Opinion
No. WD 54915
Rehearing Granted: February 2, 1999 Submitted: August 3, 1999 Opinion Filed: December 21, 1999
Appeal from the Circuit Court of Jackson County, The Honorable William F. Mauer, Judge.
Before Lowenstein, J., Ulrich, J., Breckenridge, C.J., Hanna, Sr. J., Spinden, J., Smart, P.J., Ellis, J., Stith, J., Smith, J., Howard, J. and Riederer, J.
Judge Hanna took senior status between the time of submission and the date of handdown; Judge Riederer resigned from the court after submission and before handdown.
Victor Martin was charged as a prior and persistent offender with the class A felony of robbery in the first degree, § 569.020, RSMo 1994. He pleaded guilty to the charge of robbery in the first degree and was sentenced to ten years imprisonment. Martin filed a motion to vacate sentence and judgment under Rule 24.035, which was denied by the trial court. Martin appealed. Martin claimed that the motion court clearly erred in finding that his decision to enter a plea of guilty was voluntary, knowing and intelligent, because the evidence at the hearing showed that plea counsel caused him to believe that he was entering a plea of guilty to robbery in the second degree in exchange for a sentence of five years. This court, on November 3, 1998, denied Martin's appeal. This court also found Martin's appeal frivolous and assessed a sanction in the amount of $100.00 against Mr. Martin. Thereafter, on August 3, 1999, this court granted rehearing to consider issues raised in Martin's motion for rehearing concerning the issue of sanctions on frivolous appeals from rulings on postconviction motions.
In this opinion, we not only affirm the denial of Martin's Rule 24.035 motion, but we also consider the duty of counsel in both direct criminal appeals and appeals of postconviction motions, recognizing the fundamental constitutional difference between the two. We consider the definition of frivolousness we have heretofore used, and we adopt a new, narrower definition. We adopt an approach for counsel filing an Anders brief in direct criminal appeals, when counsel believes there is no nonfrivolous point to raise; and we prescribe directions for counsel in appeals of postconviction motions who find no arguable point to raise.
Background
On December 23, 1995, Martin was charged by amended information with robbery in the first degree. The information alleged that Martin forcibly stole a VCR from the possession of Barbara Black. Martin was charged as a prior and persistent offender. On April 26, 1996, Martin pleaded guilty to robbery in the first degree.
At the guilty plea hearing, the State explained that in exchange for Martin's plea to robbery in the first degree, the State was asking for a ten year sentence. The court asked Martin if he heard the recommendation. He answered, "Yes." Martin stated that he wished to plead guilty based upon the recommendation. He stated that he had sufficient time to discuss the plea with counsel and that he was satisfied with counsel's performance. The plea court informed Martin of his right to plead not guilty and his right to trial by jury. The court further informed Martin that he would forfeit these rights by pleading guilty. The court once again inquired whether Martin wanted to plead guilty based upon the State's recommendation of a ten year sentence. Martin replied that he did. In response to questioning, Martin admitted that he entered the home of Barbara Black without her permission, armed with a weapon. He held a gun to Ms. Black's head and took a VCR. At the conclusion of the plea hearing, the court sentenced Martin to ten years imprisonment.
On July 29, 1996, Martin filed a pro se Rule 24.035 motion, alleging dissatisfaction with counsel in several respects. An amended motion was filed on December 2, 1996. In the amended motion, Martin claimed for the first time that counsel led him to believe that he was pleading guilty to robbery in the second degree and that in return he would receive a five year sentence. He claims that he was told by counsel not to make any "problems" and to go along with the court's questioning at the plea hearing.
Motion Hearing
A hearing on Martin's Rule 24.035 motion was held February 28, 1997. Martin was the only person who testified at the hearing. The state relied upon the guilty plea transcript. At that hearing, Martin testified that he believed that he was pleading guilty to a charge of robbery in the second degree. He claimed that he was expecting a sentence of five years, but that he found out that he was pleading to robbery in the first degree and was given a sentence of ten years. He claims that he did not tell the court of his expectations, because counsel told him "don't say nothing, just go along with the plea."
Under cross-examination, Martin admitted that he had been convicted of four prior felonies and had pleaded guilty on previous occasions. He also claimed that he lied under oath about almost everything at the plea hearing. He testified that it was not true that he entered Ms. Black's house armed with a weapon; that it was not true that he held a gun to Ms. Black's head; and that it was not true that he was, in fact, guilty of the offense. Martin also repudiated his testimony concerning his satisfaction with his attorney. He denied that his attorney had contacted the witnesses she was asked to contact. He denied that he was satisfied with his attorney at the time he testified that he was satisfied with her work. He said that he cooperated with his attorney in lying to the court:
Q. So you told the Judge that nobody had told you to say anything other than the truth at that plea agreement, didn't you?
A. Yes.
Q. Did you lie to the Judge?
A. No, I didn't lie. Yeah, I lied to the Judge because none of it was true.
Q. You lied to the judge?
A. She [my attorney] told me to say that. She said just go along with the plea. I understood I was getting 5 years, that's what I thought I was coming for.
Martin contends on appeal that the motion court clearly erred in denying his Rule 24.035 motion for postconviction relief after an evidentiary hearing because he was denied his right to due process and to the effective assistance of counsel as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article 1, §§ 10 and 18(a) of the Missouri Constitution because his decision to plead guilty was not made intelligently, voluntarily or knowingly because plea counsel caused him to believe that he was entering a plea of guilty to robbery in the second degree in exchange for a sentence of five years.
Standard of Review
Appellate review is limited by Rule 24.035(k) to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Findings and conclusions are deemed erroneous if, upon review of the record, this court is left with the definite and firm belief that a mistake has been made. State v. Roll, 942 S.W.2d 370, 375 (Mo.banc 1997). A defendant, by pleading guilty, waives all errors except those affecting the voluntariness or understanding with which the plea was made. White v. State, 957 S.W.2d 805, 807 (Mo.App. 1997). A guilty plea must be made knowingly and voluntarily. Johnson v. State, 921 S.W.2d 48, 50 (Mo.App. 1996). A mistaken belief about sentencing may affect a movant's ability to knowingly enter a guilty plea if the mistake is reasonable, i.e., based upon a positive representation upon which the movant is entitled to rely. Baird v. State, 906 S.W.2d 746, 751 (Mo.App. 1995). Although a movant's belief about his anticipated sentence is subjective, the plea will not be considered involuntary unless the guilty plea record reveals a reasonable basis for the movant to have such a belief. McMahon v. State, 569 S.W.2d 753, 758 (Mo.banc 1978).
Analysis
At the plea hearing, Martin explicitly acknowledged he was pleading guilty to first degree robbery in consideration of the prosecution's ten year recommendation. At the motion hearing, Martin failed to explain why it would have been reasonable for him to believe he would get a five year sentence, when the prosecution and the court explicitly referred to a ten year sentence. His statement that he "only had a ninth grade education and must have relied completely on counsel to advise him of the plea agreement and the procedure" fails to establish an objectively reasonable basis for his belief that the agreement was one for a five year sentence for second degree robbery. Martin claims he was unhappy with the services of his attorney because the attorney had not done for him the things he asked his attorney to do. If Martin had been as unhappy with his attorney as he now says he was, it would have been odd for him to trust the attorney more than he trusted what was stated to him by the judge in open court on the record. Martin's effort to suggest that he was a "babe in the woods" was unpersuasive to the motion court. Martin has had extensive experience pleading guilty to felonies on previous occasions. It also would have seemed odd to the motion court that, if in fact Martin had been the victim of such gross misconduct by his attorney, he would not have said something about it early, or at least when he filed his pro se motion under Rule 24.035 three months after his sentencing. In that detailed and extensive motion, he said nothing about being told he would receive a five year sentence, and said nothing about being told that his plea would be to a reduced charge of second degree robbery. Instead, he talked about many things common to such motions, including failure of counsel to depose witnesses, failure of counsel to keep him informed of developments in his case, and statements by counsel causing him to believe he would receive a "minimum" sentence if he pleaded guilty. One searches the motion in vain for any reference to an understanding he was pleading guilty to second degree robbery. One also searches in vain for any assertion that he was told he would receive a five year sentence, or that his counsel misled him about that fact. The fact that he completely failed in his original motion to even mention this allegation of an unusual and substantial miscarriage of justice surely caused the motion court to believe that the facts had "evolved" in Martin's mind with the passage of time. In short, the motion court had plenty of reason to believe Martin was not truthful, and the motion court did implicitly find Martin unpersuasive, ruling that Martin's testimony did not prove his case.
Martin now asks us to believe not only that the motion court was wrong, but asks us to believe that the motion court was clearly wrong in its findings and conclusions. We cannot grant Martin any relief unless we determine that the motion court's findings are clearly erroneous. Roll, 942 S.W.2d at 375. In view of the complete lack of any support for Martin's implausible assertions, Martin fails to show how this court, in reviewing the motion court decision, could possibly reach a definite and firm belief, based on the record before us, that the motion court erred in its finding. We must defer to the trial court in matters involving credibility. If the motion court did not believe him, and the record entirely contradicts him, we fail to see any way we could possibly grant him relief. Martin has neither any factual support, nor any arguable law, on his side. He has only a bold assertion, highly implausible, unsubstantiated in every way, contradicted explicitly by the record. Certainly he was legally entitled to bring his highly implausible assertion to the motion court, hoping that somehow he could miraculously persuade the motion court that his attorney "sold him out" and that his mistaken reliance on the attorney was reasonable. Our system allows substantial leeway for the assertion of highly implausible, unsubstantiated claims even in civil cases. Real life is occasionally implausible, and life does not always provide concrete substantiation. Therefore, it is necessary to make reasonable allowance for the assertion of claims which are implausible and unsubstantiated. It is less necessary, however, to patiently suffer the appeal of adverse rulings in such matters, once the factfinder has resolved the credibility issue, when the only claim on appeal is essentially a claim that the factfinder should have believed the appellant. So it is with Martin's appeal of his postconviction motion. Having failed to persuade the motion court, Martin had nothing at all to appeal to this court, which is bound by the credibility determinations of the trial court and by a very difficult "clearly erroneous" standard of review. Roll, 942 S.W.2d at 375.
In this case, Martin's appeal had no chance of succeeding. Martin's contentions on appeal are so manifestly devoid of merit that to treat this appeal with respect is to cheapen any potentially justiciable claim and to demean the entire system.
Sanction
Martin's appeal raises the issue, therefore, as to whether Martin or his counsel should be sanctioned. In our initial opinion, we found the appeal frivolous and assessed a sanction of $100.00 against the appellant but not his counsel. In his motion for rehearing, Martin argued that we erred in imposing a sanction because the imposition of a sanction in such a case creates complications with regard to the duty of appointed counsel to the client. Martin also argued that the definition of "frivolous appeal" which we applied in the case was overbroad. In granting rehearing, we requested that counsel focus on the following issues:
Does an appellate court have discretion to impose sanctions upon a party appealing a denial of a postconviction motion when the court considers the appeal frivolous because the court concludes that the contention asserted on appeal is not reasonably arguable and the court believes that the appellant had no prospect of success on appeal? If a court does have discretion to impose sanctions on such a case, is it wise policy for the court to do so?
Having considered the briefs and arguments of counsel, along with our own research, we have concluded, for the reasons set forth below, that this court may impose sanctions in an appeal of a postconviction motion when the appeal is so clearly and facially without a rational argument based in law, or is otherwise so clearly and facially untenable that it has no prospect of success.
There are three statutes or rules addressing frivolous litigation: § 514.205.1 RSMo 1986, Rule 55.03, and Rule 84.19. S.L.J. v. R.J., 821 S.W.2d 104, 107 (Mo.App. 1991). Only Rules 55.03 and 84.19 are potentially applicable to postconviction motions because § 514.205 expressly precludes its application to postconviction motions. Although the appeal of a 24.035 postconviction motion is an outgrowth of a criminal prosecution, it is a civil proceeding.
Rule 55.03 is applicable to postconviction motions. State v. Simmons, 955 S.W.2d 729, 745 (Mo.banc 1997), cert. denied 118 S.Ct. 1081 (1998) (upholding sanction imposed on postconviction counsel at the motion court level). Rule 55.03 also applies in appellate proceedings as well as the trial level. Rule 41.01(a)(1). Consequently, both Rule 55.03 and Rule 84.19 may be employed as a basis for sanctions in an appeal of a postconviction case. Our appellate courts have on numerous occasions imposed sanctions for frivolous appeals in civil cases. E.g., Angle v. Grant, 997 S.W.2d 133 (Mo.App. 1999) (defendant appellants failed to present fair and concise statement of facts, or any authority; finding appeal to be frivolous, court imposed sanction of $5,000.00); Lee v. Leone, 992 S.W.2d 252, 254 (Mo.App. 1999) (award of $2,500.00 to wife where husband in dissolution case appealed the property division to which he had stipulated at trial); Johnson v. Aldi, Inc., 971 S.W.2d 911 (Mo.App. 1998) (defendant appealed evidentiary rulings as though it had preserved trial objections when it had not; $2,000.00 sanction). Also, the imposition of a penalty in appeals of postconviction cases is not entirely without precedent. The Eastern District of this court imposed sanctions in two postconviction cases. Kimmins v. State, 923 S.W.2d 460 (Mo.App. 1996) ($100.00 sanction); Purkey v. State, 921 S.W.2d 82 (Mo.App. 1996) ($100.00 sanction). See also Thurman v. State, 859 S.W.2d 250 (Mo.App. 1993), in which this court, without deciding the issue of frivolousness in that case, warned that it "may well enforce sanctions in the future" in the case of a frivolous postconviction appeal. Id. at 254. This court, however, has not previously imposed a sanction in a postconviction appeal.
In most postconviction cases, the appellant is indigent. In Missouri the public defender is appointed to represent the indigent movant. See Rule 24.035(e) and (k) and Rule 29.15(e) and (k); §§ 600.042 and 600.048 RSMo 1994. Unlike pre-conviction procedures, the purpose of which is to protect the innocent and convict the guilty, the purpose of postconviction procedures is to "satisfy the public conscience that fairness dominates the administration of justice." Pines v. State, 778 S.W.2d 724, 727 (Mo.App. 1989) (C. Gaertner, J., dissenting) (quoting Adams v. United States, 317 U.S. 269, 279 (1942). Our system welcomes diligent representation of the postconviction client because of our concern for the integrity of the administration of justice. At the same time, postconviction procedures were not intended to create a license for convicted persons to satisfy every caprice or to inflict retributive mischief on the justice system.
Right to Counsel in Postconviction Cases
In 1987, the United States Supreme Court declared that in a postconviction proceeding there is no constitutional right to counsel and no constitutional claim to ineffective assistance of postconviction counsel. Pennsylvania v. Finley, 481 U.S. 551 (1987); State v. Hunter, 840 S.W.2d 850, 871 (Mo.banc 1992), cert. denied 509 U.S. 926 (1993). The appellant seeking collateral review of his conviction utilizes an attorney on appeal not as a shield against the state's attempt to strip him of his presumption of innocence (as in his direct criminal appeal), but rather "as a sword to upset the prior determination of guilt." Finley, 481 U.S. at 555.
Postconviction relief is even further removed from the criminal trial than is discretionary direct review. It is not a part of the criminal proceeding itself, and it is in fact considered to be civil in nature. . . . States have no obligation to provide this avenue of relief . . . and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well.
Finley, 481 U.S. at 556-57 (citations omitted).
Although Missouri is not constitutionally required to allow an appeal from motion court rulings in postconviction cases, and although Missouri is not required to provide appellate counsel for indigent appellants, this state has elected to provide appointed counsel to indigent defendants in postconviction cases. Rules 29.15 and 24.035; See State ex rel. Public Defender Comm'n v. Bonacker, 706 S.W.2d 449 (Mo.banc 1986). There are some advantages both to the appellant and to the court system of providing counsel for indigent appellants in postconviction cases. When counsel performs in a conscientious manner, counsel searches for arguable claims and filters out the frivolous. Counsel should be allowed and encouraged to function in the way retained counsel would be likely to function, which is to assert only those claims which are reasonably arguable and, if there are none, to seek permission from the client to dismiss the appeal. If counsel cannot obtain the client's consent to dismiss the appeal, counsel's proper role is to seek leave to withdraw. Finley, 481 U.S. at 554.
Missouri makes no provision for reviewing claims of ineffective assistance of postconviction counsel. State v. Ervin, 835 S.W.2d 905 (Mo.banc 1992); State v. Hunter, 840 S.W.2d 850, 871 (Mo.banc 1992). Nevertheless, postconviction counsel, whether appointed or retained, are ethically bound to comply with their professional responsibilities, both at the motion level and on appeal. Post-conviction appellate counsel will therefore approach client representation with the same zeal as counsel in a direct appeal, yet will not be constrained by some of the "hedges" which have been established in the last thirty years in direct appeals to ensure that indigent defendants receive full representation during their direct appeals.
Direct Appeals
In the landmark case of Anders v. California, 386 U.S. 738 (1967), the United States Supreme Court focused on the issue of the duty of court-appointed appellate counsel in a direct appeal when counsel determines that there is no merit to his client's appeal. In that case the defendant, who had been convicted of a drug crime, sought to appeal and requested appointed counsel. The attorney appointed to handle the appeal concluded, after studying the record, that there was no merit to the appeal. He advised the court by letter that he saw no merit to the appeal and would not file a brief. He informed the court that his client wished to file a pro se brief. The appellant then requested the appointment of another attorney. His request was denied, and the appellant filed his own brief pro se. His conviction was affirmed. Six years later, Anders filed an application for a writ of habeas corpus, claiming that he had been deprived of his right to counsel on his appeal. After denial of his writ application in the California Court of Appeals and in the Supreme Court of California, he sought review in the United States Supreme Court. The Supreme Court held that counsel's brief review and conclusory assertion that the appeal had no merit was not enough to satisfy counsel's duty under the constitution. The court noted that neither the California Court of Appeals nor the California Supreme Court had determined that the appeal was frivolous. The court noted that Anders' counsel had acted merely as amicus curiae, and not as an active advocate. The court stated:
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.
The court found prejudice in the fact that in Anders' case, if counsel had been thorough, counsel may have raised as error a California procedure which allowed the prosecutor and the judge to comment on the accused's failure to testify, a procedure held unconstitutional several years later in Griffin v. California, 380 U.S. 609 (1965).
We believe that the court in Anders sought to draw a distinction between the concept of an appeal without merit and the concept of a frivolous appeal. The Supreme Court clearly wished to ensure that appointed counsel be prepared to argue every nonfrivolous point, even if counsel might believe the point lacked "merit." The issue not raised by initial counsel in Anders, but which could have been raised, was whether the constitution permitted the court and the prosecution to comment on the defendant's failure to testify. It could very accurately have been said, at the time Anders lodged his appeal, that his objection to that procedure was "without merit." See Tehan v. Shott, 382 U.S. 406, 412 (1966). However, it could not be stated that an attack on that procedure would be frivolous if it were a good faith argument for extension and modification of existing law related to the application of the Fifth Amendment to the states. Indeed, such an argument was later adopted in Griffin, 380 U.S. 609). Tehan, 382 U.S. at 412.
"Meritorious" and "merit" are derived from the French "meriter," which means reward. Webster's Third New International Dictionary, 1971. "Meritorious" means worthy of reward, gratitude, honor or esteem. Id. Thus, a meritorious point would generally mean a point worthy of a favorable ruling, which is not the same thing as nonfrivolous.
In State v. Gates, 466 S.W.2d 681 (Mo. 1971), the court was presented with a brief in a direct appeal in which counsel's fourteen "points and authorities" corresponded exactly to the fourteen paragraphs of the appellant's motion for new trial. Most of the points were simply copies without any elaboration. Only six of the points contained any citation of authority, and only one was discussed in the "argument" portion of the brief. The court considered the appellant's brief in the light of Anders and Swenson v. Bosler, 386 U.S. 258 (1967). In Swenson, the Supreme Court declared invalid Missouri's former practice (prior to March 1, 1964) of 1) not appointing counsel on appeal, and 2) generally considering on appeal merely the issues raised in the motion for new trial. Considering appellant's brief in light of Anders and Swenson, the court concluded that counsel failed to comply with the U.S. Supreme Court's direction that counsel prepare a brief which "defines the legal principles upon which the claims of error are based and which designates and interprets the relevant portions of the trial transcript." Gates, 466 S.W.2d at 682, quoting Swenson, 386 U.S. at 259. The court set aside the submission, ordered the case re-docketed, and directed counsel to file a brief meeting the requirements of Anders and Swenson. The court suggested that, until further clarification by the Supreme Court, counsel should endeavor to brief "such points as the client desires to be raised provided he can do so without compromising professional standards."
In dictum, the court also suggested that until further clarification from the U.S. Supreme Court, counsel would not be granted leave to withdraw. The U.S. Supreme Court in Anders, however, clearly stated that if an appeal is wholly frivolous, counsel should request leave to withdraw. Anders, 386 U.S. at 744.
Some further clarification came from the U.S. Supreme Court twelve years later in Jones v. Barnes, 463 U.S. 745 (1983). In Barnes, the Supreme Court addressed the issue of whether, under Anders, an indigent defendant has a constitutional right to compel appointed counsel to press nonfrivolous points if counsel, in the exercise of professional judgment, chooses not to present those points. Noting that the effect of adding weak arguments is to dilute the stronger ones, the court concluded that the client has no right to compel counsel to argue the issues the client wishes to be argued. Id. at 752-53.
Under Anders and Barnes, in appeals involving criminal cases, the distinction of constitutional dimension is between appeals which are nonfrivolous and those which are frivolous. Id. Counsel has a clear duty to raise meritorious points. There is also a duty to raise points that, while not meritorious, are not frivolous. Barnes, 463 U.S. at 753-54. At the same time, the appellant's right to have nonmeritorious, nonfrivolous points raised is subject to the strategic decision of counsel to "winnow out" the less arguable points for strategic reasons. Barnes, 463 U.S. at 752-53. The appellant has no right to require counsel to present a frivolous point. State v. Surratt, 796 S.W.2d 131, 137-38 (Mo.App. 1990), citing Barnes. The Supreme Court reiterated in 1988 that it was not encouraging the making of frivolous arguments:
In some civil cases there has been a tendency to refer to a point as "without merit" when the writer actually views the point as frivolous. E.g., Angle v. Grant, 997 S.W.2d 133 (Mo.App. 1999).
Neither paid nor appointed counsel may . . . consume the time and the energies of the court or the opposing party by advancing frivolous arguments. An attorney . . . is therefore under an ethical obligation to refuse to prosecute a frivolous appeal.
McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 436 (1988).
Unfortunately, Anders did not provide very specific guidelines for counsel representing a client who desires that counsel present a frivolous point. Each state attempted to work out its own procedure under Anders' general guidelines. The courts of Missouri have been somewhat uncertain about the duty of appointed counsel, as evidenced by the language of the Missouri Supreme Court in Gates, 466 S.W.2d at 684. In State v. Zeitvogel, 649 S.W.2d 945 (Mo.App. 1983), this court approved a procedure whereby counsel argued the points which counsel believed were arguable, while also separately setting out the substance of points the client wished to raise, but without supporting or arguing those points. The court held that counsel's decision not to argue the points counsel considered unarguable was a valid exercise of professional judgment. Thus, the court in Zeitvogel was content to leave substantial discretion with appointed counsel, especially when the court had the opportunity to make its own evaluation of the points counsel elected not to argue.
Four years later, in Shelton v. State, 724 S.W.2d 274 (Mo.App. 1986), this court addressed an appeal of a postconviction motion. At that time it was unclear whether the duty of counsel in a direct appeal was the same for counsel handling appeal of a postconviction motion. In that case, Mr. Shelton was appealing the denial of his postconviction motion under Rule 27.26 after his guilty plea. The brief filed by counsel contained one point. Counsel for appellant made it clear in the brief that the one point was presented only because of appellant's insistence. The brief did not argue the point, but referred to Zeitvogel's suggestion that when the attorney believes the point is groundless, but the client insists on its being presented, counsel need not argue the point. The Shelton court concluded that Barnes, 463 U.S. 745 (1983), taught that allowing the client to decide which issue to present on appeal would undermine counsel's ability to present the appeal in accordance with counsel's professional judgment. Concluding that the language of Barnes was in conflict with the directives prescribed in Zeitvogel, the court held that the Zeitvogel procedure whereby counsel includes non-meritorious points proposed by the client, without briefing, is "no longer viable." Shelton, 724 S.W.2d at 275. The court specified that if counsel presents a point on appeal, it must be in compliance with the "rules regarding appellate briefs" (which, we presume, means counsel must argue the case and cite authority). Addressing "counsel's dilemma" in frivolous appeal cases, the court thought if counsel believes the appeal is "wholly frivolous" (that is, without any non-frivolous points to appeal), counsel must endeavor to persuade the client to abandon the appeal by giving to the client "fully and forcefully an opinion concerning the case and its probable outcome" then, if the client chooses to proceed with the appeal against the advice of counsel, counsel should "present the case" if counsel may do so without "misleading" the court; otherwise, counsel should request permission to withdraw. Shelton, 724 S.W.2d at 275-76.
In State v. Gates, 466 S.W.2d 681, the court failed to draw a distinction as to the right to counsel between direct appeals and postconviction motion appeals, assuming, in dictum, that postconviction counsel is governed by the same standards as counsel on direct appeal. Id. at 684. Accordingly, the court in Shelton also made the same assumption.
In 1986, at the time Shelton was decided, the United States Supreme Court still had not clarified the constitutional distinction between direct appeals and appeals of denials of postconviction motions. The court in Shelton therefore, like the court in Gates, imposed on appeals of postconviction motions the standards it believed were applicable to direct appeals. In any event, even as to direct appeals, we believe the standards adopted in Shelton are confusing, if not partially self-contradictory. Those standards suggest that if counsel believes there are no nonfrivolous points to argue, counsel should still be required to "present the case" if counsel can do so without "misleading the court." It appears that this prescription is directing counsel to argue a point which, by virtue of the nature of the concept of frivolousness, is not reasonably arguable. The standards also incorrectly assume that deception is the only factor in the concept of frivolousness. The result of these standards is that counsel is almost never granted leave to withdraw, and is often forced, in a case without arguable points, to "argue the unarguable."
Shelton adopted language from Standard 21-3.2 of the American Bar Association Standards for Criminal Justice (2d ed. 1980). Gates had also, in dictum, indicated it intended to apply the draft standards published in 1969.
The United States Supreme Court did not supply a definition of "frivolous" for right-to-counsel purposes, but it is evident from Anders that a frivolous point was a point not reasonably arguable. See also Pennsylvania v. Finley, 481 U.S. 551, 553 (1987), in which the court uses the term "no arguable bases" for relief as equivalent to a "frivolous" point.
For instance, a client might desire that his attorney assert that the court has no jurisdiction over him and cannot prosecute him because he is not a citizen, having renounced his citizenship. Cf., for example, United States v. Cooper, 170 F.3d 691 (7th Cir. 1999).
Frivolous arguments are embarrassing both for the attorney and for the court. Also, it is difficult to see what is accomplished for the client by forcing the attorney to compromise professionalism for the sake of the client's caprice. To require counsel to make patently ridiculous arguments serves the interest of neither the courts nor the clients nor their attorneys and demeans the whole process of justice.
The Supreme Court has never suggested counsel should be required to make a frivolous argument in behalf of a client. To the contrary, the court has indicated that counsel is ethically bound to refuse a frivolous argument. McCoy, 486 U.S. at 436. It is the decisions of the Supreme Court, and not the opinions of commentators, to which our allegiance is owed. Under Anders, appointed counsel in wholly frivolous direct appeals should seek to withdraw (and the opportunity to seek withdrawals is not limited to cases which cannot be argued without misleading the court). Anders suggests that the attorney in such a case must, however, provide the court with sufficient information that the court may consider the record and decide for itself whether there is anything arguable to present. If the court decides there is fodder for argument, the court may deny leave to withdraw, and direct counsel to argue a particular point. Otherwise, the court should grant leave to withdraw, and the appellant may then proceed pro se if the appellant desires.
Consequently, we suggest that henceforth the proper procedure for appointed counsel in a direct criminal appeal in this court should be as follows:
a. Counsel shall presents only nonfrivolous points, and shall present only the points counsel has strategically selected. Counsel is entitled, in the exercise of strategy, to "winnow out" less meritorious points, even if such points are arguable, when counsel is presenting points counsel deems to be more meritorious.
b. If counsel is confronted with an appeal that, in counsel's opinion, has no arguable grounds for appeal, and the client still wishes to appeal, counsel shall file an " Anders brief" in which counsel sets forth a summary of the case, including procedural and evidentiary rulings in the trial court, with citations to the record, so that the court can satisfy itself that counsel has thoroughly reviewed the record, and the court can determine whether, in the court's view, counsel is correct that there are no nonfrivolous grounds for appeal. Counsel should attempt to identify possible issues, and should indicate any issues the client suggests may be meritorious. Counsel is not to argue the case against his or her client, but instead shall present the record and indicate possible issues which counsel has considered or which have been suggested by the client. Counsel should seek leave to withdraw, stating that counsel finds no nonfrivolous grounds for appeal.
c. If the court concludes that there are no nonfrivolous grounds for appeal, counsel should be allowed to withdraw, and the appellant should be allowed to proceed pro se if the appellant desires. If the court concludes there is at least one arguable ground for appeal, even if it appears unlikely that such argument would prevail, the court should decline to grant leave to withdraw, and should specify the point or points the court desires argued.
The court cannot grant leave to withdraw in direct criminal appeals until the court has made its own examination of the case to determine whether there are any non-frivolous grounds for appeal. Penson v. Ohio, 488 U.S. 75 (1988).
The foregoing procedure in direct appeals of criminal convictions is fully consistent with Anders and other Supreme Court precedent. It forces counsel, in providing an account of the record, to thoroughly study the record. Furthermore, it allows counsel to actively assist the client by presenting the record in such a way that the court may identify one or more issues on review of counsel's summary. Counsel is never to file a brief against the client's cause. Counsel is also never to argue a point that counsel believes is frivolous unless the court has specifically decided that the point is arguable. Finally, if the appellant files a pro se brief, the court will have the benefit of the summary of the record provided by counsel, which will, we trust, make the appellant's pro se claims more intelligible.
A similar approach to Anders briefing has been adopted by the Arizona Court of Appeals. State v. Clark, 1999 WL 16739 (Ariz. App. Div. 1, Jan. 19, 1999). As that court noted, there are two functions of an Anders brief: 1) to provide the appellate court with a basis for determining whether appointed counsel had performed his duty to support the client's appeal to the best of counsel's ability, and 2) to help the appellate court make its own determination as to whether there are any grounds for appeal. Id. at *6. The procedure outlined above complies with the constitutional requirements of an Anders brief.
Appeals of Postconviction Motions
The early cases after Anders, which drew no distinction between direct criminal appeals and appeals of postconviction motions, did not have the benefit of Pennsylvania v. Finley, 481 U.S. 551 (1987), which set forth an entirely different constitutional framework for appeals of postconviction motions. The court in Finley declared that states have no constitutional obligation to allow appeals from postconviction motions, and no obligation to provide counsel to indigent appellants. Id. at 554-55.
In Finley, the appellant's conviction of murder had been affirmed on direct appeal. In the postconviction proceedings, the trial court had duly appointed counsel, as required by Pennsylvania law. Counsel, after study of the record and consultation with the client, concluded that there were no arguable grounds for collaterally attacking the conviction. Counsel so advised the trial court and requested permission to withdraw. The court, after reviewing the record, agreed that there were no arguable issues and dismissed the proceedings. The appellant secured new counsel and challenged the dismissal. The appellant contended that the procedure prescribed in Anders v. California should have been applied, and that the failure to apply the Anders standards resulted in the denial of right to counsel.
When the case reached the U.S. Supreme Court, the court drew a clear distinction between direct criminal appeals and collateral proceedings. The court held that the Anders procedures do not apply to the right to counsel on postconviction review, which is a state-created right. The court held that the appellant's access to a lawyer was not constitutionally mandated, but was simply the result of the decision of the State of Pennsylvania. The court held that the procedures followed by counsel in the postconviction review in that case fully comported with the mandates of the Due Process Clause. Id. at 556.
In Simmons, 955 S.W.2d 752 (Mo.banc 1997), the Missouri Supreme Court upheld a sanction of $250.00 imposed upon postconviction motion counsel by the motion court, for attempting to argue that trial counsel was ineffective for failing to argue 1) the unconstitutionality of time limitations of Rule 29.15; 2) the wording of the "reasonable doubt" instruction; and 3) the unconstitutionality of the death penalty because of prosecutorial discretion. The court noted that all of these claims had been firmly and uniformly rejected by decisions of both state and federal courts. Id. at 771-72. Counsel did not attempt to directly challenge those decisions, but instead simply rehashed the arguments their courts had already rejected. The court noted that the assertion of such claims for preservation "for federal review" is not necessary because the same claims had been rejected in other cases. Id. In Simmons the court clearly signaled that motion courts need not continue to suffer the ritualistic assertion of frivolous arguments. If that is true of motion courts, it certainly is true of appellate courts, where the standard of review is quite difficult.
If appointed counsel at the motion court level seeks to withdraw from representation of an indigent, the court will appoint another counsel. Rule 24.035(f) and 29.15(g). This ensures that the indigent movant will have the benefit of counsel in framing the points of the motion and presenting the case to the motion court. However, counsel need not and should not assert any frivolous arguments in behalf of a client. See Simmons, 955 S.W.2d at 771-72.
So what is postconviction motion counsel to do on appeal? Counsel may feel caught on the horns of a dilemma by the seeming conflict between the notion that the post-conviction client must be represented by counsel, and yet counsel will be sanctioned for making a perfunctory and frivolous argument when counsel really has nothing better to argue. We believe that when the client has arguable claims, counsel should present only the arguable claims. If there is no arguable claim, and counsel has carefully studied the legal file and applicable transcripts, counsel should proceed as follows:
a. Counsel should advise the client of the attorney's responsibility to comply with Rule 4-3.1 and Rule 55.03(b), and of the client's own possible exposure to a monetary sanction for the assertion of a frivolous claim under Rule 84.19.
b. If a client insists on pressing his right of appeal in the face of counsel's warning and admonition that there are no nonfrivolous claims to argue, counsel should inform the court that counsel finds no arguable grounds for appeal in light of the difficult standard of review in appeals of postconviction cases, and seek leave to withdraw.
c. Counsel should make sure that the postconviction legal file and transcripts are on file so that they may be considered by the court.
This court will either grant leave to withdraw to counsel, and consider any pro se brief submitted by the appellant, or else this court will deny leave and instruct counsel as to any point as to which the court desires briefing. The state will be relieved of the responsibility of responding to such appeals.
Compared to direct appeals, appeals of postconviction motions generally present a smaller range of potential issues. As to Rule 24.035 claims of ineffectiveness, the transcripts may easily be reviewed to determine whether there is any ground for argument. As to Rule 29.15 claims of ineffectiveness, the pertinent portions of the trial transcript may generally be reviewed along with the motion and the transcript of any hearing on the motion. Either way, the claims to be considered are generally more readily identifiable than potential claims of error in a direct appeal. Thus, we believe it is not necessary to impose upon counsel the requirement of a brief similar to an Anders brief in postconviction matters, although we will not discourage counsel from filing such a brief.
Definition of Frivolousness
Inherent in the concept of frivolousness is the idea that a claim or a defense asserted is so lacking in any rational argument based on the evidence or law that the presentation of the defense or claim amounts to an abuse of the process. It is a claim or assertion which is clearly insufficient on its face. Rather than being a claim or defense that has " little prospect that it can ever succeed," as expressed in State ex rel. State Highway Commission v. Sheets, 483 S.W.2d 783, 785 (Mo.App. 1972), it is a claim or defense that has absolutely no prospect of succeeding. Thus, we agree with Martin that the articulated definition of frivolousness which our cases have sometimes offered is too broad in the context of direct criminal appeals to be consistent with Anders. Moreover, out of an abundance of concern to avoid chilling the exercise of appeal in postconviction cases, we believe it is appropriate to apply the stricter standard of frivolousness in postconviction appeals.
We fail to see how, if an argument has any chance of success, even though that chance may be slim, it can be considered frivolous. If an argument has little prospect of success in view of existing precedent, but a rational argument can be constructed based upon principles flowing from the constitution or statutory authority, the argument is not frivolous. Moreover, a good faith argument for an extension, modification or reversal of existing law is not frivolous. If there is doubt about whether an argument is frivolous, it is not frivolous unless the circumstances reveal clearly that the sole motivation for the assertion in question was harassment or intimidation, or some other abuse of the system. In Thurman, 859 S.W.2d at 254, Judge Hanna, writing for the court, suggested that sanctions could be imposed when the argument was "so manifestly and palpably devoid of merit both on the facts and the law as to be completely untenable." Accordingly, hereafter we will consider as frivolous, for purposes of criminal appeals or postconviction appeals, an argument only when that argument is so clearly and facially without a rational argument based in law, or is otherwise so clearly and facially untenable that it has no prospect of success.
Martin contends that the imposition of any sanction would be inconsistent with Rules 24.035 and 29.15, which contemplate review of a motion court's denial of a postconviction motion and allows indigent clients to appeal in forma pauperis. According to Martin, the possibility of sanctions would place appointed counsel in the position of making a personal determination as to whether the client has the right to appeal, which Martin argues would be in contravention of the philosophy and language of the rules. Martin also fears that if appointed counsel refuses to present some issue for appeal, he or she might be subject to discipline, and would, in effect, be abandoning the client. Martin points out that the public defender has no power or right to decide whether or not to accept representation of a client and must present assistance to clients referred to the public defender in postconviction actions, citing State ex rel. Pub. Defender Comm'n v. Bonacker, 706 S.W.2d 449 (Mo.banc 1986). Martin stresses that an attorney cannot dismiss an appeal without consent of the client, and the client must sign any petition for dismissal.
As far as Martin's concern that the possibility of sanctions puts appointed counsel in the position of having to make a personal determination of whether the appellant has the right to appeal, we would note only that evaluation of possible points on appeal is an essential part of the function of counsel. Moreover, regardless of counsel's evaluation, the client's appeal is advanced under the foregoing procedure because, in addition to counsel evaluating grounds for appeal, so does the court. Further, the client retains the right to brief the case pro se.
Martin's concern about counsel being subject to discipline for refusing to present an issue for appeal is without basis. Appointed counsel need have no more concern than retained counsel. Counsel cannot be found ineffective in a review of counsel's performance in a direct appeal or be criticized in the handling of a postconviction appeal for failing to do that which would have provided no benefit to the client. Burton v. State, 641 S.W.2d 95, 100 (Mo.banc 1982).
We believe the procedure we adopt today allows counsel to be more professional, not less. It allows counsel to maintain credibility with the court and client while still representing the client to the best of counsel's ability. It avoids requiring counsel to criticize the points the client wants raised; and it avoids the dilution and tainting of reasonable arguments by the insertion of unreasonable arguments.
Sanctions tend to deter litigants and attorneys from adding to the congestion of the appellate courts with frivolous cases, contributing to the delay in resolving meritorious cases. Sanctions also sometimes provide a means of compensating respondents for expenses incurred in defending a meritless appeal. Aldi, Inc., 971 S.W.2d at 912; Fravel v. Guaranty Land Title, 934 S.W.2d 23, 25 (Mo.App. 1996). We believe, however, that one of the most important reasons supporting the existence of sanctions is that the threat of the careful use of sanctions reinforces positive professional standards and upholds the dignity and conscience of the professional advocate. The existence of the possibility of sanctions is salutary for lawyers and for the justice system. Recognizing that the issue of whether to impose sanctions must be handled "with extreme caution to avoid chilling an appeal of even slight, colorable merit," Papineau v. Baier, 901 S.W.2d 190, 192 (Mo.App. 1995), we will impose sanctions only with the greatest caution. Nevertheless, we will not hesitate to impose them in a clearly proper case.
It has not been established that the threat of sanctions has any effect in chilling appeals which have possible merit. See Harold Lowenstein, Frivolous Appeals, Not Frivolously Granted: A Practical Analysis, 60 UMKC L. Rev. 491 (1992). This article examines the number of cases discussing the issue of frivolous appeals from the adoption of the frivolous appeal rule, Rule 84.19, on June 1, 1971 through June 11, 1991.
The standards we seek to uphold are well established. An attorney has the duty not only to represent his client, but also "a duty to quell further litigation of a groundless appeal." Jones v. Kansas City Area Transp. Auth., 769 S.W.2d 145, 148 (Mo.App. 1989). An attorney must withdraw from representation of a client where "the representation will result in violation of the rules of professional conduct or other law." Rule 4-1.16(a)(1), Rules of Professional Conduct. A lawyer "shall not bring or defend a proceeding, or assert or controvert an issue therein, unless 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." Rule 4-3.1, Rules of Professional Conduct.
Conscientious counsel following the procedure we outline above need not be concerned about violating the duty he owes to his client.
Although a defense attorney has a duty to advance all colorable claims and defenses, the canons of professional ethics impose limits on permissible advocacy. It is the obligation of any lawyer — whether privately retained or publicly appointed — not to clog the courts with frivolous motions or appeals. Dodson has no legitimate complaint that his lawyer refused to do so.
Polk County v. Dodson, 454 U.S. 312, 323 (1981). Counsel's refusal to argue a frivolous point in a direct criminal appeal will prove more to the advantage of the client than an attempt to argue the point. First, counsel will not demean the client's case by a frivolous argument. In addition, counsel, in filing an Anders brief, will have the benefit of the court's analysis as to the existence of arguable points. Counsel will either be allowed to withdraw, or counsel will be instructed as to any point which should be argued. Under previous practice, motions for leave to withdraw have often been denied. However, counsel generally has received no direction from the court as to any particular points the court believes to be worthy of argument. Such practice by courts may tend to further cynicism about the integrity and dignity of the process. While the procedure adopted herein may be more work for the court than forcing counsel to argue a frivolous point, it may be the price we must pay to preserve the integrity of the process, insure vigorous representation of convicted persons, and elevate the quality of advocacy.
Martin's appeal in this case had absolutely no prospect of success. This appeal is frivolous. Nevertheless, because of the confusion which has heretofore existed on the subject of frivolous appeals of postconviction motions, and because there existed a need for further clarification, we will withhold sanction in this case. Henceforth, however, we will assume that postconviction counsel and client are both fully aware of the "clearly erroneous" standard of review, and the implications of that standard.
Conclusion
The judgment of the trial court denying Martin's Rule 24.035 postconviction motion is affirmed.
Riederer, J., not participating in the decision.
All others concur.