Mosley v. State

• Decision Date: 26 June 2009
• Docket Number: No. 49S02-0812-CR-643.,49S02-0812-CR-643.
• Parties: Bryan G. MOSLEY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

908 N.E.2d 599

Bryan G. MOSLEY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 49S02-0812-CR-643.

Supreme Court of Indiana.

June 26, 2009.

Jack Kenney, Stacy R. Uliana, Indiana Public Defender Council, William F. Thorns, Jr., Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0802-CR-188

BOEHM, Justice.

In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court of the United States established a procedure permitting appointed counsel to withdraw from "frivolous" criminal appeals. We decline to adopt the Anders protocol and hold that in any direct criminal appeal as a matter of right, counsel must submit an advocative brief in accordance with Indiana Appellate Rule 46.

Facts and Procedural History

Indianapolis Metropolitan Police officers William Flude and Joe Stern responded to a report of an unruly patron at Bubbaz Bar & Grill. After defendant Bryan Mosley refused repeated requests to leave, the officers advised him that he was under arrest. He was told to put his hands behind his back, and Officer Flude placed one handcuff on Mosley's right wrist. Mosley then began to flail his left hand, and Officer Flude thought he was trying to strike Officer Stern. After a "small tussle," Mosley was taken to the ground, where he continued to kick and flail. The officers ultimately restrained Mosley's legs, secured him in handcuffs, and took him into custody.

Mosley was charged with Count I, class A misdemeanor resisting law enforcement, and Count II, class A misdemeanor criminal trespass. Following a bench trial Mosley was acquitted of criminal trespass but convicted of resisting law enforcement. He was sentenced to 363 days probation.

Mosley appealed, challenging the sufficiency of the evidence that he resisted arrest. The entire argument portion of Mosley's brief in the Court of Appeals reads as follows:

While Mr. Mosley disputed the testimony of the police officer concerning his arrest, the evidence produced by the State does not support his conviction.

The testimony of the police officer was Mr. Mosley flailed his one hand after his other hand had been handcuffed. After what the police said was a small tussle, Mr. Mosley was then taken to the ground. Mr. Mosley started kicking a bit and flail around while he was on the ground according to the arresting officer. (Tr. P. 12-13)

The use of force is the essential element of resisting law enforcement. White v. State 545 N.E.2d 1124 (Ind. App.1992 [1989]) Some resistance by a defendant does not constitute resisting law enforcement. Ajabu v. State 704 N.E.2d 494 (Ind.App.1998) There must be some form of violent action to evade the police, a person standing his ground does not meet this requirement. Spongier [Spangler] v. State 607 N.E.2d 720 (Ind.1993)

Mr. Mosley's actions do not meet the requirements of Resisting Law Enforcement.

The Court of Appeals affirmed, finding sufficient evidence to support Mosley's conviction. Mosley v. State, No. 49A02-0802-CR-188, slip op. at 4, 2008 WL 4277398 (Ind.Ct.App. Sept. 19, 2008). The Court of Appeals then excerpted Mosley's brief and added:

We understand that a criminal defendant has a right to an appeal of his conviction. But that does not mean that an appeal should be filed in every case. When it is clear that the trial court did not commit reversible error, it is a waste of the resources of this court and the attorney general's office and, most of all, public defender funds, for an appeal to nonetheless be filed. Trying to create issues where there are none leads to the sort of perfunctory, baseless brief we have before us today. When there are no meritorious arguments to be made, the better approach is to file a brief in accordance with our decision in Packer v. State, 777 N.E.2d 733 (Ind.Ct.App. 2002), which outlines the proper procedure for such a situation.

Id. at 5-6. In Packer, the Court of Appeals suggested that counsel faced with preparing an appeal in which they had identified no issue of merit should file an "Anders brief" using the procedure explained below. We granted transfer to address the points raised by the Court of Appeals in the foregoing paragraph. We summarily affirm the decision of the Court of Appeals that the evidence was sufficient to support Mosley's conviction for resisting arrest. Ind. Appellate Rule 58(A)(2).

I. Mootness and Advisory Opinions

The State's sole contention on transfer is that the issue before us is moot and has no bearing on the disposition of this case. The State notes that the comments of the Court of Appeals respecting frivolous appeals were made after the court had resolved Mosley's appeal on the merits. The State argues that any discussion of Anders briefs would constitute only an advisory opinion, which, the State contends, is "something this Court has stated explicitly that it does not do."

The long-standing rule in Indiana courts has been that a case is deemed moot when no effective relief can be rendered to the parties before the court. Matter of Lawrance, 579 N.E.2d 32, 37 (Ind.1991). When the concrete controversy at issue in a case has been ended or settled, or in some manner disposed of, so as to render it unnecessary to decide the question involved, the case will usually be dismissed. Id.

It is true that moot cases are ordinarily dismissed. Hill v. State, 592 N.E.2d 1229, 1230 (Ind.1992) ("We do not provide advisory opinions."); State ex rel. Goldsmith v. Super. Court of Marion County, 463 N.E.2d 273, 275 (Ind. 1984) (same). But that is not always the case. The jurisdiction of federal courts is limited by Article III of the federal constitution to "cases and controversies," and that language has long been taken to prohibit advisory opinions. See U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993); Flast v. Cohen, 392 U.S. 83, 96-97, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Muskrat v. United States, 219 U.S. 346, 361, 31 S.Ct. 250, 55 L.Ed. 246 (1911); Hayburn's Case, 2 U.S. 408, 408, 2 Dall. 409, 1 L.Ed. 436 (1792). The Indiana Constitution has no comparable limitation on "the judicial power of the State" conferred on the courts by article 7, section 1 of the Indiana Constitution. This Court can, and does, issue decisions which are, for all practical purposes, "advisory" opinions. Ind. Dep't of Envtl. Mgmt. v. Chem. Waste Mgmt. Inc., 643 N.E.2d 331, 336-37 (Ind. 1994). Indeed, on occasion we have issued opinions with no case before us. See, e.g., In re Judicial Interpretation of 1975 Senate Enrolled Act No. 441, 263 Ind. 350, 350-53, 332 N.E.2d 97, 97-99 (1975) (deciding, sua sponte, that legislation setting judicial examination standards and giving lay judges limited criminal jurisdiction was unconstitutional).

In order for the Court to entertain an issue that may no longer affect the rights of the parties, the case should present an issue of "great public interest." Lawrance, 579 N.E.2d at 37; see also Gutermuth v. State, 868 N.E.2d 427, 430 n. 3 (Ind.2007). Cases in this category typically raise important policy concerns and present issues that are likely to recur. Lawrance, 579 N.E.2d at 37; Cent. Ind. Podiatry, P.C. v. Krueger, 882 N.E.2d 723, 727 (Ind.2008). We believe the instant case exhibits both characteristics. The issue before us has significant implications for appellate practice and procedure, constitutional rights, legal ethics, and management of judicial resources. This state entertains over 1500 criminal appeals each year, see Court of Appeals of Indiana, Annual Report 1 (2008), available at http://www.in.gov/judiciary/appeals/docs/ 2008report.pdf, and issues surrounding allegedly "frivolous" appeals are likely to surface with some regularity. We therefore proceed to the merits of the issue raised on transfer.

II. Anders v. California

The Fourteenth Amendment to the United States Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." The Sixth Amendment right to counsel applies to the states via the Due Process Clause of the Fourteenth Amendment, Gideon v. Wainwright, 372 U.S. 335, 339-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and guarantees the assistance of counsel at critical stages of prosecution up through trial, sentencing, and various post-trial matters. See Kitchen v. United States, 227 F.3d 1014, 1018-19 (7th Cir.2000); 3 Wayne R. LaFave, Criminal Procedure § 11.2(b), at 624 (3d ed.2007). However, the Sixth Amendment does not apply to appellate proceedings. Martinez v. Ct. of App. of Cal., 528 U.S. 152, 161, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). Rather, the Equal Protection and Due Process Clauses of the Fourteenth Amendment are the source of the guarantee to indigent defendants of assistance of counsel on appeal. Douglas v. California, 372 U.S. 353, 355-56, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Evitts v. Lucey, 469 U.S. 387, 405, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Halbert v. Michigan, 545 U.S. 605, 610-11, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005). That right attaches in any first appeal granted by state law as a matter of right, but not to discretionary review following initial appeals, Ross v. Moffitt, 417 U.S. 600, 610, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), state post-conviction proceedings, Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), or habeas corpus actions, Murray v. Giarratano, 492 U.S. 1, 8-10, 109 S.Ct. 2765, 106 L.Ed.2d 1 ...