After the indigent petitioner and two codefendants were found
guilty of several serious crimes in an Ohio state court, the new
counsel appointed to represent petitioner on appeal filed with the
Ohio Court of Appeals a document captioned "Certification of
Meritless Appeal and Motion," which recited that the attorney had
carefully reviewed the record, that he had found no errors
requiring reversal, and that he would not file a meritless appeal,
and which requested leave to withdraw. The court entered an order
that granted the latter motion and that specified that the court
would thereafter independently review the record thoroughly to
determine whether any reversible error existed. The court later
denied petitioner's request for the appointment of a new attorney.
Subsequently, upon making its own examination of the record without
the assistance of counsel for petitioner, the court noted that
counsel's certification of meritlessness was "highly questionable,"
since petitioner had "several arguable claims," and, in fact,
reversed one of petitioner's convictions for plain error, but
concluded that petitioner "suffered no prejudice" as a result of
"counsel's failure to give a more conscientious examination of the
record" because the court had thoroughly examined the record and
received the benefit of arguments advanced by the codefendants'
counsel. The court therefore affirmed petitioner's convictions on
the remaining counts, and the State Supreme Court dismissed his
appeal.
Held:
1. Petitioner was deprived of constitutionally adequate
representation on appeal by the Ohio Court of Appeals' failure to
follow the procedures set forth in
Anders v. California,
386 U. S. 738, for
allowing appointed counsel for an indigent criminal defendant to
withdraw from a first appeal as of right on the basis that the
appeal is frivolous. Under those procedures, counsel must first
conduct a "conscientious examination" of the case and support a
request to withdraw with a brief referring to anything in the
record that might arguably support the appeal, and the court must
then conduct a full examination of all the proceedings and permit
withdrawal if its separate inquiry reveals no nonfrivolous issue,
but must appoint new counsel to argue the appeal if such an issue
exists. The state court erred in two respects in not denying
counsel's motion to withdraw. First, the motion was not supported
with an "
Anders brief," so
Page 488 U. S. 76
that the court was left without an adequate basis for
determining that counsel had performed his duty of carefully
searching the record for arguable error, and was deprived of
assistance in the court's own review of the record. Second, the
court should not have acted on the motion before it made its own
examination of the record to determine whether counsel's evaluation
of the case was sound. Most significantly, the court erred by
failing to appoint new counsel to represent petitioner after
determining that the record supported "several arguable claims."
Such a determination creates a constitutional imperative that
counsel be appointed, since the need for forceful and vigorous
advocacy to ensure that rights are not forgone and that substantial
legal and factual arguments are not passed over is of paramount
importance in our adversary system of justice, whether at the trial
or the appellate stage. Pp.
488 U. S.
79-85.
2. In cases such as this, it is inappropriate to apply either
the lack of prejudice standard of
Strickland v.
Washington, 466 U. S. 668, or
the harmless error analysis of
Chapman v. California,
386 U. S. 18. Such
application would render the protections afforded by
Anders meaningless, since the appellant would suffer no
prejudice or harm from the denial of counsel, and would thus have
no basis for complaint, whether the court, on reviewing the bare
appellate record, concluded either that the conviction should not
be reversed or that there was a basis for reversal. The Court of
Appeals' consideration of the appellate briefs filed on behalf of
petitioner's codefendants does not alter this conclusion, since a
criminal appellant is entitled to a single-minded advocacy for
which the mere possibility of a coincidence of interest with a
represented codefendant is an inadequate proxy. More significantly,
the question whether the briefs filed by the codefendants, along
with the court's own review of the record, adequately focused the
court's attention on petitioner's arguable claims is itself an
issue that should have been resolved in an adversary proceeding.
Furthermore, it is important that the denial of counsel in this
case left petitioner completely without representation during the
appellate court's actual decisional process, since such a total
denial is legally presumed to result in prejudice, and can never be
considered harmless error, whether at the trial or the appellate
stage. Pp.
488 U. S.
85-89.
Reversed and remanded.
STEVENS, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, BLACKMUN, O'CONNOR, SCALIA, and KENNEDY,
JJ., joined. O'CONNOR, J., filed a concurring opinion,
post, p.
488 U. S. 89.
REHNQUIST, C.J., filed a dissenting opinion,
post, p.
488 U. S.
89.
Page 488 U. S. 77
JUSTICE STEVENS delivered the opinion of the Court.
In
Anders v. California, 386 U.
S. 738 (1967), we gave a negative answer to this
question:
"May a State appellate court refuse to provide counsel to brief
and argue an indigent criminal defendant's first appeal as of right
on the basis of a conclusory statement by the appointed attorney on
appeal that the case has no merit, and that he will file no
brief?"
Brief for Petitioner in
Anders v. California, O.T.
1966, No. 98, p. 2. The question presented by this case is
remarkably similar, and therefore requires a similar answer.
I
Petitioner is indigent. After a trial in the Montgomery County,
Ohio, Court of Common Pleas, he and two codefendants were found
guilty of several serious crimes. Petitioner was sentenced to a
term of imprisonment of 18 to 28 years. On January 8, 1985, new
counsel was appointed to represent him on appeal. Counsel filed a
timely notice of appeal.
On June 2, 1986, petitioner's appellate counsel filed with the
Montgomery County, Ohio, Court of Appeals a document captioned
"Certification of Meritless Appeal and Motion." Excluding this
caption and the certificate evidencing its service
Page 488 U. S. 78
on the prosecutor's office and petitioner, the document in its
entirety read as follows:
"Appellant's attorney respectfully certifies to the Court that
he has carefully reviewed the within record on appeal, that he has
found no errors requiring reversal, modification and/or vacation of
appellant's jury trial convictions and/or the trial court's
sentence in Case No. 84CR-1056, that he has found no errors
requiring reversal, modification and/or vacation of appellant's
jury trial convictions and/or the trial court's sentence in Case
No. 84CR-1401, and that he will not file a meritless appeal in this
matter."
"
MOTION"
"Appellant's attorney respectfully requests a Journal Entry
permitting him to withdraw as appellant's appellate attorney of
record in this appeal, thereby relieving appellant's attorney of
any further responsibility to prosecute this appeal with the
attorney/client relationship terminated effective on the date
file-stamped on this Motion."
App. 35-36.
A week later, the Court of Appeals entered an order allowing
appellate counsel to withdraw and granting petitioner 30 days in
which to file an appellate brief
pro se. Id. at
37. The order further specified that the court would thereafter
"independently review the record thoroughly to determine whether
any error exists requiring reversal or modification of the
sentence. . . ."
Ibid. Thus, counsel was permitted to
withdraw before the court reviewed the record on nothing more than
"a conclusory statement by the appointed attorney on appeal that
the case has no merit and that he will file no brief." Moreover,
although granting petitioner several extensions of time to file a
brief, the court denied petitioner's request for the appointment of
a new attorney. No merits brief was filed on petitioner's
behalf.
Page 488 U. S. 79
In due course, and without the assistance of any advocacy for
petitioner, the Court of Appeals made its own examination of the
record to determine whether petitioner received "a fair trial and
whether any grave or prejudicial errors occurred therein."
Id. at 40. As an initial matter, the court noted that
counsel's certification that the appeal was meritless was "highly
questionable."
Ibid. In reviewing the record and the
briefs filed by counsel on behalf of petitioner's codefendants, the
court found "several arguable claims."
Id. at 41. Indeed,
the court concluded that plain error had been committed in the jury
instructions concerning one count. [
Footnote 1] The court therefore reversed petitioner's
conviction and sentence on that count, but affirmed the convictions
and sentences on the remaining counts. It concluded that petitioner
"suffered no prejudice" as a result of "counsel's failure to give a
more conscientious examination of the record" because the court had
thoroughly examined the record and had received the benefit of
arguments advanced by counsel for petitioner's two codefendants.
Ibid. Petitioner appealed the judgment of the Court of
Appeals to the Ohio Supreme Court, which dismissed the appeal.
Id. at 45. We granted certiorari, 484 U.S. 1059 (1988),
and now reverse.
II
Approximately a quarter of a century ago, in
Douglas v.
California, 372 U. S. 353
(1963), this Court recognized that the Fourteenth Amendment
guarantees a criminal appellant the right to counsel on a first
appeal as of right. We held
Page 488 U. S. 80
that a procedure in which appellate courts review the record and
"appoint counsel if in their opinion" the assistance of counsel
"would be helpful to the defendant or the court,"
id. at
372 U. S. 355,
is an inadequate substitute for guaranteed representation.
[
Footnote 2] Four years later,
in
Anders v. California, 386 U. S. 738
(1967), we held that a criminal appellant may not be denied
representation on appeal based on appointed counsel's bare
assertion that he or she is of the opinion that there is no merit
to the appeal.
The
Anders opinion did, however, recognize that, in
some circumstances, counsel may withdraw without denying the
indigent appellant fair representation, provided that certain
safeguards are observed: appointed counsel is first required to
conduct "a conscientious examination" of the case.
Id. at
386 U. S. 744.
If he or she is then of the opinion that the case is wholly
frivolous, counsel may request leave to withdraw. The request
"must, however, be accompanied by a brief referring to anything in
the record that might arguably support the appeal."
Ibid.
Once the appellate court receives this brief, it must then itself
conduct "a full examination of all the proceeding[s] to decide
whether the case is wholly frivolous."
Ibid. Only after
this separate inquiry, and only after the appellate court finds no
nonfrivolous issue for appeal, may the court proceed to consider
the appeal on the merits without the assistance of counsel. On the
other hand, if the court disagrees with counsel -- as the Ohio
Court of Appeals did in this case -- and concludes that there are
nonfrivolous issues for appeal, "it must, prior to decision, afford
the indigent the assistance of counsel to argue the appeal."
Ibid.
Page 488 U. S. 81
It is apparent that the Ohio Court of Appeals did not follow the
Anders procedures when it granted appellate counsel's
motion to withdraw, and that it committed an even more serious
error when it failed to appoint new counsel after finding that the
record supported several arguably meritorious grounds for reversal
of petitioner's conviction and modification of his sentence. As a
result, petitioner was left without constitutionally adequate
representation on appeal.
The Ohio Court of Appeals erred in two respects in granting
counsel's motion for leave to withdraw. First, the motion should
have been denied because counsel's "Certification of Meritless
Appeal" failed to draw attention to "anything in the record that
might arguably support the appeal." [
Footnote 3]
Ibid. The so-called "
Anders
brief" serves the valuable purpose of assisting the court in
determining both that counsel in fact conducted the required
detailed review of the case, [
Footnote 4] and that
Page 488 U. S. 82
the appeal is indeed so frivolous that it may be decided without
an adversary presentation. The importance of this twin function of
the
Anders brief was noted in
Anders itself, 386
U.S. at
386 U. S. 745,
and was again emphasized last Term. In our decision in
McCoy v.
Court of Appeals of Wisconsin, 486 U.
S. 429 (1988), we clearly stated that the
Anders brief is designed both
"to provide the appellate courts with a basis for determining
whether appointed counsel have fully performed their duty to
support their clients' appeal to the best of their ability,"
and also to help the court make "the critical determination
whether the appeal is indeed so frivolous that counsel should be
permitted to withdraw."
Id. at
486 U. S. 439.
Counsel's failure to file such a brief left the Ohio court without
an adequate basis for determining that he had performed his duty
carefully to search the case for arguable error, and also deprived
the court of the assistance of an advocate in its own review of the
cold record on appeal. [
Footnote
5]
Moreover, the Court of Appeals should not have acted on the
motion to withdraw before it made its own examination of the record
to determine whether counsel's evaluation of the
Page 488 U. S. 83
case was sound. [
Footnote 6]
This requirement was plainly stated in
Ellis v. United
States, 356 U. S. 674,
356 U. S. 675
(1958), it was repeated in
Anders, 386 U.S. at
386 U. S. 744,
and it was reiterated last Term in
McCoy, 486 U.S. at
486 U. S. 442.
As we explained in
McCoy:
"To satisfy federal constitutional concerns, an appellate court
faces two interrelated tasks as it rules on counsel's motion to
withdraw. First, it must satisfy itself that the attorney has
provided the client with a diligent and thorough search of the
record for any arguable claim that might support the client's
appeal. Second, it must determine whether counsel has correctly
concluded that the appeal is frivolous."
Ibid.
Most significantly, the Ohio court erred by failing to appoint
new counsel to represent petitioner after it had determined that
the record supported "several arguable claims." App. 41. As
Anders unambiguously provides,
"if [the appellate court] 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."
386 U.S. at
386 U. S. 744;
see also McCoy, 486 U.S. at
486 U. S. 444
("Of course, if the court concludes that there are nonfrivolous
issues to be raised, it must appoint counsel to pursue the appeal
and direct that counsel to prepare an advocate's brief before
deciding the merits"). This requirement necessarily follows from an
understanding of the interplay between
Douglas and
Anders. Anders, in essence, recognizes a limited
exception to the requirement articulated in
Douglas that
indigent defendants receive representation on their first appeal as
of right. The exception is predicated on the fact that the
Fourteenth Amendment -- although demanding
Page 488 U. S. 84
active and vigorous appellate representation of indigent
criminal defendants -- does not demand that States require
appointed counsel to press upon their appellate courts wholly
frivolous arguments. However, once a court determines that the
trial record supports arguable claims, there is no basis for the
exception and, as provided in
Douglas, the criminal
appellant is entitled to representation. The Court of Appeals'
determination that arguable issues were presented by the record,
therefore, created a constitutional imperative that counsel be
appointed.
It bears emphasis that the right to be represented by counsel is
among the most fundamental of rights. We have long recognized that
"lawyers in criminal courts are necessities, not luxuries."
Gideon v. Wainwright, 372 U. S. 335,
372 U. S. 344
(1963). As a general matter, it is through counsel that all other
rights of the accused are protected:
"Of all the rights that an accused person has, the right to be
represented by counsel is by far the most pervasive, for it affects
his ability to assert any other rights he may have."
Schaefer, Federalism and State Criminal Procedure, 70
Harv.L.Rev. 1, 8 (1956);
see also Kimmelman v. Morrison,
477 U. S. 365,
477 U. S. 377
(1986);
United States v. Cronic, 466 U.
S. 648,
466 U. S. 654
(1984). The paramount importance of vigorous representation follows
from the nature of our adversarial system of justice. This system
is premised on the well-tested principle that truth -- as well as
fairness -- is "
best discovered by powerful statements on both
sides of the question.'" Kaufman, Does the Judge Have a Right to
Qualified Counsel?, 61 A.B.A.J. 569, 569 (1975) (quoting Lord
Eldon); see also Cronic, 466 U.S. at 466 U. S. 655;
Polk County v. Dodson, 454 U. S. 312,
454 U. S.
318-319 (1981). Absent representation, however, it is
unlikely that a criminal defendant will be able adequately to test
the government's case, for, as Justice Sutherland wrote in
Powell v. Alabama, 287 U. S. 45
(1932), "[e]ven the intelligent and educated layman has small and
sometimes no skill in the science of law." Id. at
287 U. S.
69.
Page 488 U. S. 85
The need for forceful advocacy does not come to an abrupt halt
as the legal proceeding moves from the trial to appellate stage.
Both stages of the prosecution, although perhaps involving unique
legal skills, require careful advocacy to ensure that rights are
not forgone and that substantial legal and factual arguments are
not inadvertently passed over. As we stated in
Evitts v.
Lucey, 469 U. S. 387
(1985):
"In bringing an appeal as of right from his conviction, a
criminal defendant is attempting to demonstrate that the
conviction, with its consequent drastic loss of liberty, is
unlawful. To prosecute the appeal, a criminal appellant must face
an adversary proceeding that -- like a trial -- is governed by
intricate rules that, to a layperson, would be hopelessly
forbidding. An unrepresented appellant -- like an unrepresented
defendant at trial -- is unable to protect the vital interests at
stake."
Id. at
469 U. S. 396.
By proceeding to decide the merits of petitioner's appeal without
appointing new counsel to represent him, the Ohio Court of Appeals
deprived both petitioner and itself of the benefit of an adversary
examination and presentation of the issues.
III
The State nonetheless maintains that, even if the Court of
Appeals erred in granting the motion to withdraw and in failing to
appoint new counsel, the court's conclusion that petitioner
suffered "no prejudice" indicates both that petitioner has failed
to show prejudice under
Strickland v. Washington,
466 U. S. 668
(1984), and also that any error was harmless under
Chapman v.
California, 386 U. S. 18
(1967). In either event, in the State's view, the Court of Appeals'
affirmance of petitioner's conviction should stand. [
Footnote 7] We disagree.
Page 488 U. S. 86
The primary difficulty with the State's argument is that it
proves too much. No one disputes that the Ohio Court of Appeals
concluded that the record below supported a number of arguable
claims. Thus, in finding that petitioner suffered no prejudice, the
court was simply asserting that, based on its review of the case,
it was ultimately unconvinced that petitioner's conviction -- with
the exception of one count -- should be reversed. Finding harmless
error or a lack of
Strickland prejudice in cases such as
this, however, would leave indigent criminal appellants without any
of the protections afforded by
Anders. Under the State's
theory, if, on reviewing the bare appellate record, a court would
ultimately conclude that the conviction should not be reversed,
then the indigent criminal appellant suffers no prejudice by being
denied his right to counsel. Similarly, however, if, on reviewing
the record, the court would find a basis for reversal, then the
criminal defendant also suffers no prejudice. In either event, the
criminal appellant is not harmed, and thus has no basis for
complaint. Thus, adopting the State's view would render meaningless
the protections afforded by
Douglas and
Anders.
Nor are we persuaded that the Court of Appeals' consideration of
the appellate briefs filed on behalf of petitioner's codefendants
alters this conclusion. One party's right to representation on
appeal is not satisfied by simply relying on representation
provided to another party.
See Tr. of Oral Arg. 28-29. To
the contrary,
"[t]he right to counsel guaranteed by the Constitution
contemplates the services of an attorney
Page 488 U. S. 87
devoted solely to the interests of his client.
Glasser v.
United States, 315 U. S. 60,
315 U. S.
70 [(1942)]."
Von Moltke v. Gillies, 332 U.
S. 708,
332 U. S. 725
(1948) (plurality opinion). A criminal appellant is entitled to a
single-minded advocacy for which the mere possibility of a
coincidence of interest with a represented codefendant is an
inadequate proxy. [
Footnote 8]
The State's argument appears to suggest, however, that there would
rarely, if ever, be a remedy for an indigent criminal appellant who
only receives representation to the extent a codefendant's counsel
happens to raise relevant arguments in which they share a common
interest. Again, the State's argument proves too much.
More significantly, the question whether the briefs filed by
petitioner's codefendants, along with the court's own review of the
record, adequately focused the court's attention on the arguable
claims presented in petitioner's case is itself an issue that
should not have been resolved without the benefit of an adversary
presentation. An attorney acting on petitioner's behalf might well
have convinced the court that petitioner's interests were at odds
with his codefendants', or that petitioner's case involved
significant issues not at stake in his codefendants' cases. Mere
speculation that counsel would not have made a difference is no
substitute for actual appellate advocacy, particularly when the
court's speculation is itself unguided by the adversary process.
[
Footnote 9]
Page 488 U. S. 88
Finally, it is important to emphasize that the denial of counsel
in this case left petitioner completely without representation
during the appellate court's actual decisional process. This is
quite different from a case in which it is claimed that counsel's
performance was ineffective. As we stated in
Strickland,
the "[a]ctual or constructive denial of the assistance of counsel
altogether is legally presumed to result in prejudice." 466 U.S. at
466 U. S. 692.
Our decision in
United States v. Cronic, likewise, makes
clear that
"[t]he presumption that counsel's assistance is essential
requires us to conclude that a trial is unfair if the accused is
denied counsel at a critical stage of his trial."
466 U.S. at
466 U. S. 659
(footnote omitted). Similarly,
Chapman recognizes that the
right to counsel is "so basic to a fair trial that [its] infraction
can never be treated as harmless error." 386 U.S. at
386 U. S. 23,
and n. 8. And more recently, in
Satterwhite v. Texas,
486 U. S. 249,
486 U. S. 256
(1988), we stated that a pervasive denial of counsel casts such
doubt on the fairness of the trial process that it can never be
considered harmless error. Because the fundamental importance of
the assistance of counsel does not cease as the prosecutorial
process moves from the trial to the appellate stage,
see
supra at
488 U. S. 85,
the presumption of prejudice must extend as well to the denial of
counsel on appeal.
The present case is unlike a case in which counsel fails to
press a particular argument on appeal,
cf. Jones v.
Barnes, 463 U. S. 745
(1983), or fails to argue an issue as effectively as he or she
might. Rather, at the time the Court of Appeals first considered
the merits of petitioner's appeal, appellate counsel had already
been granted leave to withdraw; petitioner was thus entirely
without the assistance of counsel on appeal. In fact, the only
relief that counsel sought before the Court of Appeals was leave to
withdraw, an action that can hardly be deemed advocacy on
petitioner's behalf.
Cf. McCoy, 486 U.S. at
486 U. S.
439-440, n. 13. It is therefore inappropriate
Page 488 U. S. 89
to apply either the prejudice requirement of
Strickland
or the harmless error analysis of
Chapman. [
Footnote 10]
The judgment of the Court of Appeals is accordingly reversed,
and the case is remanded to that court for further proceedings not
inconsistent with this opinion.
It is so ordered.
[
Footnote 1]
Petitioner was charged in counts 5 and 6 of the indictment with
felonious assault. App. 6-7;
see Ohio Rev.Code Ann. §
2903.11(A)(2) (Page 1987). In examining the record, the Court of
Appeals discovered that the trial court neglected to instruct the
jury concerning an element of this crime. Applying the State's
plain error doctrine, which requires a showing of substantial
prejudice, the Court of Appeals reversed petitioner's conviction
under count 6 of the indictment, but let stand his conviction under
count 5. App. 41-43.
[
Footnote 2]
In reaching this conclusion, the Court noted:
"At this stage in the proceedings, only the barren record speaks
for the indigent, and, unless the printed pages show that an
injustice has been committed, he is forced to go without a champion
on appeal. Any real chance he may have had of showing that his
appeal has hidden merit is deprived him when the court decides, on
an
ex parte examination of the record, that the assistance
of counsel is not required."
372 U.S. at
372 U. S.
356.
[
Footnote 3]
Counsel's "Certification of Meritless Appeal," which simply
noted that counsel, after carefully reviewing the record, "found no
errors requiring reversal, modification and/or vacation of
appellant's" conviction or sentence, App. 35, bears a marked
resemblance to the no-merit letter we held inadequate in
Anders. The no-merit letter at issue in
Anders
read as follows:
"Dear Judge Van Dyke:"
"This is to advise you that I have received and examined the
trial transcript of CHARLIE ANDERS as it relates to his conviction
of the crime of possession of narcotics."
"I will not file a brief on appeal, as I am of the opinion that
there is no merit to the appeal. I have visited and communicated
with Mr. Anders, and have explained my views and opinions to him as
they relate to his appeal."
"Mr. Anders has advised me that he wishes to file a brief in
this matter on his own behalf. . . ."
Tr. of Record in
Anders v. California, O.T. 1966, No.
98, p. 6.
[
Footnote 4]
Not only does the
Anders brief assist the court in
determining that counsel has carefully reviewed the record for
arguable claims, but, in marginal cases, it also provides an
independent inducement to counsel to perform a diligent review:
"The danger that a busy or inexperienced lawyer might opt in
favor of a one-sentence letter instead of an effective brief in an
individual marginal case is real, notwithstanding the dedication
that typifies the profession. If, however, counsel's ultimate
evaluation of the case must be supported by a written opinion
'referring to anything in the record that might arguably support
the appeal,' [
Anders,] 386 U.S. at
386 U. S.
744 . . . the temptation to discharge an obligation in
summary fashion is avoided, and the reviewing court is provided
with meaningful assistance."
Nichols v. Gagnon, 454 F.2d 467, 470 (CA7 1971),
cert. denied, 408 U.S. 925 (1972) (footnotes omitted). In
addition, simply putting pen to paper can often shed new light on
what may at first appear to be an open-and-closed issue.
[
Footnote 5]
One hurdle faced by an appellate court in reviewing a record on
appeal without the assistance of counsel is that the record may not
accurately and unambiguously reflect all that occurred at the
trial. Presumably, appellate counsel may contact the trial attorney
to discuss the case, and may thus, in arguing the appeal, shed
additional light on the proceedings below. The court, of course, is
not in the position to conduct such
ex parte
communications.
[
Footnote 6]
Obviously, a court cannot determine whether counsel is in fact
correct in concluding that an appeal is frivolous without itself
examining the record for arguable appellate issues. In granting
counsel's motion to withdraw, however, the Ohio Court of Appeals
noted that it was deferring its independent review of the record
for a later date.
See App. 37.
[
Footnote 7]
The Court of Appeals' finding of "no prejudice" is not free from
ambiguity. The court wrote:
"Because we have thoroughly examined the record and already
considered the assignments of error raised in the other defendants'
appeals, we find appellant has suffered no prejudice in his
counsel's failure to give a more conscientious examination of the
record."
App. 40-41. Not only does this language leave unclear whether
the court relied on
Strickland, Chapman, or both cases in
concluding that petitioner was not entitled to relief, but it also
appears to limit the finding of no prejudice to "counsel's failure
to give a more conscientious examination of the record." The court
did not recognize that petitioner's rights were also violated by
its own omission in failing to appoint new counsel, and thus did
not consider whether this separate violation was prejudicial.
[
Footnote 8]
There is, of course, a significant distinction between joint
representation on appeal, which is often appropriate, and the mere
possibility of a coincidence of interest between represented and
unrepresented criminal appellants.
[
Footnote 9]
Although petitioner has been represented by counsel in this
Court, we decline to sit in place of the Ohio Court of Appeals in
the first instance to determine whether petitioner was prejudiced
as to any appellate issue by reason of either counsel's failure to
file an
Anders brief or the court's failure to appoint new
counsel.
Cf. Kimmelman v. Morrison, 477 U.
S. 365,
477 U. S. 390
(1986). It would be particularly inappropriate for us to do so in a
case raising both factual issues and questions of Ohio law.
[
Footnote 10]
A number of the Courts of Appeals have reached a like conclusion
when faced with similar denials of appellate counsel.
See
United States ex rel. Thomas v. O'Leary, 856 F.2d 1011 (CA7
1988);
Freels v. Hills, 843 F.2d 958 (CA6 1988);
Jenkins v. Coombe, 821 F.2d 158 (CA2 1987),
cert.
denied, 484 U.S. 1008 (1988);
Cannon v. Berry, 727
F.2d 1020 (CA11 1984);
but cf. Sanders v. Clarke, 856 F.2d
1134 (CA8 1988);
Lockhart v. McCotter, 782 F.2d 1275 (CA5
1986),
cert. denied, 479 U.S. 1030 (1987);
Griffin v.
West, 791 F.2d 1578 (CA10 1986).
JUSTICE O'CONNOR, concurring.
I join the Court's opinion. I write separately to emphasize that
nothing in the Court's opinion forecloses the possibility that a
mere technical violation of
Anders v. California,
386 U. S. 738
(1967), might be excusable. The violation in this case was not a
mere technical violation, however, and, on that understanding, I
concur.
CHIEF JUSTICE REHNQUIST, dissenting.
The Sixth Amendment to the Constitution provides that, "[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to
have the Assistance of Counsel for his defense." The Court has
construed this language to include not only the right to assistance
of counsel at trial,
Gideon v. Wainwright, 372 U.
S. 335 (1963), but also to the assistance of counsel on
appeal.
Douglas v. California, 372 U.
S. 353 (1963). We have also held that the right
conferred is not simply to the assistance of counsel, but also to
the effective assistance of counsel, both at trial,
see United
States v. Cronic, 466 U. S. 648
(1984);
Strickland v. Washington, 466 U.
S. 668 (1984), and on appeal,
see Evitts v.
Lucey, 469 U. S. 387
(1985).
Page 488 U. S. 90
There is undoubtedly an equal protection component in the
decisions extending the Sixth Amendment right to counsel on appeal;
Griffin v. Illinois, 351 U. S. 12
(1956);
Douglas v. California, supra. But we have also
recognized that
"[t]he duty of the State under our cases is not to duplicate the
legal arsenal that may be privately retained by a criminal
defendant in a continuing effort to reverse his conviction, but
only to assure the indigent defendant an adequate opportunity to
present his claims fairly in the context of the State's appellate
process."
Ross v. Moffitt, 417 U. S. 600,
417 U. S. 616
(1974).
The Court today loses sight of this, and instead seeks to
engraft onto our decision in
Anders v. California,
386 U. S. 738
(1967), a presumption of prejudice when the appellate attorney for
an indigent does not exactly follow the procedure laid down in that
case. Thus today's decision is added to the decision in
Anders itself as a futile monument to the Court's effort
to guarantee to the indigent appellant what no court can guarantee
him: exactly the same sort of legal services that would be provided
by suitably retained private counsel.
There are doubtless lawyers admitted to practice in the State of
Ohio who, for a substantial retainer, would have filed a brief on
behalf of petitioner in the Ohio Court of Appeals urging, with a
straight face, all of the claims which petitioner's appointed
attorney decided were frivolous. But nothing in the Constitution or
in any rational concept of public policy should lead us to require
public financing for that sort of an effort. The Court's opinion
today justifies the
Anders brief because it
"serves the valuable purpose of assisting the court in
determining both that counsel in fact conducted the required
detailed review of the case and that the appeal is indeed so
frivolous that it may be decided without an adversary
presentation."
Ante at
488 U. S. 81-82
(footnote omitted). These may be desirable purposes, but it seems
to me that it stretches the Sixth Amendment a good deal to say that
it requires these interests to be pursued in this manner.
The
Page 488 U. S. 91
Sixth Amendment does not confer a right to have the court
supervise counsel's assistance as it is rendered, but rather a
right to have counsel appointed for the purpose of pursuing the
appeal.
Here, counsel rendered "assistance," and his performance must be
reviewed for ineffectiveness and prejudice before any
constitutionally mandated relief is in order.
Strickland,
supra, at
466 U. S.
687-696. Counsel states -- and we have no reason to
disbelieve him -- that he conscientiously reviewed the record
and
"found no errors requiring reversal, modification and/or
vacation of appellant's jury trial convictions and/or the trial
court's sentence in [his case]."
App. 35. As it turned out, that determination was incorrect, but
this fact does not mean that counsel did not employ his legal
talents in the service of his client. Whether or not this
evaluative process constituted "assistance" cannot be affected by
its conclusion.
"[T]he 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."
See Polk County v. Dodson, 454 U.
S. 312,
454 U. S. 323
(1981).
This is not to say that an attorney's erroneous decision to
withdraw is necessarily adequate assistance of counsel. That is to
be judged under
Strickland. Of course, counsel may protect
himself from collateral review of the effectiveness of his
performance by following the safe-harbor procedures outlined in
Anders. As described by the Court today, the filing of an
Anders brief creates a strong presumption that counsel has
diligently worked on the case and that the court was correct in
assessing the frivolousness of the appeal when it allowed
withdrawal.
Anders may well outline a prudent course to
follow for the appointed attorney who wishes to withdraw from a
frivolous case. But if counsel declines to follow it, the basic
constitutional guarantee of effective assistance remains the
underlying standard by which his conduct should be judged.
Page 488 U. S. 92
In this case, petitioner was one of a group of three men who
broke into a dwelling and robbed, raped, and otherwise sexually
assaulted the adult inhabitants. It cannot be questioned that
petitioner and his codefendants stood in substantially the same
position in defending against the charges.
* The appellate
court considered the briefs of petitioner's codefendants and
conducted its own review of the record. It ultimately reversed one
of petitioner's convictions as a result. It also considered, but
decided against, reversing another. Although the "coincidence of
interest with a represented codefendant,"
ante at
488 U. S. 87, is
not a substitute for the assistance of counsel, it certainly may
eliminate the prejudice of poor representation if it brings to the
court's attention the meritorious arguments that appointed counsel
failed to make. In this case, the merits briefs filed on behalf of
his codefendants were substantially
more beneficial to
petitioner than an
Anders brief from his own attorney. The
appellate court performed its duty in utilizing the available
advocate's papers on petitioner's behalf and in exercising its
independent judgment of the record. After doing so, it concluded
that petitioner had not suffered prejudice from his counsel's
withdrawal without filing an
Anders brief. On these facts,
I think that conclusion plainly correct.
* The Court asserts that
"[a]n attorney acting on petitioner's behalf might well have
convinced the court that petitioner's interests were at odds with
his codefendants'. . . ."
Ante at
488 U. S. 87.
This appears to be pure speculation. Nothing in the papers filed in
this Court, nor in the majority opinion, suggests any theory of how
this might be done or why, if such a conflict existed, the court
could not discern it from its own review of the record.