State v. McKenney, s. 12531 and 12317

• Decision Date: 22 September 1977
• Docket Number: Nos. 12531 and 12317,s. 12531 and 12317
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Craig A. McKENNEY, Defendant-Appellant. The STATE of Idaho, Plaintiff-Respondent, v. Robert Lee TISDEL, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1213

568 P.2d 1213

98 Idaho 551

The STATE of Idaho, Plaintiff-Respondent, v. Craig A. McKENNEY, Defendant-Appellant.

The STATE of Idaho, Plaintiff-Respondent, v. Robert Lee TISDEL, Defendant-Appellant.

Nos. 12531 and 12317.

Supreme Court of Idaho.

Sept. 22, 1977.

PER CURIAM.

Upon order of the Court these cases were consolidated for disposition of pending motions. The cases will hereinafter be severed for consideration of the merits of each case. Both cases are appeals from criminal convictions and sentences thereon. Appellate counsel in each case filed a motion for permission to withdraw on the basis that no meritorious grounds existed and that the appeal was frivolous. We deny the motions and set forth new guidelines governing duties of appellate counsel in the representation of indigent criminal defendants on appeal.

It is only coincidental that both Tisdel and McKenney in separate trials were convicted of lewd and lascivious conduct arising out of different circumstances, different occasions and different female minors. They were sentenced to terms of confinement not to exceed ten and five years respectively. Each appealed his conviction and was appointed appellate counsel who also coincidentally are members of the same law firm.

In each case the respective attorney examined the record and concluded that no meritorious grounds on appeal were presented. They so advised this Court and their respective clients. Both filed briefs in which were outlined any possible arguments which could be raised in favor of their clients' appeal and therein pointed out why such arguments would be frivolous. That procedure accords with previously enunciated standards and the principles set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). See also, Idaho Appellate Rules 45(b).

In McKenney, No. 12531, this Court has previously denied appellate counsel's motion to withdraw since arguable grounds for appeal existed therein. Thereafter McKenney personally filed a motion to remove and discharge that attorney. Grounds therefor are stated as the inability of that attorney to render effective assistance of counsel on appeal in view of that attorney's stated belief that the appeal is without merit. McKenney also asks in his motion for appointment of new counsel on appeal.

In Tisdel, No. 12317, it is the decision of the Court that arguable grounds for appeal exist. Tisdel also seeks appointment of new counsel on appeal.

These two cases and motions and circumstances therein demonstrate the inability of this Court to follow the impractical and illogical procedure outlined in the Anders dictum. We therefore hold today that once counsel is appointed to represent an indigent client during appeal on a criminal case, no withdrawal will thereafter be permitted on the basis that the appeal is frivolous or lacks merit.

In Anders the following circumstances existed: Appellate counsel, after examination of the record, wrote letters to the state appellate court and his client stating that he had concluded the appeal to be frivolous and that he wished to withdraw. The intermediate and the highest state appellate courts affirmed his client's conviction on that basis. Upon habeas corpus the U.S. Supreme Court reversed, holding that procedure to be constitutionally inadequate on both due process and equal protection grounds. The court stated that counsel must act as an advocate for his client and not merely serve in the role...