Rule 26 - Appeals in criminal and juvenile delinquency cases(a)Continuing obligation of and representation by counsel. -(1) Every trial attorney, whether privately retained, court appointed or provided by the Office of the Public Defender, shall in every case in which the client has been convicted or adjudged delinquent; and (2) every attorney appointed by the trial court to represent a criminal defendant or juvenile at State expense in postconviction proceedings, unless the attorney had been permitted to withdraw under the trial court's rules, shall in every case in which postconviction relief is denied: (i)Advise client. -Advise the client of any right to appeal, the possible grounds for appeal and counsel's opinion of the probable outcome of an appeal;(ii)Docket appeal. -Docket an appeal whenever the client desires to appeal, whether or not the appeal appears meritorious; and(iii)Prepare documents. -Prepare and file all documents relating to the appeal, including those relating to the transcript as required by Rule 9. Such attorney, until this Court orders otherwise, shall continue to represent the client on appeal. But, if a postconviction attorney's motion to withdraw was granted by the trial court, and postconviction relief was denied, that attorney's continuing obligation is limited to that prescribed by the trial court's rules.
(b)Appointment of counsel. -The Court will appoint counsel in any case in which it determines that an indigent defendant or child desires but does not have counsel on direct appeal. The Court may, in the interest of justice, appoint additional or substitute counsel for any indigent defendant or delinquent child upon the application of either counsel or client. In appeals from rulings made under Superior Court Criminal Rule 61 or other post-conviction rulings of a trial court, the Court may in its discretion appoint counsel for an indigent defendant or child.(c)Appeals without merit. -If the trial attorney, after a conscientious examination of the record and the law, concludes that an appeal is wholly without merit, the attorney may file a motion to withdraw. Such motion shall be accompanied by the following: (i)Brief and appendix required. -The trial attorney is required to file a brief referring to anything in the record which may arguably support the appeal. The brief shall contain the following under distinctive titles and commencing on a new page, in the listed order: a statement of the charges; the nature of the defense made at trial; a summary of the evidence; the significant pretrial and trial applications and rulings; the sentence; and, the defendant's points, which shall not exceed 35 pages. Appropriate pages from the record, including the sentencing order and appropriate pages from the transcript, shall be contained in a separately bound appendix. A statement by counsel that there were no errors of law below or that the appeal is without merit does not meet this requirement.(ii)Attorney statement. -A statement by the attorney that the attorney: (A)Copy to client. -Supplied the client with a copy of the motion, brief, and appendix.(B)Advice to client. -Advised the client that the client could state in a writing of no more than 35 pages, delivered to the attorney within 30 days, any point that the client wanted the Court to consider, and that such a writing would be included in the brief. Such statement by the attorney shall state the date on which the attorney delivered a copy of the motion and brief to the client and whether or not any writing was received in response thereto.(iii)Client response. -Any statement by the client which is received by the attorney in response to the motion to withdraw. Neither the motion nor the brief shall be an argument against the client's interest. The client shall have 30 days in which to review the proposed brief and proposed motion to withdraw and to prepare and submit any points for the Court's consideration, prior to the filing by counsel of said brief and motion. The motion and the brief shall be served upon the State; and the State shall file within 20 days of service a response or make any application it deems appropriate.
Upon the expiration of such 20-day period, the Court shall determine, without oral argument, whether the appeal, on its face, is wholly without merit. If the Court so determines, the Court may order that the judgment below be affirmed. If the Court does not so determine, the motion for withdrawal may be granted and the Court may appoint substitute counsel who shall thereafter have 30 days in which to submit an opening brief.
(d)Withdrawal. -An attorney for a defendant in a criminal appeal, including a child adjudged delinquent, may withdraw only upon written motion and order of the Court, entered in the following circumstances: (i)Consent. -An attorney may be permitted to withdraw, after complying with paragraph (a) of this rule, at any time after other counsel has entered an appearance for the client.(ii)Non-consent. -Without the consent of the client, a privately retained attorney may be permitted to withdraw, after complying with paragraph (a) of this rule, on motion served upon the client with notice of a stated time for presentation thereof to the Court.(iii)Waiver of counsel. -Prior to the filing of any brief, a defendant who is represented by an attorney may apply to the Court for leave to proceed pro se and to discharge the defendant's attorney. The motion must be served upon the attorney and the State and be accompanied by an affidavit in a form supplied by the Clerk. Upon receipt of a motion in the proper form, in cases where the defendant has a constitutional or statutory right to counsel, the Court shall remand the case to the Superior Court for an evidentiary hearing on the defendant's waiver of counsel. In all other cases the Court may, in its discretion, remand the case to the Superior Court for an evidentiary hearing on the defendant's motion to appear pro se. Upon any remand, the attorney shall be present at the hearing in the Superior Court. Pursuant to Rule 19(c), the Superior Court shall make and report its findings of fact within 30 days of the remand, unless some other time is ordered by the Court. Motions to appear pro se are otherwise governed by the procedures set forth in Rule 30. In the event the defendant's motion is granted, the responsibility of the attorney to represent the defendant shall terminate. The Court in its discretion may, however, appoint an attorney to render advisory assistance to the defendant.(iv)All other cases. -In all other cases an attorney may be permitted to withdraw, after complying with paragraph (a) of this rule, only in the interest of justice and upon good cause shown. Any such application shall state the grounds thereof and shall be served upon the client with notice of a stated time for presentation to the Court. See Official Form H.(e)Waiver of nonrefundable filing fee. -In any appeal from a conviction in the Superior Court, any person who, by reason of indigence, seeks relief from the nonrefundable filing fee required by Rule 20(a) may file with the Clerk a motion setting forth the facts relied upon. If the Court is satisfied that the appellant is qualified to proceed as an indigent, it shall enter an order waiving such payment. If the appellant was represented at trial by counsel appointed by the Superior Court or provided by the Office of the Public Defender, the payment of the docketing deposit shall be waived upon the filing of an affidavit stating that such representation was previously afforded, setting forth the court and proceeding in which it was afforded and that there has been no substantial change in the appellant's financial circumstances.(f)Trial transcript. -If the ground of an indigent appellant's appeal requires a review of the evidence, the indigent appellant's counsel shall be furnished on request and without charge, a copy of the transcript of the relevant trial testimony. Subject to the provisions of Rule 9(e), any such request shall describe with specificity the particular portion of the transcript that is relevant to the appeal. Counsel's request shall be made initially to the trial judge, whose denial of the request shall be reviewable by this Court. The cost of such transcript shall be certified by the Superior Court for payment.(g)Application for fees and disbursements of court-appointed counsel. -A separate claim for compensation and reimbursement of expenses shall be made to this Court and to each other court before which the court-appointed counsel represented the client. Each claim before this Court shall be supported by a written statement specifying in-court and out-of-court time expended, services rendered and expenses incurred while the case was pending before this Court, and all compensation and reimbursement applied for, expected or received in the same case from any other sources. The Court shall thereupon fix the compensation and reimbursement to be paid to counsel, and shall certify such amount to the Administrative Office of the Courts for payment.(h)Standards for setting counsel fees. -Any attorney appointed under this rule shall be compensated at a rate not exceeding $50 per hour, and shall be reimbursed for expenses reasonably incurred. Compensation paid hereunder for services performed in this Court shall not exceed $2,000 for each attorney in an appeal in which 1 or more felonies, or acts of delinquency which would be felonies if committed by an adult, are charged; or $1,000 for each attorney in an appeal in which only misdemeanors, or lesser acts of delinquency, are charged. These maximum amounts shall not prevent any such attorney from being compensated for services performed in other courts involving the same representation.(i)Waiver of maximum amounts. -Payment to court-appointed counsel in excess of the maximum amounts provided herein may be made for extended or complex representation if the Court finds that the amount of such payment is necessary to provide fair compensation and the payment is approved by the Court. Any application for a fee exceeding $2,000 shall be made only upon reasonable notice to the Attorney General. Application for lesser amounts may be ex parte unless, in a specific instance, the Court otherwise directs.(j)Timing of fee applications. - All fee applications should be submitted within 90 days after issuance of the mandate.(k)Appeals in habeas corpus. -The foregoing procedures shall be applicable in an appeal from a denial of a petition for writ of habeas corpus filed by any indigent appellant.(l)Appeals in violation of probation proceedings. -Notwithstanding the provisions of Rule 26(a), the defense attorney of record in the proceedings in which the client has been found in violation of probation satisfies the continuing obligation of and representation by counsel when the defense attorney advises the client, in writing:(i) of any right to appeal;(ii) whether the defense attorney will continue representation on appeal; and(iii) that, if the client wants to pursue an appeal without representation, the client must file, in the office of the Clerk of this Court, a notice of appeal within 30 days after a sentence from the violation of probation is imposed. The defense attorney's advice to the client shall be made part of the record at the violation of probation proceedings.
Last amended effective 6/1/2015; amended effective May 2013; amended August 19, 2016, effective 10/3/2016; amended June 14, 2021, effective 7/6/2021.