State Ex Rel. McCoy v. Wisconsin Court of Appeals

McCOY, EX REL. Ellis T. of Wisconsin STATE Petitioner, APPEALS, DISTRICT COURT OF WISCONSIN Respondent. Supreme Court January 5, April Argued 1987.—Decided No. 86-0172-W. 1987. 449.) (Also reported in 403 N.W.2d J„ ABRAHAMSON, HEFFERNAN, BABLITCH, C.J. and J., dissent. there briefs and oral petitioner

For were Jr., Butler, Louis B. assistant state argument public defender. respondent argued by

For the the cause was general, McDermott, H. James assistant with on Follette, whom the brief was Bronson C. La general. attorney original CECI,

LOUIS J. J. In this action for a judgment, declaratory upon we are called to consider (Rule) 809.32(1), constitutionality the (1983-84),1 of sec. Stats. requires appointed counsel, which upon determining appeal that a criminal would be appeals frivolous, submit brief to the court of which explanation why any includes an as to issues which might support arguably appeal lack merit. Peti- public Butler, tioner Louis B. defender in this case assigned appeal who was to handle the of defendant McCoy’s conviction, Ellis T. criminal asserts that the constitutionally protected right defendant’s to coun- guaranteed by sel, the sixth amendment to the United by I, States Constitution and art. sec. 7 of the Constitution, Wisconsin is violated the so-called requirement. disagree "no-merit brief’ We and now uphold constitutionality of the rule contained 809.32(1). sec. dispute.

The facts in this case are not in county defendant was convicted in Milwaukee circuit 809.32(1) provides that, appointed 1 Section attorney "If an opinion under or appellate s. 809.30 ch. 977 is of the that further proceedings on behalf of the defendant would be frivolous and arguable any without meaning merit within the of Anders v. California, (1967), attorney 386 U.S. 738 shall file with the appeals copies court of 3 a brief in anything stated might arguably support the record that and discus sion of copy issue lacks merit. The shall serve a defendant, response of the brief on may who file a to the brief days within 30 of service.” 2, 1983, of one count of second-

court on December Stats., assault, 940.225(2)(a), sec. degree sexual abduction, 940.32(l).2In for preparing sec. count of one appel- further concluded appeal, petitioner and that any warranted were proceedings late support be could advanced issues which arguable merit under Anders v. without were (1967), U.S. and under sec. California, 809.32(1). then available Defendant was advised of his (1) voluntarily dismissing included options, which (3) se, (2) appeal pro proceeding with or appeal, brief, 809.32(1), sec. submitting pursuant a no-merit no-merit court. Defendant chose the appeals to the option. brief however, filing brief, petition- a no-merit

Prior court, to appeals seeking in the er filed a motion 809.32(1) of sec. constitutionality determine the appeal. of on scope representation clarify 7,1984, standing on September on motion was denied that since the grounds, appeals stating with court filed, no had not been yet justiciable no-merit brief controversy existed. 22, a brief on October

Petitioner filed no-merit court, 16, 1985, April on 1984. The ordered appeals noncompliance be for with sec. this brief struck 809.32(1) brief and that a new be filed. Petitioner’s forth requirements with set in sec. complied brief 809.32(1), of except that it did not contain statement might support arguably reasons issues merit. lacked 24, 1985, April this on petitioned Counsel court of prohibition and declaration supervisory for a writ constitutional rights, seeking resolve the relator’s No. 84-929-CR-NM. McCoy, T. v. Ellis 2 State May petition, 8, 1985, issue. On this court denied the grounds petitioner adequate on the had an remedy appeals. at law the court of Petitioner appeals his motion in renewed the court of to deter- 809.32(1), constitutionality mine the of sec. and the again stating any motion, denied the constitutionality determination of the no-merit by rule Thereafter, should be made this court. defense petition court, counsel renewed his to this which was granted on March 1986.

Petitioner asserts that defendant’s constitutional guaranteed ly right counsel, which includes the right to effective counsel, assistance of State v. Lud wig, (1985); 600, 606, 124 Wis. 2d 369 N.W.2d 722 (1984), Washington, Strickland v. 466 U.S. requirement violated no-merit contained in sec. 809.32(1). Petitioner cites the decision of the United Supreme explicitly Anders, States Court in which is pri to in rule, referred mary Wisconsin’s no-merit as the support agree source of for this conclusion. We analysis, that Anders should be the touchstone of our although compels finding we do not believe that it unconstitutionality. begin We therefore our discussion attorney’s responsibilities of an to a criminal client upon appeal analysis with an of Anders. consulting counsel,

In defense after with studying record, his client and the trial determined appellate proceedings that further on behalf of his indigent client would be He meritless. so notified the appeals by requested letter3 and to withdraw as stated, appeal letter "T will not file a brief on Ias

3 Counsel’s opinion appeal. am of the there no merit to the I have explained visited and with communicated Mr. Anders and have Court in Anders did not for the The defendant. counsel articulating only letter, a "bare that counsel’s believe ap- regarding the merits of defendant’s conclusion” requirements. peal, 386 U.S. at constitutional satisfied 742. procedure by in followed defense counsel

The high constitutionally held, was Court petitioner not furnish with because it "did defective acting advocate,” of id. at in the role and equal- requirement of substantial "[t]he constitutional process only ity where fair can be attained and in the role of an active advocate behalf counsel acts opposed client, to that amicus curiae. The of his procedure triggers do not and the no-merit letter dignity.” Id. at 744. Court then reach that explained proper role on should counsel’s what be: frivolous, wholly counsel finds his case to be

"[I]f it, examination he should after conscientious request permission the court and so advise however, must, request be accom- withdraw. That panied referring anything brief might arguably support appeal. A record copy of brief should be furnished counsel’s points indigent any time him to raise and allowed chooses; counsel —then the court —not he proceeds, pro- all the after a full examination ceedings, wholly whether the case is decide may grant If it so finds it counsel’s frivolous. request to withdraw and dismiss the insofar concerned, requirements proceed as federal are or merits, requires. on the if state law so to a decision my opinions to him ... wishes to file a brief this views [H]e matter on his own 386 U.S. at 742. behalf.”’ hand, legal if it any points

On other finds of the (and arguable on their merits therefore not frivo- lous) must, decision, prior indigent afford argue assistance of counsel to appeal.” Id. utility procedure

"The of this appointed is that counsel would not be ... brief his case force[d] against his merely client but would afford the latter that advocacy nonindigent which a defend- ant is It able to obtain. would also induce the court pursue vigorously all the more its own review ready

because of the only references not to the record, legal but also to the authorities as fur- letter, nished it by counsel. The no-merit on the hand, other affords neither the client nor the court any aid. The former shift entirely must for himself while the court has only the cold record which it must review help without of an advocate. Moreover, handling such protect would tend to constantly increasing counsel from the charge that he was ineffective and had not handled case diligence with that an indigent to which defendant procedure penniless is entitled. This will assure rights defendants the opportunities same and on nearly practicable as is enjoyed are —as —as persons those who are a similar situation but who are able to afford of private the retention counsel." Id. at 745. procedure goes

The Wisconsin beyond Anders requires which, the attorney file a brief addition to articulating anything in the record which might support an appeal, includes a statement indicat- ing lacks merit. It is this latter requirement to which petitioner on objects and which we now focus.

Petitioner contends require- the discussion ment to the directly contrary court’s admonition in amicus is to as on not act

Anders that counsel curiae, obligated is to act as advocate to the rather but support, petitioner For of his or her ability. best (1985), 387 Lucey, v. 469 U.S. Evitts cites additionally that, appellate citing counsel states advocate, than role of an active rather play "must assisting the court in a detached mere friend of a claim.” Id. at 394. He of the appellant’s evaluation is to discuss the required that when counsel asserts merit, or is in lacks he she reasons is abdicating role and instead the advocate’s effect This, petitioner argues, is arguing against client. by Anders. proscribed addition, petitioner argues simple

In that a defini- if approach compels finding tional is rule, to no-merit he or she required comply with the is "advocating” appellant’s cause.4 When coun- longer no complies with the sel files a no-merit brief which petitioner argues, he or she is requirement, discussion curiae, advancing amicus a rationale merely acting as the views of the court which is more consistent with defendant, and interests than with views counsel’s client.5

4 According supports, petitioner, "is to an advocate one who pleads or another’s cause.” defends curiae, citing definitions of amicus 5 Petitioner offers two 1979), (5th Dictionary 75 which states that Black’s Law ed. amicus "means, person literally, strong A friend of the court. with curiae subject may petition interest in or views on the matter of an action brief, permission ostensibly court for to file a on behalf of a party actually suggest a with its own but to rationale consistent (2d Dictionary is World ed. views.” Also cited Webster’s New 1972), offers, defining person who amicus curiae "a or is called in, legal on some matter.” advise surveys jurisdic-

Petitioner then cases from other ostensibly support position appel- tions which his late counsel must not deviate from the role advocate’s procedure and that the Wisconsin is at odds with that principle. petitioner argues, cases, These demonstrate part play any determining that counsel is appeal. e.g., See, Allen, merits of the State 99 N.J. Super. (1968), stating 314, 322, 239 A.2d right appeal, "[o]nce a defendant exercises his his appellate counsel must be advocate and he does not argued decide whether the claim will be successful as by the State. ... That task for the courts.” disparage importance

We do not mean to the counsel’s role as advocate. We are sensitive to the rights indigent especially defendant, of a criminal an representation. previ- defendant, to effective We have recognized, ously prior in a case decided rule, enactment of the no-merit analysis compels appointed the Anders "perform counsel to his adequately paid indigent duties as counsel so the deprived adequate representation will not be be- indigency.” Cleghorn State, cause of his 55 Wis. 2d (1972). 466, 471, N.W.2d We reaffirm our principle. However, belief in that we are nevertheless compelled reject petitioner’s proffered analysis. uphold constitutionality

We now of the no- merit brief rule. While Anders does not sanction requirement, pro use of the discussion not does interpretation it, scribe either. Our of Anders is consistent with cases which have validated the discus requirement sion and which have construed requirement diverge with, to harmonize rather than holding. from, See, the Anders United States v. Ed (7th 1985); wards, Gagnon, 111 F.2d 364 Cir. Nickols v. (7th 1971). 454 F.2d 467 Cir. The court in Edwards file obligation to a attorney’s reaffirmed explicitly indicating why a statement includes brief which with- are supporting arguments ostensibly Nickols, in Similarly, at 365-66. 777 F.2d out merit. letter, aof adequacy examined the seventh circuit demonstrat- a discussion which included "matter[s] supporting issues arguably of merit ing the absence [of defense who attorney by submitted appeal],” 469. 454 F.2d at as counsel. seeking to withdraw was adequate, court deciding that the letter was In a which "included reasoned counsel’s letter contrasted conclusion,” id., with for his of the basis exposition letter submitted short the frivoli- statement” of "conclusory only

contained Thus, Id., n. 4. Nickols also ty appeal. of the 809.32(1), Stats., with sec. contemplated, consistent and, further, did not requirement the discussion prohibited it. Like- any way that Anders believe wise, way in any we do believe that Anders is also it. Petitioner’s reliance on Evitts prohibits prohibit it does not the discussion misplaced, because requirement, either. argues that when an submits attorney

Petitioner his or a statement which includes discussion of merit, is, in her client’s lacks effect, judge, "deciding” like the the merits of the This, argues, is appeal. petitioner impermissible be- prerogative cause is counsel’s to determine "[i]t but, appeal, the of an finally merits directed in Anders, 'the court —not ... counsel whether decide[s] frivolous.’” wholly Haynes, the case Turner v. 162 (1978). 33, —, 629, also, Va. 245 S.E.2d 631 W. See Leverette, 781, Rhodes v. 160 W. 239 S.E.2d 136 Va. (1977); 444, 21, 67 People Feggans, v. Cal. 2d 432 P.2d Varner, Rptr. (1967); 62 Cal. 419 State 692 753 P.2d 98 (Utah 1984); Shattuck, State v. 582, 140 Ariz. 684 P.2d Duncan, (1984); State v. 93, App. Ohio 2d (1978). N.E.2d 323

We that similarly believe it is ultimately court’s, counsel’s, and not prerogative to judge the relative merits of an appeal; nevertheless, we do not believe that the case authority cited by petitioner compels finding the discussion rule is unconsti- tutional. For example, Turner concluded that his appeal prospects client’s would be without merit and so Counsel, informed his client. however, provide did not his client with copy of the trial transcript, and an appeal was pursued. never In addressing defendant’s claim that counsel’s actions deprived him right appeal, his the court held that, applying his counsel did not fulfill obligation to his client. The court reasoned counsel —not ultimately decided that court — appeal was without —, merit. 162 W. Va. at 245 S.E.2d at 631. It is evident Turner was never given even opportunity decide whether agreed with counsel’s conclusion of lack of merit. This was the constitutional infirmity. see, Allen, holding,

For a similar Super. 99 N.J. 239 A.2d where the court also found that deprived defendant was right his to effective assistance of counsel. The defendant was not informed by his that he had right to appeal or that he the right had to counsel to prosecute an appeal. Again, the court there given opportuni- was never ty to decide whether counsel’s conclusion that appeal was meritless supported was adequately law, record, case applicable or the statutes. To the when a court contrary, Wisconsin is presented with counsel’s conclusion that in addition has before it a be meritless and would statutory summary the case or authorities which of might compel conclusion, it, counsel, and not appeal the discussion of whether decides accepted. If the Wisconsin rule merit should be lacks merely summarily permitted to conclude that including meritless, even a without was applicable perfunctory or of the facts case discussion support e.g., conclusion, see, of that authorities Feggans, 23-24, 448, 432 P.2d at 67 Cal. 2d at Cal. Rptr. —, the raised in at same concerns Anders insufficiency regarding a the constitutional of mere might conclusory arguably merit statement no apply. however, That, is here. not situation require interpret rule to a

We the discussion why the lacks merit statement of reasons example, might summary include, which any for a brief authority appears statutory which to case or support synopsis attorney’s conclusions, a or might compel reaching facts in the which those record contemplate the same result. We do not discus- require engage attorney rule an to sion to protracted argument in favor of the conclusion attempt rather, reached; the rule an to we view provide that there are facts the court with "notice” on point or or which would seem record to cases statutes on compel Thus, of merit. do a conclusion no we argue against requires attorney rule to believe the requires rather, client; the rule we believe duty duty co-exists, fulfill with the duty client —that owed owed equipped to make the court will be better court. potential merits of the correct decision about appeal only if it it not authorities which has before might appeal, favor an but also the authorities which might against court, it. militate as man- Anders dates, arbiter, is still the final and it alone has the responsibility appeal is, to determine whether the in fact, frivolous. Our not decision does deviate from that principle. procedure

We that believe the Wisconsin serves providing several useful In functions. addition to in record, court with its assistance review of the "discharged assures the court that counsel has his obligation competent profession- to his client in a and Nickols, is, al manner.” 454 F.2d at 470. That procedure reviewing Wisconsin assures the court that indigent receiving exactly type an is defendant that paying and level of assistance that a client would be receiving under similar circumstances. When the summary court has before it a reasoned of the law militating against apellate proceedings, further it can attorney inquiry be assured that the has made an into appeal the relative merits of and that the attor- ney’s request grounded withdrawal is valid and in fact and in the law. procedure, again,

The Wisconsin once be can Anders, contrasted to that in followed where attorney simply stated that would be conclusory frivolous and so informed the court It fashion. was this conclusoriness that the court constitutionally found offensive 386 U.S. at implied 742, because it was or at indicative of least diligence preparation attorney lack and such that it was evident criminal defendant was obtaining type representa- quality not the same and likely private tion that he or she was to obtain from procedure counsel. Since the Wisconsin type avoids offensive, of conclusoriness that Anders found regarding quality same concerns raised in Anders 101 representation simply equality are here. relevant support jurisdictions for the There is case other Caraway See, Texas, have reached. v. conclusion we (Tex. 1978); People 690, 691 Crim. 560 S.W.2d Lowery, 992, N.Y.S.2d A.D.2d (1982), stating mere "[a] mechanical statement legitimately no valid issues that could there are State, insufficient”; on Smith v. be raised (Fla. 1986); App. 971, Dist. Ct. Common 496 2d 974 So. McClendon, 473, 1185, 467, A.2d 495 Pa. 434 wealth (1981). 1188 indigent defendant, that an criminal

We reiterate undisputedly entitled to receive the same level while paying representation a defendant would of receive, paying to receive more than a is entitled e.g., Nickols, See, 454 receive. F.2d at client would [the] has reviewed law 472-73. "When and and the record as advocate determines to are no non-frivolous issues be raised on there appeal, appellant received what is constitu- has App. required.” tionally Horine, State v. Or. (1983).6 548, 669 P.2d situation, involving slightly 6 Although different fact particularly it instructive since included a detailed McClendon regarding require of the "discussion of lack merit” statement that, accuracy with ment. It stated "Once we are satisfied of frivolous, being appeal wholly as counsel’s assessment discharged responsibility. fully his The role of an has advocate, upon in in refers to manner insisted grounds in an effort to uncover to the record was examined appeal. good support faith satisfied that Where counsel has frivolous, obligation appeal wholly be he do and can found explanation reject the that his there is no more. We view interpreted reflecting appeal counsel’s no basis for an should be impor- A final consideration which we believe is tant to our decision is one which has been alluded to already, namely, requirement the discussion serves as significant reviewing administrative aid to the provides reviewing court. It first a basis for the judge whether an is meritorious. The brief in support appeal, combined with the "no-merit” gives just discussion, the court far more than a "cold rather, at; record” to look the court has before both arguments support of an and a state- ment which at least refers to case authorities or support appeal. factual references which do not Thus, authority the court has a substantial base of making independent own, refer to in its evaluation of likely the case. This makes it less that the court will important legal overlook authorities which would support against appellate either or militate continued proceedings. requirement oper- Hence, the discussion judicial aid, ates as a serves an informational function equally important, operate and, enables the court to expeditious cost-saving efficient, a more manner. appeals, With an increase in the number of criminal this concern should be obvious. 809.32(1),

Because we find that adherence to sec. operate deprive any Stats., does not defendant of of rights, given signifi- his constitutional and the other enumerated, cant considerations we have we affirm constitutionality procedure. the of the Wisconsin petition supervisory Therefore, the for a writ of prohibition is denied.

lack of concern in the assigned client’s cause. Nor can that fact be concluding as a reason for that the client did not receive this constitutionally protected right representation.” of 495 Pa. at 473-74, 434 A.2d at 1188. Rights

By the declared. Court.— (dissenting). ABRAHAMSON, J. Our SHIRLEY S. court, appellate requiring appointed an defense rule explain lawyer in a case to in a no-merit criminal appeal report the client’s contra- weaknesses decision of the United States Su- the Anders venes complicates already complex preme Court, ethical appointed lawyer by defense who faced dilemma of the client’s case would be decides frivolous, purposes unnecessary to achieve the and is imposition majority justify the believes of requirement. Because I our rule believe that right the defendant’s sixth amendment violates counsel, I assistance of and because believe effective respond commissioning study by a of this court should challenge case, when, rule this to a a court rule, I rule flaws reveals in the dissent. (1967), In 386 U.S. 738 California, Anders v. Supreme United States Court undertook the difficult reconciling professional personal task of appellate integrity appointed defense counsel with right to the the constitutional criminal defendants Relating ABA to the assistance counsel. Standards (2d Commentary Function, 4-8.3, ed. Defense sec. 1980). pro- by achieved Court this reconciliation viding of the of a counsel convinced frivolousness request may withdraw from the case client’s following procedures, including filing certain "anything in the brief with the court identifies might support appeal.” arguably record that appears Anders to rest on the distinction between complete frivolity merit, former and absence of justifying justifying withdrawal, latter with- Cleghorn State, But 55 Wis. 2d drawal. see

104 (1972). 198 N.W.2d 577 Anders has been criticized as forcing appointed appellate attorneys defense to "brief attorney unbriefable,” because defense who something arguably support- could find ing in the record request would not withdraw place. Relating first ABA Standards to the Defense Commentary. Function, 4-8.3, sec.

The decision has more Anders drawn than its courts, share practitioners. criticism from commentators and interpreted Courts have Anders in variety ways adopted wide and have alternate dealing for mechanisms with the difficult dilemma at e.g., See, Horine, the heart of the case. State v. 64 Or. (Ct. App. 1983); App. 532, 669 P.2d 797 State v. McKenney, (1977);People 551, 98 Idaho 568 P.2d 1213 Rptr. Wende, 25 Cal. 3d 158 Cal. 600 P.2d (1979). 1071 Commentators have found little that pleases e.g., See, Hermann, them with the decision. Appeals, Frivolous Criminal N.Y.U.L. Rev. 701 (1972);Pengilly, Cry Never Anders: The Ethical Dilem- Appointed ma Counsel to Pursue a Frivolous Crimi- (1986). Appeal, Finally, nal Crim. J. 45 Just. practitioners procedure find the Anders either un- workable or both. distasteful or points majority

Nevertheless, is, Anders as the analysis out, the "touchstone” of in this case. Anders requires appointed appellate attorney defense requests act as an advocate even he or she majority withdraw a case. from asserts that the requirement discussion in the court rule at issue in appointed appellate keeps this case defense counsel the role of advocate because insures "that inquiry has made an into the relative merits attorney’s of the request and that withdrawal grounded

is valid and in fact in the law.” requirement Opinion page not, however, It is at 101. the record and research the law that that counsel search objects petitioner case, this but rather place any requirement before the court that counsel then arguments militate that he or she has discovered which against the client's cause. Supreme specifically

The United States Court appointed noted that it did not intend to "force against counsel to brief his case his client.” Defense adversary. advocate, counsel should be the client’s Anders, 386 U.S. at 745. explains majority appointed appellate arguments against

defense counsel’s inclusion of necessary put defendant is the court on notice that arguments in favor of the client are frivolous and to assist the court to make a correct decision about the potential appeal. Opinion pages 100-101, merits of the at recognized Anders, 103. As the court 386 U.S. at appointed appellate provides however, defense counsel simply by pointing sufficient assistance to the court out possible arguments Appointed appel- for the client. request late criminal defense counsel's to withdraw puts itself the court on notice that counsel considers the arguments in the raised, no-merit brief frivolous. Once arguments by very frivolous their nature should not be difficult for a court to evaluate on its own without supplying case authorities or factual references against appeal. Consequently, which militate I require conclude that there is no need to defense counsel by briefing against to assist the court case client. filing setting arguments Counsel’s a brief forth against position defendant’s is a task that benefits the Accordingly, but not the client. such a task is properly assigned more to an amicus curiae than to an procedures advocate. The Anders court condemned place appointed appellate defense counsel in the role of amicus curiae rather than in the role of advocate for the defendant. 386 U.S. at 744. The requirement appointed appellate Wisconsin de- fense counsel who files a no-merit brief must discuss therein the reasons lacks merit plain meaning violates the and clear intent of Anders by transforming appointed appellate defense counsel adversary from an advocate into an or an amicus. The disenchantment with our rule evidenced in widespread this case and the disenchantment with appointed Anders indicate that the dilemma of coun- prosecute sel who does not wish to a frivolous study deserves additional to devise a solution that is satisfactory yet equally more to counsel sensitive to rights indigent responsibili- defendants, to the appointed counsel, ties of and to the needs of the judicial system. rulemaking capacity

In its this court has the power study to authorize a of the rule and its effect on appointed appellate attorneys defense who feel that appeals their clients’ are frivolous but who neverthe- prosecuting less cannot dissuade their clients from appeals. study response Such a is the kind of that this presented court should consider when with a chal- lenge significant concerning that raises doubts argu- rule, wisdom of if even the constitutional against persuade ments the rule do not the court. majority Thus, I believe that even if the is convinced constitutional, the rule is it should initiate a reconsid- eration of the rule.

Accordingly, I dissent.

I am authorized to state that CHIEF JUSTICE NATHAN S. HEFFERNAN and JUSTICE WILLIAM join A. BABLITCH in this dissent.

Case Details

Case Name: State Ex Rel. McCoy v. Wisconsin Court of Appeals

Court Name: Wisconsin Supreme Court

Date Published: Apr 9, 1987

Citation: 403 N.W.2d 449

Docket Number: 86-0172-W

Court Abbreviation: Wis.