Commonwealth v. McClendon

434 A.2d 1185, 495 Pa. 467, 1981 Pa. LEXIS 965

Opinions

OPINION OF THE COURT

NIX, Justice.

Footnotes

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We are called upon to assess whether the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1976) have been met in the instant matter. Specifically, we must consider counsel’s request to withdraw and determine what, if any, rights appellant may have as to further representation.

On May 19, 1975, James McClendon, appellant herein, was convicted by a jury of murder of the second degree, arson and related offenses. On direct appeal we reversed the murder conviction and granted appellant a new trial. In all other aspects, the order imposing sentence was affirmed. Commonwealth v. McClendon, 478 Pa. 108, 385 A.2d 1337 (1978). Appellant was retried on August 30, 1978 on an information charging murder and voluntary manslaughter. The jury returned a verdict of voluntary manslaughter and a sentence of three (3) to ten (10) years was imposed.¹ A notice of appeal was filed in this Court on November 9, 1978. Thereafter, a copy of a brief was filed by counsel for appellant along with counsel’s petition for leave to withdraw. A copy of the brief was also served upon appellant with notice of the right of appellant to either retain new counsel and/or to submit a supplemental brief. In response appellant has filed a letter objecting to counsel’s petition to withdraw and filed a pro se memorandum of law in which he advances an illegality of sentence argument.

In Anders the United States Supreme Court addressed the quality of representation to which an indigent criminal defendant was entitled in an appeal of right. The Court was concerned that the quality of representation should not be undermined because of his impecunious state.

[T]his Court has consistently held invalid those procedures ‘where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself.’ [Citation omitted.]

Id. at 741, 87 S.Ct. at 1398.

That Court concluded that equality of representation could only be assured “where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae." Id. at 744, 87 S.Ct. at 1400. In Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968) we noted that Anders offered counsel two choices when representing an indigent client on appeal. He can either prosecute the appeal, in which case he will be expected to perform as a spirited advocate on his client’s behalf, or counsel may choose to withdraw his services. Where the latter alternative is selected Anders requires the following procedure:

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. 386 U.S. at 744, 87 S.Ct. at 1400.

From the foregoing, it is apparent that the right to withdraw is in the first instance tied to a finding, after a conscientious review of the record, that the appeal is “wholly frivolous.” This Court has also noted “that lack of merit in an appeal is not the legal equivalent of frivolity.” Commonwealth v. Greer, 455 Pa. 106, 108, 314 A.2d 513, 514 (1974).

Anders ‘appears to rest narrowly on the distinction between complete frivolity and absence of merit. The latter is not enough to support either a request by counsel to withdraw, nor the granting of such a request by the court.’

Commonwealth v. Greer, supra, 455 Pa. at 108-9, 314 A.2d at 514.

Here counsel in his brief reached the conclusion that the appeal was wholly frivolous and based upon that judgment seeks leave to withdraw.

After carefully and conscientiously examining the entire record, counsel has determined that the appeal of this case is wholly frivolous. This determination is made with full recognition of the importance of a guarantee of representation to indigence [sic] and of the constitutionally-mandated procedure for withdrawal of counsel.

Appellant’s brief, pg. 7.

Counsel has also met the requirements of notifying the indigent of his request to withdraw, furnished the indigent with a copy of the brief prepared by counsel and advised the indigent of his right to retain new counsel or raise any points that he may deem worthy of consideration. At that point it then becomes the responsibility of the reviewing court to make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous. Anders v. California, supra. We have discharged that responsibility and concur in counsel’s judgment that the appeal is wholly frivolous.

The only remaining question left to be considered before ruling upon counsel’s motion to withdraw is whether the brief prepared by counsel satisfies the mandate of An ders. Anders requires that counsel’s brief should refer to “anything in the record that might arguably support the appeal.” Anders v. California, supra 386 U.S. at 744, 87 S.Ct. at 1400. The question of the sufficiency of counsel’s brief has been a subject of concern in this jurisdiction. See e.g. Commonwealth v. Collier, 489 Pa. 29, 413 A.2d 681 (1980); Commonwealth v. Perry, 464 Pa. 272, 346 A.2d 554 (1975).

... By the same token, counsel is not required to compromise principle or to act contrary to his own conscience. Hence, if after a conscientious study of the case he concludes an appeal from the judgment imposed on his client is totally without merit and would be wholly frivolous, he should so advise the court and ask permission to withdraw as counsel in the case. But before he may withdraw he must, inter alia, file a brief referring to anything in the record ‘that might arguably support the appeal.’ Commonwealth v. Baker, supra, 429 Pa. at 214, 239 A.2d at 203. It is in this respect that counsel here failed in his responsibility.

In his brief, after a recitation of the facts and pertinent law, counsel in a conscientious effort to be honest with the court, then proceeded to demonstrate by reference to the record why the instant appeal is meritless. This counsel may not do. Just as counsel may not assume the role of amicus curiae when he represents a client, so too, when counsel seeks to withdraw, he may not assume that role when presenting to the court anything that might arguably support an appeal. We repeat counsel’s role is not that of amicus curiae.

Commonwealth v. Perry, supra, 464 Pa. at 275-76, 346 A.2d 554.

The dilemma created by the Perry reasoning becomes apparent when we consider the definition of the term “wholly frivolous” adopted in this jurisdiction. Commonwealth v. Greer, supra. If the Greer definition of “wholly frivolous” means that there are no points present that “might arguably support an appeal” counsel is saddled with an impossible burden, if he is nevertheless required to file a brief containing arguments that are nonexistent. If on the other hand, there are claims of arguable merit, even though counsel may not have any confidence in them, under Greer the appeal is not “wholly frivolous” and counsel is not entitled to seek leave to withdraw. Commonwealth v. Greer, supra. Thus following the Perry rationale to its logical conclusion the right of counsel to seek leave to withdraw would be illusory. We do not believe that such a result was ever intended by the United States Supreme Court.

The core of the Anders’ reasoning is that where an accused is entitled to a counselled appellate review, that right should not be denied or diminished solely because of indigency. However, Anders does not require that counsel be forced to pursue a wholly frivolous appeal just because his client is indigent. The major thrust of Anders was to assure a careful assessment of any available claims that an indigent appellant might have. That end is achieved by requiring counsel to conduct an exhaustive examination of the record and by also placing the responsibility on the reviewing court to make an independent determination of the merit of the appeal. These requirements were clearly satisfied here. What does present the problem is that the counsel’s brief would not appear to meet the standards set by Commonwealth v. Collier, supra and Commonwealth v. Perry, supra. These cases would seem to suggest that counsel’s statements in the brief as to why the arguments were wholly lacking in merit evidenced counsel’s failure to assume the role of an advocate. At the same time, counsel’s right to withdraw is dependent upon his certification that he fully studied the record and found no merit in the appeal.

The fallacy in a strict adherence to the Perry rationale is obvious. Once we are satisfied with the accuracy of counsel’s assessment of the appeal as being wholly frivolous, counsel has fully discharged his responsibility. The role of an advocate, insisted upon in Anders, refers to the manner in which the record was examined in an effort to uncover grounds to support the appeal. Where counsel has in good faith satisfied that obligation and found the appeal to be wholly frivolous, he can do no more. We reject the view that his explanation of why there is no basis for an appeal should be interpreted as reflecting counsel’s lack of concern in the client’s cause. Nor can that fact be assigned as a reason for concluding that the client did not receive this constitutionally protected right of representation.

Having found from our independent study of the record, including a consideration of appellant’s pro se memorandum of law, that the appeal was wholly frivolous, we grant counsel’s request to withdraw. Because of our conclusion that the appeal is entirely without merit and there being no basis for the relief sought, we also affirm the judgment of sentence.

O’BRIEN, C. J., filed a dissenting opinion in which ROBERTS, J., joined. ROBERTS, J., filed a dissenting opinion in which O’BRIEN, C. J., joined.

This case was assigned to the writer on February 3, 1981.

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. The 3-10 year sentence imposed under the manslaughter conviction was directed to be served consecutively to a 10-20 year sentence that had previously been imposed for the arson conviction.