Ramos v. State

• Decision Date: 28 August 1997
• Docket Number: Nos. 30305,30573,30554,s. 30305
• Citation: 944 P.2d 856,113 Nev. 1081
• Parties: Juan RAMOS, Appellant, v. The STATE of Nevada, Respondent. Thomas Gary WARD, Appellant, v. The STATE of Nevada, Respondent. Michael Joseph TRUJILLO, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 856

944 P.2d 856

113 Nev. 1081

Juan RAMOS, Appellant, v. The STATE of Nevada, Respondent.

Thomas Gary WARD, Appellant, v. The STATE of Nevada, Respondent.

Michael Joseph TRUJILLO, Appellant, v. The STATE of Nevada, Respondent.

Nos. 30305, 30554, 30573.

Supreme Court of Nevada.

Aug. 28, 1997.

Morgan D. Harris, Public Defender; Daren B. Richards, Deputy Public Defender; Douglas P. DeJulio, Deputy Public Defender and Thomas W. Rigsby, Deputy Public Defender, Clark County, for Appellants.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondents.

OPINION

PER CURIAM:

In Ramos v. State, Docket No. 30305, and Ward v. State, Docket No. 30554, defense counsel filed fast track statements that explained that after a careful review of the record, counsel concluded that no genuine issues of fact or law could be raised on appeal. However, counsel did not present a statement of facts, legal issues or arguments.

In Trujillo v. State, Docket No. 30573, counsel filed a fast track statement that discussed the procedural history of the case and then stated that no issues are presented or legal arguments made. Counsel did not make an averment that after a conscientious review of the record, he concludes that no genuine appellate issues exist.

We conclude that counsel in each appeal failed to comply with the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969), and their progeny.

Currently, attorneys attempt to comply with Sanchez in a myriad of ways. Some attempt to comply by providing a detailed procedural and factual history of a case, raising the most arguable issues, arguing those issues, and then filing a separate affidavit of no merit. Others merely state that no issues exist, provide no legal argument, and do not file a no merit affidavit.

These inconsistent attempts to comply with Sanchez force us to reconsider that holding. The regime announced in Anders was premised upon counsel's ethical obligation to withdraw from an appeal if counsel believes that appeal is frivolous. In Sanchez, we dispatched with the obligation of counsel to file a motion to withdraw in a case counsel believes lacks merit. Today we dispatch with the obligation of counsel to file a no merit affidavit.

The Anders approach is schizophrenic in nature. An attorney raises issues and arguments and then is forced to concede that those arguments are without merit. We refuse to accept the notion that an attorney can file a no merit affidavit without actually advocating against the merit of his client's appeal, and we recognize that the Anders procedure often entails the expenditure of more court resources than would be expended upon a meritorious appeal.

The Idaho Supreme Court concluded that it was unable to follow the impractical and illogical procedure outlined as dictum in Anders. State v. McKenney, 98 Idaho 551, 568 P.2d 1213, 1214 (1977). The McKenney court concluded that the filing of a no merit appeal "cannot but result in prejudice" to the defendant. Id. That court then stated that "if a criminal case on appeal is wholly frivolous, undoubtedly, less of counsel and the judiciary's time and energy will be expended in directly considering the merits of the case in its regular and due course as contrasted with a fragmented" system outlined by Anders. Id. The McKenney court then concluded that defense counsel in that state need not file no merit affidavits.

Dissenting to an order granting a motion to withdraw as counsel and dismissing an appeal deemed frivolous, a District of Columbia judge interpreted the Idaho rule and acknowledged its superiority over the Anders process. Gale v. United States, 429 A.2d 177, 178-83 (D.C.1981) (Ferren, J., dissenting), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981). Judge Ferren opined that the Idaho rule would require an attorney to choose the best of the worst of appellant's arguments on appeal. State v. Cigic, 138 N.H. 313, 639 A.2d 251, 253 (1994) (discussing Judge Ferren's dissenting opinion). Then, after the state files a response, the appellate court can decide the case on the merits of the issue or issues raised rather than undertaking an independent review of the entire record on appeal. Id.

Judge Ferren's concern with the Anders process was that when an attorney files a no merit affidavit, courts "feel obliged to spend a substantial amount of time studying the record for a clue 'that might arguably support the appeal,' " or "duplicate undocumented time spent by counsel or do what counsel should have done but did not." Gale, 429 A.2d at 181 (Ferren, J. dissenting) (quoting Anders, 386 U.S. at 744, 87 S.Ct. at 1400). "In short, the Anders dictum typically forces either the court to undertake the role of the lawyer, or the lawyer to undertake the role of the court." Id. at 182.

New Hampshire embraced the Idaho approach to "preserve[ ] the integrity of the attorney-client relationship better than strict adherence to Anders." Cigic, 639 A.2d at 253. The Cigic court concluded that if, in counsel's estimation, an appeal is without merit, counsel must discuss his or her conclusion with the client and advise the client against pursuing the appeal. Id. at 254. If a defendant insists on continuing with the...