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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

JUSTIN A.D. NELSON, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-11259 

Trial Court No. 3DI-11-216 CR 

O P I N I O N 

Order on Rehearing 

No. 2549 — April 21, 2017 

Appeal from the Superior Court, Third Judicial District, 

Dillingham, Fred Torrisi, Judge. 

Appearances: Brooke Berens, Assistant Public Advocate, and 

Richard Allen, Public Advocate, Anchorage, for the Appellant. 

Timothy W. Terrell, Assistant Attorney General, Office of 

Criminal Appeals, Anchorage, and Michael C. Geraghty, 

Attorney General, Juneau, for the Appellee. 

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

District Court Judge. * 

Judge ALLARD. 

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

Constitution and Administrative Rule 24(d). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As part of a plea agreement with the State, Justin A.D. Nelson pleaded 

guilty to attempted first-degree sexual abuse of a minor.1 Later, before sentencing, 

Nelson sought to withdraw his plea. Nelson alleged that he entered his guilty plea 

without fully understanding the terms of the plea agreement. Nelson also alleged that he 

had received ineffective assistance of counsel from the assistant public defender who 

represented him at the change of plea hearing. 

Nelson asked the superior court to delay his scheduled sentencing hearing 

and to appoint him conflict counsel so that he could fully litigate his alleged claim of 

ineffective assistance of counsel. The superior court ruled that Nelson had shown no 

“fair and just reason” to withdraw his plea. The superior court also denied Nelson’s 

requests for a delay of sentencing and for the immediate appointment of conflict counsel. 

Instead, the court appointed Nelson conflict counsel after sentencing occurred. 

In our earlier decision in this case — Nelson v. State, 2016 WL 7422690 

(Alaska App. Dec. 21, 2016) (unpublished) — we upheld the superior court’s handling 

of these matters and we affirmed Nelson’s conviction. Following the issuance of our 

decision, Nelson filed a petition for rehearing in which he asked us to reconsider these 

matters. We now announce our decision on rehearing. 

In Nelson’s case, the question facing the trial judge was whether to delay 

the sentencing proceedings, appoint conflict counsel, and permit Nelson to fully litigate 

his claim of ineffective assistance of counsel before holding the sentencing hearing — 

or, instead, to deny Nelson’s request for the immediate appointment of conflict counsel. 

This second option would effectively delay any litigation of Nelson’s ineffective 

assistance of counsel claim until after Nelson’s sentencing, when Nelson could pursue 

any such claims in an application for post-conviction relief. 

1 AS 11.41.434(a)(1) and AS 11.31.100(a). 

– 2 – 2549
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Before making this decision, the superior court undertook considerable 

efforts to obtain a clearer understanding of Nelson’s ineffective assistance of counsel 

claim. When Nelson proved unable to articulate or substantiate any specific assertions 

of how he had been incompetently represented, the trial judge chose to rule on Nelson’s 

involuntariness claim and proceed with sentencing (which had already been delayed 

multiple times), thereby deferring the litigation of Nelson’s ineffective assistance of 

counsel claim until later.2 On this record, we concluded that the superior court did not 

abuse its discretion when it denied Nelson’s request for the immediate appointment of 

conflict counsel.3 

In his petition for rehearing, Nelson appears to advocate a bright-line rule 

which would require trial judges to automatically appoint conflict counsel whenever a 

defendant files a presentencing motion to withdraw their plea based on allegations of 

ineffective assistance of counsel. Such a bright-line approach certainly has benefits in 

terms of judicial economy and efficiency. We also agree that the appointment of conflict 

counsel will often be the appropriate action in these circumstances, particularly because 

a different standard applies to a presentencing motion to withdraw a plea as opposed to 

a post-sentencing motion to withdraw a plea.4 

2 In his petition for rehearing, Nelson asserts that he alleged multiple bases for a claim 

of ineffective assistance of counsel. But the most substantive basis that he lists — that he 

had been told he would only serve one-third of his time — was raised only after sentencing 

had occurred. 

3 Nelson v. State, 2016 WL 7422690, at *4 (Alaska App. Dec. 21, 2016) (unpublished). 

4 Compare Alaska R. Crim. P. 11(h)(2) with Alaska R. Crim. P. 11(h)(3). Criminal 

Rule 11(h)(2) addresses presentencing motions to withdraw a guilty plea; it requires a trial 

court to allow a defendant to withdraw a plea if the defendant proves that withdrawal of the 

plea is necessary to correct a manifest injustice, and it grants a trial court discretion to allow 

withdrawal of a plea prior to sentencing for any “fair and just reason” unless the prosecution 

(continued...) 

– 3 – 2549
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

But we are also concerned that an inflexible rule would invite abuse by 

defendants who simply want to delay or disrupt the sentencing proceedings. The vast 

majority of jurisdictions hold that the question of whether to appoint conflict counsel in 

these circumstances is a matter entrusted to the discretion of the trial court.5 Although 

an immediate appointment of conflict counsel will often be the proper action, we agree 

with these jurisdictions that deference to the trial court is appropriate. And based on the 

totality of circumstances presented by Nelson’s case, we do not find that the trial court’s 

actions constituted an abuse of discretion. 

In his petition for rehearing, Nelson also argues that this Court failed to 

address his claim that he received ineffective assistance of counsel from the assistant 

public defenders who represented him in the post-plea and presentencing proceedings. 

Nelson is correct that we did not directly address this claim, and we therefore do so now. 

4 (...continued) 

has been substantiallyprejudiced byreliance on the defendant’s plea. Criminal Rule 11(h)(3) 

addresses post-sentencing motions to withdraw a guiltyplea; it requires a defendant to pursue 

the motion in the form of an application for post-conviction relief, and it requires the 

defendant to prove that withdrawal of the plea is necessary to correct a manifest injustice. 

Ineffective assistance of counsel constitutes manifest injustice under Criminal Rule 

11(h)(4)(A). 

5 See, e.g., People v. Smith, 863 P.2d 192, 200 (Cal. 1993), as modified on denial of 

reh’g (Feb. 3, 1994) (applying an abuse of discretion standard of review and requiring a 

defendant to make a “proper showing” that there are adequate grounds for the ineffective 

assistance of counsel claims); State v. Cooper, 738 A.2d 1125, 1132-33 (Conn. App. 1999) 

(declaring that whether to appoint conflict counsel in connection with plea-withdrawal 

proceedings rests in the sound discretion of the trial court); State v. Millett, 718 A.2d 1100, 

1102 (Me. 1998); Brunsen v. State, 281 P.3d 1157 (Nev. 2009) (holding that a defendant is 

entitled to an evidentiary hearing and the immediate appointment of conflict counsel if the 

defendant’s plea-withdrawal motion includes specific factual allegations of ineffective 

assistance of counsel). 

– 4 – 2549
 
 

 

 

 

 

 

 

 

 

 

 

 

In his briefing on appeal, Nelsonacknowledges that Alaskaappellate courts 

normally will not consider an ineffective assistance of counsel claim for the first time on 

appeal because “the record of the trial proceedings will seldom conclusively establish 

incompetent representation.”6 However, Nelson contends that the record in his case is 

sufficient, as it stands, to establish that the assistant public defenders who represented 

him post-plea provided him with ineffective assistance of counsel.7 We disagree with 

Nelson that the record is adequate to support such a conclusion. We also disagree with 

Nelson’s underlying contention that these attorneys were required to proceed as though 

they had been appointed to fully litigate his ineffective assistance of counsel claim. 

Separate conflict counsel would need to be appointed if the claim was going to be fully 

litigated.8 

Accordingly, we DENY Nelson’s petition for rehearing, and we again 

AFFIRM the judgment of the superior court. 

6 Burton v. State, 180 P.3d 964, 969 (Alaska App. 2008). 

7 See, e.g., Tazruk v. State, 67 P.3d 687, 688 (Alaska App. 2003). 

8 See, e.g., Cole v. State, 1994 WL 16196666, at *2 (Alaska App. Dec. 14, 1994) 

(unpublished). 

– 5 – 2549