuances, and the emotional upheaval that delay caused for the children, the court
denied the motions to withdraw.
The parties then discussed a trial date. Mr. John asserted that there was
still investigation that needed to be done but the superior court discounted this concern,
noting that the defendants had received the discovery more than fifteen months ago.
The court ultimately scheduled the trial to start on August 25, 2025.
Mr. John and Mr. Beatty filed a joint motion for reconsideration following
the April 8 representation hearing. They argued that the superior court’s ruling denying
their motions to withdraw violated the Leakes’ right to counsel of their choice and also
violated their right to effective assistance of counsel. The attorneys also argued that
requiring them to represent the Leakes for free constituted an unconstitutional taking
under Alaska case law. According to the motion, the Leakes were eligible for public
counsel and they should therefore be appointed public counsel. Lastly, the attorneys
asserted that the August trial date was too soon.
The superior court denied the motion for reconsideration, noting that the
defense attorneys had “presented no factual basis from which the court can conclude
that the Leake’s [sic] are indigent under Criminal Rule 39.1.” This joint petition for
review followed.
The joint petition for review
In their petition, the attorneys argue that the superior court’s denial of their
motions to withdraw violates the Leakes’ constitutional right to counsel of their choice

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and their constitutional right to effective assistance of counsel. The attorneys also argue
that the superior court erred in denying their motions to withdraw given the fact that the
Leakes consented to the withdrawal and can no longer afford to pay for further private
representation.
Background law
Alaska Rule of Criminal Procedure 50(a) states that “[t]he Rules of Civil
Procedure relating to the withdrawal of an attorney for a party shall apply to attorneys
retained to represent an accused in a criminal action[].” 1 Alaska Rule of Civil
Procedure 81(e)(1) states, in pertinent part:
(1) An attorney who has appeared for a party in an action or
proceeding may be permitted to withdraw as counsel for
such party only as follows:
(A) Where the party has other counsel ready to be
substituted for the attorney who wishes to withdraw;
(B) Where the party expressly consents in open court or
in writing to the withdrawal of the party’s attorney,
the party has provided in writing or on the record a
current service address, telephone number, and
email address, and the attorney who wishes to
withdraw has provided to the party a list of pending
pretrial or post-trial deadlines, appellate deadlines,
motion deadlines, and hearing dates and times;
(C) Where the party’s consent has not been obtained, the
court may grant a motion to withdraw for good
cause. The court is required to hold a hearing on the
motion only upon a party’s timely request. A party’s
1 Alaska R. Crim. P. 50(a); see also Alaska R. Prof. Conduct 1.16(c) (“A lawyer must
comply with applicable law requiring notice to or permission of a tribunal when
terminating a representation.”).

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request for a hearing is timely if it is made within
ten days of service of the motion to withdraw. . . . ;
or
(D) In accordance with the limitations set forth in any
limited entry of appearance filed pursuant to Civil
Rule 81(d).[2]
Under this rule, the decision whether to grant a retained attorney’s motion
to withdraw is a matter that is entrusted to the sound discretion of the trial court.3 But
the rule does not provide much guidance regarding what factors a judge should consider
when exercising that discretion.
There are, however, larger principles in play that help inform the judge’s
decision. For example, non-indigent criminal defendants have a constitutional right to
retained counsel of their choice.4 As the Leakes point out, a defendant who retains
private counsel normally has the power to dismiss that attorney and hire another.5
But the constitutional right to counsel of choice is not absolute and there
are limits to a defendant’s right to dismiss a retained attorney.6 The Alaska Supreme
2 Alaska R. Civ. P. 81(e)(1) (emphasis added).
3 See Bravo v. Aker, 435 P.3d 908, 912 (Alaska 2019).
4 See United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006) (acknowledging that
the Sixth Amendment affords non-indigent criminal defendants the right to be represented
by retained counsel of their choice); see also Cook v. State, 312 P.3d 1072, 1073 (Alaska
2013) (noting that Article I, Section 11 of the Alaska Constitution affords the same right).
5 See McKinnon v. State, 526 P.2d 18, 21-22 (Alaska 1974).
6 See, e.g., Burleson v. State, 543 P.2d 1195, 1198-1200 (Alaska 1975) (explaining
that “it will not always be the case that a continuance should be granted to afford an accused
the opportunity to secure counsel of his choice”); Gonzalez-Lopez, 548 U.S. at 151-52
(observing several circumstances in which the right to counsel of choice must give way to
other competing interests); United States v. Ensign, 491 F.3d 1109, 1114-1115 (9th Cir.

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Court has recognized that, in situations where the attorney’s dismissal would
necessarily require a continuance of the trial, allowing a defendant to exercise this right
unfettered “could well thwart the efficient operation of the courts.”7 In such situations,
a trial judge must balance the defendant’s right to counsel of choice against the interests
of the State, the interests of the victims, and the interests of the public and the judicial
system in the prompt disposition of criminal trials.8
2007) (noting that “the Sixth Amendment right to chosen counsel is not absolute and could
be revoked to serve a ‘compelling purpose,’ such as ‘the efficient and orderly
administration of justice’” (quoting United States v. Ries, 100 F.3d 1469, 1471 (9th Cir.
1996))); see also 17 Am. Jur. 2d Continuance § 64 (“[T]he accused’s right to counsel of
one’s choice is not absolute and may not be used to frustrate the inherent power of a court
to command the orderly, efficient, and effective administration of justice.”).
7 Burleson, 543 P.2d at 1200; see also Le v. State, 2015 WL 4387489, at *5-6 (Alaska
App. July 15, 2015) (unpublished).
8 See Burleson, 543 P.2d at 1200 (“Efficiency in the operation of the court system
and the interest of the public in prompt disposition of criminal cases dictate that
unnecessary delays be avoided.”); see also Linton v. Perini, 656 F.2d 207, 209 (6th Cir.
1981) (noting that when a defendant’s invocation of their right to counsel of choice would
cause delay, “the trial court may interfere with the defendant’s right to counsel of his own
choice and require the case to proceed” if it finds that delay would “create[] difficulties for
the trial court” or “prejudice the prosecution”), superseded by statute on other grounds as
recognized by Burton v. Renico, 391 F.3d 764, 771 n.2 (6th Cir. 2004).
In his treatise on criminal procedure, Professor LaFave notes that when a defendant
seeks a continuance to secure counsel of their choice and has not shown good cause, the
trial court must balance “the defendant’s interest in counsel of choice against the ‘public’s
interest in prompt and efficient administration of justice.’” 3 Wayne R. LaFave et. al.,
Criminal Procedure § 11.4(c), at 821-22 (4th ed. 2024) (quoting Linton, 656 F.2d at 209).
Professor LaFave observes that, when reviewing a trial judge’s ruling in these
circumstances, “appellate courts tend to be guided by the due process standard set forth by
the [United States] Supreme Court in Ungar v. Sarafite. Id. at 822 (citing Ungar v. Sarafite,
376 U.S. 575 (1964)). These factors include:

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The timing of the motion to withdraw is therefore important. Thus, courts
have upheld a trial court’s denial of a motion to withdraw in cases where the motion to
withdraw is filed only after a significant amount of work has been done on the case and
the case is close to trial.9
(1) whether the request came at a point sufficiently in advance of trial to
permit the trial court to readily adjust its calendar; (2) the length of the
continuance requested; (3) whether the continuance would carry the trial
date beyond the period specified in the state speedy trial act; (4) whether
the court had granted previous continuances at defendant’s request;
(5) whether the continuance would seriously inconvenience the witnesses;
(6) whether the continuance request was made promptly after the
defendant first became aware of the grounds advanced for discharging his
counsel; (7) whether the defendant’s own negligence placed him in a
situation where he needed a continuance to obtain new counsel;
(8) whether the defendant had some legitimate cause for dissatisfaction
with counsel, even though it fell short of likely incompetent
representation; (9) whether there was a “rational basis” for believing that
defendant was seeking to change counsel “primarily for the purpose of
delay”; (10) whether the current counsel was prepared to go to trial;
(11) where defendant is being tried jointly with codefendants, whether the
continuance will require separate trials in order to protect the
codefendant’s interest in more promptly proceeding to trial; and
(12) whether denial of the motion was likely to result in “identifiable
prejudice to the defendant’s case of a material or substantial nature.”
Id. at 822-25 (footnotes omitted).
9 See, e.g., People v. Woodring, 48 A.D.3d 1273, 1274 (N.Y. App. 2008) (affirming
denial of motion to withdraw since the record reflected that the court properly balanced
“the need for the expeditious and orderly administration of justice against the legitimate
concerns of counsel” and noting that the alleged inability to pay for trial counsel’s services
does not automatically entitle trial counsel to withdraw (quoting People v. Xadi Fen, 747
N.Y.S.2d 353, 354 (N.Y. Sup. 2002))); People v. Young, 953 N.Y.S.2d 840, 843-44 (N.Y.
City 2012) (finding withdrawal improper where defendant met his initial financial
obligation to the firm and the matter “ha[d] gone well past the discovery and motion stages
and [was] ready to be tried,” but granting withdrawal in case where defendant never

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There are also ethical rules that apply to an attorney’s decision to seek
withdrawal from representation. Alaska Rule of Professional Conduct 1.16(b) identifies
various circumstances that constitute “good cause” for an attorney to seek withdrawal
even though the representation is not complete. Rule 1.16(b)(6) states, in relevant part,
that an attorney may seek withdrawal if “the representation will result in an
unreasonable financial burden on the lawyer.” However, Rule 1.16(c) also provides that
“[a] lawyer must comply with applicable law requiring notice to or permission of a
tribunal when terminating a representation.” In addition, Rule 1.16(c) provides that,
“[w]hen ordered to do so by a tribunal, a lawyer shall continue representation
notwithstanding good cause for terminating the representation.”
Did the superior court’s order denying the motions to withdraw violate
the Leakes’ constitutional right to counsel of their choice?
The Leakes argue that the superior court violated their constitutional right
to counsel of their choice by denying their attorneys’ motions to withdraw. We disagree.
As we just explained, a non-indigent criminal defendant’s constitutional right to counsel
of their choice is not absolute and, when necessary, must yield to larger concerns
involving the proper and timely administration of justice.10 The current case is already
deposited a retainer and “insubstantial services ha[d] been rendered”); see also Matthew H.
v. State, Dep’t of Health & Soc. Servs., 397 P.3d 279, 283-84 (Alaska 2017) (affirming
trial court’s denial of motion to withdraw in child-in-need-of-aid case because the
termination trial was only a few weeks away); Willoya v. State, Dep’t of Corrs., 53 P.3d
1115, 1120 (Alaska 2002) (affirming trial court’s granting of private attorney’s motion to
withdraw in civil case because trial was still ten months away).
10 See Cook v. State, 312 P.3d 1072, 1073 (Alaska 2013) (observing that the right to
counsel of choice “is not absolute”); Burleson, 543 P.2d at 1199-1200 (explaining that the
right to counsel of choice must be balanced with “[e]fficiency in the operation of the court

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more than three years old, the State indicated its readiness for trial more than a year
ago, and the superior court set trial for April 2025 (although that date was vacated
because one of the defense attorneys had been mistaken about their availability).
Under these circumstances, it was appropriate for the superior court to
balance the Leakes’ interests in discharging their retained attorneys against the timely
and fair administration of justice, including the delays that had already occurred, the
number of continuances already requested and received by defense counsel, and the
trauma that these lengthy delays were causing the child witnesses.
Accordingly, we conclude that the superior court’s denial of the motions
to withdraw did not violate the Leakes’ constitutional right to counsel of their choice.
Did the superior court’s order denying the motions to withdraw violate
the Leakes’ constitutional right to effective assistance of counsel?
The Leakes argue that the superior court’s order denying their retained
attorneys’ motions to withdraw violated their right to effective assistance of counsel. In
response, the State argues that “[n]o real information has been provided on how they
would be ineffective.” We agree that the superior court was within its discretion to
discount the retained attorneys’ conclusory assertions that they would be ineffective if
withdrawal was not granted.
We note as an initial matter that ineffectiveness of counsel requires not
only that the defense attorney acts incompetently, but also that the incompetence
prejudices the defendant in a material way.11 Here, Mr. Beatty, counsel for Gary Leake,
system and the interest of the public in prompt dispositi[o]n of criminal cases”); see also
3 Wayne R. LaFave et. al., Criminal Procedure § 11.4(c), at 821-25 (4th ed. 2024).
11 See Strickland v. Washington, 466 U.S. 668, 687 (1984); Risher v. State, 523 P.2d
421, 425 (Alaska 1974).

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never directly asserted that he would be incompetent if required to proceed to trial. He
only raised the difficulties that a solo practitioner faces when required to proceed to
trial with a client who is not able to pay.
We acknowledge that Mr. John did assert in general conclusory terms that
he would be incompetent if required to proceed to trial. At the representation hearing,
Mr. John asserted that he was currently “overloaded” with other trials and other case
work, including some appeals. He also asserted that he was trying to reduce his caseload
because he was still recovering from a recent hip surgery.
But Mr. John’s claims were not supported by an affidavit, and he did not
provide a clear accounting of his current workload nor an explanation of how this
situation had developed and whether there are other measures that could be taken aside
from delaying the trial in this case. Furthermore, Mr. John did not expressly claim that
he was physically or mentally incapable of providing competent representation under
the circumstances.12 Nor did he provide any objective reasons for believing that he
would be incompetent. As the State pointed out in its response to the petition, Mr. John
is a very experienced criminal practitioner who claims to have billed 250 hours of work
in Ms. Leake’s case.13
In short, Mr. John’s claim of potential incompetent representation was no
more than conclusory. In situations like this, we defer to the trial court, who is in a
12 A lawyer shall not represent (or continue to represent) a client if “the lawyer’s
physical or mental condition materially impairs the lawyer’s ability to represent the client.”
Alaska R. Prof. Conduct 1.16(a)(2).
13 See Grinols v. State, 10 P.3d 600, 619 (Alaska App. 2000) (“The law presumes that
attorneys are competent, and a defendant must affirmatively rebut this presumption of
competence.” (citing State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988))).

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better position to assess the competency and preparedness of the attorney and to
evaluate whether a continuance is needed in light of the concerns raised.14
Given the lack of a current record establishing legitimate reasons to be
concerned about Mr. John’s ability to provide competent representation, we conclude
that the superior court’s order denying the motions to withdraw did not violate the
Leakes’ right to effective assistance of counsel.
Did the superior court err in denying the motions to withdraw based on
an alleged inability to pay?
The Leakes argue that the superior court erred when it denied their
retained attorneys’ motions to withdraw based on the Leakes’ inability to pay. They
argue, in particular, that the superior court’s actions constituted an unconstitutional
taking under DeLisio v. Alaska Superior Court.15 We agree with the superior court that
DeLisio is distinguishable from the current case.
DeLisio involved a private attorney who had been involuntarily appointed
to represent an indigent criminal defendant due to the Public Defender Agency having
a conflict of interest.16 The private attorney refused the appointment and was held in
contempt.17 On appeal, the attorney argued that requiring a private attorney to represent
an indigent defendant without reasonable compensation was a taking under the Fifth
14 Cf. Nielsen v. State, 623 P.2d 304, 307 (Alaska 1981) (“The decision whether to
grant or deny a motion for continuance is committed to the sound discretion of the trial
court.”).
15 DeLisio v. Alaska Super. Ct., 740 P.2d 437 (Alaska 1987).
16 Id. at 438 n.1.
17 Id. at 438.

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and Fourteenth Amendments of the United States Constitution and Article I, Section 18
of the Alaska Constitution.18 The Alaska Supreme Court agreed, holding that “the
appropriation of [an] attorney’s labor is a ‘taking’” under the Alaska Constitution. 19
The court therefore reversed the contempt charge.20
Mr. John and Mr. Beatty are not similarly situated to the private attorney
in DeLisio because they voluntarily chose to represent the Leakes, and they voluntarily
entered into a contractual relationship with the Leakes that the record shows was, until
recently, financially satisfactory to the attorneys. DeLisio is therefore inapposite and
not controlling.
Mr. John and Mr. Beatty seem to be under the impression that a criminal
defendant’s inability to pay automatically entitles them to withdraw from
representation. But the weight of case authority is against that proposition.21 Instead,
18 Id. at 439.
19 Id. at 442-43.
20 Id. at 444.
21 See, e.g., United States v. Parker, 439 F.3d 81, 104 (2d Cir. 2006) (noting that while
withdrawal may be appropriate when a client deliberately disregards their financial
obligations, “[n]on-payment of legal fees, without more, is not usually a sufficient basis to
permit an attorney to withdraw from representation (quoting In re Albert, 277 B.R. 38, 50
(Bankr. S.D.N.Y. 2002))); United States v. Fattah, 159 F. Supp. 3d 545, 549-50 (E.D. Pa.
2016) (finding that although it is unfair to require an attorney to continue representing a
criminal defendant without payment after the initial deposit has run out, “the need to
prevent undue delay and harm to the administration of justice as well as the need to protect
[the defendant’s] constitutional right to the assistance of counsel compel[led] the court to
rule against the withdrawal”); People v. Young, 953 N.Y.S.2d 840, 844 (N.Y. City 2012)
(finding withdrawal improper where client met initial financial obligation but could not
continue to pay and “the matter ha[d] gone well past the discovery and motion stages and
[wa]s ready to be tried”); People v. Woodring, 850 N.Y.S.2d 809, 811 (N.Y. App. 2008)
(affirming trial court’s denial of counsel’s motion to withdraw for lac k of continued

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the decision whether to permit an attorney’s withdrawal from representation of a
criminal defendant rests in the sound discretion of the trial court, which must balance a
variety of competing interests. 22 Thus, a trial court should be sensitive to any
unreasonable financial burdens that denying a motion to withdraw may cause,
particularly in the case of small firms and solo practitioners.23 But the court nevertheless
retains the discretion to deny a motion to withdraw if the interests of justice so require.24
Of particular note here is the fact that the record is very sparse regarding
the financial burden denying the motions would cause. Unlike other cases we have
identified, the attorneys in this case provided no details about the Leakes’ finances, how
the retainer agreements were structured, how much money had already been spent, and
how this situation arose. The attorneys have also been inconsistent about the extent of
the Leakes’ inability to pay, and they have, at times, suggested that the Leakes might
be able to pay if trial were delayed for another six months.
payment because court properly balanced the public’s interest in the orderly administration
of justice against counsel’s needs); State v. Emanuel, 649 A.2d 53, 55, 57 (N.H. 1994)
(reversing trial court’s granting of motion to withdraw based on an inability to pay where
request was made six days before trial and court failed to make a proper inquiry into the
existence of good cause and possibility of unfair prejudice to the defendant).
22 See Devincenzi v. Wright, 882 P.2d 1263, 1265 (Alaska 1994) (applying abuse of
discretion standard to trial court’s denial of motion to withdraw).
23 See Alaska R. Prof. Conduct 1.16 (b)(6) (stating that a lawyer may seek withdrawal
from the representation if “the representation will result in an unreasonable financial
burden on the lawyer”).
24 See Burleson v. State, 543 P.2d 1195, 1200 (Alaska 1975) (“Efficiency in the
operation of the court system and the interest of the public in prompt disposition of criminal
cases dictate that unnecessary delays be avoided.”).

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The attorneys have not explained how a delay in the trial date or a delay
in payment would impact their businesses. Rather, they have relied solely on the fact
that they are solo practitioners as evidence of the financial burden the Leakes’ non-
payment would impose. While the fact that Mr. John and Mr. Beatty are solo
practitioners is a factor for the superior court to consider, it is not itself conclusive
evidence of an unreasonable financial burden. If it is Mr. John’s and Mr. Beatty’s
contention that continued representation of the Leakes would unreasonably harm their
finances, it was their burden to adduce evidence showing that.
The petition emphasizes that the Leakes have discharged their attorneys,
thereby “consenting” to their attorneys withdrawing from the representation. But the
intelligent and voluntary nature of the Leakes’ consent is unclear.25 That is, it is not
clear that the Leakes understand that they may still have to go to trial in August even if
they “discharge” their current attorneys. There is nothing in the record to suggest that
the Leakes are seeking to represent themselves, and their eligibility for public counsel
remains unclear.
Given these circumstances, the lengthy delay that has occurred in this
case, the competing interests of the State, the victims, and the public, and the lack of
concrete information in the record regarding the financial circumstances of the Leakes
and the extent of the burden on the attorneys, we conclude that the superior court’s
denial of the pro forma motions to withdraw was not an abuse of discretion.
25 Cf. Young, 953 N.Y.S.2d at 843 (“Although ‘[a] client has an absolute right to
discharge an attorney at any time,’ the circumstances here suggest that the movant
presented each client with a Hobson’s choice — either accept the services of the Public
Defender or go without representation. Moreover, the absence of a fully executed
substitution of attorney form, or one signed by the client, if not the Public Defender, speaks
volumes. (internal citation omitted) (quoting Teichner by Teichner v. W&J Holsteins, Inc.,
489 N.Y.S.2d 36 (1985))).

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IT IS ORDERED:
The petition for review is GRANTED, and the superior court’s order
denying the motions to withdraw is AFFIRMED.
Entered at the direction of the Court.
Clerk of the Appellate Courts
________________________________
Meredith Montgomery
Judge HARBISON, concurring.
Although I agree with all aspects of the majority’s reasoning, I write
separately to provide further guidance to the superior court regarding the Leakes’
eligibility for court-appointed counsel.
Alaska Criminal Rule 39.1(b)(1) provides:
A defendant is eligible for court-appointed counsel if the
court finds that the total financial resources available to the
defendant are not sufficient to pay allowable household
expenses and the likely cost of private representation
through trial.
Under Alaska Criminal Rule 39.1(f), the court may appoint counsel without further
inquiry under certain circumstances, such as when “the defendant currently receives
public assistance benefits through a [government] program for indigent persons,” or
when “the gross annual income available to the defendant is less than the adjusted

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federal poverty guidelines amount for the defendant’s household size” and their other
financial resources are worth less than half of the estimated total cost of representation.
And even if the court determines that the Leakes are not presumptively
eligible for court-appointed counsel under Rule 39.1(f), this does not end the court’s
inquiry. Indeed, a court may appoint counsel for a defendant under Rule 39.1(b)(1) even
if the defendant is not presumptively eligible for counsel under Rule 39.1(f).
Alaska Criminal Rule 39.1(g) explains that if a defendant is not
presumptively eligible for public counsel under Rule 39.1(f), “the court shall conduct
an inquiry sufficient to determine whether the defendant is eligible for court-appointed
counsel under the standard” set out in Rule 39.1(b).26 Under Rule 39.1(g), the court
may:
(1) require the defendant to submit a completed financial
resources affidavit with supporting documentation of
income;
(2) require the defendant to submit information or
documentation concerning particular assets or expenses;
(3) require the defendant to appear at a representation
hearing or a pretrial services interview; or
(4) require the defendant to make reasonable efforts to retain
private counsel and to report these efforts to the court
orally or in writing.
Although the trial court did not undertake this inquiry in this case, I do not
intend to suggest that the existence of this procedure means that the trial court abused
its discretion when it denied counsels’ motion to withdraw. I wish to note, however,
that if the trial court revisits this issue during a future hearing and ultimately appoints
public counsel for the Leakes, the court should continue to take the steps necessary to
26 Emphasis added.

Leake v. State, A-14693/A-14694
7/23/2025 – page 18
ensure that these cases proceed to trial expeditiously. Such steps could include
determining whether the public defense agencies could contract with Mr. John and
Mr. Beatty in order to reduce any delay that would otherwise be associated with a
change in counsel.
cc: Court of Appeals Judges
Judge Wood
Trial Court Clerk
Distribution:
Email:
Beatty, Jason P.
John, Robert
Mason, Kathryn Elizabeth
Erickson, Carla R.
Shaffer, Michael D.