NOTICE
 

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

HAROLD SAKAR, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-11603 

Trial Court No. 4BE-98-124 CR 

O P I N I O N 

 No. 2617 — September 7, 2018 

Appeal from the Superior Court, Fourth Judicial District, Bethel, 

Dale O. Curda, Judge. 

Appearances: Kelly Taylor, Assistant Public Defender, and 

Quinlan Steiner, Public Defender, Anchorage, for the Appellant. 

Diane L. Wendlandt, Assistant Attorney General, Office of 

Criminal Appeals, Anchorage, and Craig W. Richards, Attorney 

General, Juneau, for the Appellee. 

Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, 

Superior Court Judge.* 

Judge MANNHEIMER. 

* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska 

Constitution and Administrative Rule 24(d). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In 1999, Harold Sakar was brought to trial on charges of kidnapping and 

two counts of first-degree sexualassault. He was defended by attorney Scott Sidell, who 

was the contract attorney for the Office of Public Advocacy in the Bethel area. 

Sakar was found guilty, and in June 2000 he was sentenced for these 

crimes. Sidell told Sakar that he would file an appeal, but (unbeknownst to Sakar) Sidell 

failed to do so. 

Sidell had apparently been suffering from depression. In early 2003 (about 

two and a half years after Sakar’s sentencing), Sidell and discipline counsel for the 

Alaska Bar Association entered into a stipulation that Sidell would be placed on inactive 

status because of disability, retroactive to January 1, 1998. 1 In March 2003, the Alaska 

Supreme Court approved this resolution of Sidell’s bar status. 

Also in 2003, Sakar learned that Sidell had not filed the promised appeal 

of his convictions. Sakar filed an application for post-conviction relief, alleging 

ineffective assistance of counsel. The superior court ultimately ruled that Sidell had been 

ineffective when he failed to appeal Sakar’s convictions, and that Sakar was now entitled 

to file a belated direct appeal. 

In this belated appeal, Sakar argues that the supreme court’s order 

retroactively placing Sidell on disability status as of January 1, 1998 entitles him to an 

automatic reversal of his conviction, even though Sakar has not shown that Sidell’s 

performance in his case was deficient in any identifiable way. 

Sakar acknowledges that this Court previously rejected this same argument 

(raised by a different client of Sidell) in Nook v. State. 

2 However, Sakar contends that 

1 See Nook v. State, 251 P.3d 358, 359 (Alaska App. 2011). 

2 251 P.3d 358 (Alaska App. 2011). 

– 2 – 2617
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Nook was wrongly decided. Alternatively, he argues that his case is distinguishable from 

Nook. 

For the reasons explained in this decision, we conclude that Sakar has failed 

to show either that Nook was originally erroneous or that Sakar’s case is distinguishable 

from Nook. 

Sakar raises one more claim on appeal: he asserts that the superior court 

enhanced his sentence in violation of his Sixth Amendment right to jury trial as 

construed in Blakely v. Washington. 

3 We reject this claim because Sakar’s conviction 

was entered approximately four years before Blakely was decided, and because the 

Alaska Supreme Court has held that Blakely is not retroactive. 4 

Why we re-affirm our decision in Nook, and why we reject Sakar’s 

argument that his case is distinguishable from Nook 

In Nook v. State, we rejected the argument that Sidell’s retroactive disability 

status entitled all defendants who were represented by Sidell after January 1, 1998 to 

claim automatic reversals of their convictions. 5 Our opinion in Nook sets out the reasons 

why a rule of automatic reversal was both unmerited and contrary to the Alaska Supreme 

Court’s intent when it approved the disability stipulation between Sidell and the Bar 

Association. 6 

3 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). 

4 State v. Smart, 202 P.3d 1130, 1135 (Alaska 2009). 

5 Nook, 251 P.3d at 362. 

6 Ibid. 

– 3 – 2617
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sakar argues that our decision in Nook was originally erroneous, and that 

we should now overrule Nook. We have considered Sakar’s arguments, and we remain 

convinced that Nook is good law. 

Sakar argues in the alternative that the Nook decision has been undermined 

by the testimony given by several witnesses at the evidentiary hearing in Sakar’s postconviction relief action — witnesses who were critical of Sidell’s general performance 

during his tenure as an OPA contract attorney. 

But the testimony of these witnesses does not undermine the conclusion that 

we reached in Nook — the conclusion that, regardless of what might be said about 

Sidell’s performance in general, any individual defendant who asserts a claim of 

ineffective assistance of counsel against Sidell must show (1) that Sidell’s performance 

in their specific case fell below the minimum standard of competence that we expect of 

criminal defense attorneys, and (2) that there is a reasonable possibility that this 

incompetent performance affected the outcome of the defendant’s trial. 7 

At oral argument in this case, Sakar’s appellate attorney conceded that the 

record of Sakar’s trial does not reveal any obvious attorney error. We therefore reject 

Sakar’s claim that he is entitled to reversal of his convictions simply because he was 

represented by Sidell. 

In his brief to this Court, Sakar raises one more claim: he contends that 

Sidell was incompetent for failing to file a pre-trial motion under a local Bethel court rule 

that allowed expansion of the geographic jury selection area up the Kuskokwim River 

to the Athabaskan villages situated upriver from Bethel, if one of those Athabascan 

villages is the site of the crime. 

Ibid. 

– 4 – 2617
 

7 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

This issue was not raised in the trial court, and the current record contains 

no inquiry or findings regarding the reasons why Sidell did not pursue the suggested 

motion. Accordingly, this claim cannot be raised on direct appeal. Rather, it must be 

raised in a petition for post-conviction relief. 8 

Because Sakar’s case became final for purposes of retroactivity analysis 

years before Blakely was decided, Blakely’s holding does not apply to 

Sakar’s case 

In June 2004, almost four years after the superior court entered judgement 

against Sakar, the United States Supreme Court decided Blakely v. Washington. 9 Blakely 

announced a new interpretation of the Sixth Amendment right to jury trial — enlarging 

that right so that it applies to certain sentencing proceedings. Under Blakely, if the State 

proposes an aggravating factor that will expand the court’s sentencing authority beyond 

the maximum sentence that would otherwise apply, and if that aggravating factor rests 

on facts other than the defendant’s prior convictions, the defendant is entitled to have a 

jury decide the aggravating factor, and the defendant is entitled to demand that the 

government prove the aggravator beyond a reasonable doubt. 10 

However, this rule applies only to cases that were tried after Blakely was 

announced or that were pending on direct review at the time Blakely was announced. 11 

8 See Burton v. State, 180 P.3d 964, 968-69 (Alaska App. 2008); Sharp v. State, 837 

P.2d 718, 722 (Alaska App. 1992); Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 

1984). 

9 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). 

10 Blakely, 542 U.S. at 303-04, 124 S.Ct. at 2537-38. 

11 State v. Smart, 202 P.3d 1130, 1147 (Alaska 2009); Haag v. State, 117 P.3d775, 783 

(Alaska App. 2005). 

– 5 – 2617
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sakar was sentenced in August 2000, well before the Blakely decision was 

announced. However, Sakar argues that, because he was granted the right to pursue the 

present late appeal, his conviction retroactively became (and currently remains) non-final 

— thus entitling him to the benefit of the holding in Blakely. 

There are few cases that address this issue, but those cases reject Sakar’s 

position. For instance, in Gutermuth v. State,

12 the Indiana Supreme Court ruled that a 

defendant who was allowed to file a late appeal was nevertheless subject to the law that 

would have governed the defendant’s appeal if it had been timely filed. 13 The Indiana 

Supreme Court reasoned: 

Belated appeals are filed by defendants who have been 

diligent in requesting permission to file belated notices of 

appeal and have no fault in failing to file a timely notice of 

appeal. If they have been found faultless and diligent, they 

should not be penalized for filing a belated appeal. But they 

also should not be rewarded for their delay.14 

The Sixth Circuit reached the same conclusion in Wheeler v. Jones. 15 The 

defendant in Wheeler filed a federal petition for writ of habeas corpus pursuant to 28 

U.S.C. § 2254, arguing (among other things) that the jury instructions at his trial in state 

court contained an improper presumption that violated his right to due process under 

Sandstrom v. Montana. 

16 

12 868 N.E.2d 427 (Ind. 2007). 

13 Gutermuth, 868 N.E.2d at 433. 

14 Id., 868 N.E.2d at 434 (citations omitted). 

15 226 F.3d 656 (6th Cir. 2000). 

16 Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). 

– 6 – 2617
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Wheeler was convicted before Sandstrom was decided, and Wheeler did 

not originally appeal his conviction — thus allowing the conviction to become final. But 

after Sandstrom was decided, the Michigan Supreme Court granted Wheeler leave to file 

a late appeal (an appeal that was ultimately denied in state court). 17 

In his federal habeas petition, Wheeler made the same argument that Sakar 

makes here: the claim that, because he was granted the right to pursue a late appeal, his 

conviction should no longer be considered final, and thus he should be able to claim the 

benefit of any intervening developments in the law. 18 

The Sixth Circuit rejected this argument, holding that even though 

Wheeler’s right of appeal was revived as a result of his successful collateral attack on his 

conviction, Wheeler’s revived appeal was not the exact equivalent of a timely direct 

appeal, at least for retroactivity purposes. 19 Instead, the court held that Wheeler’s 

revived appeal should be viewed (for retroactivity purposes) as a continuation of his 

collateral attack on his judgement. Thus, despite Wheeler’s new opportunity to pursue 

an appeal, Wheeler’s criminal judgement still became final (and remained final) for 

retroactivity purposes when Wheeler’s original time for filing an appeal expired. 20 

The court noted that if Wheeler’s position were adopted, “state court 

judgments would never attain finality because they would always be subject to 

reconsideration on a motion for a delayed appeal.” 21 

17 Wheeler, 226 F.3d at 658. 

18 Id. at 659. 

19 Id. at 659-660. 

20 Ibid. 

21 Id. at 660. 

– 7 – 2617
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sakar does not cite any contrary authority. Instead, he argues that the 

relevant question is whether, if Sidell had filed the appeal he promised, Sakar’s appellate 

attorney might have been alerted to a potential Blakely claim at some point before 

Sakar’s hypothetical appeal was resolved. 

Sakar notes that Blakely’s precursor, Apprendi v. New Jersey,

22 was decided 

on June 26, 2000, shortly before the superior court distributed Sakar’s judgement. Sakar 

argues that, if Sidell had filed an appeal, Sakar’s appellate counsel might have read 

Apprendi while the appeal was pending, and might have realized that the holding in 

Apprendi could potentially be expanded to give defendants the right to jury trial on 

aggravating factors — as the Supreme Court held four years later in Blakely. 

Sakar further speculates that, if a timely appeal had been filed in his case, 

there is even a possibility that this appeal would still have been pending four years later 

when Blakely was decided. Sakar suggests that it might have taken this Court two or 

three years to decide his appeal, and then the Alaska Supreme Court might have taken 

another several months to decide his petition for hearing. Sakar also points out that 

either this Court or the supreme court might have remanded his case to the superior court 

for further proceedings — thus keeping his conviction from becoming final for an even 

greater amount of time. 

Finally, Sakar suggests that his appellate counsel might have been 

following developments in the criminal law, that his counsel might have learned when 

the petition for certiorari in Blakely was first filed (in May 2003), and that his counsel 

might have then asked this Court or the Alaska Supreme Court to stay his case pending 

the United States Supreme Court’s resolution of Blakely. 

22 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). 

– 8 – 2617
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sakar’s arguments hinge on speculation and hypothetical possibilities. 

Having considered those arguments, we agree with the decisions reached in Gutermuth 

and Wheeler: Even when a defendant pursues post-conviction relief and obtains the right 

to file a late appeal, the defendant’s conviction should still be considered “final” for 

retroactivity purposes when the defendant’s original time for filing an appeal expired. 

Thus, if a later appellate decision effects a change in the law, and if that 

change is only applicable to cases that were on direct appeal when that decision was 

issued, the pertinent question is whether the defendant’s original time for filingan appeal 

had expired when the new decision was issued. This rule of retroactivity is not altered 

by the fact that the defendant later pursues a collateral attack and is granted the remedy 

of pursuing a late appeal. 

Accordingly, we conclude that Sakar is not entitled to retroactive 

application of Blakely. 

Conclusion 

We AFFIRM the judgement of the superior court. 

– 9 – 2617