Ruling could have wide effect

PALMER — An appeals court ruling handed own Friday in a 9-year-old Valley rape case could have implications for criminal cases statewide.

Dale M. Harvey was charged in 2003 with multiple counts of sexual abuse of a minor for serially abusing the same victim.

In his appeal, Harvey argues that his attorney, Larry Wiggins, didn’t fully consult with him about his chances for an appeal or help him file one. Public defenders — state attorneys appointed to defend accused criminals in court cases — have to help with appeals, but state law doesn’t expressly state that private attorneys like Wiggins do. Harvey essentially asks the court to create such a rule. By siding with him, it appears the court has done just that. The ruling is not without precedent.

Appeals rights have time limits. Codes of conduct for defense attorneys thus strongly encourage privately retained trial court attorneys help their clients start the process in order to avoid hitting those time limits before the clients can retain a new lawyer for the appeals process.

Also, there’s the U.S. Supreme Court, which ruled in 2000 that private attorneys aren’t required to work on appeals except under two exceptions:

1. When the client has said clearly he’s thinking about an appeal.

2. When it’s obvious that a rational person might want to appeal.

Mannheimer wrote that Harvey’s case lines up with that second exception and that Wiggins knew it, though how he knew it would take a little bit of explaining.

Harvey’s case ended in a plea agreement. He was facing unclassified felonies, the most serious type of charges in Alaska, so the assistant district attorney, Rachel Gernat, offered to let Harvey plead to a lesser felony if he agreed to five years in prison.

While negotiations were ongoing, the state attorney general issued an edict that local district attorneys have to approve plea agreements in their assistant district attorneys’ sexual assault and abuse cases. Faced with Gernat’s deal, her boss, Roman Kalytiak, balked.

“Kalytiak’s policy was that, in prosecution for sexual felonies, his office would normally offer either a reduction of the charge or an agreed upon sentence, but not both,” Mannheimer wrote.

So the attorneys went back into negotiation and what happened next is a subject for debate. Wiggins claims that Gernat said she’d ask the court for no more than six years, but didn’t want to put that promise in writing as it would constitute an agreement in violation of Kalytiak’s policy.

Gernat flatly denies that.

“She declared that she ‘would not have made a secret agreement behind Mr. Kalytiak’s back,’ nor would she have said to Wiggins, ‘this is our agreement — wink, wink — (even though) I’m not going to put it in writing,’” Mannheimer wrote.

But it doesn’t matter who’s telling the truth. The point is that when they got to sentencing and Gernat asked for and won seven years as Harvey’s sentence, Wiggins had a whispered conversation with Harvey.

“I may have grounds for appeal on that,” Wiggins told Harvey, according to audio courtroom recordings Mannheimer quoted. “I’ve got notes from her that she wouldn’t ask for more than six.”

That, Mannheimer wrote, shows that Wiggins clearly knew there were grounds for appeal. That he didn’t discuss them with Harvey in anything but a superficial way was enough for the judge to order the case back to where it was immediately after Harvey received his seven-year sentence.

“Harvey shall have 60 days from the issuance of this opinion to consult an attorney and to file an appeal,” Mannheimer wrote.

Contact reporter Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.