*1 this Order opinion. with consistent on the theft conviction is not disturbed. forgery on imposed of probation Pennsylvania COMMONWEALTH McCLENDON, Appellant. James Pennsylvania. Supreme Court 13, 1980. Oct. Submitted Sept. Decided *2 Briskin, Joshua M. Philadelphia, appellant. Lawler, Chief, Div.,
Robert B. Appeals Philadelphia, for appellee. O’BRIEN, J., ROBERTS, NIX, LARSEN,
Before C. FLAHERTY, WILKINSON, KAUFFMAN and JJ. THE COURT OF
OPINION NIX, Justice.* the requirements to assess whether are called
We California, L.Ed.2d 738, 87 Anders 386 U.S. Specifical- in the instant matter. met (1976) have been to withdraw request counsel’s we must consider ly, have as what, rights appellant if any, determine representation. further herein, McClendon, 19, 1975, James May
On murder the second arson degree, convicted by a jury we direct reversed and related offenses. On In all a new trial. granted appellant murder conviction and affirmed. imposing other order sentence was aspects, McClendon, Commonwealth v. on an August was retried on
(1978). Appellant *3 voluntary manslaughter. information murder and charging of and voluntary manslaughter returned a verdict jury A of to was (3) (10) years imposed.1 a sentence three ten 9, 1978. filed in on notice of was this Court November appeal Thereafter, filed for a of a brief was copy to with with counsel’s leave appellant along petition brief served appellant draw. A the was also copy of to new with notice of of either retain right appellant the a In response counsel and/or to submit brief. supplemental to has a letter to counsel’s objecting petition filed se of in which he pro withdraw and filed a memorandum law of argument. advances an sentence illegality the In Anders the United States Court addressed of to which an criminal quality indigent representation in an of The Court right. defendant was entitled not of should quality representation was concerned that the his be of state. impecunious undermined because * 3, February assigned This case was to the on 1981. writer year imposed manslaughter convic- the 1. The 3-10 sentence under consecutively year to a 10-20 sentence tion directed to be served previously imposed arson conviction. that had been for the procedures has held invalid those consistently Court [T]his man, who as the right, ‘where the rich of appeals enjoys record, into of counsel’s examination the research benefit behalf, law, on arguments of his marshalling the preliminary indigent, already while the burdened merit, to his is forced determination that case without shift for himself.’ omitted.] [Citation Id. at 1398. at equality representation
That Court concluded that of an be “where counsel acts in role could assured only client, that of opposed active advocate in behalf his as to Id. at Common at In amicus curiae." 87 S.Ct. Baker, wealth v. (1968) 239 A.2d noted we Anders offered representing counsel two when choices He can either appeal. prosecute client on indigent expected he be to appeal, perform in which case will behalf, his or spirited advocate on client’s latter his services. Where the alterna choose to withdraw the following procedure: is selected Anders tive requires frivolous, course, finds case to wholly Of if counsel be it, examination of he should so advise after a conscientious to withdraw. That permission the court and request must, however, a brief refer accompanied by be request sup in the that might arguably record ring anything A of counsel’s brief should be port appeal. copy any time allowed him raise indigent furnished- chooses; pro he court —not counsel —then points that all ceeds, proceedings, after a full examination *4 it case is frivolous. If so finds wholly decide whether the to it withdraw and dismiss grant request counsel’s may concerned, are requirements the insofar as federal appeal merits, so or if state law to a decision on the proceed hand, if it of any legal On other finds the requires. the (and frivo their merits therefore not points arguable on the must, decision, to the indigent it afford lous) prior to the assistance of argue appeal.
Id.
at 514.
Here counsel in his brief reached the conclusion that judgment frivolous and based appeal wholly seeks withdraw. leave to the entire conscientiously examining
After and carefully record, that the of this case appeal counsel has determined is with full is frivolous. This determination made wholly of a of recognition importance guarantee represen- of the of the constitutionally-man- tation to indigence [sic] dated for withdrawal counsel. procedure brief, Appellant’s pg. met requirements notifying
Counsel has also withdraw, furnished the indigent of his indigent request counsel and advised the prepared by with a of the brief copy new counsel or raise indigent right any of his to retain At that worthy that he deem consideration. points reviewing it becomes the of the point responsibility then proceedings court to make a full examination ap- make an to decide whether independent judgment California, Anders v. supra. is peal in fact frivolous. wholly in coun- We have and concur discharged responsibility sel’s frivolous. judgment wholly left be considered remaining only question is whether before counsel’s motion to withdraw ruling upon of An- the brief counsel satisfies the mandate prepared by *5 472
ders. Anders requires that counsel’s brief should refer to in the record that “anything might arguably support California, supra Anders v. 744, 386 at 87 U.S. appeal.” 1400. The of the of counsel’s question sufficiency S.Ct. at See concern in this subject jurisdiction. brief has been a Collier, v. e.g. Commonwealth 489 Pa. A.2d 554 Perry, Commonwealth
(1980); is to token, required compro ... the same counsel not By conscience. mise or to act to his own principle contrary Hence, of the case he con study if after a conscientious on client judgment imposed cludes an from the appeal frivolous, is and would be he wholly without merit totally court and ask to withdraw permission should so advise the as case. But before he withdraw he may counsel must, alia, inter file a to in the referring anything brief Com arguably support appeal.’ record ‘that might Baker, mon wealth v. supra, Pa. at 239 A.2d at that counsel here failed in his respect It is in this responsibility. brief,
In his a of the facts and pertinent after recitation law, conscientious effort to be honest with the counsel court, demonstrate reference to the proceeded then counsel record the instant is meritless. This why not assume the role of may not do. Just may amicus curiae when he client, too, when so represents withdraw, that role counsel seeks to he not assume when the court presenting anything might argu- We repeat an counsel’s role is not ably support appeal. amicus curiae. supra, Commonwealth v. Perry, 275-76, 464 Pa. at A.2d 554. Perry reasoning
The dilemma created becomes when we consider the definition of the term “whol- apparent jurisdiction. frivolous” in this ly adopted Greer, the Greer definition If frivolous” supra. “wholly means no points present “might arguably that there are with an support appeal” impossible saddled burden, file required if he is nevertheless a brief contain- *6 hand, that are nonexistent. If on the other ing arguments merit, there arguable though are claims of even counsel them, not have confidence in under Greer the is any appeal not entitled seek frivolous” and is not to “wholly Greer, leave to withdraw. Thus supra. Commonwealth the to conclusion the following Perry logical rationale its of to right illusory. counsel to seek leave withdraw would be We do a by not believe that such result was ever intended the United Court. States an reasoning
The core of the Anders’ is that where review, to counselled that appellate accused is entitled should not be denied or diminished because of right solely However, Anders does not that counsel indigency. require be just forced to frivolous because pursue wholly appeal his is indigent. major client The thrust of Anders was to assure a careful assessment of an any available claims that indigent have. end is achieved appellant might That counsel to conduct an exhaustive examination of requiring the record and also the on the placing responsibility court to reviewing independent make an determination of the merit of These appeal. requirements the were clearly satisfied here. What does the is the present problem that counsel’s brief would not to meet the standards set appear Collier, by Commonwealth v. supra cases would seem to that Perry, supra. suggest These counsel’s in arguments statements the brief as to the why were in merit wholly lacking evidenced counsel’s failure to time, assume the role of an advocate. At the same counsel’s to right dependent upon withdraw is his certification that he studied the record found no in fully appeal. merit in a to the fallacy strict adherence rationale is Perry obvious. Once we are satisfied with the of coun- accuracy frivolous, sel’s as assessment of the appeal being wholly fully discharged has The role of responsibility. advocate, Anders, insisted manner refers in which the record was examined in an effort to uncover grounds support appeal. good Where counsel has to be appeal and found obligation faith satisfied that the view reject more. We frivolous, he can do no wholly an appeal there is no basis for why that his of explanation of concern counsel’s lack reflecting should be interpreted that fact be as a assigned Nor can in the client’s cause. not receive this the client did concluding reason for right representation. constitutionally protected record, independent study found from our Having se memorandum of appellant’s pro a consideration including frivolous, grant we law, wholly of our conclusion withdraw. Because request counsel’s no being merit and there without entirely the appeal judgment we also affirm the basis for the relief sought, *7 sentence. in which ROB-
O’BRIEN, J., dissenting filed a opinion C. ERTS, J., joined. J., in which
ROBERTS, dissenting opinion filed a J., O’BRIEN, joined. C. Justice,
O’BRIEN, dissenting. Chief constitu- disregards in the instant case the The majority counsel as for withdrawal of procedure mandated tionally of set forth the Court the United States by California, L.Ed.2d Anders v. 87 18 386 U.S. S.Ct. that herein has met 493 The claims counsel majority of Anders because he to with- requested the requirements draw, brief, his client with a copy filed furnished new counsel or proceed advised him of his to retain right states it is then incum- propria persona. majority The make an to review the record and bent the court or not the is indeed whether independent judgment made, only remaining is finding frivolous. Once “[t]he counsel’s ruling upon to be considered before question left counsel whether the brief prepared motion withdraw is satisfies the mandate of Anders.” at 1187. Anders, the of spirit a procedure completely ignores
Such
to do before
is
required
which detailed what
independent
regarding
court makes an
the merit
judgment
(if
of the appeal. An evaluation of the brief submitted
any)
purporting to
with Anders must be made before the
comply
independent
court undertakes an
evaluation.
If the brief
inadequate,
indigent
filed is
has not received the diligent
representation
and effective
which is
Anders.
required by
point
is careful to
out that the Anders Court
majority
concluded that
could
be
“equality
representation
only
assured ‘where counsel acts in the role of an active advocate
”
client,
in behalf of his
to that of amicus
opposed
curiae.’
Anders,
California,
at
citing,
supra
A common thread
running through
opinion
Anders
the Supreme Court’s denunciation of counsel’s representa-
tion in the role of amicus curiae.
In Part I of the opinion,
the Court described the
precedent
provided the basis for
the Anders decision and specifically reiterated that counsel’s
representation
advocate,
“must be in
role
Ellis States,
674, 675,
974, 975,
United
356 U.S.
L.Ed.2d
1060 (1958), rather than as amicus curiae.” Anders v. Cali-
*8
fornia,
741,
supra
U.S. at
The conclusion majority’s in which in Anders refers to the manner upon insisted the Anders incorrect. If simply record was examined is with counsel’s review of had been concerned solely Court no need to the “no record, reject would have been there for the court attorney, merit Mr. Anders’ by letter” utilized its own review by verified counsel’s conclusions could have with Rather, the Anders Court was concerned of the record. might verify to the court what counsel submitted of the record and aid the Court counsel’s examination case. At the evaluation of the conducting independent its its concern that expressed time the in Anders same Court not brief his case his client. against once counsel examines record The states that majority at “he can do no more.” and finds the to be frivolous case, counsel did in this indeed “do 1188. Unfortunately, his client. Counsel more,” against in the form of argument of the facts with his brief to a statement should have limited issues legal and discussion of the transcript citations to the of authority. in the with citations involved case stated, that the Instead, “it is clear counsel for as to of such volume and quality filed the evidence jury [sic] jury of innocence and satisfy overcome the presumption a reasonable doubt.” Counsel guilt beyond of the accused’s evidence was sufficient went on to describe how the did not abuse its discre- verdict, sustain the the court why (albeit cited insuf- precedent tion in and further sentencing could base a finding which this Court ficiently) In each answering point due claim lacked merit. process each would raised, why to show this Court sought the assistance does not constitute representation fail. Such this Anders and Court adopted of counsel required by (1980) Collier, 489 Pa. Commonwealth A.2d 554 Perry, that the brief filed on behalf notion majority’s set Collier not meet standards of Mr. McClendondoes majority’s In reality, correct. only partially Perry but Perry, standards set in Collier and objection is not to the Court in Anders. *9 to those enunciated
477
has emphatically
this Court
years
than thirteen
For more
the Anders
spirited
requirement
reiterated
enforced and
Commonwealth
counsel. Since
court-appointed
advocacy by
(1968),
deplored
we have
Baker, 429 Pa.
209,
As the brief California, record supra, v. I would remand the with Anders represent appel- counsel to new appoint to the trial court to with this appeal. consistent lant a manner ROBERTS, J., dissenting opinion. in this joins ROBERTS, Justice, dissenting. of Mr. Chief Justice dissenting opinion
I in the join for Appeals Court of O’Brien. As the United States stated, has District of Circuit Columbia accept required not counsel course “[appointed his would good conscience asserting points client’s view by fee. At the same of a handsome even at the loss reject It is his client. time, against file a claim counsel cannot told that appointed to be prisoner one thing for him to be him, and another help quite sees no toway arm of one appointed by the counsel when sandbagged another to seal helping to be Government seems doom.” States, 1968); (D.C. Cir. v. 391 F.2d
Suggs United Jones, A.2d 811 accord, Commonwealth because appellant’s write additionally I am compelled dis- summarily argument, of sentence” “illegality se pro specifical- and never appointed missed by appellant’s Nix, Mr. Justice raises opinion ly addressed Collier, also, supra; v. Per- Commonwealth 1. See ry, supra. *10 478 merit,
issue of one arguable of which would have undoubted- been ly argued to this vigorously Court if appellant’s “coun- sel” had been retained. privately
Appellant convicted of initially murder of the second arson, degree, and related charges. At that time he received a sentence of life on the imprisonment murder and a charge, concurrent 10 sentence of to 20 on years charge. the arson After this Court on reversed the murder conviction conviction, affirmed the arson a new received trial on the of murder. At charge this second trial he was convicted of for voluntary manslaughter, which he received a sentence of 3 to 10 years’ imprisonment, to be served consecutively to the sentence already imposed for arson.
Appellant contends that the imposition of a consecutive sentence in of the place concurrent sentences previously imposed constitutes an impermissible increase of sentence on retrial in violation of the due process set forth requirements Pearce, North in Carolina v. 395 U.S.
L.Ed.2d 656 In (1969). client, his brief against his appel- lant’s counsel makes this appointed presentation of the sen- tencing claim:
“Nor can counsel in faith good argue that the Trial Court violated his [appellant’s] protection against jeopar- double or dy failed to due provide process by a harsher imposing Breniser, sentence on retrial. The defendant in con- [sic] tended that his second sentence was more harsh in that the consecutive sentence rather than the concurrent sen- tence meeted out in his first trial increased the [sic] amount of punishment by delaying eligibility pa- role. The Court held defendant’s claims without because, fact, merit in no in delay parole oc- eligibility curred.
“In Breniser case, the instant Appeallant’s [sic] initial life sentence imprisonment precluded all pa- [sic] role, 61 331.21. It P.S. could not therefore be argued § the second sentence was more severe.”1 Support Brief of Withdrawal at 6. case, provides to which counsel nowhere “Breniser” Brenizer, 477 Pa. 534, 384 is Commonwealth v. A.2d citation, demonstrates, it can be memorandum As se appellant’s pro appellant’s non-frivolously argued argued —that —and in punishment. constitute an increase second sentence did in Brenizer failed to contends this Court Appellant to a that, is not available although parole consider the fact sentence, of commuta- possibility a life prisoner serving *11 Const, a term of does exist. Pa. years tion of sentence to that art. IV 9. contends Appellant § may “in the life Pennsylvania prisoner serving State commuted, in the event sentence is reasonably, sentence which would range a commuted minimum expect 20 it years, from a little as 9 to as much as therefore years could have appellant after 10 possible years life sen- secured his release commutation of the through totally tence whereto he would have been released [sic] where he present from as to the situation prison opposed be to the next sentence.”2 would released on speculate point It is of course at this inappropriate would in this prevail whether Court. appellant’s argument However, that the of commuta- possibility it should be noted real one indeed. “Time tion a life sentence is a See 1971-1980,” Lifers of Justice Dep’t Served Commuted Corrections, Planning (Har- Bureau of & Research Division 1981).3 risburg,
The same
of a
high quality
advocacy
required
lawyer
or
acting
court-appointed
of whether he is
irrespective
2. Pro se memorandum of
at 2-3.
impris-
Judges imposing
to a sentence of life
sentences
addition
account,
appear
possibility
addi-
onment
to take this
into
for such
consecutively,
imposed
run
rather that
tional sentences are often
See,
Floyd,
concurrently,
e.g.,
v.
to the life sentence.
Commonwealth
Contakos,
(1981);
492
Pa.
privately fundamental principles of equal justice under law mandate that this case be re- manded for the of counsel appointment who will investigate contention, appellant’s supporting the contention with legal and articulation authority which appellant, prisoner counsel, cannot. Retained non-lawyer, confronted with a single decision which arguably may stand his client’s against claim, not, counsel, would like appellant’s appointed cease being an advocate and file a brief merely against client.
The majority’s concurrence in appointed counsel’s abdica
tion of his
as an
duty
advocate underscores
danger
an
permitting
appellant’s
appointed
to be the
lawyer
of his
“judge”
(now
case. As then Judge
Justice)
Chief
observed,
Burger has
. . . must
remember
“[c]ounsel
under our adversary
an
system
appellate court cannot func
tion efficiently without
lawyers
present whatever
there is
to be
on
said
behalf of
however
appellant,
meager his claims
be,
so that
can
Court
make
informed appraisal.”
States,
Johnson v. United
(D.C.
The importance of effective to our advocacy system justice cannot be overemphasized.
“Where every step on the
way
judgment
has been
contested,
tested and
the chance of error in the ultimate
decision is reduced to a minimum. The better
case
side,
presented on each
and the keener and more skillful
him,
the debate before
likely
judge
more
is it that
will reach a
and sound
just
judgment.
That is
it has
why
been said that a strong
strong
is,
Bar makes a
Bench.
It
then, as
contributing
essential element
to the process
of the
justice
administration of
that the profession of the
advocate
discharges
public function of the highest
accountability
importance.”
MacMillan, “The
Ethics
Advocacy” (1916), reprinted in
at
Jurisprudence
Thus,
Action
it is clear that ap-
pointed counsel’s allegation that he has
reviewed
thoroughly
record,
with
together
his submission of a brief against
client,
his
cannot suffice to satisfy counsel’s
to this
duty
Court and to his client. A contrary conclusion not only
derogates the
profession
but
advocacy
impedes
also
fair,
process of
equal and efficient appellate review.
The Constitutions of this Commonwealth have consistently
recognized
importance of the
of counsel since
assistance
William Penn’s
Privileges
Thus,
Charter of
in 1701.
it is
that,
especially
case,
ironic
in this
where appellant has
received no
“advocate,”
assistance from his appointed
this
Court should
majority
affirm
summarily
judgment of
sentence, thereby compelling
appellant
turn to the Feder-
al
Courts
vindication of his constitutional
to effec-
right
tive assistance of
Ackerman,
counsel. See Ferri v.
444 U.S.
(1979),
Because appellant’s counsel has taken it himself to prosecute client, the case his against no be purpose would served by requiring continued “assistance” to appellant. Therefore, I agree with Mr. Chief Justice O’Brien that the record should be remanded to the trial court to permit the appointment of new counsel who will represent an advocate discharging “a public function of the highest accountability importance,” MacMillan, supra, and in the *13 manner to which he is constitutionally entitled.
O’BRIEN, J., joins C. dissenting this opinion.