*1
4. Error — of Case.
cation Appeals apply error a It was for the Court to the rule of years attorney was case decided after convicted con- which, tempt justify judgment to for an act its of conviction done, when lawful. Attorney Appointed Willing and Counsel— Client — Counsel — 5.
Withdrawal —Court’s Permission. unwilling willing appellate place
Substitution of counsel indigent de- appellate provides the trial counsel eourt certainly prompt fendant better and service and more provided for in the de- as effective counsel as Federal requiring appointed applicable a brief cisions counsel to file on request permission to withdraw from law facts thought frivolous; Appeals if it is to be the Court of case willing failing perceive the merits of counsel erred system appointment. Appointed Willing — — — Law Counsel Constitutional 6. Same — Withdrawal. Counsel willing practice appointing counsel The constitutional preferred represent indigent criminal is to be defendants requires appointed counsel procedure which over the Federal arguably might referring anything that file brief permission requesting the court’s support before indigent’s from an case. to withdraw 382 66. Appeal Appointed 7. Reviewable — Questions Counsel Error — .—Failure to Ask Court’s Permission Withdraw. An attorney’s failure judge to ask the circuit to release the attorney from an appointing appellate order him indigent for an criminal defendant is not an issue review- able of a conviction where that issue was not raised circuit court. Attorney Appointed op and Client — Counsel —Substitution Attorney Discharge op —Motion to Withdraw — Prior At- torney.
Appointment judge substitute counsel the circuit requiring without previously appointed a mo- counsel to file tion for leave to proper withdraw is an effective and sub- attorneys stitution of which obviates the need for motion for leave to discharges previously appointed withdraw and duty counsel of to the criminal defendant. Appointed Appeal— Duty 9. Constitutional Law — Counsel — Frivolous Claim. present Cases cited which for determination the constitutional rights persons accused or convicted of crime are ap- *3 posite when consideration of the whole record indicates that judge the trial pose appellate wanted to for just review one issue, being duty appointed of counsel appeal to on grounds assigned by indigent defendant no soph- matter istry frivolity thereof. Appointed 10. Criminal Law — Counsel —Court Rules —Frivolous Duty Appeal. Claim —No to The former and now extinct requiring court rule appointment indigent of counsel for prepare delayed convicts to motions postconvietion for proceedings in the trial court and to prepare application delayed for appeal leave to take did not require appointed grounds counsel to on determined (GCR to 1963, 785.4[2]). be frivolous
Dissenting Opinion. Kavanagh T. M. Adams, and JJ. Appeal op Right
11. Qriminal as Law — —Constitutional Provi- sion-Retroactivity. appeal .A who in criminal 1965 wishes to his 196% defendant n , to, application appeal conviction must see7c "because leave for appeal at the time conviction had no as a mat- defendant In re Hoprman. 196S] provided right an tohich anil the Constitution ter of retroactively apply did not appeal a matter 1, §20). (Const 1908, 2, §19; 1963, Const art art op Appellate Courts—Appointment Attorney 12. Client — Law. Counsel —Constitutional appellate Appointment counsel in 1965 court circxiit proceeded appropriate provision under must have the, provides which 1963 Constitution reasonable assistance granted perfect prosecute may appeal to an .when orders, provision materially a trial so which does not court provision (Const a similar 1908 Constitution differ from 1, §19). 19; Const art art op por Appointment Bequest 13. Counsel —Court Criminal Law — Application. . _ Bules —Betroactive . . talcing delayed appeals to rule relative cri/minal cases applied specifying procedures restrospectively for furnish- .indigents ing transcripts to eoimsel free completed prior hence, date; to cases its criminal effective indigent who was and sentenced in an convicted defendant sought pursue appointed counsel in 1965 an 1962 but court-appointed so that counsel was entitled to (GGB existing prosecuted court rule under the then could be [2]). 785.4 Appeal— Contempt Attorney—Bepusal to Prosecute — op Noncompliance Order Court. with guilty comply Attorney where he refuses delayed motion a order circuit a file lawful delayed denial, upon motion and, trial its a new file (GGB 1963, 785.4 defendant behalf [*];(cid:127) por Appoint Appellate Judges—Power Counsel
15. Courts — Indigents. appoint appellate empowered judge has been A circuit *4 rule appeal, where a court perfect prosecute and an and appoint judge counsel upon the it incumbent circuit made appointing judge’s de- indigent defendant, order the an for indigent was a attorney appellate counsel as for fendant (Const 1908, §19; Const art order valid and lawful 1.963, GCTi §20; 785.4(2]). art , . 66. Attorney Court-Appointed Attorney and Client — —Standard of Effectiveness. having attorney accepted appointment An appellate an counsel must meet the same constitutional standard of effectiveness whether application is in the nature an of (GGZ 1963, leave to or as 785.4[SJ). Indigent Court-Appointed 17. Same — Criminal Defendant — At- torney —Withdrawal. representation indigent Withdrawal criminal de- from court-appointed attorney requires ap- a fendant pointing attorney’s approach court concur in the and evalua- tion the case. Appointed Appeal 18. Same — Counsel —Refusal to Prosecute and —Guideline for Withdrawal. Court-appointed indigent counsel convicted defendants assisting crime must talce an client, active role im but may, such wholly counsel he the case to be if finds frivolous examination, a request conscientious advise the court and after permission submitting complete to withdraw a and after full brief, letter, rather than a no-merit which discusses brief facts, law, might arguably support ap- and issues which peal, thereupon court, giving indigent and de- after opportunity concluding to be heard and fendant after complete examination, may and decide the full reasonably there is no contention raised which is frivolous if arguable. Appointing Obey 19. Same —Order Counsel —Refusal —Con- tempt. attorney appointing An who admits that an order him as an indigent’s counsel was valid and but who lawful fails file giving applicable with the court law or and does brief facts request appointment to be relieved the order does not consult either the or trial defendant counsel cannot be considered effective may subject properly disciplinary proceedings contempt. Appeal Appeals, from Court of Division Fitzgerald, P. J., JJ., Burns and Holbrook, affirming Allegan, (Raymond L.), Smith J. Sub- *5 In re Hoppman. (Calendar mitted 1968. No. November 51,959.) No. Decided June 1969. Docket App 9 Mich reversed. adjudged contempt Hoffman
Leo W. was in civil Respondent appealed Appeals. of court. to Court of Respondent appeals. Affirmed. Reversed.
George Greig, Prosecuting Attorney, A. Prosecuting Ainsworth, James 8. Chief Assistant Attorney, people. for the propria-persona. Hoffman,
Leo W. (for reversal). originally As this Black, simple appellate altogether proceeding local came to App 342), decision Mich both its nature and issue as framed, tried and decided in circuit subjected errantly were law to the influence of Federal attending conjectured quite but nonexistent question. Federal Now, and until this re- pristine posture stores to its what in the Court of Appeals curiously became a new-blownFederal case, thought may no of affirmance be entertained without yet right, offense to another constitutional that of respondent charged with and convicted Michigan a court to have his conviction reviewed application post without the ex of the rule of facto a Federal decision aside which, from its irrelation proceeding, to such a was handed down some respondent’s months after conviction ad- judged timely in circuit and had he claimed appeal.1 ing of “Ex Post laws remains as valuable Justiee Cooley’s Eacto Laws. —” consideration today as when written. Under and definition of (General Principles ex of Constitu post the head facto [Juno Mici-i Opinion op the Court.
(cid:127)
prosecution.
no
for error
criminal
review
Here we
charged
or convicted of crime
No defendant
None stands
courts below.
either
stood before
right, advanced on
Federal constitutional
here. No
respondent
accusing judge or
either
behalf
attorney,
*6
per
rights
no
at
The
of
accused
stake.
by
play
any
him,
into
or
convict are called
of
son
or on his behalf.
forthcoming judgment -will
Our
arising
no
the
issue
under
Constitution
determine
any
Congress,
act
under
of
States,
the
United
¡of
'or treaties
Supreme
respect which
the
made,
by
authority
given supreme interpretive
Court is
judgment
simply
will
deter
art 6.
Const,
That
US
mine
upon
a
a
in circuit court
whether,
record made
Michigan,
Michigan,
judge of
a
a circuit
of
before
Michigan
properly judged—
member of the
bar was
Michigan
guilty
contempt of
of
that
mider
law^—
Michigan,
same court of
tjonal
by
Cooley
ed], by
McLaughlin,
Thomas M.
Andrew C.
Law
[3d
following
1898, page 313)
inter alia the
to the
the Justice added
post
in
ex
that
laws
was written
durable classification
facto
(1798),
386,
648):
Bull
3 US
L Ed
Calder v.
Every
which,
regulate
assuming
rights and
“5.
law
civil
remedies
right
only,
something
imposes
penalty
deprivation
in
or the
effect
done
lawful.”
which when
was
Michigan contempt proceedings
pertinent
sum-
The
nature of
comment,” appearing
RJA
“committee
below
marized in the
(See
27A.1701, p 355).
por-
Ann 1962
connected
Stat
Rev
This
tion is demonstrative:
originally
difficulty
defining
had
of con
“The courts
the nature
proceedings. Nearly any
might
tempt
into limitations
it
ehoose ran
definition which
subject
the
did not wish
the con
which
the ease of
eourt
(1906),
tempt power.
In
In re Smith
144 Mich
contempt proceedings
law
were not actions at
the eourt held that
but were instead
reasonable construction of the statute
within the
entirely
summary proceedings
independent
distinct from
special
In the ease of
contempt was committed.
suit' in which the
the
Yarowsky
People
(1926),
that
236 Mich
the eourt decided
v.
they
proceedings as
were
contempt proceedings were not criminal
punish
law
were instead
of the criminal
but
not intended to
breaches
Contempt proceed
dignity
designed
of the eourt.
to maintain the
par
proceedings
proceedings but
ings
not
be criminal
were said
by
further demonstrated
taking
a criminal nature and this was
punish contempts is
limited to the
the fact
criminal
sitting"
purely
in a
may. bo
a court
eourts but
exercised
capacity.”
civil
In
re
Hoefman.
op
the Court.
pro-
suggest
postulates
beginning
These
from
ceeding
be ordered
exalted
review should
under
legal
comparatively pastoral
heights
to the
down
county.
accusing
Allegan
There the
environment
judge,
only
undertook
to determine
to him,
all credit
attorney
gauge
respondent
by the
was,
whether
of
Michigan
applicable
guilty
exclusively
law,
simply
circuit
for 1
of one of our
courts
way
judgment
assigned
this
reason, reflected
brought now to
circuit
review:
entered
May
order was made
“1. That on
duly
appointing
Hoffman, a
Leo W.
this
licensed
attorney
law,
at
Michigan
People
v.
of The
State
matter
Allegan
criminal file No. 4068,
B. Sandefur,
Ernest
county circuit court.
knowing
well
Hoffman,
“2. That the said Leo ~W.
report
in a
filed
order, did,
of the said
terms
prepare
court, refuse to
and file
in this
for
giving as
rea-
Sandefur,
said Ernest B.
*7
therefor,
unable,
son
that he was
after careful
ground
any
appeal.
examination, to
find
prepare
That such
and file an
“3.
refusal
guaranteed
of
as
the Constitution of the State
GrCB,
particularly
Michigan
1963, 785,
1963,
20,
article 1,
constitutes a violation
a valid order
of
refusal
court,
of
and that a
as
this
constitutes
of
directed
this court.”
Judge
judges
States,
all
of the courts of the
Like
naught
knew
then of Anders v.
Smith
California
(87
1967),
(May
386
18 L
738
Ct
Ed
8,
1396,
US
S
Federally
493).
yet
2d
conceived. The
That
not as
case had
been
conception
place
did
not take
until
granted April
966
4,
certiorari was
US
307).
S Ct
L Ed 2d
In June of one Ernest B. Sandefur was county charged Allegan first-degree with murder. reputable Allegan B. Nahan, John county member of the promptly engaged represent bar, was Upon him. Mr. Nahan’s advice defendant stood plea guilty mute. A of was entered. Two appeared months later defendant with counsel following before the court. The record was made: attorney] [prosecuting May “Mr. Andrews : it please People court, this matter of the Michigan the State of v. B. Sandefur, Ernest File No 4068. Mr. Sandefur before the court on day the 20th of June, 1962, Mr. counsel, city Allegan, of Nahan, and stood on a mute *8 charge of homicide which had been filed on 5th the day My understanding of June. is Mr. Sandefur has further consulted with his Mr. counsel, Nahan, In re Hokfman. op the Court. ais court that there inform the to and wishes right, plea Mr. that change matter. Is this Nahan? I Mr. advised Sandefur sir. Yes, Nahan: “Mr. change plea to agreed from mute has to he and a general charge guilty homicide, plea to the respondent request allow the court
with the degree and homicide, the as to to then evidence offer hearing determine such evidence after degree. your wish, Mr. Sandefur? Is that
“The Court: okay Respondent: Yes, me, it is sir. sir, “The “The Court: your attorney been Nahan has Mr. 2 months so? last Respondent: Yes. “The satisfactory? have been His services “The Court: “The “The Court: Satisfactory Respondent: fine. me, sir, guilty Plea heretofore entered plea may guilty withdrawn, be the court accepted by open charge of homicide will be Mr. Nahan bond. There will be no court. of trial date to deter- the matter has discussed sug- guilt degree he this matter and has
mine satisfactory today. gested from Is that month you, Mr. Andrews? Satisfactory yes, people, to the Andrews: “Mr.
your Honor. September, day the 20th “The Court: That is 9 o’clock. perfectly willing I would be “Mr. Andrews: my files so available to counsel in the matter
make might expedite hearing. this we appreciated. will Court: That “The you, your Thank Honor.” “Mr. Nahan: party specifically ferred “respondent” commences T. M. criminal CL as defendant. Kavanagh to, actions provided has referred Mr. action 612.1 refers Sandefur. (Stat GCR shall be Such upwards to “defendant Ann designation designated Mr. Elsewhere § 785.1. The 27.653), of 50 Hoffman, is now made Hoffman.”—Reporter. years plaintiff this “respondent”, GCR attorney. applicable the adverse 201.1, party the term here re- Justice Rave who *9 382 Mío it op Opinion the Court. month, A later the court conducted little over unusually thorough hearing to determine the guilt. unnecessary hearing
degree of It that the beyond here comment that the court be rehashed legal unturned, all no stone counsel left no argument known for a unsworn, witness no reduc- degree result, tion left silent. The certified to by Judge Smith, us was this: “On October the court found:
“ ‘The court finds is an there absence of that degree premeditation which would characterize degree the act murder in the and, likewise, first provocation justification an absence of such manslaughter. would reduce the homicide “ killing anger ‘We have here a done justification cooling time for off sufficient with no and in self-defense, of the court, finding those circumstances dictate a of murder in degree the second court so finds.’ respondent, “The court then asked Ernest any why if Sandefur, he knew of reason the court lawfully pass judgment, respond- not could and the replied: ent “ sir. ‘No, “ n your today ‘The Court: And sentence in matter ? Respondent: “‘The No, sir. “ you anything Court: ‘The Is there would like to say to the court? “ Respondent: anything, I ‘The don’t know of sir. “ ‘The Mr. Court: Nahan? “ ‘Mr. Nahan: No, sir. judgment “‘The Court: It is the sentence and this court that Ernest B. Sandefur be committed to jurisdiction Michigan depart- corrections Michigan ment and confined at Southern Prison at period Jackson for a not less than 20 nor more than years. The court recommends the minimum. In re Hoffman. op the Court. “ does Honor, such sentence Your Nahan: ‘Mr. spent Allegan the time consideration into take county jail? always The court Yes. takes “‘The Court: ” in consideration.’ matter post- or in the course of not claimed then It (mentioned later) proceedings that Mr. conviction faithfully competently act Nahan did *10 full Indeed, the record stat- defendant. the (CL §750.318 [Stat proceeding utory Ann by 28.550]), the to deter- conducted Rev 1954 guilt, degree Mr. that shows minethe Mr. Sandefur’s lengths in effort Nahan went uncommon voluntary charge against Mr. Sandefur to reduce goal manslaughter; in view insurmountable having eyewitness proof Mr. shot Sandefur, that pursued the home, wounded his son at and firing fleeing his street, down meanwhile son fatal effect. Mr. more with Colt .45 three times accomplish uphill for Mr. work did least Nahan’s at second-degree rather than a conviction of Sandefur along first-degree recommendation murder, by court, term of as fixed the minimal sentence years. 20 is, May “the Mr. wrote to In of 1965 Sandefur indigency county alleging Allegan court,” circuit requesting: please appoint attorney, you want me I “Will my furnish all records and case, and public expense.” transcript at respondent May appointed 1965the court “appellate for counsel the defendant.” Hoffman appointment concluded: order The portion of the such further ordered that “It is transcript requested by as shall be trial 382 Mich op the Court. perfection post-conviction motions of an to said counsel.” furnished be necessary transcripts Having obtained requisite having completed per- what himto was appointive duty, Mr. Hoffman re- formance of ported September to the court under date ground he reason or “to 1965 that could find no file attempt trial” or for new Mr. pages. on behalf of report printed consists of Sandefur. His long Save deletion asterisks of required by which includes the oath our paragraph July amendment of section of Bar State cxxviii-cxxxi),4 report ap- Rule pears verbatim in Justice T. M. Kavanagh’s repeated report, and will not here. find We supported undisputed it was Mr. Hoffman’s given response Judge testimony Smith’s order amply sufficient cause, show to meet and overcome any thought that Mr. Hoffman’s refusal to contemptuous technically either indicative contempt. report testimony The and the exhibit part experi- assiduous care on the enced trial and of an able and *11 appellate lawyer undertaking in complete arraignment, appoint- search a record—of plea, statutory proceeding ment of counsel, taking which included the defendant’s testi- mony along that of with others —for some reasonable “arguable” possibility report or even of error. The right, factually legally. justifies was It our ruling declining now Mr. Hoffman, declared properly upon further, relied the canon- ically Michigan duties of ordered members of the Bar. required The paragraph: oath thus includes this any “I proceeding will not counsel or maintain suit which shall unjust,
appear any exeept to me to be nor defense such as I believe land,” debatable law of honestly to be under the In re Honkman. Opinion op the Court. against all this it is not out of order to As observe brilliantly imaginative one law that even of these strengthened say professors like Samson moderne— Dundreary whiskers and curls Custer— put be hard to strain out of Mr. would Sandefur’s something plain 1962 court record other than non- sense for review on his behalf. Of that we own to knowledge experience, some born to which we come now. reported ap of Mr.
The soundness Hoffman’s praisal by of the Sandefur record confirmed Judge Smith at the time.5 It was tested thereafter by Appeals by the Court of and then this Court. having
A week after received Mr. Hoffman’s re- port Judge appointed (and Smith another eminent obediently willing) Allegan this time member of the county place bar, act as substituted and stead of Mr. Hoffman. Such new counsel .
promptly prepared and submitted to the Court of Appeals application on behalf of Mr. Sandefur delayed appeal. for leave to take need not We relate the valiant if useless content thereof. It was by unanimously denied order entered March 8, 1966. The order reads: application delayed
“In this cause for by opposition nothing is defendant, filed having filed, thereto been and due consideration having thereof been had the Court; delayed application “It is ordered that hereby be, and the same for the denied fur’s then minded.’’ trial. he finds no advised city “The court Judge Mr. Hoffman has advised Allegan, Smith’s pending Mr. grounds has Soffman appointed motion for represent the court reviewed the record and is Wee a new trial or of October Leo W. respondent new the court trial, Hoffman, stated: after appeal. reviewing denying petition attorney After Mr. for a new being Sande record so *12 382
80 M'i.cj.1 op the Court. appeal reason that a meritorious for basis is not established.” application
An
for
this Court
leave to review
quoted
by
order of denial was denied
unanimous
order
14,
entered June
1966. That order reads:
application
“On order
Court,
for de-
layed
leave to
is considered, and the same
defendant-appellant
is
has failed
denied,
the reasons that
persuade
the Court that he has a
meritorious basis for
or that the decision
Appeals
clearly
of the Court of
erroneous.”
application by
A
alleging
second
Mr. Sandefur,
applicability to his 1962 confession and conviction
(1966),
(86
Miranda v. Arizona
384
436
US
S Ct
694),
1602, 16 L
Jersey
Ed 2d
Johnson v. New
(1966),
(86
384
882),
US
L
1772,
S Ct
16 Ed 2d
(1966),
and Davis v. North Carolina
3 erred Anders two backtracking years to justify a of conviction of judgment contempt for having when which, done that performed, was lawful. And Division erred failing perceive that the prac- pursued Judge tice when Smith, the judge sub- stituted the Mr. promptly willing Tooman for the Mr. Mr. unwilling Hoffman, provided Sandefur with which appellatewise—surpassing that the service — Supreme later called down upon California n on behalf of Mr. Anders. certiorari, petition On for filed the imprisoned and Mr. Anders, the Supreme Court (not or exactly quiescent unanimous) criticized method of California’s providing appellate service and laid down for California and States providing similar appellate new procedure rule; particular one which exacts of appointed appellate counsel a request for permission to withdraw “a brief referring in the anything record that might arguably support appeal.” Then the rule calls upon the court to make a determination that “the is case is wholly [or frivolous.” not] As against rule and for the nonce we prefer our eminently superior practice; that of appointing for an indigent appellant willing disposed counsel as done by Smith. It Judge provides for such appellant a lawyer more likely serve better than lawyer would the forced will to act for' against his jurisdictions “But citation of authorities from other and from simply practical problem the canon of ethics does not solve the of of implementing Michigan grant Constitutional right. Michigan Supreme required To that end the Court has appointment appellate counsel GCR 785. appellate right requires “An pass as of court final judgment. of judgment Neither the of the trial or a member * * * proper bar is substitute for review. attorney’s obligations “Likewise where conflict exists between an professional under the canons of tion and his ethics of the American Bar Associa- obligations State, under the Constitution of his yield former must to the latter.” 382 op the Court. judge knows, the trial knows, lie a cause n frivolous. certainly Anders, it And, unlike assures indigent appel- appellate court; this fatuity represented there no matter the lant is arguments presented presented issues thereon. respondent guilty
Second: Was to move leave to withdrawf failure repeated appeal a Division 3 what became on new *14 charge against respondent; ask that he did not representa- Judge from of Smith to withdraw leave 346). App 344, tion of Mr. Sandefur at question no This is a simply one raised circuit and is acquired of Not more afterwisdom Anders. charged against having Hoffman, Mr. in cir- been allega- contemptuous act omission, a or cuit, as by Division take it and is tion was not reviewable not up this Court now. "We nonetheless before response any event must be the since same. upon Judge require Mr. call Smith did not The Hoffman for a motion for leave withdraw. to judge appointed counsel and did instead substitute proceeding prior instituting this some weeks to so a cause. first order effected order to show His proper presentation for need counsel, substitution obviated for leave consideration of a motion respondent from Hoffman released the withdraw, to appointed previously duty counsel, as further appel- expeditious provided if vain we have seen proceedings Mr. late on behalf Sandefur. question, con- open record this whole It not to pose Judge and decide Smith wanted sidered, that duty just is, issue, one review assigned by grounds appointed on sophistry or no matter the defendant the frivolity quoted opinions, judge’s The thereof. re In Horrman. op the Court. introductory clear. do the make that So infra, opinion finding paragraphs Mr. of his Hoffman contempt: guilty of county Allegan, “The circuit court required duly motion, Hoffman, own Leo W. a its licensed to show cause attorney appear at law, before the court why adjudged guilty he should necessary legal for failure to take the steps bring People matter of v. Ernest Allegan county B. No. Sandefur, court, circuit Michigan Appeals.
before the adjudged guilty “Ernest B. Sandefur had been second-degree murder this court and sentenced prison. lapse years, to a term After the court for of several petitioned legal Sandefur enable counsel to May him to have his case reviewed. On appointed represent 1965, the court Mr. Hoffman to pursuant Sandefur GCR and article 1, Michigan § 20, Constitution 1963. “Thereafter Mr. Hoffman reviewed the file and reported record in the Sandefur case and to the writing professional opinion court in that Mr. just grounds appeal. had Sandefur no on which to report Hoffman’s Mr. to the court contained re- steps necessary fusal to take for an appeal. Thereupon appointed the court substitute *15 represent counsel to Sandefur.” To Summarise: introductory paragraphs
1. Refer back to the of opinion. They properly this show that local law They determinative of the issue made in circuit. inapposite show also the case's Justice T. M. character of each of
Kavanagh has cited under head- ing pragmatic guide imple- “We are not without a menting (post 100), in Anders:” decision in challenges that no of one them as- decides the power judge serted State trial to find an attorney guilty contempt having for refused after 66. Mich op the Court. indigent’s demand proceed
appointment judge attor- grounds and the which the for ney are frivolous. know both judge’s to former and reference for the trial As xviii), (373 785.4(2) xvi, xvii, Mich Buie now extinct7 merely required only rule said that that need it the prepare appointment “to for convicts proceed- delayed postconviction for motions application prepare ings in court and to the trial delayed appeal.” did not under- It for leave to take take, appointed require undertaken, nor this Court ever has grounds on frivolous counsel to grounds such, ascertained to be have been once those in this case. as judgments Court of
The of the circuit and acquitting Appeals are reversed. An order charged respondent contempt, in circuit will court, enter there. T. E. J., C. Dethmers and Brennan, Kelly,
JJ., J. Black, concurred with (dissenting). T. M. Defendant attorney appeals from the decision of the Court Appeals (9 App 342), Mich which affirmed the order holding of the trial court for defendant failing refusing prepare file an People in the matter of v. Sandefur. plea guilty
Ernest entered a Sandefur open charge of homicide. The trial court, after holding hearing degree guilt, to determine the proceedings. for a new meritorious basis for by propria persona denied 7 Repealed order dated Tlie trial trial, application effective June court denied a The Court of September 6, 1967, but did for leave to appoint delayed appeal Appeals by is not established.” subsequent appeal. another denied Sandefur’s See 379 order dated March motion attorney “for xxvi, xxx). Mich 776. The the reason that a propria persona Supreme postconvietion application 8, *16 In re HorrmaN. Dissenting Opinion by T. M. guilty second-degree found Sandefur murder' and sentenced him on October 1962, to a term of 20 years. May to 40 On 24, 1965, Sandefur filed a request, required written and the affidavit of indi- gency appointment of counsel to his conviction. Allegan county appointed
The circuit court of May on defendant, 27, 1965, to act as counsel for Sandefur. September report
On 1965, defendant filed a Allegan stating: circuit court ago you appointed represent “Some time me to serving Ernest who is Sandefur, now a sentence in G-aylon Jackson Prison for murder of a son, Sandefur. “I have obtained his file from Mr. who Nahan, represented during proceedings Mr. Sandefur county Allegan,
had in the circuit court for the transcript and I have reviewed the and the record proceedings in the court file. my “It conclusion that Sandefur, Ernest after being properly advised of all his constitutional rights, voluntarily, any without kind, duress plea guilty. voluntary entered a That made a he confession to the officers attached to the sheriff’s voluntarily that he office, took the stand and testified, degree properly crime was deter- mined the circuit court and that his sentence was proper. motion ground I can no reason or find to file for new trial or to take an in this ease. question no “There is but that Ernest Sandefur, provoca-
while tion sufficient to sane, self defense, without manslaughter, the crime reduce deliberately intentionally, in accordance with a determination to kill times and caused his death. son, shot his son several legal technicality, if “Even there were some which might conceivably securing result this man newa *17 §82 Míen 66. [Juné Kavanagh, Dissenting T. M\ Opinion by J. obligated pursue to or bound I not feel would trial, the circumstances. it' under protection fully of the constitutional “I am- aware persons crime, accused of as set afforded is our of article of Constitution in section forth among rights, him; to other affords which, right[;] appeal of in as a matter and courts Ian orders, court so to have when the trial [,] of record such reasonable may necessary be to assistance as appeal’. prosecute [perfect, sic] I and an execute do not as court shall be provision interpret of this the Constitution every attorney appointed by meaning required appeal there to file where proceedings, either to as no error fact appeal possibly could not benefit law, and an accused. my “Being mindful when I of oath taken was * * * having and in mind the bar admitted by professional spelled as ethics out of
the canons by our Bar Association and the American State I have it would Association, concluded that Bar improper me and unethical for to advance a my opinion, in would be and that, useless defense my and contrary my any of benefit to client hot personal opinion professional convictions. stating record, therefore, “I am as matter of not a motion a new cannot will that trial added.) for file appeal (Emphasis Ernest or an Sandefur.” judge, own 3,1965, circuit his December On appear defendant to in the-circuit motion, ordered why adjudged he not be cause should court show punished refusing contempt of in file a motion appeal trial and to for a new take Ernest behalf of Sandefur. for and on n hearing a full the matter the circuit After opinion, stated that citation of au- court, thorities its jurisdictions and from other from canon practical ,does problem “simply solve of ethics re In Hokrman. Dissenting Opinion T. M. grant Michigan implementing constitutional the right.” added.) (Emphasis The of an order that such refusal court concluded its circuit guaranteed prepare “as and file Michigan partic- the State Constitution ularly 1963,785, and GfCíí constitutes 1, 20, article court, of a order of this and that a a violation valid as directed refusal to constitutes 20-day A with a court.” civil fine $25 of this stay imposed by performance the circuit court. a matter of
Defendant filed
Appeals.
of the Court
The
the Court
*18
quoted
length
Appeals
Cal
at
from Anders v.
of
(1967),
L18 Ed
Ct
US
S
ifornia
“single
493),2
tacitly adopted the
inflexible
and
2d
problem
the
contained in Anders to
difficult
answer”
of how to afford
equal protection
.indigent appel
to
recognizing
post
that the Anders rule
lants. While
action,
the
of
dated
cause
Court
defendant’s
Appeals
language
logic
that the
upon
and
concluded
binding
and affirmed
defendant,
Anders was
circuit court.
appeal
granted
to
to this
was
Leave
April
1968.
2 Hereinafter referred to as Anders. 382 6G. Dissenting by T. M. Kavanagii, defining duties client,
law Ms to Ms the court and public, and if so construed the order would con- (4) order; an unlawful stitute the defendant did good contemptuous; faith and, act in fact, (5) impossible application it was to file an for de- layed delayed appeal, trial new within the framework of the law.3 wholly point
Defendant’s contentions miss decisions both proper courts below reach the wrong conclusion but for the reasons. primary (1)
The issue twofold: Did the cir- cuit court (2) issue a lawful and valid order? Did noncompliance defendant’s with a valid order of the contempt? circuit court constitute secondary upon The issue focuses the extent of duty court-appointed appellate of a counsel to prosecute application for leave to from a criminal attorney conviction after that has con- scientiously determined that there is no merit indigent’s appeal. Ancillary secondary to this issue question appellate ap- is the pointed counsel, whether prosecute application for leave appeal, is held to the same standards as appointed perfect as required in Anclers. these ings. attorney’s professional opinion, for refusal respondents charged proceeding, attorney, appointed of whether or not be defendant constitutional of (Emphasis added.) necessary professional Defendant’s an legal question presented contentions The trial attorney compels to viewed the duty file there ethics brief perfect “lo in court, considering an him to under C-C.R to with crime.” The the resist application in the Court of provide merit legal question in single filing compromise in court prosecute there was no merit 1963, 785.4(2) “such issue an automatic for appointment aspect appeal. delayed appeal of whether reasonable his oath Court of Appeals matter the context of whether appeal” is appeal of office Appeals to assist guilty assistance as *19 concisely phrased in for an court-appointed where, App 342, regardless such of of disciplinary considered attorney’s proceed indigent as in canons right may 344. of re In Hoffman. Dissenting Opinion T. M. issues, these we must of consideration to the Prior claim distinguish of Ernest Sandefur’s basis claims and appeal Hoffman’s defendant of appeal. objections to this appeal in the of was claim Ernest Sandefur’s appeal. application leave of an
nature 1962. At on October was convicted Sandefur right appeal of as a matter no there was time Michigan, the date of convic- cases in criminal Michigan being prior date of the the effective tion appointment request for 1963. The Constitution of appointment appellate of defend- counsel and the May of 1965. The circuit occurred in Hoffman ant court, contempt, ap- finding Hoffman in defendant appeal thought parently claim of that Sandefur’s right.” In the circuit court its “of was stated: requires appeal “An as judgment. judgment pass final Neither the proper is a or a member of the bar the trial court * * * appellate review. substitute changed Michigan Constitution the 1963 “Since appeal’ to ‘an as from the law ‘leave right’ but to amend other recourse there seems no
the Constitution.” respect in error. the circuit court was
In this provision Constitution Absent some retrospec- right provision making discretionary in nature. tive, Sandefur’s aspect nonretrospective 1, 20, of article This “appeal right” comports the intent of as of Michigan the drafters of the Constitution Record, Convention Official Constitutional pp 562-568.4
dealing Supreme “All Of particular I can -with the say decisions, appointment interest that, United are the statements Mr. of counsel King, States is that (p Supreme 563) there : Delegate Court are certain decisions, Norris *20 382 Mich
90 66. by Dissenting J. Opinion T. M. Kavanagh, to a proper appoint- circuit court make For the it counsel, had to under appellate ment of 1963, 1, art which 20,§ of Const reads the provisions in part: record, when
“and in courts of the trial court so have such reasonable assistance as may to orders, necessary perfect prosecute appeal.” in It be noted that this is substance language is to Michigan identical with the Constitution of 1908, 2, art
Further, the trial under required court was then existing Michigan General Court Rules appoint appellate 785.4(2)5 counsel. GCR read 1963, in part as follows: ** *
“Delayed Appeal. Upon defendant’s request, if defendant is in indigent, the trial court which defendant was convicted shall appoint for him and shall such portions furnish of the trial transcript counsel so appointed requires prepare delayed motions postconviction proceedings the trial court and to prepare application leave to take delayed appeal.” (Emphasis added.) particularly Illinois, regard with giving v. extent Griffin participation Federal right of the State in effect to the counsel, Constitution assistance of insofar as that right particular applicable, would be then it would have some effect you questioning. however, are now I think, what don’t there any gone has been the Federal eourt has it wouldn’t requires.” State court decision which has farther than what So, provided. say here, no matter we what go beyond Supreme what United States Court now by proposition The above statement is buttressed as stated (1956), 12, (76 the Court v. Illinois 351 18 US S Ct Griffin 585, 891), 100 L Ed that: . required by “It that a true State is Federal Consti- appellate provide tution to courts or a review e.g., Durston, See, 687, McKane 684, (14 at all. v. 153 688 US S 913, 867).” L Ct 38 Ed Douglas See, also, the dissent of Mr. Justice Harlan v. (1963), 811). 372 US 365 S L Ct 9 Ed 2d California 5 August 1, (see xvii); Effective 1964 373 Mich amended effec May (see xxviii); repealed tive Mich effective June (see xxx). In re Hoefman. T. M. Dissenting *21 distinguished from GCR subrule This appointment required 785.4(1), which 1963, appeal perfect defendant where the counsel right to matter of constitutional as a entitled “is appellate People In conviction.”6 v. his review Mallory (1967), 538, 568, 378 Justice Souris fol- between the subrules as drew this distinction lows: 785.4(1) applies prospectively, in the sense “While specifies procedures to be followed at sen-
that it timely ap- tencing in criminal cases where current applies retrospec- peal right exists, 785.4(2) as of specifies procedures tively, in that it the sense appellate furnishing trial tran- free indigents script com- in all other criminal cases to through sentencing August pleted 1, 1964, before (Emphasis added.) date 785.4(1).” effective upon the trial that it was incumbent conclude We appellate prosecute judge appoint counsel to leave existing then of this under the subrule judge proceeded properly, trial even Court.7 The misapprehension duty .though as to under authority. Appeals, quoting length at
The of found that after Court Anders, from did ash defendant representing from Sandefur, to withdraw but new told the court he would not file a motion for Tacitly relying trial or an for Sandefur. upon Anders, to com- it held this direct refusal contempt. ply with a court order constituted repealed rescinded —in pursuant rule Ct (1967), [6] 814, Effective See prospeetively People 9 L Ed 2d light effective June to Const US order of this Court dated June August v. Douglas Mallory applicable 811), 1, 1964; S 8, art and more v. (1967), Ct 1967. California appeals amended effective 20. 378 Mich Although recently L (1963), which Ed 2d 8, 1967, in Anders this Oourt Rule was 493) [372] we are May 2, 1967; US —to v. California [353] make this required (83 right S 382 Miau G6. Dissenting Opinion T. M. Supreme Anders, Court In United States to the effectiveness
restricted consideration its speak- appeal. Clark, a first Mr. Justice counsel on (p 739): specific ing issue framed the Court, for the concerned with the extent are here “We prose- duty court-appointed counsel to of a conviction, determined a criminal after from cute first conscientiously attorney has that there is (Em- indigent’s appeal.” no merit to the added.) phasis involved in Anders indicate the facts Further, Supreme considered that the United States solely light con- issue of California’s this grant appeal.” of “a stitutional *22 analysis majority opinion A careful of in the upon predicated that Anders reveals it was (1956), (76 12 v. 351 decisions S Illinois US Griffin 891), Douglas L 585, Ct 100 Ed v. California (83 (1963), 811). 372 353 9 L Ed 2d 814, US S Ct Douglas In both the United States Su- Griffin preme appeal solely Court was concerned right. Douglas opinion specifically as In fact, of Douglas, speak- Mr. delineated decision. Justice its ing (pp 357): for the stated Court, 356, problems are not here concerned with that “We might prep- arise from of for the denial petition discretionary mandatory aration review aof or beyond stage appellate process at by presented which the claims have once been a lawyer passed upon by court. We dealing only appeal, granted are with the as a first (Cal light poor matter of Penal to rich and alike 1235,1237), §§ Code, from a criminal conviction. We need not now decide whether California would have provide indigent seeking a counsel for an dis- cretionary hearing supreme from California appeal court after the of district court had sustained In re 93 lío fuman. Dissenting Opinion T. M. by Const, 4c; art Cal Rules (see 6, § conviction Cal 28, or whether counsel must be 29), Rules Appeal, of an indigent seeking for an review appointed appellate his conviction in this affirmance of for a writ of petition as right of discretion. which lies within Court’s certiorari But can, State observe appropriate it is Amendment, pro- Fourteenth with the consistently vide does not long so as the result for differences or an of due ‘invidious process amount to a denial v. Optical Williamson Lee discrimination.’ (75 489 99 S Ct (1955), US Oklahoma Illinois, supra, p 18. Absolute 563); L Ed v. Griffin lines can be and are drawn equality required; is Texas Tigner often sustain them. See v. and we ; 84 L Ed (60 1124) Ct (1940), US S (1948), v. US S Ct Cleary Goesaert 93 Ed L But where the merits the one and 163). has are decided only we think an unconstitu- counsel, benefit without drawn rich and poor.” line has been between tional Hoffman’s is contention this Defendant circuit court and the Court Appeals —in of court— guilty contempt defendant ruling law as though the facts and defendant had treated timely appeal to take “a as matter of refused correct defendant his observa- right.” While supra, he is still tion, guilty see this with a lawful refusing order. comply of this conclusion involves the The basis secondary from the following issue framed above and results *23 analysis. 1908, 2, art
The circuit under either Const judge, to empowered Const art § “such reason- appoint appellate provide counsel to able assistance may necessary perfect as to an incumbent prosecute Further, it was appeal.” upon, 1963, 785.4(2), circuit under GCR judge [Juno
(cid:127)94 Dissenting Opinion T. M. appoint above, discussed to counsel for an appointing defendant. While order defendant Hoffman did not cite either above authorities, judge the order of the analysis, circuit was, in final a valid validity and lawful order. Given the appointing the lawfulness of the order appel- him as counsel, late defendant Hoffman had three alterna- tive courses of action:-
First. Defendant Hoffman could have attacked being the order as invalid its face. This would directly put propriety have in issue the of the order judge’s authority upon and the circuit which it was based. categor-
Second. Defendant Hoffman could have ically accept appointment immediately refused upon its issuance. This, course, have would judge raised the issue of between the trial involving and defendant Hoffman without the merit appeal. of Sandefur’s accepted
Third. Hoffman Defendant could have appointment proceeded perfect the appeal either
for Sandefur or declined appeal. It is this course of action which defend- ant Hoffman' did in fact choose. presented problem we are
Thus with the of deter- mining having accepted appoint- once whether, appellate ment as the constitutional counsel, met defendant’s actions
requirement of “effectiveness general counsel.” Put in more we de- terms, must appellate appointed termine whether counsel prosecute application leave to held ap- to the same standard as the pointed prosecute right, as of Anders. Supreme
A review of the United States authority especially decisions, Anders, those cited as compels inexorable conclusion us *24 re In Hokfman. by Dissenting Opinion T. M. J. Kavanash, to the appointed counsel must be held irrespective “effectiveness,” of same standard appeal. nature of the Supreme v. in Ellis In the Court United (78 1060), 2 L 2d 974; Ed
States, 356
S Ct
US
guidelines.
operation
with
down
Concerned
laid
procedure as it affected
criminal
the Federal rules of
indigent’s application for leave to
and
an
appointed attorney’s
appeal,
the
role in such
675):
(p
reasoned as follows
Court
“Normally,
of an
should not be
allowance
adequate
represen-
has
denied until
had
(1957),
by counsel. Johnson v. United States
tation
(77
593).
1 L Ed
In this
concurrence approach and “evaluation” of the case. counsel’s recognize where the con However, we must process rights equal protection due stitutional Supreme gone far as are has involved judge’s independent striking a trial determina down Eskridge appeal. In tion of the merits of an v. (1958), Washington Board 357 US Prison dealing 1269), Court, 2 L 2d S Ct Ed 382 Opinion Dissenting T. M. transcript judge, stated denial of State (p 216): *25 judge was of the trial that there “The conclusion adequate
no error in trial cannot reversible appellate to review substitute full avail- Washington to all who can afford able defendants expense transcript.” of a Eskridge, logically view In of the decision in it protect Supreme for the Court to consistent likewise rights independent these from the unreviewable and nonjudicial of a determination In Lane officer. v. (83 (1963), Brown 372 9 L 768, 477 Ct Ed 2d US S 892), reviewing Court, the denial a writ of public error coram nobis and the Indiana defender’s merit,” determination of “no reached this conclusion (p 485): Eskridge constitutionally “In the Court held in- provision permitted judge
valid a prevent which a trial indigent taking appeal. from an effective provision upon The outside us before confers a State officer judicial system power from take (cid:127) indigent hope any appeal pro- all at all. a Such indigency cedure, based on alone, does not meet constitutional standards.”
Appellants attempted distinguish have these “appeal right” other cases the basis of appeal.” e.g., vis á vis “leave to See, v. Ohio Burns (1959), (79 1209). 252 US S Ct L Ed 2d logical No distinction can be made on this basis in presently the area Clearly, under consideration. supra, any Court Lane v. Brown, refuted such (pp 483-485): distinction “In Illinois, v. 351 US the Court held Griffin appellate system that a State with an which made transcripts available trial to those who could afford constitutionally required them was provide ‘means In re Hokkman. Dissenting Opinion T. M. adequate affording and effective review de indigent Id., at 20. ‘Destitute defendants.’ to fendants,’ ade held, be afforded as ‘must the Court quate appellate as defendants who have review transcripts.’ buy enough Id., In money Burns at 19. involving a fee $20 Ohio, 360 US v. felony filing conviction motion for leave supreme reaffirmed this Court Ohio, to the saying ‘once the State doctrine, the Griffin appellate review in criminal to establish chooses cases, indigents may from access it foreclose phase procedure any of their to- poverty. plicable because of that * * * ap principle is no This less afforded an where the State has phase appel to the first its defendant access effectively procedure access has foreclosed late to but solely phase procedure second of that be indigency.’ 257. In v. Id., at Smith cause of (1961), S Ct Bennett US *26 6 L 39), prin the made clear that Ed 2d these Court appeals ciples were not to be limited to direct criminal extended alike to convictions, from but postconviction proceedings. ‘Respecting State the the grant right of a their detention,’ State’s test weighs said, Court ‘the Fourteenth Amendment the equal poor rich in scale, interests of criminals Id., far In and its hand extends as each.’ at 714. Washington Eskridge Board, v. Prison US provision Washington’s the held invalid a appellate system upon the criminal which conferred transcript judge power the a trial to withhold trial indigent upon ‘justice finding from an not be accorded that would * * * promoted been that defendant has impartial trial, a fair grave prejudicial no oc errors Court’s it Id., therein.’ at 215. There was said that curred ‘the judge conclusion of the trial that there was adequate error in the trial cannot be no reversible to full review avail substitute Washington all who afford able to defendants can transcript.’ expense Id., at 6G. Uisuojiling Opinion by T. M. present clearly “The ease falls within the area staked out the Court’s decisions in Griffin,Burns, Eskridge. Smith, and involve, as be sure, To this case does not Griffin, did a direct from a crim- inal conviction, but Smith makes clear that principle applies leaves pro- also to State collateral Griffin ceedings, prin- and Burns no doubt that the ciple applies though even already the State has provided one review on the merits. Eskridge “In constitutionally the Court held in- provision permitted valid judge which a trial prevent indigent taking appeal. from an effective office]' provision upon The outside the before us confers a State judicial system power to take from an indigent hope any appeal all pro- at all. Such a indigency cedure, based on alone, does not meet constitutional standards.” underlying theory
The of these cases, and one prove guide which should valuable aas to future decisions in this area, was well stated the dissent- ing opinion Douglas of Justice Harlan in v. Cali- supra, page fornia, at 366: distinguishes “The Court our review from the present grounds case on that the California rule appeal, granted relates to ‘the right.’ as a matter of first p significance Ante, 356. But I fail to see the Surely, of this difference. it cannot be contended requirements procedure fair are ex given hausted appel once an has been one post, p late review. v. Brown, Lane 477. Nor Cf. suggested having appointed can it well be coun necessary sel is more fair administration of *27 justice right, an initial taken as a matter of reviewing which the court on the full record has already petition determined to be than frivolous, in a asking higher appellate a court to exercise its discre may tion to consider what be a substantial constitu tional claim.” In re Hoffman. bj M. T. Dissenting Opinion as a matter that, Harlan agree Mr. Justice
We significance policy, in the dis judicial is no there and leave to as of between tinction counsel is conc as as effectiveness of far erned.8 being
Having the above conclusions reached judicial policy, pervasive cognizant must we guidelines recognize Anders, out in su set that the controlling. majority pra, The estab are problem of difficult to the a uniform answer lishes how to accord equal protection of the laws to indi Supreme gent appellants. Anders, Court, in The 745): (pp 744, stated requirement of substantial “The constitutional process only
equality can attained and fair be anof advocate in the role active where acts opposed client, as that amicus in behalf of his procedure it letter and the The no-merit curiae. dignity. triggers should, that do not reach Counsel be conflict, and assistance to honor and without can with more role his to the court. His client and requires support he client’s as advocate appeal ability. course, if coun- to the of his Of best wholly frivolous after con- finds his case to be sel scientious examination of should so advise the it, he request permission That to withdraw. court and accompanied by request be brief must, however, might argu- referring anything in the record that ably copy support appeal. A counsel’s brief indigent allowed furnished the time should be principles of relied on need universally 208 So counsel criminal conviction Mallory, supra, a matter of While US to assist 2d 619. now decide it applicable Douglas, may equality Federal pp 566, S Ct absent a Lane, Draper ii-respective persuasively and due constitutional thorny problem of whether 9 L Ed coxxtrolling See, also, pursuing process which the 2d argued [Draper requirement, appoint State v. 899)], discretionary nature of the v. Burns, rule. Washington Herzig the constitutional this State Supreme Court See review (Fla, appeal, we People v. Bilis, (1963), 1968), of his must, are *28 382 Míeir 66.
100 Dissenting Opinion by T. M. Kavanagh, J. any points him to raise he chooses; the court— proceeds, not counsel—then after full examination proceedings, of all the wholly sel’s to decide whether the case is may grant frivolous. If it so finds it coun- request to withdraw and dismiss requirements insofar as Federal are concerned, or ato decision on the if merits, law State so requires. any the other hand, On it if finds legal points arguable (and on their merits therefore frivolous) prior not indigent must, it to decision, afford the argue ap- the assistance of counsel to peal. requirement appointed “This would not force against counsel to brief his case his client but would merely advocacy afford the latter that which a non- indigent defendant is able to obtain. It would also pursue vigorously induce the court to all the more ready its own review because of the references not only legal record, but also to the authorities as furnished it counsel. The no-merit on letter, other hand, affords neither the client nor the court any entirely aid. The former must shift for himself only while the court has the cold record which it help must review without the of an advocate. More- handling protect over, such would tend to constantly increasing charge from that he was ineffective and had not handled the case with that diligence to which an defendant is entitled. procedure penniless This will assure defendants the rights opportunities nearly same —as practicable enjoyed persons as is are those —as who are in a similar but who are able to situation private afford the retention of counsel.” pragmatic guide implement
areWe
not without a
ing the decision in Anders: our sister States, sim
ilarly faced with this decision of the United States
Supreme
responded positively.
Court, have
See
(1967),
(428
982);
State
Franklin
v.
' by T. Dissenting M. People (1967), 308); (61 Rptr v. Jones Cal 2d 436 (231 390); v. NE2d Commonwealth Ill 2d 384 (239 People 201); (1968), Pa 209 A2d v. Baker 382). App (1968), 92 Ill 2d NE2d Carter See, also, (CA 1967), States Smith v. United *29 F2d 649. adopt employed by Flor the method
We could appeal in v. State court Smith first district ida divesting (Fla, 1968), the trial courts 208 2dSo 462— jurisdiction permitting with enter an order to ap appointed counsel—but this drawal of approach problematic pears and be a circuitous simplest implementation proper of Anders. The a establishing guide problem a to the solution conduct guage bench is follow the lan for the bar and presented approach This well of Anders. People Feggans Traynor v. Chief Justice (62 Rptr 21), (1967), 419, 67 2d 444 Cal 432 P2d Cal (pp 448): where it was held regardless of how Anders, “Under frivolous may appear regardless and of how convinced may appointed counsel as an advocate be that there nothing will a no-merit letter advocate, is prepare must brief to assist the suffice. Counsel legal understanding issues the facts and the court The must set forth statement in the case. brief transcript, discuss the facts citations appropriate legal author- issues with citations arguable. ity, argue More- all that are issues client the court his over, counsel serves both argument advocating changes be law if can change. supporting If counsel concludes made arguable is are there no issues may his to a limit brief statement frivolous, he may applicable ask to with- law and the facts and argme case he must not case, from the but draw against to with- is not allowed his client. Counsel case satisfied from the until the draw 382 102 Mici-i Dissenting Opinion by T. M. discharged duty
he has to set forth to the court and his client
adequately the facts and issues involved. If counsel is allowed to withdraw, defendant must given opportunity present a brief, and there after the court must decide for itself whether the (Anders is frivolous. v. [1967], California [87 US 741,742 S Ct L 1396, 18 2d ; Ed Ellis v. [1958], United States [78 US 1061].) any S L Ct Ed 2d 1060, If contention reasonably arguable, raised is no matter how the probably court feels it will be resolved, the court appoint argue must appeal.” another counsel to appendix Suggs See, also, to the decision in v. United, (CA 1968), App States DC 129 US DC 971). F2d Returning to the instant case, defendant Hoffman argument appoint- admitted on oral that the order of ment was valid and lawful, that he never filed a giving applicable brief the facts and law, and that requested he never to be relieved from the order of *30 appointment required by of which are the ma- —all jority opinion in Anders. Further, we note that defendant Hoffman did not meet even the by minimum standards established minority Anders. The (pp in Anders states 746): 745, by system handling “The used California for indi
gent appeals preme P2d was described the California Su in In Nash, re 61 Cal 2d 491, 495 405, 408): “ requirement Douglas ‘We believe that the * * * [372 353] Case US is met inas this when, appointed represent case, counsel is the defendant appeal, thoroughly on record, studies the consults with the and trial counsel, and conscien- defendant tiously concludes that there are no meritorious grounds appeal. appellate If thereafter the court is satisfied from its own review of the record In re Hoeeman. J, by M. T. Dissenting per- any points light the defendant raised the record is sonally assessment of that counsel’s rep- appoint another counsel to correct, it need properly may and defendant resent ” (Em- argument.’ appeal without oral decide added.) phasis minority opin- recited the elements One appointed with the counsel “consults is that ion Hoffman trial Defendant defendant and counsel.” requested argument oral that he never admitted on appointment and from the to he relieved order Also,- he never consulted with Sandefur. that he he with trial asserted the fact that consulted never respects In we conclude that he could counsel. these counsel, acted as effective not have dissenting opinion in Anders. under the even we that the order of the cir- summarize, To hold appointing defendant Hoffman was valid cuit pursuant 2, to either art lawful, Const § 1, 20, or Const art GCR obey 785.4(2). Defendant Hoffman’s refusal this constitutionally impermissive order lawful and his subjects attempts properly its effect him to avoid disciplinary proceeding contempt. If desired, defendant Hoffman had so the courts permitted and this have him to below Court would purge contempt. But has tena- himself he ciously persisted attempting to vindicate his personal tenacity, views. we commend his While suggest condone of action. we cannot his course We upon defendant reflect the wise venerable words Limita- of Chief in 1 Constitutional Justice Cooley (8th 1927), p ed, tions 700: principle us it a universal of constitu- “With *31 prisoner shall allowed de- law, tional fense that the be generally And it will be found counsel. humanity provided if that, that the of the law has Í04 382 Mxoií 66. Dissenting Kavanagh, T. M. J. prisoner employ counsel, is unable to the court may designate him some one defend who shall paid by government; provi- when be but no such duty designated sion it is a which made, is counsel so profession, engaged owes to to the court humanity justice, trial, and the cause of spare to withhold his nor assistance his best exer- tions, in the defense of one who the double has mis- by poverty fortune to be stricken and accused of liberty ap- crime. No one is at to decline such an pointment, hoped, it few, would be disposed (Emphasis added.) so.” do should
We affirm decisions circuit court Appeals finding and the Court of defendant Hoffman contempt. Adams, J., concurred with T. M. Kavanagh, part T. G. J., no took the decision this case.