Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION

ALLARD, Judge.

As part of a plea agreement with the State, Justin A.D. Nelson pleaded guilty to attempted first-degree sexual abuse of a minor. Nelson later sought to withdraw his plea, alleging that he received ineffective assistance of counsel from the attorney who represented him at the change-of-plea hearing and that he entered his guilty plea without fully understanding the terms of the plea agreement. Nelson asked the court to appoint conflict counsel to assist him in litigating his plea-withdrawal motion. The court denied the request for conflict counsel and the plea-withdrawal motion.

Nelson appeals, arguing that he was entitled to conflict counsel to litigate his plea-withdrawal motion. For the reasons explained here, we conclude that Nelson failed to establish any basis for appointment of conflict counsel. We therefore affirm the decision of the superior court.

Background facts and proceedings

Justin Nelson was charged with first-degree sexual abuse of a minor1 and two counts of second-degree sexual abuse of a minor.2 During pretrial proceedings on these charges, two assistant public defenders appeared on Nelson's behalf, Patricia Douglass and Alexander Foote.

On September 19, 2011, the morning Nelson's trial was scheduled to begin, Douglass informed the court that Nelson had spoken with his mother and had decided to accept the State's plea offer. According to the terms of that offer, Nelson would plead guilty to attempted first-degree sexual abuse of a minor3 in exchange for dismissal of the other charges and an agreed-upon sentence of 30 years with 10 years suspended (20 years to serve) and 15 years of probation.4

The court gave Nelson and Douglass as much time as they needed to discuss the plea agreement. They took approximately thirty minutes, after which Nelson confirmed that he wanted to accept the State's offer.

The court then engaged in an extensive colloquy to ensure that Nelson was knowingly and voluntarily entering his plea. The court established on the record that if found guilty at trial, Nelson would face a presumptive range of 25 to 35 years on the first-degree sexual abuse of a minor count and 5 to 15 years on each count of second-degree sexual abuse of a minor. The court advised Nelson of the rights he was giving up by pleading guilty — the right to go to trial, to present and cross-examine witnesses, to testify (or not), and to hold the State to its burden of proof beyond a reasonable doubt. The court also explained the components of the sentence Nelson was agreeing to — the active term of imprisonment, the suspended term, and probation — and further explained that, by pleading guilty, Nelson would have to register as a sex offender and could be exposed to more severe sentences if he committed crimes in the future. The judge also established that Nelson was not under the influence of intoxicants and that his plea had not been induced by any threats or any promises other than the terms of the plea agreement.

After asking the judge to clarify how probation worked, Nelson confirmed that he understood the judge's explanation of what he was pleading to and what his plea entailed. He stated that he would have preferred to plead no contest, but that he understood the prosecutor would not agree to the deal unless he pleaded guilty. (The prosecutor confirmed this.) Nelson told the judge that "[w]hen I got arrested, I had so much confidence that I was going to win my case . . . but now that I'm in [jail], I'm trying to look for the minimum time possible for me and it just looks like this is it. I'm going to have to take this deal and plead guilty to it."

By the time of Nelson's sentencing hearing, Nelson was represented by Alexander Foote. (Douglass had been appointed as a superior court judge.) On the morning of sentencing, Foote filed a motion to withdraw Nelson's guilty plea. The motion alleged that Nelson had received ineffective assistance of counsel from Douglass and that Nelson had not understood the "ramifications" of his guilty plea. Foote also filed a motion to allow the Public Defender Agency to withdraw from the case and to appoint conflict counsel.

Superior Court Judge Fred Torrisi deferred a decision on these motions to give Nelson an opportunity to supplement his plea-withdrawal motion with additional information and to give the State an opportunity to respond. The judge ordered the Public Defender Agency to submit supplemental briefing by January 25, 2012. Foote subsequently filed a motion to extend this deadline, indicating that he had asked Nelson to contact him but Nelson had not done so. The court granted the extension. When no additional briefing was provided, the trial court denied both the motion to withdraw the plea and the motion to appoint conflict counsel.

Nelson then submitted a pro se letter in which he stated that he received ineffective assistance of counsel from Douglass and that "[t]he reason I took the [plea] deal is because of ineffective assistance of counsel." Nelson's letter expressed dissatisfaction with Douglass and the Dillingham office of the Public Defender Agency, but it did not identify any specific incompetent or misleading advice that he received regarding his plea.

The court provided the letter to the parties and ordered the Public Defender Agency's office to meet with Nelson prior to sentencing to consult with him.

On the day sentencing was to take place, Nelson was represented by Assistant Public Defender Robert Meachum, who had replaced Foote as Nelson's lawyer. Meachum filed a pleading on Nelson's behalf, asking the court to consider Nelson's handwritten letter "as reasons why he should be allowed to withdraw his plea."

After reviewing the transcripts of the change-of-plea hearing, the court again denied Nelson's plea-withdrawal motion. The court explained that "nothing [before the court] justifies a change of plea or a withdrawal of the change of plea." The court noted that "Mr. Nelson seems unhappy with what happened with his previous public defender," but he had not "really [given the court] a reason . . . to order withdrawal of the plea" or to order appointment of conflict counsel.

With respect to Nelson's claim that he did not understand the nature of his plea, the court stated that this was "inconsistent with what happened at the change-of-plea hearing," where Nelson was given as much time as he needed to discuss his decision with his family and his attorney. The court concluded that, based on its review of the record, Nelson had not established a fair and just reason to withdraw his plea but had simply changed his mind. The court accordingly reaffirmed its earlier rulings denying Nelson's motions. Following the court's ruling, Meachum remarked in passing that ineffective assistance of counsel claims were also more properly litigated in an application for post-conviction relief.

After the court reaffirmed its earlier rulings, Nelson requested extra time to consult with Meachum before sentencing took place. The court then granted Nelson another continuance of his sentencing.

At the subsequent sentencing hearing, Nelson alleged that the only reason he pled guilty was because he received ineffective assistance of counsel from Douglass and Foote. The judge again informed Nelson that he had reviewed both the transcript and the audio recording of the change-of-plea colloquy and had not found any reason in the record for allowing Nelson to withdraw his plea. Meachum then stated (erroneously) that ineffective assistance of counsel claims could only be litigated through post-conviction relief.

The court subsequently told Nelson that it would appoint a different attorney for Nelson's appeal or for any application for post-conviction relief that Nelson wanted to file, but that Nelson would not receive a new attorney before sentencing. The court then proceeded with sentencing, imposing the agreed-upon sentence of 30 years with 10 years suspended (20 years to serve) and 15 years of probation.

Following sentencing, Nelson was appointed conflict counsel through the Office of Public Advocacy; this appeal followed.

On appeal, Nelson argues that because he alleged ineffective assistance of counsel, the superior court was required to appoint conflict counsel to help him pursue his motion to withdraw his plea.

We disagree. Nelson failed to articulate or substantiate any colorable claim of ineffective assistance of counsel in connection with his decision to plead guilty. In addition, nothing in the record currently before us suggests that he received ineffective assistance of counsel in connection with his plea. Under these circumstances, the court was not required to appoint conflict counsel for Nelson prior to proceeding with the sentencing.5

Nelson argues that he would have been able to articulate a colorable claim of ineffective assistance of counsel if he had been provided with the conflict counsel he sought. But, as we noted in Jerrel v. State, "the right to effective assistance of counsel does not encompass the right to reject appointed counsel and have new counsel appointed in the absence of any showing of good cause for such change."6

Nelson also contends that he was prejudiced by the court's failure to appoint conflict counsel to assist him with his motion to withdraw his plea because the legal standard for granting a presentencing motion to withdraw plea is less stringent than the legal standard for granting a post-sentencing motion to withdraw plea.

Nelson is correct that, under Alaska Criminal Rule 11(h)(2)-(3), it is more difficult for a defendant to withdraw a plea after the defendant has been sentenced. Before sentencing, the defendant need only demonstrate a "fair and just reason" for withdrawing the plea unless the prosecution would be substantially prejudiced by the plea withdrawal.7 After sentencing, however, the defendant must demonstrate that withdrawal of the plea is required to correct a "manifest injustice."8 (We note that ineffective assistance of counsel constitutes "manifest injustice" warranting withdrawal of a plea, even post-sentencing.9)

Because different legal standards apply to presentencing motions to withdraw a plea and post-sentencing motions to withdraw a plea, Nelson is correct that he was not required to wait until after sentencing to raise his claim of ineffective assistance of counsel. Nelson's attorney (Meachum) was also wrong to suggest otherwise.

But the record is clear that the trial court did not base its decision on Meachum's incorrect statement about the law. To the contrary, the trial court demonstrated a willingness to appoint conflict counsel and to litigate Nelson's claim of ineffectiveness if Nelson articulated a colorable basis for this claim. To this end, the court gave Nelson multiple opportunities to consult with his current attorneys and to communicate with the court directly through pro se pleadings. Nelson largely failed to take advantage of any of these opportunities.

The trial court also considered and rejected Nelson's related claim of involuntariness on the merits. Moreover, the court did so only after conducting a thorough review of the change-of-plea hearing and the related evidence.

Thus, given the circumstances presented by this case, and the trial court's willingness to appoint conflict counsel prior to sentencing if warranted, we conclude that the trial court did not abuse its discretion when it denied Nelson's request to appoint conflict counsel to litigate his claim of ineffective assistance of counsel and instead proceeded with sentencing with Nelson's current attorney.

Conclusion

The judgment of the superior court is AFFIRMED.