decided: March 16, 1973.
Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1967, No. 1533, in case of Commonwealth of Pennsylvania v. James William Jones, Jr.
Mitchell W. Miller, and Levi, Mandel and Miller, for appellant.
Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones dissents.
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Appellant, James William Jones, Jr., in a Philadelphia jury trial, was convicted of voluntary manslaughter. His trial counsel filed post-trial motions, but later in open court, appellant, himself, requested that the post-trial motions be withdrawn. The court then imposed a sentence of six to twelve years imprisonment.
Subsequently appellant instituted a pro se appeal from the judgment of sentence and new counsel was appointed to assist him prosecute the appeal. However, the new appointed counsel submitted a brief in this Court stating that after "conscientiously reviewing the record of the trial below" he concluded that although "there were irregularities occurring in the trial below which amount to grounds for an appeal" nevertheless "the voluntary withdrawal of . . . [post-trial] motions by the defendant precludes the defendant and his present counsel from arguing these otherwise meritorious grounds before this Court." Counsel's brief asserted that he had reviewed the record, and explicitly detailed why appellant had waived his right to appeal by voluntarily withdrawing his post-trial motions.
Counsel concluded by stating that he was "firmly of the opinion that defendant appellant, by withdrawing his motions after trial, has waived his rights to appeal to this court. Counsel is prompt to admit that an examination of a full record does reveal colorable grounds that should be brought to the attention of this Court but the waiver of appellate rights would prevent present counsel from so doing." For this reason counsel requested leave to withdraw from the case under Anders v. California, 386 U.S. 738, 87 S. Ct. 1396
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(1967) and Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968).
The brief submitted by counsel does not comport with the requirements of Anders or Baker and therefore counsel's request to withdraw is premature.
Anders was a continuation of the battle over "discrimination against the indigent defendant on his first appeal." Anders, supra at 741, 87 S. Ct. at 1398. In Anders the United States Supreme Court dealt with the problem of "the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal." Anders, supra at 739, 87 S. Ct. at 1397. Recognizing that even diligent counsel may conclude there is no merit to an indigent's appeal, the Court in Anders nevertheless wanted to assure that the quality of justice afforded an indigent would not vary with the extent of his resources. "For there can be no equal justice where the kind of an appeal a man enjoys 'depends on the amount of money he has'." Douglas v. California, 372 U.S. 353, 355, 83 S. Ct. 814, 816 (1963). See also Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585 (1956).
In pursuance of this goal of equal justice for all criminal appellants the Supreme Court stated:
"The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His 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,
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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.
"This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a non-indigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel. The no-merit letter, on the other hand, affords neither the client nor the court any aid. The former must shift entirely for himself while the court has only the cold record which it must review without the help of an advocate." Anders, supra at 744-45, 87 S. Ct. at 1400 (footnote omitted) (emphasis added).
In Commonwealth v. Baker, supra at 211, 239 A.2d at 202, this Court, quoting extensively from Anders, noted that it is "fundamental to the notion of equal justice for all that the indigent defendant receive just as spirited a defense as the man who can retain private counsel." We there held that the assistance given the
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appellant was inadequate where it did not meet all of the requirements mandated by Anders.
The express requirements of Anders are threefold. Before appointed counsel may withdraw from an appeal, he must, after a thorough examination of the record and his determination that the appeal is wholly frivolous, (1) request permission of the court to withdraw; (2) accompany his request with a brief referring to anything in the record that might arguably support the appeal; and (3) furnish a copy of such brief to the indigent client in time to allow him to present the appeal in propria persona or request appointment of new counsel. Anders, supra at 744, 87 S. Ct. at 1400; Baker, supra at 214, 239 A.2d at 203.
The corollary mandates of Anders are equally clear. Counsel must act as an advocate, and not merely as an amicus curiae. See Ellis v. United States, 356 U.S. 674, 78 S. Ct. 974 (1958); Lee v. Habib, 424 F. 2d 891, 899-900 (D.C. Cir. 1970); Vanhook v. Craven, 419 F. 2d 1295 (9th Cir. 1969); Suggs v. United States, 391 F. 2d 971 (D.C. Cir. 1968); Commonwealth v. Villano, 435 Pa. 273, 256 A.2d 468 (1969); cf. United States v. Greenwell, 418 F. 2d 846 (4th Cir. 1969). Nor is it for counsel to decide the merits of the case. The American Bar Association Project on Standards for Criminal Justice, Standards Relating to Criminal Appeals, § 3.2 (Approved Draft, 1970), specifically directs that counsel should not be the one to determine whether the appeal lacks merit. Rather he should act solely as an advocate.*fn1
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Nor should counsel by seeking to act as an amicus curiae, brief the case against his client. Suggs v. United States, supra; Smith v. United States, 384 F. 2d 649 (8th Cir. 1967). In Suggs v. United States, supra, counsel's " Anders " brief was so clearly inimical to the interests of his client that it was actually adopted by the government. Judge Leventhal, speaking for the D. C. Circuit noted: "Appointed counsel is of course
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not required to accept a client's views by asserting points his good conscience would reject even at the loss of a handsome fee. At the same time counsel cannot file a brief against his client. It is one thing for a prisoner to be told that appointed counsel sees no way to help him, and quite another for him to feel sandbagged when the counsel appointed by one arm of the Government seems to be helping another to seal his doom." Id. at 974.*fn2 In Smith v. United States, supra at 650, the Eighth Circuit was moved to say that "the cause of advocacy is not served to read a brief filed by appellant's
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own counsel asserting the government's position in the case."
Anders and Baker also make it abundantly clear that a mere letter to the court that in counsel's opinion the appeal would be unavailing is constitutionally insufficient. See Merkel v. Beto, 387 F. 2d 854 (5th Cir. 1968); Commonwealth v. Haywood, 436 Pa. 522, 261 A.2d 78 (1970); cf. DeMarrias v. United States, 444 F. 2d 162 (8th Cir. 1971); Smith v. Cox, 435 F. 2d 453 (4th Cir. 1970).
It is readily apparent that counsel here has failed to comply with the requirements of Anders and Baker. Counsel's " Anders brief" merely recites counsel's reasons why appellant is not entitled to an appeal, but lists no reasons in support of the appeal,*fn3 although counsel willingly concedes that there are "meritorious grounds" for appeal. It is beyond dispute that before counsel is entitled to withdraw from this appeal he must first act as an advocate, and thoroughly discuss and present all possible grounds "that might arguably support the appeal". Counsel's effort here, arguing that his client had waived all rights to an appeal, is the virtual equivalent of a brief for the Commonwealth, or at best, perhaps, the brief of an amicus curiae. It is certainly not that "of an active advocate in behalf of his client", and, in fact it may be a representation by counsel to the court which "adds the weight of his opinion to the position of his adversary." Harders v. California, 373 F. 2d 839, 843 (9th Cir. 1967).
Moreover, it is unclear from the record whether counsel has sufficiently complied with the third mandate of Anders and Baker that he send a copy of his brief to appellant in sufficient time so that he may
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supplement his brief or present the appeal in propria persona if appellant so desires. Until counsel has fulfilled all of the requirements of Anders and Baker this Court must reject his request for permission to withdraw from this appeal. It is only upon completion of his assistance as an Anders-Baker advocate that appointed counsel may seek leave to withdraw.
It is directed that counsel file a brief consistent with this opinion.
Counsel directed to file a brief.