Opinion
45860
February 7, 1989
In the Court of Appeals of Virginia on Wednesday, the 7th day of February, 1989.
ORDER
VIRGINIA:
Counsel for the defendant has moved for leave to withdraw. Anders v. California, 386 U.S. 738 (1967), specifies a basis upon which counsel may, after taking specified measures to protect an indigent defendant's due process rights on appeal, request leave to withdraw:
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. . . . 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, 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.
Id. at 744 (footnote omitted).
The petition filed in this appeal does not satisfy the Anders requirements. The motion to withdraw is accompanied by a petition stating that "there is nothing in the record to support the appeal." This assertion fails to meet counsel's responsibility to his client and the Court, as defined in Anders, to file a "brief referring to anything in the record that might arguably support the appeal." Id. at 744 (emphasis added). Counsel states in his motion and petition that "he believes the appeal is wholly frivolous after conscientious examination of the record." Until relieved of his responsibility, counsel remains an advocate for his client, not an amicus curiae. Although counsel may advance as his reason in support of his motion to withdraw his assessment that the appeal is frivolous, he may do so only after asserting as an advocate in his client's behalf all arguments "that might arguably support the appeal." For in the final analysis, this court, not defense counsel, must determine whether the appeal is frivolous. Robinson v. Black, 812 F.2d 1084, 1087 (8th Cir. 1987) (citing Smith v. United States, 384 F.2d 649 (8th Cir. 1967)). Defense counsel has, in effect, assumed the role of counsel for the Commonwealth. See Penson v. Ohio, 57 U.S.L.W. 4020 (Nov. 29, 1988). Furthermore, a copy of the petition and motion to withdraw have not been furnished to the defendant, apparently because he left the Commonwealth after serving his sentence on these convictions. Nevertheless, counsel states that he believes the defendant is incarcerated somewhere in New Jersey. Accordingly, the motion to withdraw is denied.
Counsel is directed to file an amended petition within fifteen days. This direction is given without prejudice to counsel's right to file, if he be so advised, a brief and motion fully complying with Anders. Counsel shall also make a bona fide effort, with the assistance of the Commonwealth if necessary, to locate the defendant and provide him a copy of the motion to withdraw, the petition and amended petition, and this order. If counsel locates the defendant and mails the documentation to him, the defendant may, if he be so advised, file with the Clerk of the Court of Appeals in Richmond within thirty days from the date counsel certifies that he has mailed the documents by first class mail to the defendant, his petition or pleading raising any point he chooses. Counsel shall report his efforts, whether he located the defendant, and his compliance with this order, until the coming in of which this matter is continued.
Because the issues addressed herein reoccur with sufficient regularity that members of the bar may benefit from the directives herein, the clerk is directed to have the order published.