Akbar v. Com.

• Decision Date: 07 February 1989
• Docket Number: No. 0648-88-3,0648-88-3
• Citation: 7 Va.App. 611,376 S.E.2d 545
• Parties: Shahee AKBAR, Appellant, v. COMMONWEALTH of Virginia, Appellee. Record
• Court: Virginia Court of Appeals

Page 545

376 S.E.2d 545

7 Va.App. 611

Shahee AKBAR, Appellant, v. COMMONWEALTH of Virginia, Appellee.

Record No. 0648-88-3.

Court of Appeals of Virginia.

Feb. 7, 1989.

David A. Melesco, Rocky Mount, for appellant.

Before KOONTZ, C.J., and BENTON and COLEMAN, JJ.

Counsel for the defendant has moved for leave to withdraw. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), specifies a basis upon which counsel may, after taking specified measures to protect an indigent defendant's due process rights on appeal, request leave to withdraw:

The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae .... Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

Id. at 744, 87 S.Ct. at 1400 (footnote omitted).

The petition filed in this appeal does not satisfy the Anders requirements. The motion to withdraw is accompanied by a petition stating that "there is nothing in the record to support the appeal." This assertion fails to meet counsel's responsibility to his client and the Court, as defined in Anders, to file a "brief referring to anything in the record that might arguably support the appeal." Id. at 744, 87 S.Ct. at 1400 (emphasis added). Counsel states in his motion and petition that "he believes the appeal is wholly frivolous after conscientious examination of the record." Until relieved of his responsibility, counsel remains an advocate for his client, not an amicus curiae. Although counsel may advance as his reason in support of his motion to withdraw his assessment that the appeal is frivolous, he may do so only after asserting as an advocate in his client's behalf all arguments "that might arguably support the appeal." For in the final...