Ineffective Assistance of Counsel on Direct Appeal
Although the Supreme Court did not go into a full explanation of why this exception might be warranted, the rationale appears to be this:
The federal Constitution guarantees the effective assistance of counsel on direct appeal.
If state law allows a defendant to attack the competence of their trial attorney on direct appeal, then the defendant is entitled to the assistance of a competent lawyer when pursuing this attack.
But many states including Alaska - See Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984);
see also Criminal Rule 11(h)(3) (a defendant seeking to withdraw a guilty plea after sentencing, based on a claim of ineffective assistance of counsel, must pursue this claim as a petition for post- conviction relief under AS 12.72).
Many states including Alaska generally forbid a defendant from raising ineffective assistance of counsel claims on direct appeal.
Instead, Alaska and these other states require a defendant to pursue post-conviction relief litigation if they want to attack the competence of their trial attorney.
Coleman holds that there is no federal right to the effective assistance of counsel in post-conviction relief litigation. Thus, state procedural law effectively determines whether a defendant is entitled to competent legal assistance when they attack the performance of their trial attorney.
Although Alaska courts have not directly addressed the constitutionality of the compulsory joinder rule, case law from this state and other states indicates that this form of res judicata is lawful. In Brown v. State, 46 this court decided a closely related issue:
we held that the doctrine of res judicata applied to post-conviction relief actions, and we specifically held that a defendant is barred from litigating a claim that has already been decided on direct appeal.
Later, in Higgins v. Briggs, we held that "a prisoner who inexcusably fails to appeal can not thereafter take advantage of his own neglect to justify a collateral attack on his conviction or sentence (by arguing that the requested collateral attack must be allowed since the right to appeal has expired)."
the supreme court was unable to agree on the legal basis of the petitioner's right to counsel when litigating a first petition.
Justice Dimond (the author of the lead opinion) concluded that an indigent petitioner's right to counsel arose from the equal protection clause of the Alaska Constitution (Article I, Section I) because, "if an indigent is forced to handle his own post-conviction relief motion, the ensuing hearing ... does not comport with fair procedure."
Justice Rabinowitz, the other member of the majority, rejected this equal protection analysis. He agreed that "failure to appoint counsel for an indigent petitioner results in fundamental unfairness" , but he believed that the supreme court should use its supervisory powers to create a right to counsel, rather than basing its ruling on constitutional grounds.
(In the alternative, Justice Rabinowitz suggested that the assistance of counsel might be required by the due process clause of the Alaska Constitution.)
The third member of the court, Chief Justice Nesbett, dissented. He predicted (correctly) that the United States Supreme Court would draw a distinction between providing counsel on direct appeal and supplying counsel to an indigent petitioner seeking to mount a collateral attack on their conviction.
He concluded that an indigent petitioner had no right to counsel, although the superior court had the authority to appoint one if "necessary to adequately protect the petitioner's rights".