State v. Balfour

• Decision Date: 05 July 1991
• Citation: 814 P.2d 1069,311 Or. 434
• Parties: STATE of Oregon, Respondent on Review, v. Donald BALFOUR, Petitioner on Review. TC C8801-30735; CA A49467; SC S36884.
• Court: Oregon Supreme Court

Page 1069

814 P.2d 1069

311 Or. 434

STATE of Oregon, Respondent on Review, v. Donald BALFOUR, Petitioner on Review.

TC C8801-30735; CA A49467; SC S36884.

Supreme Court of Oregon,

In Banc.

Argued and Submitted June 9, 1990.

Decided July 5, 1991.

Martin W. Reeves, Portland, filed the petition and argued the cause for petitioner on review.

[311 Or. 435-A] Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the response were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Mary Burns Tomlinson, Lake Oswego, filed a brief for amicus curiae Oregon State Bar.

GILLETTE, Justice.

In each of four cases that were consolidated for the purposes of decision before the Court of Appeals, appointed counsel for an indigent appellant determined that there were no meritorious issues on which to base an appeal. In three of the cases, counsel moved to withdraw; in the fourth, the Court of Appeals 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. We vacate the decision of the Court of Appeals and remand the case for further consideration.

The specific circumstances of the four consolidated cases are described in the Court of Appeals' opinion and do not require iteration here. See State v. Balfour, supra, 100 Or.App. at 5-7, 784 P.2d 1103 (reciting facts). The following summary statement of the Court of Appeals is sufficient to set the stage for its 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. * * * "

Id. at 5, 784 P.2d 1103. The Court of Appeals concluded that counsel should not be permitted to withdraw from representation under the circumstances then present, and it detailed generally applicable requirements that counsel must fulfill before withdrawal might be possible, based on that court's understanding of the requirements of federal constitutional case law. Id. at 10, 784 P.2d 1103. We allowed review to address the important questions involved.

We address in this opinion the ethical and federal constitutional ¹ obligations of Oregon appointed appellate counsel in a criminal appeal when counsel determines that only non-meritorious arguments exist on which to base an appeal. ² We conclude that in such circumstances counsel need not seek to withdraw. We hold that the continued presence of counsel in the appeal is ethically permissible. We set out hereafter procedures that we believe are constitutionally adequate, governing the prosecution of an appeal from the filing of a notice of appeal to a decision by the Court of Appeals.

The decisional backdrop against which we consider the issues presented by this case is a fairly well defined and limited universe of cases. The first decision of consequence dealing with counsel's desire to resign from an appeal that has, so far as counsel can discern, no merit is Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). That decision was followed chronologically by State v. Horine, 64 Or.App. 532, 669 P.2d 797, rev. den. 296 Or. 237, 675 P.2d 490 (1983), in which the Court of Appeals outlined certain procedures to be followed in such cases in the Oregon Court of Appeals, while acknowledging that the procedures were at variance with the procedures described in Anders. In 1988, the Supreme Court of the United States decided McCoy v. Court of Appeals of Wis., 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988), and Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). The Oregon Court of Appeals, in this case, viewed McCoy and Penson as the death knell for the procedures that it had approved in State v. Horine. The court revised the requirements for attorney resignation accordingly.

Each of the rationales for the decisions in the cases cited is a significant piece of the challenge that we confront today, which is to configure a system of practice in Oregon's appellate courts that will accommodate the ethical obligations of counsel; satisfy the federal constitutional requirements of effective representation, substantial equality, and fair process for indigent appellants; and serve the perceived needs of an effectively administered appellate decision-making process. We therefore examine the cases in some detail.

As noted, Anders v. California, supra, is the starting point for any decision in this area. The pertinent facts in Anders are as follows:

"After he was convicted of the felony of possession of marijuana, petitioner sought to appeal and moved that the California District Court of Appeal appoint counsel for him. Such motion was granted; however, after a study of the record and consultation with petitioner, the appointed counsel concluded that there was no merit to the appeal. He so advised the court by letter and, at the same time, informed the court that petitioner wished to file a brief in his own behalf. At this juncture, petitioner requested the appointment of another attorney. This request was denied and petitioner proceeded to file his own brief pro se. The State responded and petitioner filed a reply brief. On January 9, 1959, the District Court of Appeal unanimously affirmed the conviction.

"On January 21, 1965, petitioner filed an application for a writ of habeas corpus in the District Court of Appeal in which he sought to have his case reopened. In that application he raised the issue of deprivation of the right to counsel in his original appeal because of the court's refusal to appoint counsel at the appellate stage of the proceedings. * * * "

386 U.S. at 739-40, 87 S.Ct. at 1397-98 (citation omitted).

The Supreme Court of the United States began its analysis by referring to a continuing line of its cases that had established the right to counsel for a criminal defendant on appeal and further had established the principle that the basic nature of appellate review for a criminal defendant cannot depend on the defendant's financial status. 386 U.S. at 741-42, 87 S.Ct. at 1398-99. The Court then set forth its holding, which has come to be known as the "Anders brief" requirement:

"The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his 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 and time allowed him to raise any points that he chooses; the court--not 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."

386 U.S. at 744, 87 S.Ct. at 1400. (Footnote omitted.)

The Anders holding is significant in three material aspects: First, it determined that the California procedure then in use (i.e., the so-called "no merit letter") was inadequate under the federal constitution; second, the Court established the appropriate procedure (the so-called Anders brief); and third, the Court stated its rationales. Only the third aspect requires further elaboration.

Anders held that the California procedures violated the due process and equal protection provisions of the Fourteenth Amendment: "We have concluded that California's action does not comport with fair procedure and lacks that equality that is required by the Fourteenth Amendment." 386 U.S. at 741, 87 S.Ct. at 1398. See also 386 U.S. at 744, 87 S.Ct. at 1400 (discussing the "constitutional requirement of substantial equality and fair process"). Following its description of the Anders brief, the Court re-emphasized its constitutional purpose, viz., to assure equality for indigent appellants:

"This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a non-indigent defendant is able to obtain. * * * This procedure will assure penniless defendants the same rights and opportunities on appeal--as nearly as is practicable--as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel."

386 U.S. at 745, 87 S.Ct. at 1400. See also Ross v. Moffitt, 417 U.S. 600, 611-12, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974) (recognizing:...