Gale v. United States

provisions upon. under the cited and relied FERREN, Associate Before KELLY a find- explicitly requires GALLAGHER, Section Associate Judges, years the officer five complete Judge, Retired.* under that service in order to be retired reveals

section. The record now before us JUDGMENT AND ORDER finding petition- neither evidence nor PER CURIAM. er five of service completed Appar- Metropolitan Department. Police for consideration This case came on and sick counsel for ently court-appointed she exhausted her annual the motion of leave, pay, and has con- placed on leave without The court to withdraw. motion, motion January, in a status since duty has not been sidered counsel’s new 1976. We do not read D.C. Code appointment for the view this crediting to a and is permitting the record on Ac- issue. no nonfrivolous service, non-duty in a presents member’s time served case leave. cordingly, when on annual or sick except status * Judge Judge Gallagher was an Associate two sections of

2. The amendments of these 17, 1979, was submitted motion this result. court at the time this November do not alter changed to Associate His status the division. Retired, February Judge, conviction, burglary ORDERED that counsel’s motion be trial court’s failure granted, and it is sponte jury instruct certain sua offenses, included and ineffective as lesser and ADJUDGED FURTHER ORDERED receiving sistance of After a reply counsel. be, is, hereby the order on government, the trial court en from the affirmed. denying tered memorandum order FERREN, dissenting: hearing. Associate Judge, Appellant motion without a filed appeal; se pro notice of this court colleagues My grant motion to counsel’s represent him. See D.C. pointed counsel withdraw —and affirm the of denial Supp., Code 1978 11-2601 -2609. §§ motion attacking lant’s sentence under D.C. Counsel, however, to with filed motion 1973, 23-110—on of coun- § the basis of Anders presumably authority asserting sel’s two-page memorandum draw — 738, 1396, 18 California, v. 87 S.Ct. “there exist no raised non-frivolous issues 493 that the (1967) stating L.Ed.2d dissent, this for I I respectfully — Appel issues. presented no nonfrivolous issues perceive least two nonfrivolous a motion ask responded lant promptly record: (1) whether was suffi- there new or appointment for of leave I, ing cient evidence for conviction of proceed pro se. as- there was ineffective Accordingly, sistance of counsel. trial grant while would motion to counsel’s II.

withdraw, grant appellant’s also would attacks a collaterally When a prisoner pro appointment se motion for of new coun- statutory for or consti- sentence violation pursue sel to his case. 1973, 23- rights, tutional see D.C. Code § 110, hearing or she is entitled to a

I. and records of “[ujnless the motion and files jury first-degree A convicted prisoner show conclusively the case larceny. The court de burglary grand 23-110(c). is entitled to no relief.” Id. § nied a motion for new trial and sentenced States, D.C.App., 395 See Glass v. United 12 to concurrent terms of 40 796, (1978); Pettaway v. United A.2d 809 and 3 years years. appeal, to 9 On 981, (1978); 983 D.C.App., court affirmed the convictions. Gale v. 388 D.C.App., v. A.2d Gibson United 230, cert. United curiam); (1978) (per 1215 Session denied, 59 U.S. S.Ct. A.2d States, D.C.App., 381 United (1978).1 L.Ed.2d possi- Here, suggests (1977). the record ruled, appellant filed After court bility relief. se pro motion under D.C. Code A. To a conviction alleging grounds three new obtain govern- 22-1801(a),2 the of evidence insufficiency relief: D.C. Code rejected 22-1801(a) provides: appellant’s that a 1. We contentions 2. D.C. Code “comeup” shall, a detainer nighttime order should be treated as or in Whoever the either triggering protections enter, the Interstate daytime, break and or enter with- Agreement (IAD), D.C. Code any dwelling, on Detainers breaking, out room used as a or -705; trial §§ 24-701 to sleeping any building, apartment in with in- admitting vol- erred evidence of carry away any part tent to of, there- break victims; untary payments of restitution to the any or or fixture attached to refusing compel and that erred or to crimi- connected thereto commit offense, shall, any part two defense alibi witnesses to attend the trial. any person nal is in dwelling sleeping apartment pending, appellant While of such was filed Vacate, entering, breaking pro time of or enter- a Illegal se such Motion to Set Aside Correct burglary breaking, pursuant without Sentence D.C. Code degree degree. Burglary asserting applicability the first in the first the IAD. punished by imprisonment ground shall be The trial court denied the motion on thirty Superior pending appeal than five nor than divested years. [Emphasis jurisdiction. added.] person lineup. ment must show that and at a him another identified on the premises at the time defendant Two other witnesses testi- again in court. broke in. United States v. in the house on fied that had been n.5, 168 & occasions. All witnesses testified one Specifically, 599 & n.5 to enter given appellant permission had not I “if is in any person convicted day burglary. any part dwelling sleeping apart- of such or can be no doubt While there at breaking ment the time of such conviction of evidence is sufficient for a entering, entering breaking.” or without II, 1973, 22-1801(b),3 D.C. see Criminal 1973, 22-1801(a); D.C. Code altogether clear Jury Instructions for the District of Colum- Burglary I re- government established the case, bia, (3d 1978). No. 4.42 ed. In this present quirement person that a question there is a serious wheth- time” burglarized premises “at the er government’s evidence at trial was Id. 22-1801(a). lant broke in. The Unit- prove sufficient this element of the ed for the District Appeals States Court crime. that similar Columbia Circuit has held Testimony day established that on the only of evidence was sufficient to convict question, the exterior basement door of the Hammonds, su- burglary. In second-degree rooming broken, house had been and that pra, the court held the evidence insufficient missing several items of were property was no evi- I because there from apartment. the basement Willie Al- occupant of the any dence to show that ford, a resident of the second floor of the en- present appellant “when building house, rooming testified that he heard had were premises”; they the Elmore tered floor, someone climb the to his enter stairs Id. present only “when he was discovered.” his, go room next to and then down the 599-600.4 at 425 F.2d at that, stairs. Alford further testified case, if Willie Alford was In the window, present through his he had seen a man someone rooming in the house at the time leave carrying partly the house covered basement, evidence broke into the TV set place waiting the set in a car. I. See id. But Alford would suffice said he “did not know” whether evidence that other residents of the the record contains no direct house “were there or else) was time, (or anyone present not” at Alford and no other evidence Willie showed the time the anyone present. anywhere building else had been in the at Alford had of the base- positively burglar occupant identified as entered. The the thief from window photo arrays apartment two different found the broken 22-1801(b) provides: supra, been 3. D.C. Code had 4. In evening hiding bed in under a discovered Except provided (a) as of this subsection holding apartment a knife. second floor section, shall, night whoever either in the or any noted no evidence that there was daytime, enter, in the break and or enter occupant present of the house had been when bank, store, breaking, any dwelling, without premises only that all entered the warehouse, shop, stable, building — or other or present Id. at were when he was discovered. any apartment room, or whether at the time 168-69, 425 F.2d There was no at 599-600. not, steamboat, canalboat, occupied any concerning occupants the times the evidence vessel, watercraft, or other or railroad car or premises. had entered the The court stated any yard goods lumber, coal, any where or other conjecture” that it was mere “surmise and deposited kept or chattels are they infer that had been at the time of trade, purpose with intent to break and entry. Id. at The court F.2d at 600. carry away any part any thereof or fixture or “If the evidence that added: Government had other same, attached to or connected with the Bellingers either Elmore or the dwelling were in offense, or to commit criminal period for a of time substantial burglary shall be in the second de- discovering appellant’s presence, that evi- gree. Burglary degree in the shall be second presented.” dence should have been Id. [Foot- punished by imprisonment for not than note years. omitted.] two nor more than fifteen [Em- phasis added.] work, (reiterates (1978) “rigid from but A.2d rule and door when she returned value proof” establishing she the time she had testify $100 did grand larceny); Two other occu- left the house returned. for conviction of Wilson United pants D.C.App., had left for work 358 A.2d testified m., Boone v. United (1976) at a. respectively. (same); 7:30 m. and 8:05 a. had Willie testified that he seen D.C.App., (same). TV cannot leaving argument, someone with a set at about su- m., to the testify 9:50 a. but he did not frivolous.” deemed pra long or as to how 87 S.Ct. at 1400. burglar time the entered id. home. See been stumbling is, however, block B. There at 600. suffi- Atkinson case, of evidence. ciency In a (1976), most light must take the evidence 1973, Crawford to under D.C. Code government. favorable collateral attack States, United 156, 158, 23-110, court will not U.S.App.D.C. implied 126 we that the v. United hear a 23-110: Curley (1967); sufficiency 375 F.2d 334 claim under States, 389, 392, judg- 81 affirmed U.S.App.D.C. “This denied, 229, 232, bringing to an end cert. U.S. 67 of conviction thus 331 S.Ct. ments respecting the identifica- (1947). govern any controversy 1850 91 L.Ed. The entitled, of the legiti sufficiency to every procedures moreover tion and the Atkinson, how- in from circumstantial as well mate inference evidence.” ever, direct evidence. See Johnson v. United raised sufficien- expressly see 587 cy appeal, claim on direct thus, so, to the collateral presentable argument (1974); response Even there is a to address that, appellant of Bur we felt constrained in order to convict attack making the I, even while have had to enter merits of that claim glary jury would Atkinson, supra at See conjecture.” “the realm of surmise and above statement. therefore, Hammonds, it is still supra Arguably, at 425 F.2d at 600. 452 n.9. Atkinson requires open possibility open question The record that leaves for made rejection of a claim rooming empty sufficiency house was between attack, m., even on proximately a. m. and 9:50 a. that the first time collateral 8:05 interval, have merit.5 during appears that claim to the break-in occurred when the home time that returned If Atkinson forecloses burglar upstairs, to come merely hear appel- sufficiency of the evidence door, and leave. Un enter the room next conviction, have we would Burglary I lant’s evidence, der that view of the there would of ineffective to confront claim part” of the “any have been no one in counsel, failure based on of trial assistance breaking and building “at the time of [the] The differences this defense. 22-1801(a). entering.” D.C. Code I and between convictions consequence obviously II of this are express no view on merits defendant; stress, rather, sentences permitted argument. want prior (without regard to enhancement this sort are com- appellate arguments of years, 2 to 15 mon, crimes) on occasion are 5 to 30 they prevailed have se- Thus, presents a this case respectively. have suc- supra, even counsel, in fail- rious whether trial attracting question court to announce ceeded identify case in the proof” rule of “rigid lesser an instruction petit request larce- analogous grand context II, ny. Moore D.C.App., 388 offense v. United included reject position when opinion en Atkinson can be banc should 5. If the division ap- sufficiency argued preclude any not been on direct claim under read to peal. D.C.App.R. argued See have counsel could to decide whether proceedings, he “blotted all the “grossly] incompeten[t]” defense.” it so finds of a substantial frivolous. If wholly out the essence case is States, D.C.App., 312 Angarano to withdraw request grant counsel’s rehearing en (1973), n.5 A.2d 298 & federal insofar as dismiss the denied, (1974); Bruce v. 329 A.2d 453 banc concerned, proceed are requirements 339- United merits, law so if state a decision (1967).6 F.2d it finds the other requires. On their arguable legal points of the plainly Appellate frivolous) “there exist no wrong (and when he asserts that therefore merits decision, non-frivolous issues raised indi- must, afford the argue of counsel gent the assistance III. [Id.] I rec- goes beyond concern this case. My how- difficulty friv- appeals criminal are ognize many ever, although appointed is substantial: olous; thus, Supreme I can understand the “conscientious to make a duty counsel has a supra dictum in U.S. Court’s to brief record and examination” withdrawal of S.Ct. might argu- in the record “anything resulting in dismissal appointed counsel — id., appeal,” ably constitutionally permis- —will no who sees invites counsel practice frivolous.” sible if the withdrawal file either a short late issue to The Court elaborated: here, compre- memorandum, or a as he did course, case to be Of if counsel finds his alterna- brief.7 Either withdrawal hensive frivolous, ex- after a conscientious wholly court re- If this presents problem. tive a it, the amination of he should so advise memorandum, we feel ceives a routine to with- request permission court and of amount a substantial obliged spend to however, draw. must be request That “that for a clue the record studying time accompanied by referring any- a brief to Id.8 the might arguably support arguably might in the record that has whether counsel trying In to determine copy the A of counsel’s appeal. therefore, task, we the been faithful to indigent brief should be furnished the spent time undocumented duplicate either points and time allowed him to raise should have what counsel counsel or do chooses; by the court —not counsel— that he hand, if we not. On the after full examination done but did proceeds, then repre- from reviewing desires to withdraw and that he If the court were to conclude merit, petitioner. appellant The of the no sentation court, course, points identify which could not hold counsel ineffec- motion should assert; petitioner tive. seeks to (2) any has con- which counsel other matters Appeals 7. The United States Court of for the possible The sidered as a basis elaborated, for District of Columbia has Circuit accompanied a brief be motion shall requirement purposes, its on the Anders purpose make to which it shall be counsel’s Suggs points and effective a statement of such as (1968): possible circumstances. issues as is under the If, making investiga- after a conscientious record refer- shall include relevant This brief tion, appeal issues, counsel then concludes that the ences, with those and shall cite and deal petition presents no non-frivolous upon points appear cases which to bear may seek leave to withdraw. Anders v. question. California, State of 386 U.S. 87 S.Ct. (May 1967); 18 L.Ed.2d and see 8.According paragraph of this court’s IV.D. to Ellis v. United 78 S.Ct. Procedures, Operating effective Janu- Internal ary accomplish 2 L.Ed.2d 1060 To “[d]ispose no motion shall we purpose, the Clerk he should submit to ground that based withdraw as counsel presentation of this court appeal without review of no merit (without serving coun- same on Government reporter’s appeal, including tran- record on sel) showing made a a motion that he has script.” law, facts and the careful examination of the brief, adopt is true the Idaho rule. It we won- comprehensive do receive will, too— surely appeal der —and brief frivolous” who so much to discuss why counsel found hollow, and it would will seem usually of, in did not do so as an advocate instead case disingenuous for the if the effect, against the client.9 judge ruling as a counsel appointed to berate argued, were the Anders dictum short, forces typically convinced, arguments. am meritless of the either the court to undertake the role appeals that turn that even for role lawyer undertake the lawyer, or the procedure is frivolous, adversary out to be This role reversal does court. preferred process over a to be much justice. well serve the administration obliged to judge feels appellate which Anders per The is lawyer appellate lawyer act as a missive, a court re mandatory; At the judge. to rule as feels constrained to brief each quire appointed counsel frivolous, least, is indeed very Supreme as an The advocate. will reveal adversary approach strongly Idaho has felt greater effectively, more truth far illogical” that “impractical dictum is which the credibility, procedure than a longer counsel to fol permits the court no plea effect, enters lawyer, MeKenney, 98 Idaho low it. State wishes.11 against the client’s 1213, 1214 (1977) curiam). (per 568 P.2d present counsel is case court held “that once as the important, But indigent client dur pointed represent an illustrates, be less frivolous appeal may case, no withdraw ing appeal on a criminal were If initially counsel appears. than it basis al will permitted thereafter argument availa- best to brief the merit.” is frivolous or lacks client, reason ble to the there Id. MeKenney, Under per- would have that zealous counsel believe strongest obliged pick out advanced above —or arguments ceived weak, argument, however court extends But when the others. two premise forcefully possible. psy- least counsel the invitation —at to appoint fold: is entitled if an client, invi- judge the chologically —to enti appellant is ment of then that perceptions likely is to dim counsel’s tation adversary tled to the full benefit compro- and to the client’s chances about Anders com event, and, in system; advocate. the role mise well because promise does work seri- as to how differ Judges’ views will ill- undertake forces and courts to lawyers to take the ously fitting roles.10 motions, court, upon receiving Occasionally, of various mented consideration memorandum, necessarily involves an in- has taken of which “thin” Anders termediate tion to withdraw and with consideration by approach granting mo- counsel’s On the other of merits. determination if there is (a arguable appointing new counsel merit in the provide comprehen- by appellate instructions to counsel determination which case, difficult) In a usually extremely sive discussion of the case. recent who counsel orders, example, unpublished is also made a motion for withdrawal has necessarily rejected appointed first and second counsel’s caught up in a of interest conflict briefs, appointed Anders a ing then new counsel his his his and duties toward client between try. perhaps sav- This while third duty toward the court of candor and truthful- time, is, overall, expensive court 1214-15.] ness. P.2d at [Id. appointed excessively time-consuming use of counsel. approach unset- Anders leads 11.The attorney example, tling questions. if an For 10. The court elaborated: appeal, has Anders a direct files an brief on that if a criminal We further determine attorney precluded under frivolous, appeal wholly case on edly, undoubt- record, on the 23-110 on that D.C. judiciary’s time less of counsel and the ground implicitly reached directly energy expended will be con- potential issues deemed frivolous all and presented regular sidering the merits of the case its by that record? frag- course as contrasted with a due fresh the benefit case, give appellant the reason but variation is those, view, however, grant the motion especially case—and I why pur- claims, appel- new counsel to appoint where such withdraw tal- lawyer’s uphill faces an climb—the appeal. lant sue the ents, advocate, indispensable. are entitles

very difficulty argument effect— here to a not —in lawyer, unilaterally who concludes judge’s

to a aide should dismiss the client’s argue will this court should Some BRAXTON, Appellant, Fannie because approach simply retain time of constitutional and saves the this view everyone concerned. I believe McNAMARA, Appellee. Martin J. savings overestimates and underesti- No. 80-547. principle mates the at stake.12 adver- sary system has served the administration Appeals. District Columbia justice is the best long well. It 8, 1981. Argued Jan. results that producing we know for system 23, 1981. Decided March reliable, credible, Motions to are and fair. by contrast, are withdraw under awkward for the

agonizing lawyer,

judge, perceived as collusive The

appellant. compromise has failed adversary process

our traditional lesser stan- itself. It justify permits appointed, in con- performance

dard of retained, counsel. This

trast with

should it. renounce

IV. should

Because believe argu- possible best client, respectfully behalf of his of denial affirming

dissent from sentence. In order attacking

lant’s motion motions, average An- aggregate the same under 26 Anders counsel filed —should example, accounting adversary approaches. For of this court’s ders and than 8% only perfunctory preparing appeals. denied if criminal one of the 15 motions ruled on to date. The court has too motion, compen- presumably relatively adding require. by working small believe the costs as our rules sates overtime typically uncomplicated cases to supra. thorough, number See note 8 On the summary usually ap- calen- will court’s work counsel proximate calendar— everyone con- ordinary dar—would be tolerable cerned, what is system given integrity stake. adversary pro- change only material estimation, procedure adversary require By my the involvement cedure would would be Attorney’s Al- of the court office. effect on the time would have little of the United States steps disposition re- though or counsel. The differences quired role in the that office has no motions, adversary procedure a merits divi- calendar a matter for under of Anders the current actively appeals. sion practice in contrast with opposing office would processing the Anders docket believe, the increase division, monthly through motions and well office would be small docket of that Furthermore, spent on the time be immaterial. marginal cost. worth court—in each case counsel and the

Case Details

Case Name: Gale v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Mar 19, 1981

Citation: 429 A.2d 177

Docket Number: 80-96

Court Abbreviation: D.C.