STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. DUDLEY RUE, DEFENDANT-RESPONDENT.
Supreme Court of New Jersey
December 12, 2002
811 A.2d 425
Argued September 9, 2002
William B. Smith, Deputy Public Defender II, argued the cause for respondent (Peter A. Garcia, Acting Public Defender, attorney).
The opinion of the Court was delivered by
LONG, J.
This appeal stems from the claim of defendant, Dudley Rue, that the lawyer assigned to represent him on his first post-conviction relief (PCR) petition essentially jettisoned his case by pointing out its deficiencies to the trial court and characterizing it as “without merit.” He contends that his attorney‘s conduct violated
A lawyer shall not bring or defend a proceeding, nor assert or controvert an issue therein unless the lawyer knows or reasonably believes that there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.
Alternatively, the State urges us to address what it perceives to be a disconnection between
We hold that
Defendant, Dudley Rue, was charged in Mercer County Indictment, 92-07-0827-1, along with co-defendants Rory Bryson, Robert Dodson, Robert Williams, and Tyrone Williams, with first-degree murder in violation of
Defendant was tried alone. At his trial, the State presented the following evidence. On March 10, 1992, at 3:30 p.m., Robert Dodson, a/k/a “Silk“, had an altercation with Jeffrey Glanton, a/k/a “Newark“, on East Hanover Street in Trenton. Shinnette Williams, Harriette Stephens and Terrence Darnell Williams witnessed the incident. Believing that Glanton had stolen money and drugs from a girlfriend, Dodson struck Glanton with an aluminum baseball bat. Glanton then grabbed the bat as it slipped out of Dodson‘s hands and hit Dodson on the leg with it. Dodson limped around the corner, placed a call from a pay phone, and asked Terrence Williams to call “Bones” (Tyrone Williams) to “get over here” because he and Glanton were fighting.
Tyrone Williams soon appeared carrying a blue bag. Harriette Stephens pointed Glanton out to him at which time Williams walked up to Glanton and hit him with his fist. A blue Hyundai drove up and the occupants, four African American men, jumped out at the same time and ambushed Glanton. The men, each armed with a handgun, used the guns to beat Glanton. One of the assailants was later identified as defendant, Dudley Rue, by Shinnette Williams and Harriette Stephens.
According to the witnesses, Glanton was essentially defenseless, and his head was split “wide open.” During the beating, one of the hand guns discharged, apparently accidentally. The sound of the gunfire attracted the attention of Trenton Police Officers
According to Officers Maldonado and Medina, Rue and another of the assailants, Rory Bryson, walked “very quickly” toward the unoccupied blue Hyundai. Both “appeared to be very nervous.” The officers testified that they noticed a distinctive patch of discolored skin measuring four inches long and one and three-quarter inches wide beneath Rue‘s left eye and that Rue was carrying a gun in his left hand, pointed at the ground. Officer Maldonado informed Medina that Rue was armed, and both officers alighted from their car. Maldonado grabbed Bryson before he could enter the Hyundai. Bryson was in possession of an operable, unloaded Smith & Wesson .357 Magnum. Inside the Hyundai was a paper bag containing fifty-five packets of crack cocaine and a key chain holding crack cocaine.
According to Officer Medina, Rue opened the passenger side door of the car, tossed a gun inside (an operable, unloaded .38 caliber Smith & Wesson Special), and fled with Officer Medina in pursuit. Medina chased Rue through an alley and into a building where Rue was arrested on the third floor. Rue was taken to police headquarters where he gave police the false name of “James Murphy.”
Glanton died after surgery at Saint Francis Medical Center. The autopsy disclosed that the cause of death was extensive fractures of the skull as well as brain lacerations due to blunt trauma to the head.
The next day, Shinnette Williams was shown a photographic array at the Trenton Police Department and identified Rue and Bryson as two of the men who beat Glanton to death. Two days later, Harriette Stephens was shown the same array and also identified photographs of Rue and Bryson.
Rue testified on his own behalf to a distinctly different version of the events. He admitted that on March 10, 1992, he, Tyrone
According to Rue, when he saw Glanton standing on the street corner, he recognized him as someone he had known since childhood and a person whom he regarded as his “uncle.” He then told the others he was “related” to Glanton and not to “mess with him.” (The connection between Rue and Glanton was that Rue‘s father had children by Glanton‘s ex-girlfriend‘s sister.) Rue claimed that his companions ignored his plea and exited the car while he remained in the back seat.
According to Rue, the initial altercation was between Tyrone Williams and Glanton. The others soon joined the fight, striking Glanton on the head and shoulders with the guns. Dodson‘s gun discharged. When the police arrived, Bryson and Tyrone Williams ran back to the Hyundai, threw their guns inside, and told Rue to run. Rue contended that he exited the car and ran to East State Street and was arrested outside of Dodson‘s apartment. He also testified that even before he recognized Glanton, his only intention was to “scare the guy up.” Prior to the actual attack on Glanton, Rue stated he was unaware of anyone else‘s intention to kill or injure Glanton. In sum, his testimony was that he originally joined in the plan to “scare” Glanton until he realized who Glanton was, at which point he not only declined to participate and refused to exit the automobile, but vainly attempted to convince his co-defendants to abandon their scheme. He was the only witness to advance that version of the facts.
Given the absence of even a shred of support for his story, it is not surprising that Rue was convicted of murder (count one), possession of a weapon for an unlawful purpose (count two), and
Rue appealed. His conviction was affirmed by the Appellate Division. State v. Rue, 296 N.J.Super. 108, 116, 686 A.2d 348 (App.Div.1996). We denied certification. State v. Rue, 148 N.J. 463, 690 A.2d 611 (1997). In 1998, Rue filed a pro se PCR petition. In his supporting brief, he requested an evidentiary hearing on the issue of ineffective assistance of trial counsel. Specifically, he claimed that his trial counsel failed to investigate and call to the stand his co-defendants along with Gloria Davis, a bystander who witnessed the attack on Glanton. According to Rue, those witnesses would have supported his version of the events.
Counsel was assigned pursuant to
Counsel then addressed the merits of Rue‘s claim serially. First, based on the trial evidence, he rejected outright the availability of a renunciation defense under
With respect to Dodson, Rue‘s counsel wrote:
There are three problems with co-defendant Robert Dodson. First, on February 23, 1993, Robert Dodson swore out an affidavit stating, “... James Murphy [Dudley Rue] at know [sic] time participated in the fight involving Jeffrey Glanton who subsequently died....” A second and nearly identical affidavit was also sworn to by Mr. Dodson also on February 23, 1993.2 There is a Fed Ex from trial counsel to have the Virginia Public Defender‘s office interview Mr. Dodson while he was incarcerated there. That Fed Ex contained a copy of Mr. Dodson‘s statement to the police. At the bottom of page five of the statement, Dodson states, “they walked up to the dude and Tyrone [Williams] had already started fighting with him so they just jumped in and started whacking the guy with pistols. They were hitting him in the head and all over.” At the bottom of page eight of his statement, Mr. Dodson positively identified Dudley Rue from a photograph as being “X.” Although the statement is unsworn, Mr. Dodson could be subject to indictment and criminal prosecution for unsworn falsification to authorities if the statement fit the definition under 2C:28-3 and 28-4. On the other hand, if the sworn statements are false there could be perjury prosecution under 2C:28-1 and 28-2. Mr. Dodson‘s statement closest in time to the incident would probably carry the most weight and would incriminate Mr. Rue. On consultation with trial counsel, the undersigned found that the result of the investigation from Virginia confirmed that Mr. Dodson was not going to be a helpful witness.
The second problem is that Mr. Dodson reported to the undersigned‘s investigator that he has a pending appeal, that is currently represented by Kevin Main, and that he does not want to affect his appeal. On December 29, 1999, the undersigned called Mr. Main and was informed that Mr. Main completed that appeal years ago and no longer represented Mr. Dodson.
Finally, after Mr. Dodson refused to speak with the undersigned‘s investigator, the undersigned received a letter from Mr. Dodson saying he sent an exculpatory
letter to the Court without giving the undersigned a copy of that letter. To say that there is a degree of skepticism about the credibility of Mr. Dodson is an understatement. Trial counsel‘s failure to call Mr. Dodson as a witness at trial appears to have been good strategy.
[(Citations omitted).]
Counsel went on to assess the other witnesses:
Tyrone Williams was another co-defendant not called by trial counsel. According to Mr. Williams, Dudley Rue was involved, indirectly perhaps, but involved. Mr. Bryson was also not called by Mr. Seelig. Mr. Bryson indicated that he was not going to help Mr. Rue unless he, Mr. Bryson, was going to get some help in return. Similar to Mr. Dodson, it is difficult to predict what testimony would have come from Mr. Bryson and there is a significant credibility problem. Finally, Mr. Robert Williams did not want to cooperate with the latest investigation. Being the brother of a witness that just showed Mr. Rue to be indirectly involved he also does not appear to be the kind of witness trial counsel should have called at trial.
[(Citations omitted).]
He then summed up his arguments:
Assuming Mr. Rue could present additional witnesses to show that he stayed in the car, the relevant testimony would have been his and co-defendants as to Mr. Rue‘s involvement or non-involvement. Other bystanders would have been irrelevant. What happened in the car before they got out would determine whether Mr. Rue was directly or indirectly involved, renounced his participation, or was merely present. Given the investigation, perspective testimony, and credibility of the co-defendants, Mr. Seelig made a good strategic decision not to call them at trial. Remember, at trial the defense should have a strategy, a theory of the case, and not just present every scrap of possible evidence. Furthermore, on review of the entire set of transcripts, the entire trial file, and the additional investigation conducting [sic] within the PCR the undersigned finds no meritorious issues to argue for Mr. Rue as the law now stands.
[(Emphasis added).]
The PCR hearing was similarly devoid of any adversarial tenor. Rue‘s counsel began his argument with this statement:
As I put in my brief, I don‘t think Mr. Rue has a meritorious claim on his PCR. I think though it‘s still incumbent upon me to claim what his argument is.
He then reiterated the reasons why he assessed Rue‘s contentions as meritless, and concluded:
Judge, I don‘t want to leave the record—certainly I would like to get Mr. Rue what he wants, a new trial—
I would certainly like to get Mr. Rue what he wants. I would like to get him his new trial if I could. And giving him a new trial would probably bring some delight to him—
—it‘s not that I‘m against him. I just don‘t see the legal grounds for it. I just wanted to make the record clear on that. Thank you.
Rue was then given an opportunity to speak on his own behalf. He stated that although he recognized that some of his proposed witnesses gave inconsistent statements, it should have been left to the jury to pass judgment on the credibility of those witnesses.
The prosecutor said very little, relying almost entirely on PCR counsel‘s arguments:
Your Honor, I would only briefly like to state that the State agrees with [PCR counsel] that Mr. Seelig made a sound and reasoned decision.
The trial court denied relief. His written opinion was rife with references to PCR counsel‘s conclusions regarding the lack of merit of Rue‘s contentions:
The defendant asserts that his trial attorney rendered ineffective assistance of counsel. Specifically, defendant argues that his trial attorney was ineffective for failing to obtain co-defendant Robert Dodson‘s testimony at defendant‘s trial. Defendant maintains that the purpose of this testimony was to show that defendant did not participate in the attack upon the victim. This argument, however, is without merit.
Whether or not to interview witnesses or call witnesses to testify is a strategic decision left to the trial attorney‘s discretion. Defendant‘s post-conviction relief counsel cites several problems with the co-defendant‘s testimony. Firstly, defense counsel states in his brief that the co-defendant gave conflicting accounts as to defendant‘s involvement in the attack on the victim. [Co-defendant, Dodson signed an affidavit on February 23, 1993 absolving Rue of participation in the murder in contravention of an earlier affidavit of March 21, 1991 in which he swore that Rue was a participant.] These conflicting accounts call into question the co-defendant‘s credibility in proffering truthful statements. Therefore, PCR counsel states that after speaking with trial counsel, he concurs with trial counsel‘s decision that Dodson would not have been a helpful witness.
Secondly, defense counsel calls into question Dodson‘s credibility and truthfulness as a witness. Defense counsel states that Dodson informed defense counsel‘s investigator that he has a pending appeal and is being represented by Kevin Mann. However, defense counsel discovered that Mr. Main completed Dodson‘s appeal years ago and no longer represents Dodson. Further, defense counsel informs that after Dodson refused to speak with defense counsel‘s investigator, Dodson advised defense counsel that he sent an exculpatory letter to the Court without providing defense counsel with a copy. In his brief, defense counsel states, “To say that there is a degree of skepticism about the credibility of Mr. Dodson is an understatement. Trial counsel‘s failure to call Mr. Dodson as a witness at trial appears to have been good strategy.” The trial attorney‘s decision not to call Dodson as a witness appears to be objectively reasonable. As a result, the first prong of the
Strickland test has not been met. Therefore, this Court concludes that this claim is without merit.
Defendant also asserts that his trial attorney was ineffective for failing to call two other co-defendants, Tyrone Williams and Rory Bryson. However, Mr. Williams stated to PCR counsel‘s investigator that “Dudley was indirectly involved because everyone was accountable for being in the car at the time.” Further, Mr. Bryson indicated to trial counsel that he was not going to help defendant unless he was going to get some help in return. Again, whether to call a witness to testify is a strategic decision left up to the trial attorney‘s discretion. Defendant provides no reason to believe that trial counsel did not make the strategic not to call Williams and Bryson because that would have been in his client‘s best interests. The trial attorney‘s strategic decision appears, based on the information provided, to be objectively reasonable. As a result, the first prong of the Strickland test has not been met. Therefore, this Court concludes that this claim is without merit.
Defendant also asserts that trial counsel was ineffective for failing to secure Ms. Gloria Davis as a witness. Defendant maintains that Ms. Davis was a bystander who witnessed the attack upon the victim and could testify that defendant never left the vehicle during the attack. However, as Post Conviction Relief counsel correctly observes, what occurred in the vehicle before the occupants exited would determine whether defendant was directly or indirectly involved in the attack, renounced his participation, or was merely present at the scene. Therefore, failure to secure Ms. Davis’ testimony did not result in the ineffective assistance of counsel.
[(Emphasis added).]
Rue appealed. In an unpublished opinion, the Appellate Division reversed and remanded the matter for a new PCR hearing. The panel concluded that although Rue‘s PCR counsel did not do “nothing” to assist him, he did not faithfully fulfill his obligations under
[r]egardless of what might be the present state of federal pronouncements upon criminal appellate assigned counsel‘s obligations where counsel might not consider his or her client‘s claims as meritorious, our Court Rules clearly direct PCR counsel to advance all grounds insisted upon by defendant regardless of counsel‘s personal views of the meritoriousness of the claims. R. 3:22-6(d).
[(Citations omitted).]
According to the Appellate Division, PCR counsel did not “advance” Rue‘s claims but rather advanced the reasons for rejecting them. “Had the issue been presented without counsel‘s personal views, it may be that, at the least, an evidentiary hearing would have been held.” The court noted that, on remand, new PCR counsel should file an application forwarding the claims raised as
The State filed a petition for certification that we granted. State v. Rue, 171 N.J. 44, 791 A.2d 222 (2002). We now affirm.
II
Post-conviction relief is New Jersey‘s analogue to the federal writ of habeas corpus and is a safeguard to ensure that a defendant is not unfairly convicted. State v. Afanador, 151 N.J. 41, 49, 697 A.2d 529 (1997). Ordinarily, PCR allows a defendant to challenge the legality of a sentence or final judgment of conviction by presenting arguments that could not have been raised on direct appeal. Id. As stated in State v. Preciose, 129 N.J. 451, 609 A.2d 1280 (1992), this Court has a “compelling judicial interest in sustaining only those convictions free from constitutional error.” Id. at 454, 609 A.2d 1280; see also State v. Mayron, 344 N.J.Super. 382, 386, 782 A.2d 437 (App.Div.2001) (remarking that post-conviction relief is crucial component of criminal process provided to defendants).
In keeping with our view of the overarching importance of providing defendants a final opportunity to raise constitutional errors that could not have been raised on direct appeal, our court rules, in an initiative unique among our sister-jurisdictions, state that every defendant is entitled to be represented by counsel on a first PCR petition; that if a defendant is indigent, counsel will be assigned; that assigned counsel may not withdraw based on the ground of “lack of merit” of the petition; and that “counsel should advance any grounds insisted on by defendant notwithstanding that counsel deems them without merit.”
The State urges us to refocus our lens on RPC 3.1 which it views as antipodal to the aforementioned rule. As we have noted, RPC 3.1 generally prohibits lawyers from advancing frivolous
How RPC 3.1 relates to
The State argues that the way to harmonize
According to the State, Clark gives PCR counsel the option to bring the meritlessness of the client‘s petition to the attention of the PCR court instead of advancing the claim on the client‘s behalf. To the extent that Clark stands for that proposition, we disapprove of Clark because it does not comport with
In reaching that conclusion, the history of our PCR rule is instructive. Its predecessor, Rule 3:10A-6(d) was enacted in 1963 the wake of numerous federal and state initiatives to standardize post-conviction relief procedures. See, e.g.,
Experience teaches that the opposing resources of the State and the critical attitude of some trial judges toward the generality of post-conviction applicants combine to defeat relief to an occasional meritorious applicant (meritorious because he has a genuine procedural grievance of a prejudicial nature whether or not he may ultimately again be found guilty of the crime for which he was convicted). Assignment of counsel will generally result in a skilled evaluation of the applicant‘s case from an appropriately partisan viewpoint and an assertion by amendment of the petition of all of the possible bases for attack upon the conviction or sentence. The court and opposition, moreover, are assisted by provision of an adequate record, and having a responsible and competent representative of the applicant to deal with in the progression of the litigation.
[Ibid. (emphasis added).]
The Committee then addressed the situation in which counsel seeks to withdraw for lack of merit. At that time, several jurisdictions explicitly permitted appointed counsel to withdraw from PCR proceedings upon submitting a brief to the court stating the reasons counsel believed defendant‘s claim to be meritless. The Oregon Act was referred to the Committee by way of example:
If appointed counsel believes that the original petition cannot be construed to state a ground for relief under this Act, and cannot be amended to state such a ground, he shall, in lieu of moving to amend the petition, inform the petitioner and notify the circuit court of his belief by filing an affidavit stating his belief and his reasons therefore....
[1959 Or. Laws 636.]
Although the Committee recommended that the Court adopt a “tolerant” stance toward attorney withdrawals from frivolous cases, it pointedly declined to recommend the adoption of a rule
Assigned counsel may not withdraw or apply to the court for leave to withdraw on the ground of lack of merit of the petition. If assigned counsel is not able in good conscience to argue a particular ground for relief desired by defendant to be asserted he shall submit same to the court nevertheless and identify it as advanced by the defendant personally; defendant will be at liberty to supplement any brief or written argument submitted by assigned counsel if dissatisfied therewith.
[Tentative Draft of Proposed Rule Relating to Post-Conviction Relief, 86 N.J.L.J. 641 (1963) (emphasis added).]
When this Court finally adopted the post-conviction relief rule, it accepted the recommendation of automatic assignment of counsel on a first PCR petition without a preliminary merits screen, but refused to adopt the Committee‘s compromise proposal that PCR counsel could advance meritless claims by signaling to the court that they were defendant‘s alone. The final rule stated:
Assigned counsel may not seek to withdraw on the ground of lack of merit of the petition. Counsel should not be reluctant to advance any grounds insisted upon by defendant notwithstanding he deems them without merit.
[R. 3:10A-6(d) (1964).]
In 1967, the Court revised the Rule to incorporate the Public Defender Act, (
Thereafter, in 1994, the Court revisited
Put another way, for nearly forty years, and directly in the face of RPC 3.1, our Rules have taken a unique position regarding PCR representation. That choice was obviously motivated by our view of the critical nature of faithful and robust representation of a defendant at a PCR proceeding. PCR is a defendant‘s last chance to raise constitutional error that may have affected the reliability of his or her criminal conviction. It is not a pro forma ritual. That is why we require provision of counsel. Under our scheme that attorney is responsible to communicate with his client and investigate the claims. State v. Velez, 329 N.J.Super. 128, 133, 746 A.2d 1073 (App.Div.2000); State v. Casimono, 298 N.J.Super. 22, 27, 688 A.2d 1093 (App.Div.1997) (remanding case to trial court to determine whether PCR counsel fulfilled his obligations to interview trial counsel, meet with defendant, submit brief, and argue on behalf of defendant); State v. King, 117 N.J.Super. 109, 111, 283 A.2d 757 (App.Div.1971). Based on that communication and investigation, counsel then must “fashion the most effective arguments possible.” Velez, supra, 329 N.J.Super. at 133, 746 A.2d 1073.
It goes without saying that a trial court should never put PCR counsel in the position of having to assess the merits of his client‘s petition. In the first place, that is the trial court‘s job. In the second, it may precipitate a violation of the letter and spirit of
Because Rue‘s counsel abandoned any notion of partisan representation by countering every one of his claims and characterizing the entire petition as meritless, Rue did not receive the representation guaranteed by our PCR Rule. Without such counsel, Rue‘s PCR contentions remain, to this day, wholly unexplored, thus obviating resort to the State‘s suggestion that we independently evaluate the record. We thus affirm the remand of the case for the assignment of counsel as if on a first PCR petition, and for a new PCR hearing at which all of Rue‘s claims regarding the absent witnesses and any other claims he seeks to raise should be explored and the most effective arguments in favor of them advanced. The case should be assigned to a different trial court.
III
The judgment of the Appellate Division is affirmed.
VERNIERO, J., concurring.
I agree with the Court‘s disposition based on the current text of
I write separately to address what remains at the center of this case: the Hobson‘s choice faced by a defense lawyer who honestly views a client‘s PCR petition to be so lacking in merit that it constitutes the functional equivalent of a fraud on the court. Compare
In Anders v. California, the United States Supreme Court designed a procedure that it deemed constitutionally permissible for preserving a defendant‘s interests and upholding an attorney‘s professional responsibilities:
[Counsel‘s] role as advocate requires that he support his client‘s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel‘s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel‘s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.
[386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed. 2d 493, 498 (1967).]
The federal circuits accept Anders briefs. See 1st Cir. R. 46.6(a)(4); 3d Cir. R. 109.2(a); 6th Cir. R. 101(f)(3); 7th Cir. R. 51(b); 8th Cir. Internal Operating Procedure II(C)(1); 9th Cir. R. 4-1(c)(6); 10th Cir. R. 46.4(B); and 11th Cir. R. 27-1(a)(8); see
A PCR petition “is the state analogue to the federal writ of habeas corpus.” State v. McQuaid, 147 N.J. 464, 482, 688 A.2d 584 (1997). Along those lines, federal courts have accepted Anders briefs from counsel in civil and criminal habeas proceedings that are akin to petitions for post-conviction relief. See, e.g., Beck v. Gramley, No. 95C 632, 1999 WL 641648, at *1 (7th Cir. Aug.20, 1999) (requiring and accepting Anders brief in criminal habeas proceeding); Dinkins v. State of Alabama, 526 F.2d 1268, 1269 (5th Cir.) (observing that “[a]lthough counsel serves in this civil habeas corpus proceeding by a discretionary appointment of this court ... it is appropriate to apply the principles enunciated in Anders to determine whether counsel should be allowed to withdraw“), cert. denied, 429 U.S. 842, 97 S.Ct. 119, 50 L.Ed.2d 112 (1976); United States ex rel. Banks v. Henderson, 514 F.2d 1000 (2d Cir.1975) (granting counsel‘s Anders petition to withdraw from defendant‘s planned appeal from denial of habeas review).
Many but not all states have adopted the Anders procedures for state proceedings. Compare People v. Stokes, 95 N.Y.2d 633, 722 N.Y.S.2d 217, 744 N.E.2d 1153, 1155 (2001) (observing that “the procedures adopted by New York courts closely parallel and are clearly modeled upon the procedure set forth by the Supreme Court in Anders“) with In re Attorney‘s Fees of Mohr, 97 Hawai‘i 1, 32 P.3d 647, 653 (2001) (noting that “[i]t has been and continues to be the policy of this court not to permit Anders briefs“). According to one recent decision, “[i]t is clear that the great majority of courts employ a procedure similar to that described in Anders“. State v. Korth, 650 N.W.2d 528, 533 (S.D.2002).
survey responses do not indicate that following the dictates of Anders is generally more time-consuming than the average criminal appeal. Forty-nine percent of the courts reported that Anders review takes less time than the average criminal appeal, while forty-four percent indicated that Anders cases take about the same time to review as the average criminal case. Only seven percent indicated that their Anders review takes more time than the average appeal.
[Id. at 656.]
Reasonable minds may differ concerning the appropriateness of an Anders-like process for either direct appeals or for PCR petitions. Mindful of those differences I do not propose that we adopt such procedures now. Rather, this case affords the Criminal Practice Committee or some other committee of the Court the opportunity to consider the subject. Anders ultimately derives from the system‘s need for candid, independent, and professional counsel. It seeks to balance those needs alongside a defendant‘s significant interests in this setting. A respectful relationship between the bench and bar warrants at least that we study this issue as part of the Court‘s regular rules cycle.
In sum, this appeal implicates aspects of
For affirmance—Chief Justice PORITZ, and Justices COLEMAN, LONG, VERNIERO, LaVECCHIA, ZAZZALI and PRESSLER—7.
Opposed—None.