Lochli v. State

555 So. 2d 308, 1989 Ala. Crim. App. LEXIS 725, 1989 WL 140755

• Court: Court of Criminal Appeals of Alabama
• Decided: September 29, 1989
• Docket: 8 Div. 364
• Status: Published

Opinion

BOWEN, Judge.

John Albert Lochli pleaded guilty and' was convicted of two charges of first degree robbery. He was sentenced as a habitual felony offender to life imprisonment in each case.

Although Lochli was represented by appointed counsel in the circuit court, a brief has not been filed on his behalf on this appeal from his convictions.

“The Fourteenth Amendment guarantees a criminal appellant the right to counsel on a first appeal as of right.” Penson v. Ohio, — U.S. -, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). The failure of counsel to file a brief on appeal constitutes ineffective assistance of counsel. Penson, supra; Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Mylar v. Alabama, 671 F.2d 1299, 1302 (11th Cir.1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3570, 77 L.Ed.2d 1411, (1983).

Therefore, the submission of this case is hereby set aside, and this cause is remanded to the circuit court to determine whether or not Lochli is or should be represented by appointed counsel. If Lochli is determined to be indigent and desiring appellate counsel, the circuit court shall appoint counsel and assist counsel in obtaining a copy of the appellate record. The time for filing briefs shall begin to run from the date of the appointment.

If the circuit court determines that Loch-li is presently represented by either retained or appointed counsel, the court shall inquire into the reason for the failure to file a brief and take whatever remedial action it deems necessary, including the appointment of new counsel.

The circuit court shall make a written report of its findings and action to this Court.

SUBMISSION SET ASIDE; CAUSE REMANDED.

All Judges concur.