Commonwealth v. McClendon

O’BRIEN, Chief Justice,

dissenting.

The majority in the instant case disregards the constitutionally mandated procedure for withdrawal of counsel as set forth by the Supreme Court of the United States in Anders v. California, 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 (1967). The majority claims that counsel herein has met the requirements of Anders because he requested to withdraw, filed a brief, furnished his client with a copy and advised him of his right to retain new counsel or proceed in propria persona. The majority states that it is then incumbent upon the court to review the record and make an independent judgment whether or not the appeal is indeed frivolous. Once that finding is made, “[t]he 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 Anders.” at 1187.

Such a procedure completely ignores the spirit of Anders , which detailed what counsel is required to do before the *475 court makes an independent judgment regarding the merit (if any) of the appeal. An evaluation of the brief submitted purporting to comply with Anders must be made before the court undertakes an independent evaluation. If the brief filed is inadequate, the indigent has not received the diligent and effective representation which is required by Anders .

The majority is careful to point out that the Anders 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.’ ” at 1186, citing, Anders, v. California, supra 386 U.S. at 744 , 87 S.Ct. at 1400 . However, this requirement is completely ignored when the majority evaluates whether the brief prepared and submitted by counsel for appellant satisfies the imperative of Anders . The Court’s action today amounts to merely paying lip service to the precept of quality legal representation for those without financial resources.

A common thread running through the Anders opinion is the Supreme Court’s denunciation of counsel’s representation in the role of amicus curiae. In Part I of the opinion, the Court described the precedent that provided the basis for the Anders decision and specifically reiterated that counsel’s representation “must be in the role of an advocate, Ellis v. United States, 356 U.S. 674, 675 , 78 S.Ct. 974, 975 , 2 L.Ed.2d 1060 (1958), rather than as amicus curiae.” Anders v. California, supra 386 U.S. at 741 , 87 S.Ct. at 1399 . In Part II of the opinion, when discussing the particular procedure that had been utilized in Mr. Anders’ case, the Court rejected the procedure because counsel did not act “in any greater capacity than merely as amicus curiae which was condemned in Ellis supra.” Id. 386 U.S. at 743 , 87 S.Ct. at 1399 . Finally, in Part III of the opinion, the Supreme Court began its directive to court-appointed counsel who wish to withdraw with the unequivocal declaration that “[t]he constitutional requirement of substantial equality and fair process can only be attained 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 1100 .

*476 The majority’s conclusion that the role of an advocate insisted upon in Anders refers to the manner in which the record was examined is simply incorrect. If the Anders Court had been solely concerned with counsel’s review of the record, there would have been no need to reject the “no merit letter” utilized by Mr. Anders’ attorney, for the court could have verified counsel’s conclusions by its own review of the record. Rather, the Anders Court was concerned with what counsel submitted to the court that might verify counsel’s examination of the record and aid the Court in conducting its independent evaluation of the case. At the same time the Court in Anders expressed its concern that counsel not brief his case against his client.

The majority states that once counsel examines the record and finds the appeal to be frivolous “he can do no more.” at 1188. Unfortunately, in this case, counsel did indeed “do more,” in the form of argument against his client. Counsel should have limited his brief to a statement of the facts with citations to the transcript and discussion of the legal issues involved in the case with citations of authority.

Instead, counsel for appellant stated, “it is clear that the jury filed [sic] the evidence of such volume and quality as to overcome the presumption of innocence and satisfy the jury of the accused’s guilt beyond a reasonable doubt.” Counsel went on to describe how the evidence was sufficient to sustain the verdict, why the court did not abuse its discretion in sentencing and further cited precedent (albeit insufficiently) upon which this Court could base a finding that a due process claim lacked merit. In answering each point raised, counsel sought to show this Court why each would fail. Such representation does not constitute the assistance of counsel required by Anders and adopted by this Court in Commonwealth v. Collier, 489 Pa. 26 , 413 A.2d 680 (1980) and Commonwealth v. Perry, 464 Pa. 272 , 346 A.2d 554 (1975). The majority’s notion that the brief filed on behalf of Mr. McClendon does not meet the standards set by Collier and Perry is only partially correct. In reality, the majority’s objection is not to the standards set in Collier and Perry , but to those enunciated by the Supreme Court in Anders .

*477 For more than thirteen years this Court has emphatically enforced and reiterated the Anders requirement of spirited advocacy by court-appointed counsel. Since Commonwealth v. Baker, 429 Pa. 209 , 239 A.2d 201 (1968), we have deplored and rejected the submission of a brief purporting to comply with Anders which “effectively amounts to an argument in support of affirmance.” Commonwealth v. Greer, 455 Pa. 106, 110 , 314 A.2d 513, 515 (1974), citing, Commonwealth v. Baker, supra. 1

As the brief submitted in the instant case fails to comply with Anders v. California, supra, I would remand the record to the trial court to appoint new counsel to represent appellant in a manner consistent with this appeal.

ROBERTS, J., joins in this dissenting opinion.

. See also, Commonwealth v. Collier, supra; Commonwealth v. Perry, supra.