Carroll v. State
Decision Date | 26 March 1985 |
Docket Number | 8 Div. 211,8 Div. 80 |
Parties | Bruce CARROLL v. STATE. , |
Court | Alabama Court of Criminal Appeals |
The cause presented by Carroll's appeal of the denial of his petition for writ of error coram nobis was remanded to the circuit court for an evidentiary hearing on the authority of Carroll v. State, 468 So.2d 185 (Ala.Cr.App.1984). This return to remand is consolidated with the appeal of the denial of Carroll's petition for writ of habeas corpus, which was filed subsequent to our remand order and was considered by the trial court during the ordered evidentiary hearing. This latter appeal is designated as 8 Div. 211. Both the habeas corpus petition and the error coram nobis petition contest the validity of Carroll's 1980 conviction for the offense of robbery, and his resulting sentence of fifteen years' imprisonment.
In accordance with our order, the trial court conducted an evidentiary hearing during which Carroll refused to testify. On the issue of whether Carroll was denied his right to effective assistance of counsel on direct appeal of his conviction, the evidence showed that appointed counsel failed to file a brief on Carroll's behalf. Counsel testified that he had been retained to represent Carroll at trial, but it was his understanding that an appeal would not be taken. He explained, however, that he subsequently received notice of appointment as Carroll's appellate counsel, so he filed a notice of appeal on Carroll's behalf. 1 Counsel further stated that after searching the trial transcript two or three times, he could find no logical argument to present, so he submitted the cause on the record and advised Carroll of this action by letter. He expressed his opinion that the purpose of the appeal was to allow Carroll freedom on bond to work before beginning service of his fifteen-year sentence.
Although no brief was filed on Carroll's behalf, this court nevertheless reviewed the trial record for errors and reversed Carroll's conviction and remanded the case for a new trial. Carroll v. State, 407 So.2d 173 (Ala.Cr.App.1981). After examining the record for errors "apparent on the record," as mandated by § 12-22-240, Code of Alabama 1975, 2 the court held that the trial court erred to reversal by refusing one of Carroll's requested jury charges. 407 So.2d at 174. The court, in addition, observed that it was "afford[ed] cause for wonder whether a reversal is for the best interest of appellant and whether his appeal was taken merely for the purpose of a delay of the execution of his sentence." Ibid. The State petitioned the Alabama Supreme Court for writ of certiorari and a brief was filed on Carroll's behalf by counsel different from the original appellate counsel. The Supreme Court, after granting the State's petition, reversed and remanded the cause upon determining that the refused charge had been substantially covered in the court's oral charge. 407 So.2d 177. Upon this authority, the Court of Criminal Appeals affirmed Carroll's conviction and sentence. 407 So.2d 179.
The trial court, in determining counsel to be effective, specifically found that counsel's failure to file a brief on appeal "was done only after conferring with Bruce Carroll, and that he acquiesced in the efforts of the attorneys at every stage of the trial." Carroll argues in brief, however, that the following holding of Mylar v. Alabama, 671 F.2d 1299, 1302 (11th Cir.), reh'g denied en banc, 677 F.2d 117 (1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3570, 77 L.Ed.2d 1411 (1983), controls the factual circumstances before us:
"We hold that the failure to file a brief in a nonfrivolous appeal falls below the standard of competency expected and required of counsel in criminal cases and therefore constitutes ineffective assistance." (Footnote omitted)
We agree. It is now established that appellate counsel's failure to file a brief in support of direct appeal entitles the petitioner to reconsideration on appeal. E.g., Chappell v. State, 457 So.2d 995 (Ala.Cr.App.1984).
Appellee contends that the qualification that the appeal be "nonfrivolous" forecloses Carroll's contention because Carroll failed to show that, but for the deficient performance by his counsel, the result of the proceeding would probably have been different. This requirement that the petitioner show actual prejudice to his cause in order to prevail on an ineffective counsel claim is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Relying on the specific language of Mylar and the Strickland requirement of a showing of prejudice, the Attorney General's argument rests upon the premise that if the appeal had been frivolous, the petitioner could not have been prejudiced and, therefore, his counsel could not have rendered ineffective assistance.
This precise argument has been foreclosed by the opinion by the Eleventh Circuit Court of Appeals in Cannon v. Berry, 727 F.2d 1020 (11th Cir.) reh'g denied en banc, 732 F.2d 944 (1984). The court, in reviewing the performance of counsel who filed a brief on the day the Alabama Court of Criminal Appeals issued its decision, concluded "that Mylar v. Alabama, supra, is controlling and that Cannon need not make a showing of actual prejudice." 727 F.2d at 1025. All that need be shown is that counsel failed to submit a brief on the appellant's behalf.
Although the appellate court's reversal of Carroll's conviction indicates that the court independently deliberated Carroll's case, as recognized by the Mylar court, observance of our statutory duty did not insure Carroll a meaningful review. In relying upon Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Mylar court explained its reasoning for this conclusion:
In a situation like that facing Carroll's counsel on direct appeal, where he could find no meritorious issue after diligently searching the record, counsel is bound to the following obligation set out in Anders, 386 U.S. at 744, 87 S.Ct. at 1400:
See also Sturdivant v. State, 460 So.2d 1210 (Ala.1984), cert. denied, 470 U.S. 1027, 105 S.Ct. 1391, 84 L.Ed.2d 781 (1985). If an attorney follows these procedures and the appeal provides no meritorious issues, then counsel has rendered effective assistance. Simmons v. Wainwright, 710 F.2d 796 (11th Cir.1983).
In holding that Carroll's counsel rendered ineffective counsel as analyzed by the requirements of Anders and Mylar, we find apropos the following:
Evitts v. Lucey, 469 U.S. ----, ----, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985).
In his petition for writ of habeas corpus, Carroll contends that he was illegally arrested on a warrant barred by the statute of limitations and, accordingly, the trial court had no jurisdiction to adjudge him guilty. 3 As the court held in Wilkie v. State, 41 Ala.App. 358, 132 So.2d...
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