State v. Lewis, Cr. N

• Decision Date: 30 April 1980
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Timothy Roger LEWIS, Defendant and Appellant. o. 702.
• Court: North Dakota Supreme Court

Page 735

291 N.W.2d 735

STATE of North Dakota, Plaintiff and Appellee, v. Timothy Roger LEWIS, Defendant and Appellant.

Cr. No. 702.

Supreme Court of North Dakota.

April 30, 1980.

Tom Tuntland, State's Atty., Mandan, for plaintiff and appellee.

Timothy Roger Lewis, pro se.

SAND, Justice.

This matter ostensibly came before us in an effort to comply with Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, rehearing denied, 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377 (1967).

Timothy Roger Lewis, the defendant, appealed from a conviction of robbery entered by the Morton County district court on 8 Jan 1978. The defendant appeared pro se on appeal because his court-appointed attorney, who believed the defendant's appeal was without merit was granted permission to withdraw. We remand the case to the district court for appointment of another attorney to represent the defendant in his appeal as of right in this case.

On 17 Oct 1978 the defendant was arrested and charged with the robbery of a restaurant in Mandan, North Dakota. The defendant was found indigent and Benjamin C. Pulkrabek was appointed to represent him. A preliminary hearing was held on 30 Oct 1978, and the defendant was bound over for arraignment before the Morton County district court. However prior to the defendant's arraignment, Pulkrabek moved for permission to withdraw as defense counsel on the grounds that a potential defense alibi witness would not cooperate with him. The motion to withdraw was granted, but the defendant agreed to Pulkrabek's continued representation through the arraignment. On 14 Nov 1978 Duane E. Houdek was appointed defense counsel.

On 28 Nov 1978 the defendant moved to suppress a pretrial and trial photographic identification of him by four of the State's witnesses on the grounds that the photographic lineup was unnecessarily suggestive and conducive to irreparable mistaken identification and that any in-court identification did not have an independent source. The district court heard this motion on 4 Dec 1978 and subsequently issued a memorandum decision denying the suppression. Trial by jury was held on 20 and 21 Dec 1978, and the jury found the defendant guilty of robbery while possessing or pretending to possess a dangerous weapon. The defendant was informed of his right to appeal and his right to appointed counsel on appeal.

On 15 Jan 1979 Houdek filed a motion to withdraw as defense counsel on grounds that he and the defendant had agreed that Houdek would not represent the defendant on appeal and that Houdek had accepted a position as alternate municipal judge which precluded further criminal representation. The motion was granted, but before the undated order permitting Houdek to withdraw as counsel was signed by the Morton County district court judge, Houdek filed an appeal of the conviction to this court. The State made a motion to dismiss defendant's appeal for substantial noncompliance with the North Dakota Rules of Appellate Procedure, which was denied.

On 30 Oct 1979 Benjamin C. Pulkrabek was again appointed to represent the defendant. However, on 8 Feb 1980 Pulkrabek submitted to the North Dakota supreme court a request for permission to withdraw as counsel because he believed that defendant's appeal was without merit. This request was accompanied by a brief on behalf of the defendant "referring to anything in the record that might arguably support an appeal." Pulkrabek raised seven legal issues in the brief which he thought might support the defendant's appeal, including whether or not the photographic lineup was conducted in an unnecessarily suggestive manner and whether or not the defendant was denied effective assistance of counsel because of the way his trial defense was presented. However, after each of the seven issues raised in the brief, Pulkrabek discounted the validity of the issues, leaving the net effect of the brief in support of Pulkrabek's opinion that the appeal was frivolous or without merit.

The State's brief did not directly respond to the specific issues of merit raised by Pulkrabek, but instead stressed that it was the appellate court's responsibility in this proceeding to examine the record and determine whether or not defendant's appeal was in fact frivolous. The State maintained that only if this court determined that the appeal was not frivolous would it be necessary to argue the merits of the appeal. The defendant personally submitted a brief and appeared at oral argument pro se after Pulkrabek was granted permission to withdraw as counsel. The defendant's brief and argument were on the merits of the case as if they were presently before the court.

Apparently Pulkrabek and the State followed this procedure in an attempt to comply with Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, rehearing denied 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377 (1967). In Anders, the United States Supreme Court for the first time addressed the extent of the duty of a court-appointed appellate counsel to prosecute a criminal appeal after that attorney had determined that there was no merit to the indigent's appeal. The court-appointed attorney in Anders, after studying the record and consulting with the defendant, concluded that the appeal was without merit and so advised the court by letter. The defendant's request for another attorney was denied, and he filed his own brief and appeared pro se. In Anders the Court reversed and remanded the judgment of conviction and established constitutional procedures as follows:

"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.

While we may be in complete agreement with the principles of law recited in the Anders decision, we do not think that the procedures applies to this State because under our constitution and statutes an appeal is as a matter of right which eliminates the need for an Anders proceeding. Under the North Dakota procedure, the defendant is afforded all of the constitutional requirements set out in Anders.

It appeared from the briefs and statements made at oral argument that the parties to this case overlooked the fact that criminal appeals in North Dakota are as a matter of right, and not by permission of the court or by some form of certiorari. ¹ Section 90 of the North Dakota Constitution provides as follows:

"Appeals shall be allowed from decisions of lower courts to the supreme court as may be provided by law."

Pursuant to the constitutional provisions, the North Dakota legislature enacted §§ 29-28-03 and 29-28-06,...