State v. Horine, B57-459

• Decision Date: 25 November 1983
• Docket Number: No. B57-459,B57-459
• Parties: STATE of Oregon, Respondent, v. Michael Ray HORINE, Appellant. ; CA 17957.
• Court: Oregon Court of Appeals

Page 797

669 P.2d 797

64 Or.App. 532

STATE of Oregon, Respondent, v. Michael Ray HORINE, Appellant.

No. B57-459; CA 17957.

Court of Appeals of Oregon.

Argued and Submitted May 21, 1981.

Decided Sept. 21, 1983.

Reconsideration Denied Nov. 25, 1983.

David Lowry, Eugene, argued the cause and filed the briefs for appellant.

William F. Gary, Deputy Sol. Gen., Salem, argued the cause for respondent. With him on the briefs were Dave Frohnmayer, Atty. Gen., and John R. McCulloch, Jr., Sol. Gen., Salem.

GILLETTE, Judge.

This is a criminal case in which defendant seeks review of his conviction for criminal trespass in the second degree. The brief filed by his attorney, after a short description of the incident from which the charge arose, states in its entirety:

"Counsel for the defendant on appeal fails to discern any meritorious issues for appeal, and invites the Court to search the record for possible error. Anders v. California, 386 U.S. 738, 87 S.Ct. [1396] 1496, 18 L.Ed.2d 493 (1967); Suggs v. United States, 391 F.2d 971 (D.C.Cir.1968)."

Counsel simultaneously filed a motion to withdraw from the case. This is the first time that this court ¹ has been called upon to describe the procedure it follows, and will follow, in Anders cases. We decline to accept counsel's tendered withdrawal.

In response to the brief filed by defendant's counsel, the state has filed an extensive brief contending that the brief filed on defendant's behalf does not comply with the requirements of Anders. The state suggests several alternative courses of action for this court, including striking the brief, searching the record, as urged by defendant's counsel, and affirming the conviction in the absence of any claim of error. The state's brief also provides a helpful survey of the cases from other jurisdictions that have considered the application of Anders.

Defendant's counsel has in turn filed a reply brief, pointing out that the record contains no indication that defendant has been served with copies of the motion to withdraw and the brief filed on his behalf. Counsel also notes:

"Anders does not say if this responsibility lies with the court, or with counsel. Oregon has no decision or rule on point. In any event, this court must now decide who has this duty--at least in this case."

This series of briefs raises the sole question: Has defendant in this case received all that he is constitutionally entitled to for the purpose of presenting his appeal?

Of necessity, our examination of this issue begins with a review of Anders v. California, supra. In Anders, the United States Supreme Court stated the problem as follows:

"We are here concerned with the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal." 386 U.S. at 739, 87 S.Ct. at 1397.

The defendant in Anders was represented by court-appointed counsel who, following the procedure that had been established in California, wrote a letter advising the appellate court that he had concluded that the appeal had no merit. At the same time, he informed the court that the defendant wished to file a brief on his own behalf. After reviewing the defendant's brief and the record, the California appellate court affirmed the conviction. The United States Supreme Court, however, concluded that such an approach "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.

The Court's analysis in Anders is instructive. First, it reviewed briefly the line of cases beginning with Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed.2d 891 (1956), regarding the necessity of providing a transcript for indigent defendants on appeal, through Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), regarding appointment of counsel on appeal, and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), regarding the right to assistance of counsel. It then turned to the merits of the case before it and found the California procedure, described above, flawed:

"On a petition for a writ of habeas corpus some six years later it found the appeal had no merit. It failed, however, to say whether it was frivolous or not, but, after consideration, simply found the petition to be 'without merit.' The [California] Supreme Court, in dismissing this habeas corpus application, gave no reason at all for its decision and so we do not know the basis for its action. We cannot say that there was a finding of frivolity by either of the California courts or that counsel acted in any greater capacity than merely as amicus curiae * * *. Hence California's procedure did not furnish petitioner with counsel acting in the role of an advocate nor did it provide that full consideration and resolution of the matter as is obtained when counsel is acting in that capacity. * * * " 386 U.S. at 743, 87 S.Ct. at 1399. (Emphasis supplied.)

The Court then proceeded to indicate what is required of appointed counsel on appeal:

"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.

"This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel. The no-merit letter, on the other hand, affords neither the client nor the court any aid. The former must shift entirely for himself while the court has only the cold record which it must review without the help of an advocate. Moreover, such handling would tend to protect counsel from the constantly increasing charge that he was ineffective and had not handled the case with that diligence to which an indigent defendant is entitled. 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 744-45, 87 S.Ct. at 1400.

The problems, both of interpretation and of compliance, that Anders presents to appellate counsel and appellate courts are significant and have, at best, become compounded since the Court's opinion issued in 1967. Courts and commentators have pointed them out. See, e.g., State v. Romano, 29 Utah 2d 237, 507 P.2d 1025 (1973); State v. McKenney, 98 Idaho 551, 568 P.2d 1213 (1977); Hermann, Frivolous Criminal Appeals, 47 NYULRev 701 (1972); Note, 49 IndLRev 740 (1974). A short review of these problems is the next step in our analysis.

The first problem is pin-pointing just what Anders holds. One commentator has suggested that the holding can be narrowed to the statement that it is "the court--not counsel" whose task it is "to decide whether the case is wholly frivolous." Hermann, supra, 47 NYULRev at 702. However, as noted in People v. Wende, 25 Cal.3d 436, 158 Cal.Rptr. 839, 842, 600 P.2d 1071, 1074 (1980), the Court in Anders found that the "no merit" letter followed by a review of the record by the appellate court was inadequate, because 1) counsel did not act as an advocate on behalf of his client and 2) the appellate courts that affirmed the conviction did not make express findings that the appeal was "frivolous." 386 U.S. at 743, 87 S.Ct. at 1399. The Court was clearly concerned with both the role of the appointed attorney and the role of the appellate court.

The cases that Anders cited for support shed some light on the Court's concerns. In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed.2d 891 (1956), the petitioner sought a transcript at state expense for his appeal. The state allowed appeals as of right but provided transcripts only in death penalty cases. The state admitted that the petitioner required the transcript to obtain review of the trial errors he alleged. The Supreme Court held that, although a state need not, constitutionally, provide appellate review, when it does so, equal justice is not afforded an indigent appellant when the nature of the review "depends on the amount of money he has." It held that "[d]estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts." 351 U.S. at 19, 76 S.Ct. at 590. The Court indicated that its decision...