State v. Balfour
| Citation | 784 P.2d 1103,100 Or.App. 1 |
| Parties | STATE of Oregon, Respondent, v. Donald Ray BALFOUR, Appellant. In the Matter of Michael Briant, Alleged to be a Mentally Ill Person. STATE of Oregon, Respondent, v. Michael BRIANT, Appellant. In the Matter of the MARRIAGE OF Nancy L. THOMAS, Petitioner, and Lawrence Alfred Thomas, Respondent. STATE of Oregon ex rel. Nancy L. THOMAS, Respondent, v. Lawrence Alfred THOMAS, Appellant. In the Matter of Sandra Stock and Stacey Stock, Minors. STATE of Oregon ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, and Children's Services Division, Respondents, v. Cari STOCK, Appellant. C8801-30735, CA A49467; 3533, CA A49492; D8804-62802, CA A49798; 72163A and B, CA A50805. |
| Decision Date | 28 December 1989 |
| Court | Court of Appeals of Oregon |
Before ROSSMAN, P.J., JOSEPH, C.J., and NEWMAN, J.
The issue in each of these cases is whether counsel for the appellant should be allowed to withdraw from representation because counsel has concluded that the appeal has no merit. In three of the cases, counsel was appointed to represent the indigent appellant and has moved, formally or informally, to withdraw; in one case, we have raised the issue on our own motion. In State v. Horine, 64 Or.App. 532, 669 P.2d 797, rev. den. 296 Or. 237, 675 P.2d 490 (1983), we held that, if appointed counsel makes a determination that there are no non-frivolous issues to present on appeal and notifies the court and the defendant of that determination, counsel may be permitted to withdraw. United States Supreme Court decisions rendered in 1988 have effectively overruled Horine. Appointed counsel wanting to withdraw on the ground that an appeal has no merit must hereafter follow this decision.
For this opinion, we consolidate State v. Balfour, CA A49467 (criminal), State v. Briant, CA A49492 (mental commitment), Thomas and Thomas, CA A49798 (criminal contempt), and State ex rel. Juv. Dept. v. Stock, CA A50805 (termination of parental rights). They are representative of others pending in this court. The standards and procedures for disposing of motions to withdraw as counsel are the same regardless of the type of case. This decision is limited to cases in which an indigent has a right under the United States Constitution to appointed counsel, regardless of whether there is a separate Oregon constitutional or statutory basis for appointment of counsel. We do not decide whether and under what circumstances appointed counsel may withdraw because counsel believes that the appeal has no merit in cases in which there is a statutory right to appointed counsel not supported by a constitutional right to appointed counsel.
In State v. Balfour, although the judgment recites that defendant pleaded guilty to a charge of Sexual Abuse I, it appears that the case was tried on stipulated facts. In any event, defendant was convicted and has appealed. Court-appointed counsel has moved to withdraw, stating that he has reviewed the trial court file, talked to the trial attorney and defendant and has concluded that there are no non-frivolous issues to raise on appeal. Attached to counsel's affidavit is a copy of a letter from him to defendant. We infer from that letter that, before the appeal was taken, defendant unsuccessfully attempted to have the fact stipulation set aside. Further, it appears that defendant wants to challenge the 90 days of jail time that he has to serve as a condition of probation, because the pre-sentence report and the district attorney recommended no imprisonment.
State v. Briant is an appeal from an order finding defendant to be a mentally ill person and committing him to the custody of the Mental Health Division. Court-appointed counsel has moved to withdraw on the grounds "that there are no appealable issues preserved in the trial court record, and there is no egregious error on the face of the record." His affidavit recites that he has reviewed the entire record and that "there was no ruling of the Trial Court preserved for appeal which was reversible error." Counsel also states that he has talked to trial counsel and that trial counsel is not aware of any issues preserved for appeal on which a different result would be reached by this court on de novo review. Counsel states that he has discussed the matter with defendant, who wants to raise the issue that certain portions of the mental health examiner's reports were not admissible. Counsel states that he believes that defendant would be unsuccessful in asserting that issue, because the trial judge stated that he could disregard the questioned evidence and still conclude that sufficient evidence existed to find appellant mentally ill and a danger to others.
Thomas and Thomas is an appeal from an order finding defendant husband in contempt of court for violating a restraining order requiring him to stay away from wife. Imposition of sentence was suspended, and defendant was placed on probation, subject to special conditions. We issued a notice to the effect that the appeal would be dismissed for lack of prosecution unless good cause were shown why the appeal should be retained. Appointed counsel responded with a document in the form of a brief, the content of which merely recites that counsel has reviewed the record and has not found any non-frivolous issues and requests permission to withdraw.
State ex rel. Juv. Dept. v. Stock is an appeal from an order of the juvenile court terminating the parental rights of the mother of two minor children. Mother is the appellant. Her court-appointed counsel filed a brief with a statement of the case, a summary of facts and all of the other attributes of a brief and containing one "assignment of error": "As court-appointed counsel for the appellant on appeal, I have reviewed the law and the record and have determined that there are no non-frivolous issues to be raised on appeal."
In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court held that a state appellate court, in an indigent criminal defendant's appeal as of right, may not permit court-appointed counsel to withdraw on the basis of a conclusory statement that the appeal has no merit and that no brief will be filed on defendant's behalf. Rather, counsel was said to be required to file a brief referring to anything in the record that might arguably support the appeal. A copy of that "brief" is to be provided to the defendant, and the defendant is to be afforded time within which to raise any points. The court held that, if the state appellate court receives a proper "Anders brief," it is still then obligated to review the record itself to determine whether there are any arguable legal points. If the state appellate court, after reviewing counsel's brief, the defendant's brief and the record, also determines that there are no arguable legal points to be raised, it may allow counsel to withdraw and either dismiss the appeal or, if required by state law, proceed to a decision on the merits.
State v. Horine, 64 Or.App. 532, 669 P.2d 797 (1983), is this court's interpretation of Anders as applied to Oregon circumstances. We stated that we would follow Anders to the extent that appointed counsel is required to examine the record and the law conscientiously as an advocate and to raise whatever issues arguably support a reversal. Further, if counsel determines that there are no non-frivolous issues to be raised, this court and the defendant are to be notified and the defendant may then choose to present issues in a pro se brief. We departed from Anders in that, if counsel concludes that there are no non-frivolous issues that could fairly be raised, a conclusory statement to that effect would be sufficient for this court to permit counsel to withdraw and also to affirm the judgment, unless the defendant, within 30 days of being notified by counsel of the motion to withdraw, notifies this court that he wishes to proceed with his appeal himself. 1
In 1988, the Supreme Court decided two cases about the role of state appellate courts and appointed counsel in criminal cases. In McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988), the Court upheld a Wisconsin rule of appellate procedure that requires court-appointed counsel moving to withdraw to file a brief identifying anything in the record arguably supporting the appeal and "a discussion of why the issue lacks merit." Counsel for the defendant on appeal had filed a brief containing a statement of facts, four arguments for reversal, a prayer for reversal, a statement that further appellate proceedings on behalf of the defendant would be frivolous and without any arguable merit and a prayer for leave to...
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State v. Balfour
...raised the issue of withdrawal on its own motion. The Court of Appeals declined to permit counsel to withdraw. State v. Balfour, 100 Or.App. 1, 784 P.2d 1103 (1989). Review was sought only in the lead case, which is a criminal appeal. We conclude that counsel need not withdraw in such cases......
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State v. Thompson
...appropriate research, fails to discern any meritorious issues for appeal." In the time since this court's decision in State v. Balfour, 100 Or.App. 1, 784 P.2d 1103 (1989), rev. allowed 310 Or. 60, 791 P.2d 497 (1990), it has become apparent that our attempt to create specific Oregon proced......
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State v. Dam
...allowed; order adhered to. 1 ORS 19.130 is made applicable to criminal cases by ORS 138.185(2).2 Although we cited State v. Balfour, 100 Or.App. 1, 784 P.2d 1103 (1989), rev. allowed 310 Or. 60, 791 P.2d 497 (1990), in the order, Balfour is not involved in the analysis utilized in this ...
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Lee v. Maass, C-11402
...issues that the defendant wants to assert, even if those issues are, in counsel's judgment, frivolous or absurd." State v. Balfour, 100 Or.App. 1, 10, 784 P.2d 1103 (1989). That passage does not authorize counsel to expend unnecessary amounts of time developing frivolous arguments. As with ......