52 Cal.App.5th 1023
Cal. Ct. App.2020Background
- Freddie Cole was convicted in 2007 of murder and arson and received a 35-years-to-life "third strike" sentence; convictions and sentence were previously affirmed.
- In April 2019 Cole petitioned for resentencing under Penal Code § 1170.95; the trial court summarily denied the petition, concluding Cole was the "actual killer."
- Cole appealed the denial; the Court of Appeal appointed counsel. Counsel reviewed the record and filed a Wende-style brief stating no reasonably arguable issues and informed Cole of his right to file a supplemental brief.
- Cole did not file a supplemental brief within the 30-day period; the Court asked what procedures govern appeals from denials of postconviction relief when appointed counsel finds no arguable issues.
- The Court held Wende procedures are not constitutionally required for postconviction-appeal denials; instead, the Court may prescribe Wende-like procedures under its supervisory powers and set a specific subset of obligations for counsel, the appellant, and the court.
- Applying those procedures here, because Cole filed no supplemental brief the Court dismissed the appeal as abandoned.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do Wende's constitutionally grounded procedures apply to appeals from denial of postconviction relief? | People: Wende is tied to the constitutional right to effective counsel on a first appeal of right and thus does not constitutionally apply to postconviction appeals; courts may, however, use supervisory power to adopt procedures. | Cole: (implicitly) seeks review of §1170.95 denial and the protections of counsel-appointed appellate process; no supplemental brief was filed to press broader claims. | Wende is not constitutionally required for postconviction appeals. Courts may, under inherent supervisory powers, impose Wende-like procedures but not because of constitutional mandate. |
| If Wende-like procedures are adopted, what specific procedures should apply when appointed counsel finds no reasonably arguable issues? | People/Court: Require counsel to (1) independently review the entire record and legal issues, (2) file a brief stating there are no reasonably arguable issues and remain available to brief any matters the court directs, and (3) notify and provide the defendant a copy and inform the defendant of the right to file a supplemental brief; the court need not independently review the record and may dismiss if the defendant files nothing. | Cole: (would benefit from) full Wende protections including independent court review; however no supplemental brief was filed to invoke further review. | The Court adopted a supervisory-rule subset: counsel must review and file a declaration of no arguable issues, notify the defendant and provide the brief, and the defendant has a right to file a supplemental brief; the Court is not required to independently review the record and may dismiss the appeal if no supplemental brief is filed; if a supplemental brief is filed the Court must decide the merits and issue a written opinion. |
Key Cases Cited
- People v. Wende, 25 Cal.3d 436 (1979) (establishes procedures when appointed counsel finds no arguable issues on a criminal defendant's first appeal of right)
- Anders v. California, 386 U.S. 738 (1967) (procedures for counsel who believes an appeal is frivolous)
- Evitts v. Lucey, 469 U.S. 387 (1985) (right to effective assistance of counsel on first appeal of right)
- Pennsylvania v. Finley, 481 U.S. 551 (1987) (no constitutional right to counsel in collateral postconviction proceedings)
- In re Sade C., 13 Cal.4th 952 (1996) (limits to Wende outside first appeals; distinguishes appointment of counsel from right to effective assistance)
- People v. Ben C., 40 Cal.4th 529 (2007) (court required a Wende-like brief and allowed supplemental brief but declined to extend full Wende as constitutional or inherent mandate)
- In re Phoenix H., 47 Cal.4th 835 (2009) (juvenile- dependency context: court declined full Wende, allowed counsel brief but required showing of good cause for supplemental brief)
- People v. Kelly, 40 Cal.4th 106 (2006) (discusses Wende's purpose to protect effective-assistance rights on first appeal)
- Lassiter v. Department of Social Services, 452 U.S. 18 (1981) (due-process balancing test for what procedural protections are required)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (factors for due-process balancing used as an analogy to calibrate supervisory procedures)