State v. KORTH AND STEELE

• Decision Date: 14 August 2002
• Docket Number: No. 22100., No. 22058
• Citation: 650 N.W.2d 528,2002 SD 101
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Lance KORTH, Defendant and Appellant. State of South Dakota, Plaintiff and Appellee, v. Sheila Steele, Defendant and Appellant.
• Court: South Dakota Supreme Court

650 N.W.2d 528

2002 SD 101

STATE of South Dakota, Plaintiff and Appellee, v. Lance KORTH, Defendant and Appellant.

State of South Dakota, Plaintiff and Appellee, v. Sheila Steele, Defendant and Appellant.

Nos. 22058, 22100.

Supreme Court of South Dakota.

Argued May 30, 2002.

Decided August 14, 2002.

Mark Barnett, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, for plaintiffs and appellees.

Arnold D. Laubach, Jr. and Michael Stonefield, Pennington County Public Defender's Office, Rapid City, for defendant and appellant, Korth.

Joyce A. Svoboda, Rapid City, for defendant and appellant, Steele.

AMUNDSON, Justice.

[¶ 1.] Motions to withdraw were filed by court appointed attorneys based on the belief that their clients' appeals were frivolous. This Court ordered the attorneys to brief the issue of whether an adequate Anders brief is a necessary condition to allow counsel to withdraw.¹

FACTS

[¶ 2.] The State and Steele's appointed counsel both argue that the Anders procedure, whereby a motion to withdraw and a brief stating potential appealable issues, is appropriate, and should remain in place. Korth's appointed counsel, however, proposes that this Court no longer consider Anders-type withdrawal motions.

STANDARD OF REVIEW

[¶ 3.] We are presented with a question of law in the case at hand, which we examine de novo. State v. Sheehy, 2001 SD 130, ¶ 6, 636 N.W.2d 451, 452 (citations omitted).

DECISION

[¶ 4.] In this case, the State and Steele's counsel request that this Court retain the Anders procedure that is currently in place. Much of the argument supporting current procedure stems from our Rules of Professional Conduct, specifically Rule 3.1 in SDCL chapter 15-18, which states:

A lawyer shall not bring or defend a proceeding or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer of the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

(emphasis added). The State asserts that following the current procedure is the best way to avoid violations of the ethical rules set out for attorneys. Korth's counsel, however, asserts that the Anders procedure should be eliminated.²

[¶ 5.] To address this issue, it is important to understand the historical progeny on which our decision will be based. The initial underlying principles for Anders procedures began with Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, .9 L.Ed.2d 799 (1963), where the United States Supreme Court declared that under the Fourteenth Amendment, the right to counsel in criminal cases extends in all states. Then, in 1956, the U.S. Supreme Court reviewed the decision of the Illinois Supreme Court, which required an indigent defendant to purchase the trial transcript necessary to obtain appellate review. Griffin v. Illinois, 351 U.S. 12, 14, 76 S.Ct. 585, 588, 100 L.Ed. 891 (1956). Because the indigent individual could not afford the transcript, the court, in essence, denied him his right to appeal. Id. In Griffin, the Supreme Court emphasized equality among all criminal defendants, wealthy or poor, and held that "[d]estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts." Id., 351 U.S. at 19, 76 S.Ct. at 591, 100 L.Ed. 891.

[¶ 6.] Next, in Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), this country's highest court addressed the right to appellate counsel, and stated the following:

There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.

Id.372 U.S. at 357-58,83 S.Ct. at 817,9 L.Ed.2d 811. The Supreme Court held that there is a right to counsel on appeal, not just at the trial level. Again, emphasizing the right to equal protection of the law, the Supreme Court said that without ensuring indigent defendants representation on appeal, there is "discrimination ... between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but a poor man cannot." Id.,372 U.S. at 357,83 S.Ct. at 817,9 L.Ed.2d 811.³

[¶ 7.] Then, after indigent defendants had been ensured the right to receive necessary transcripts and adequate counsel to represent them on appeal, the issue of how an attorney must proceed if there is nothing non-frivolous in the record to support an appeal arose. In 1967, the decision that truly prompted the dispute at hand was put into law, Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. This Court has previously discussed Anders and the protections that should be provided indigent defendants on appeal. See Sweeney v. Leapley, 487 N.W.2d 617, 619 (S.D.1992)

(finding the Anders procedure should be followed when counsel feels there is no merit to habeas actions). Anders states that if counsel appointed to represent an indigent defendant finds a case

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 the 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 should merely afford the latter the 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 references not only to the record, but also to the legal authorities as furnished it by counsel... This procedure will assure penniless defendants the same rights and opportunities on appeal—as nearly as is practical—as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel.

Id. at 619 (quoting Anders, 386 U.S. at 744-45, 87 S.Ct. at 1400, 18 L.Ed.2d at 498-99). See also Loop v. Solem, 398 N.W.2d 140, 143 (S.D.1986)

(discussing the Anders procedure).

[¶ 8.] After Anders was in effect, the U.S. Supreme Court had to assess when court appointed defense has gone far enough to satisfy the Anders requirements. In Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), the appellant attorney submitted a "Certificate of Meritless Appeal and Motion" which stated that the attorney carefully reviewed the record, and found no errors. Therefore, the attorney moved to withdraw from the case. Id.,488 U.S. at 77,109 S.Ct. at 348,102 L.Ed.2d 300. The court of appeals granted the motion to withdraw. It then examined the record and found error did occur, and reversed the conviction and sentence on that count, but affirmed the remaining counts and found that petitioner was not prejudiced. Id. The Supreme Court held that "the Ohio Court of Appeals did not follow the Anders procedures when it granted appellate counsel's motion to withdraw, and that it committed an even more serious error when it failed to appoint new counsel after finding that the record supported several arguably meritorious grounds for reversal of petitioner's conviction and modification of his sentence." Id.,488 U.S. at 81,109 S.Ct. at 350,102 L.Ed.2d 300. The Supreme Court went on to explain that the Court of Appeals should have denied the motion to withdraw and, furthermore, should not have granted the motion before reviewing the record. Id.,488 U.S. at 81-83,109 S.Ct. at 350-51,102 L.Ed.2d 300.

[¶ 9.] Shortly after the Penson case, the U.S. Supreme Court analyzed whether Wisconsin's procedure for handling Anders-type cases was appropriate in light of Anders. In McCoy v. Court of Appeals of Wisconsin, District 1, the Supreme Court analyzed the Wisconsin Supreme Court's rule requiring that Anders briefs "include `a discussion of why the issue lacks merit.'" Id., 486 U.S. 429, 431, 108 S.Ct. 1895, 1898, 100 L.Ed.2d 440 (1988). The McCoy Court noted that the Wisconsin Supreme Court did not expect "protracted argument in favor of the conclusions reached[,]" but rather required citations to principal cases, laws and facts in the record to verify that the appeal is meritless. Id., 486 U.S. at 440, 108 S.Ct. at 1903, 100 L.Ed.2d 440. Thus, the Supreme Court held the procedure was unobjectionable, and further acknowledged that the type of candor requested in Wisconsin is already required under attorneys' ethical rules. Id., 486 U.S. at 441, 108 S.Ct. at 1903, 100 L.Ed.2d 440.

[¶ 10.] More recently, the United States Supreme Court has stated that courts are free to adopt any procedure to protect defendants' rights to appellate counsel; they are not bound by the exact steps outlined in Anders. Smith v. Robbins, 528 U.S. 259, 265, 120...