Brown v. Warden of Virginia State Penitentiary, 881248

• Decision Date: 10 November 1989
• Docket Number: No. 881248,881248
• Citation: 385 S.E.2d 587,238 Va. 551
• Court: Virginia Supreme Court
• Parties: Willie A. BROWN v. WARDEN OF the VIRGINIA STATE PENITENTIARY. Record

Page 587

385 S.E.2d 587

238 Va. 551

Willie A. BROWN v. WARDEN OF the VIRGINIA STATE PENITENTIARY.

Record No. 881248.

Supreme Court of Virginia.

Nov. 10, 1989.

David E. Boone (Boone, Beale, Carpenter & Cosby, on brief), for petitioner.

Thomas C. Daniel, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for respondent.

Present: CARRICO, C.J., and COMPTON, STEPHENSON, RUSSELL, THOMAS, ^* WHITING and LACY, JJ.

ORIGINAL PETITION FOR A WRIT OF HABEAS CORPUS

STEPHENSON, Justice.

In Dodson v. Director, Dept. of Corrections, 233 Va. 303, 355 S.E.2d 573 (1987), we held that an indigent accused has a statutory right to counsel in an appeal to this Court from the Court of Appeals. However, we were not required to determine the extent of counsel's duty to prosecute an appeal that counsel finds frivolous. In this habeas corpus proceeding, we set forth the procedure to be followed by court-appointed counsel, who, after conscientious examination, finds the appeal to this Court to be "wholly frivolous."

Willie A. Brown, petitioner, was convicted of first degree murder, abduction, and attempted escape in the Circuit Court of the City of Richmond. The court sentenced Brown to life imprisonment for the murder conviction and to 10 years' imprisonment for the abduction conviction. Imposition of sentence was suspended on the attempted escape conviction.

Brown, an indigent, was represented by court-appointed counsel at trial and in his appeal to the Court of Appeals. The sole issue in that appeal was whether the trial court erred in finding Brown guilty of both first degree murder and abduction. Brown contended that convictions on both charges violated the Double Jeopardy Clause of the Fifth Amendment of the Constitution of the United States. The Court of Appeals rejected his contention and affirmed the trial court's judgment.

After considering whether to appeal the Court of Appeal's decision to this Court, Brown's court-appointed counsel determined that such appeal would be "totally frivolous." Thus, Brown's court-appointed counsel did not file a petition for appeal to this Court. Counsel explained his actions in an affidavit filed in this Court:

I considered appealing this decision to the Supreme Court of Virginia. My professional judgment was, and remains, that such an appeal would have been totally frivolous. I concluded that the most meritorious issue--that convictions of both first degree murder and abduction constituted double jeopardy--was, under the facts of the case, controlled by Simpson v. Commonwealth, 221 Va. 109, 113, 267 S.E.2d 134, 138 (1980). Another decision rendered by the Court of Appeals pending argument in this (Brown ) case reinforced my confidence in my assessment of the issue.

Invoking the original jurisdiction of this Court, Brown filed a pro se petition for a writ of habeas corpus, and we appointed counsel to represent him in this proceeding. Brown alleges that he was denied his right to the effective assistance of counsel because his court-appointed counsel failed to file his petition for appeal from the Court of Appeals to this Court.

Respondent, Warden of the Virginia State Penitentiary, asserts that "[t]he due process right to counsel on appeal extends only to the first appeal of right and no further." (Emphasis in original.) Additionally, the Warden contends that court-appointed counsel's actions "were sufficient to satisfy [the] statutory requirement of legal assistance after the first appeal." If, however, we should determine that Brown's counsel was ineffective, the Warden urges us to "define the duties of appointed counsel in the second-level appeal" and grant Brown "a delayed appeal."

The United States Supreme Court previously addressed this issue as it relates to a constitutional right to counsel. Anders v California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, reh'g denied, 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377 (1967). In Anders, the Supreme Court was concerned with "the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal ... after [counsel] has conscientiously determined that there is no merit to the ... appeal." 386 U.S. at 739, 87 S.Ct. at 1397. In Anders, appointed counsel advised the California District Court of Appeal by letter that he would not file a brief in that court because counsel was of opinion, and had so advised Anders, " 'that there is no merit to the appeal.' " Id. at 742, 87 S.Ct. at 1399. Anders, however, wished to file a brief on his own behalf. After reviewing the record, the District Court of Appeal affirmed Anders' conviction. Anders, thereafter, petitioned the Supreme Court of California for a writ of habeas corpus, and that court dismissed Anders' petition without stating its reasons for the dismissal. Id. at 743, 87 S.Ct. at 1399-400.

In reversing the California dismissal order, the Supreme Court concluded that "counsel's bare conclusion, as evidenced by his letter, was not enough." Id. at 742, 87 S.Ct. at 1399. The Supreme Court then discussed an advocate's role:

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. The no-merit letter and the procedure it triggers do not reach that dignity. 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.

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

Next, the Supreme Court set forth counsel's duty:

[I]f 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,...