Summary
holding that counsel could not withdraw from an appeal that he believes had no merit thereby opting out of the procedure required by Anders
Summary of this case from Green v. StateOpinion
Nos. 30305; 30554; 30573.
August 28, 1997.
Appeal from a judgment of conviction of attempted robbery. Eighth Judicial District Court, Clark County; Sally L. Loehrer, Judge; Docket No. 30305. Appeal from a judgment of conviction of burglary. Eighth Judicial District Court, Clark County; Jack Lehman, Judge; Docket No. 30554. Appeal from a judgment of conviction of harassment, malicious destruction of property, and malicious destruction of private property, greater than $250 in value but less than $5,000 in value. Eighth Judicial District Court, Clark County; Sally L. Loehrer, Judge; Docket No. 30573.
Cases were consolidated in which, following conviction, fast track statements were filed by counsel that stated either there were no genuine issues of fact or law that could be raised on appeal, accompanied by no presentation of statement of facts, legal issues, or arguments, or that discussed procedural history of case and stated no issues are presented or legal arguments made. The supreme court held that: (1) counsel is not obligated to file no merit affidavit and must argue for their clients without conceding appeal is without merit or frivolous; overruling Sanchez v. State 85 Nev. 95, 450 P.2d 793 (1969), and (2) in rare cases where counsel is forced to assert frivolous issues before appellate court, there is exception to rules of professional conduct to allow that pursuit of frivolous appeal.
Appellants' fast track statements stricken.
Morgan D. Harris, Public Defender, Daren B. Richards, Deputy Public Defender, Douglas P. DeJulio, Deputy Public Defender and Thomas W. Rigsby, Deputy Public Defender, Clark County, for Appellants.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondents.
OPINION
In Ramos v. State, Docket No. 30305, and Ward v. State, Docket No. 30554, defense counsel filed fast track statements that explained that after a careful review of the record, counsel concluded that no genuine issues of fact or law could be raised on appeal. However, counsel did not present a statement of facts, legal issues or arguments.
In Trujillo v. State, Docket No. 30573, counsel filed a fast track statement that discussed the procedural history of the case and then stated that no issues are presented or legal arguments made. Counsel did not make an averment that after a conscientious review of the record, he concludes that no genuine appellate issues exist.
We conclude that counsel in each appeal failed to comply with the requirements of Anders v. California, 386 U.S. 738 (1967), and Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969), and their progeny.
Currently, attorneys attempt to comply with Sanchez in a myriad of ways. Some attempt to comply by providing a detailed procedural and factual history of a case, raising the most arguable issues, arguing those issues, and then filing a separate affidavit of no merit. Others merely state that no issues exist, provide no legal argument, and do not file a no merit affidavit.
These inconsistent attempts to comply with Sanchez force us to reconsider that holding. The regime announced in Anders was premised upon counsel's ethical obligation to withdraw from an appeal if counsel believes that appeal is frivolous. In Sanchez, we dispatched with the obligation of counsel to file a motion to withdraw in a case counsel believes lacks merit. Today we dispatch with the obligation of counsel to file a no merit affidavit.
The Anders approach is schizophrenic in nature. An attorney raises issues and arguments and then is forced to concede that those arguments are without merit. We refuse to accept the notion that an attorney can file a no merit affidavit without actually advocating against the merit of his client's appeal, and we recognize that the Anders procedure often entails the expenditure of more court resources than would be expended upon a meritorious appeal.
The Idaho Supreme Court concluded that it was unable to follow the impractical and illogical procedure outlined as dictum in Anders. State v. McKenney, 568 P.2d 1213, 1214 (Idaho 1977). The McKenney court concluded that the filing of a no merit appeal "cannot but result in prejudice" to the defendant. Id. That court then stated that "if a criminal case on appeal is wholly frivolous, undoubtedly, less of counsel and the judiciary's time and energy will be expended in directly considering the merits of the case in its regular and due course as contrasted with a fragmented" system outlined by Anders. Id. The McKenney court then concluded that defense counsel in that state need not file no merit affidavits.
Dissenting to an order granting a motion to withdraw as counsel and dismissing an appeal deemed frivolous, a District of Columbia judge interpreted the Idaho rule and acknowledged its superiority over the Anders process. Gale v. United States, 429 A.2d 177, 178-83 (D.C. 1981) (Ferren, J., dissenting), cert. denied, 454 U.S. 893 (1981). Judge Ferren opined that the Idaho rule would require an attorney to choose the best of the worst of appellant's arguments on appeal. State v. Cigic, 639 A.2d 251, 253 (N.H. 1994) (discussing Judge Ferren's dissenting opinion). Then, after the state files a response, the appellate court can decide the case on the merits of the issue or issues raised rather than undertaking an independent review of the entire record on appeal. Id
Judge Ferren's concern with the Anders process was that when an attorney files a no merit affidavit, courts "feel obliged to spend a substantial amount of time studying the record for a clue "that might arguably support the appeal," or "duplicate undocumented time spent by counsel or do what counsel should have done but did not." Gale, 429 A.2d at 181 (Ferren, J. dissenting) (quoting Anders, 386 U.S. at 744). "In short, the Anders dictum typically forces either the court to undertake the role of the lawyer, or the lawyer to undertake the role of the court." Id. at 182.
New Hampshire embraced the Idaho approach to "preserve the integrity of the attorney-client relationship better than strict adherence to Anders." Cigic, 639 A.2d at 253. The Cigic court concluded that if, in counsel's estimation, an appeal is without merit, counsel must discuss his or her conclusion with the client and advise the client against pursuing the appeal. Id. at 254. If a defendant insists on continuing with the appeal, counsel should file a brief that includes all arguable issues and argues defendant's appeal as well as possible. Id. " Counsel cannot concede that the appeal is frivolous," but if an appeal is truly frivolous, "counsel's accurate summary of the facts and law will make that obvious." Id. (emphasis added).
We elect to follow Idaho and New Hampshire and opt out of the Anders quagmire. With respect to cases filed after this opinion, Sanchez is overruled. The soundness of our decision was stated succinctly by Judge Ferren in Gale.
Some will argue that this court should retain the Anders approach simply because it is constitutional and saves time of everyone concerned. I believe this view overestimates the savings and underestimates the principle at stake. (footnote omitted). The adversary system has served the administration of justice long and well. It is the best system we know for producing results that are reliable, credible, and fair . . . Anders [appeals], by contrast, are agonizing for the lawyer, awkward for the judge, and perceived as collusive by the appellant. The Anders compromise with our traditional adversary process has failed to justify itself. It permits a lesser standard of performance for appointed, in contrast with retained, counsel. This court should renounce it.
Gale, 429 A.2d at 183 (Ferren, J. dissenting).
Attorneys must argue for their clients without conceding an appeal is without merit. An action is not frivolous even though the lawyer believes that the client's position will ultimately not prevail. Indeed, appeals are few which do not have at least one issue that is not wholly frivolous. Such instances are sparse because counsel can present any good faith argument on the merits, a good faith challenge to the sufficiency of the evidence, or argue in good faith for an extension, modification or reversal of existing law. Cigic, 639 A.2d at 253.
As the Cigic court recognized, this procedure may, on rare occasions, force counsel to assert frivolous issues before the court. In those rare cases, we create an exception to the rules of professional conduct to allow the pursuit of a frivolous appeal. This mirrors the old Sanchez regime in which we allowed an attorney to present a frivolous appeal without filing a motion to withdraw as counsel. However, the defense bar is cautioned that it is still obligated to not deceive or mislead the court by, for example, misstating the facts, misapplying the law to the facts, or deliberately omitting facts or authority that are contrary to counsel's position.
CONCLUSION
Based on the reasoning in this appeal, appellants' fast track statements are stricken. Appellants' counsel shall, within thirty (30) days of this opinion, file fast track statements that comply with this opinion's dictates.