Metropolitan News-Enterprise


Monday, June 11, 2018


Page 1


Court of Appeal:

No Need to List Nonmeritorious Issues in Wende Brief

 Fourth District’s Div. One Strikes Brief, Provides Guidelines


By a MetNews Staff Writer


The Fourth District Court of Appeal on Friday struck a Wende brief saying that such a brief need not contain a list of nonmeritorious issues.

Patricia Benke of Div. One drafted the order, in her capacity as acting presiding justice, and directed that it be published.

The opinion sends the message to appointed appellate counsel to distinguish between the requirements of the United States Supreme Court’s 1976 decision in Anders v. California and what is called for in the California Supreme Court’s 1979 ruling in People v. Wende.

Decision in Anders

In Anders, Justice Tom C. Clark dealt with the same situation as in Wende: the court-appointed appellate lawyer saw no meritorious argument for reversal. Clark said:

“[I]f 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.”

In Wende, the state high court, in a 6-1 opinion by Justice Wiley Manuel, said there are circumstances where a lawyer on appeal who finds no arguable issue might remain on the case, rather than withdrawing, explaining:

“So long as counsel has not disabled himself from effectively representing his client by describing the case as frivolous, no reason appears why he should be required to request to withdraw.”

‘No Specific Issues’

Manuel declared:

“We conclude that Anders requires the court to conduct a review of the entire record whenever appointed counsel submits a brief which raises no specific issues or describes the appeal as frivolous. This obligation is triggered by the receipt of such a brief from counsel and does not depend on the subsequent receipt of a brief from the defendant personally.”

(Justice William P. Clark Jr. said in a dissent: “The majority today effectively designate our already overburdened Courts of Appeal as cocounsel to indigents convicted of crime on unassailable records.”)

Wende/Anders Brief’

In the Court of Appeal case before the Fourth District, the brief submitted by appointed counsel Patricia J. Ulibarri was labeled a “Wende/Anders brief.” Benke observed:

“It is possible that counsel was following the guidance provided to all appointed counsel panel attorneys by Appellate Defenders, Inc. (ADI), a nonprofit law firm that administers the appointed counsel system for the California Court of Appeal, Fourth Appellate District.”

The manual, in a discussion on “Wende/Anders briefs” says:

“A question of some disagreement is whether a no-issue filing should describe the issues counsel considered….

“ADI for the most part encourages listing of issues. It is a way of stimulating and organizing counsel’s thoughts, suggesting issues to the Court of Appeal it might not otherwise consider, and demonstrating counsel’s efforts to the court, the project, and the client.”

No Constitutional Requirement

Benke set forth:

“We first state what we believe is clear: there is no constitutional requirement that issues arguably supporting an appeal be listed in a Wende brief. That is, neither the United States Supreme Court nor the California Supreme Court has ever held that a listing of Anders issues is required in a Wende brief. Moreover, we do not perceive any inconsistency on this point of law.”

She noted that the U.S. Supreme Court, in the 2000 case of Smith v. Robbins said the listing of arguable issues by an attorney seeking to withdraw was only a “suggestion” in Anders.

“We have found no case holding that listing Anders issues is a requirement in California’s Wende procedure,” Benke wrote. “On the contrary, every relevant authority we have consulted holds that full compliance with the Wende procedure alone sufficiently safeguards an indigent’s right to effective counsel….

“The only remaining question is whether an Anders listing is beneficial to a reviewing court and more so, to the interests of appellants seeking review. We conclude the answer is, it can be…, but not always.”

Not Helpful

In the present case, the jurist said, the “laundry list of nine ‘claims’ or issues” was not at all helpful.

“[W]e strike the Wende/Anders brief filed in this appeal,” Benke said, “and direct appellate counsel, within 20 days of the date of this order, to either file a Wende brief devoid of so-called ‘claims’ appearing in the record (Anders issues), or file a brief on the merits containing fully developed arguments on specific claims or issues.”

The case is People v. Garcia, 2018 S.O.S. 2931.


Copyright 2018, Metropolitan News Company