Com. v. Moffett

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; HENNESSEY
• Citation: 383 Mass. 201,418 N.E.2d 585
• Decision Date: 24 March 1981
• Parties: , 15 A.L.R.4th 566 COMMONWEALTH v. Ernest MOFFETT.

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418 N.E.2d 585 383 Mass. 201, 15 A.L.R.4th 566 COMMONWEALTH
v.
Ernest MOFFETT. Supreme Judicial Court of Massachusetts, Suffolk. Argued Jan. 7, 1981.
Decided March 24, 1981.

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[383 Mass. 202] Casimir S. Lopata, Boston, for defendant.

M. Catherine Huddleson, Legal Asst. to the Dist. Atty. (Kevin Connelly, Asst. Dist. Atty., with her), for the Commonwealth.

Ernest Moffett, pro se.

Before [383 Mass. 201] HENNESSEY, C. J., and KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

[383 Mass. 202] HENNESSEY, Chief Justice.

In this case we decide for the first time what procedures should be adopted to implement the constitutional principle of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). To that end, we consider the nature and extent of appointed counsel's duty to represent an indigent criminal defendant on appeal, when counsel believes the appeal is frivolous. We also conclude, upon examining the merits of the issues raised on this appeal, that there is no reversible error, and we affirm the judgments.

The defendant, Ernest Moffett, appeals from his convictions of armed robbery and of assault and battery by means of a dangerous weapon. The attorney appointed to represent the defendant on appeal to the Appeals Court filed a motion to withdraw his appearance, asserting that "(a)fter interviews with the defendant, the trial counsel and with [383 Mass. 203] the prosecuting attorney, and a review of the transcript and trial court record counsel has determined that based on the facts and applicable law there are no appealable issues ...." A single justice of the Appeals Court denied the motion to withdraw. Appointed counsel then filed a brief styled "Appellant Counsel's Brief Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)," in which he discussed three issues that "might arguably support the appeal" but maintained that "after careful review of the record and relevant case law, ... these

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issues are without merit for the reasons stated herein." Counsel again requested permission to withdraw. A copy of this brief was sent to the defendant and the Commonwealth. When it became apparent that the Anders issue had to be confronted, we transferred the case to this court on our own motion.

Contending that appointed counsel did not have his client's "best wishes in mind when the brief was submitted," the defendant moved to strike appointed counsel's brief and submitted a brief in his own behalf. He also filed a motion requesting the appointment of a named attorney to replace appointed counsel. Appointed counsel filed a reply brief, to which the defendant replied. The Commonwealth has also submitted a brief.

Before turning to the merits of the defendant's appeal, we discuss the right of an indigent defendant to the assistance of counsel on appeal.

1. The Indigent's Right to Counsel on Appeal.

Relying both on the due process and the equal protection clauses of the Fourteenth Amendment to the United States Constitution, the Supreme Court gradually has broadened an indigent's right of access to appellate courts, with a view toward ensuring an indigent criminal appellant treatment substantially equal to that afforded a nonindigent. See Griffin v. Illinois, 351 U.S. 12, 19-20, 76 S.Ct. 585, 590-591, 100 L.Ed. 891 (1956); Eskridge v. Washington State Bd. of Prison Terms & Paroles, 357 U.S. 214, 215-216, 78 S.Ct. 1061, 1062, 2 L.Ed.2d 1269 (1958); Burns v. Ohio, 360 U.S. 252, 257, 79 S.Ct. 1164, 1168, 3 L.Ed.2d 1209 (1959); Smith v. Bennett, 365 U.S. 708, 713-714, 81 S.Ct. 895, 898, 6 L.Ed.2d 39 (1961); [383 Mass. 204] Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963); Draper v. Washington, 372 U.S. 487, 499-500, 83 S.Ct. 774, 780-781, 9 L.Ed. 899 (1963).

In Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), the Court held that an indigent criminal defendant is constitutionally entitled to the assistance of counsel on a first appeal granted as of right by the State. In so holding, the Court condemned procedures "where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself." Id. at 358, 83 S.Ct. at 817.

Against this background the Supreme Court decided Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In Anders, counsel appointed to represent an indigent on appeal informed the court that he would not file a brief because in his opinion there was no merit to the appeal. The California court allowed the defendant to file a brief in his own behalf but denied his request for a new attorney, and after examining the record affirmed the conviction. This procedure ultimately was challenged by a habeas corpus petition in the State court, which found the petition to be "without merit." Id. at 743, 87 S.Ct. at 1399. The Supreme Court concluded that California's procedure failed to satisfy "(t)he constitutional requirement of substantial equality and fair process," because it did not furnish the defendant with counsel "act(ing) in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae." Id. at 744, 87 S.Ct. at 1400. The Court then outlined a procedure it deemed would "assure penniless defendants the same rights and opportunities on appeal as nearly as is practicable as are enjoyed by those ... able to afford ... private counsel." Id. at 745, 87 S.Ct. at 1400.

"(I)f counsel finds (the) 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[383 Mass. 205] and time allowed him to raise any points that he chooses; the court--not

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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.

Although meant to resolve the tension between an indigent defendant's right to a counseled appeal and counsel's desire to withdraw because he finds the appeal frivolous, the Anders procedure has been criticized not only as cumbersome and impractical, but also as insufficiently responsive both to the position of the indigent and to the ethical concerns of appointed counsel. The major difficulty with the Anders procedure is its requirement that an attorney assume contradictory roles if he wishes to withdraw on the grounds that the appeal lacks merit. ¹ He must "fil(e) a schizophrenic motion to withdraw (accompanied by a formal[383 Mass. 206] brief opposing the motion)." Doherty, Wolf! Wolf! The Ramifications of Frivolous Appeals, 59 J.Crim.L., Criminology & Police Sci. 1, 2 (1968). This Janus-faced approach not only runs the risk of alienating and frustrating his client, who can scarcely be blamed for feeling abandoned and betrayed, but also complicates the court's review unnecessarily.

Some courts have recognized that the mere submission by appointed counsel of a request to withdraw on grounds of frivolousness may result in prejudice to the indigent defendant, and have adopted the position of disallowing such motions to withdraw. See, e. g., State v. McKenney, 98 Idaho 551, 568 P.2d 1213 (1977); Dixon v. State, 152 Ind.App. 430, 436-437, 284 N.E.2d 102 (1972); State v. Gates, 466 S.W.2d 681, 684 (Mo.1971). See Note, Withdrawal of Appointed Counsel from Frivolous Indigent Appeals, 49 Ind.L.J. 740, 747 (1974). Aside from the possibility of prejudice, practical administrative reasons exist for prohibiting withdrawal. If appointed counsel may move to withdraw on grounds of frivolousness, the court must determine whether the appeal is frivolous in order to rule on counsel's motion, ² and the determination necessarily entails consideration of the merits of the appeal. As long as counsel must research and prepare an advocate's brief, he or she may as well submit it for

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the purposes of an ordinary appeal. Even if the appeal is frivolous, less time and energy will be spent directly reviewing the case on the merits. See State v. McKenney, supra; Sanchez v. State, 85 Nev. 95, 97, 450 P.2d 793 (1969); Commonwealth v. Seville, 231 Pa.Super. 120, 123, 331 A.2d 807 [383 Mass. 207] (1974) (Cercone, J., dissenting). If the appeal is not frivolous, but rather arguable on the merits, refusing to permit withdrawal would also obviate any need to substitute counsel to argue the appeal. Cf. People v. Wende, 25 Cal.3d 436, 442 n.3, 158 Cal.Rptr. 839, 600 P.2d 1071 (1979) (requiring appointment of substitute counsel if original counsel characterizes appeal as frivolous but the court decides it is arguable on the merits).

We thus conclude that appointed counsel should not be permitted to withdraw solely on the ground that the appeal is frivolous or otherwise lacking in merit. Cf. I ABA Standards for Criminal Justice, The Defense Function 4-8.3 (2d ed. 1980) ("Appellate counsel should not seek to withdraw from a case solely on the basis of his or her own determination that the appeal lacks merit"); IV ABA Standards for Criminal Justice, Criminal Appeals 21-3.2 (2d ed. 1980).

We recognize that appointed counsel, as well as retained counsel, has the professional responsibility not to advance...