concluding that counsel should not raise a Rule 11 argument on appeal, or even explore the question in an Anders submission, unless the defendant wants his plea set aside
How later courts described this case
- concluding that counsel should not raise a Rule 11 argument on appeal, or even explore the question in an Anders submission, unless the defendant wants his plea set aside
- explaining that a lawyer moving to withdraw under Anders should ignore potential issues arising from a guilty plea unless the defendant wants the plea set aside
- stating that lawyer should not discuss potential challenge to guilty plea in Anders submission without knowing that defendant wants plea set aside
- explaining that attorney presenting Anders submission should not even explore possible Rule 11 claim unless defendant wants plea set aside
Written by the judges who cited it.
The opinion
RIPPLE, Circuit Judge,
dissenting.
I cannot join in my colleagues’ decision to accept the Anders brief submitted by counsel, to permit counsel to withdraw and to dismiss the appeal as frivolous.
At this early stage of the proceedings, our first task is to determine whether we ought to permit counsel to withdraw and then dismiss the appeal as frivolous. In my view, this Anders brief is inadequate. Despite counsel’s assurances that no Rule 11 violation occurred during the plea colloquy, it is clear that the district court did not advise Mr. Knox that he had the right to plead not guilty, as required by Rule 11(c)(3), nor did it inform him of the consequences for violating the terms of his supervised release, as required by Rule 11(c)(1).
One of the reasons that defense counsel is required to submit an Anders brief rather than a mere “no-merit letter” is that an Anders brief assists the appellate court in its review “because of the ready references not only to the record, but also to the legal authorities as furnished by counsel.” Anders v. California, 386 U.S. 738, 745 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 (1967). In this way, the confidence of the appellate court that the appeal raises no non-frivolous issues and the confidence of the indigent defendant that his case received the “advocacy which a nonindigent defendant is able to obtain” are assured. Id. at 745 , 87 S.Ct. 1396 . Here, counsel has failed to notice the Rule 11 violations and so has not advised this court of the worth in appealing the matter. Counsel’s brief, therefore, provides us with no more assistance than the no-merit letter rejected by the Supreme Court in Anders. See Anders, 386 U.S. at 744-45 , 87 S.Ct. 1396 (“The no-merit letter ... affords neither the client nor the court any aid.”).
In dismissing this appeal, my colleagues excuse the omission of counsel because nothing suggests that Mr. Knox wants to withdraw his guilty plea, and a withdrawal of the plea may put Mr. Knox in jeopardy of receiving a higher sentence should he be convicted after a trial. This conclusion, in my view, is premature at best. If counsel did not recognize the infirmities of the Rule 11 colloquy, it is apparent that he also did not apprise his client of these matters and of the consequences of raising the error on appeal. After receiving such advice, the defendant may well determine, for the reasons given by my colleagues, not to raise the matter. However, this court ought not express a view on the advisability of raising the issue or on the merits of the issue until we can be certain that the defendant, with the advice of counsel, has considered it. As has been the practice of this court, we should order counsel for Mr. Knox to evaluate the Rule 11 violations and to determine whether it indeed would be frivolous to appeal the issue. For instance, in United States v. Graves, 98 F.3d 258, 259 (7th Cir.1996), after counsel had submitted an Anders brief re citing that there had been no violations of Rule 11, we ordered counsel to consider two specific Rule 11 issues— the district court’s failure to advise the *673 defendant that any statement he made at the plea hearing could be made the basis of a perjury prosecution of him, and the misrepresentation of the availability of good-time credits for the offense. See also United States v. Robinson, 96 F.3d 246, 254 (7th Cir.1996) (granting counsel’s motion to withdraw, after counsel filed an Anders brief submitting that there had been no Rule 11 violation, but appointing new counsel to address the issue of whether the government’s proffer of proof in support of the guilty plea was sufficient); United States v. Tuangmaneeratmun, 925 F.2d 797, 800 (5th Cir.1991) (after counsel filed an Anders brief stating that the district court had accepted the plea in full conformity with the requirements of Rule 11, the court directed counsel to address the district court’s failure to explain the effects of supervised release).
In short, we ought to proceed at a measured pace in adjudicating this case. We ought not take definitive action on this appeal until we can be confident that counsel has evaluated thoroughly the case and made with his client a careful determination as to whether to raise the adequacy of the Rule 11 determination.