Metropolitan News-Enterprise


Thursday, August 15, 2019


Page 3


Court of Appeal:

Appellate Division Must Appoint Counsel for Indigent Defendant

Opinion Says There Is a Right to Free Representation Because Woman Was Sentenced To One Day in Jail, Was Represented by Public Defender in Post-Judgment Motion


By a MetNews Staff Writer


Div. Two of the Fourth District Court of Appeal has ordered a superior court appellate division to supply free counsel to a woman who is appealing the denial of her motion to withdraw a guilty plea.

She has a right to appointed counsel, Justice Douglas P. Miller wrote in an opinion filed Tuesday, in light of California Rules of Court, rule 8.851(a)(1) which provides:

“On application, the appellate division must appoint appellate counsel for a defendant convicted of a misdemeanor who:

“(A) Is subject to incarceration or a fine of more than $500 (including penalty and other assessments), or who is likely to suffer significant adverse collateral consequences as a result of the conviction; and

“(B) Was represented by appointed counsel in the trial court or establishes indigency.”

The defendant, Hedy Wolf—who pled guilty to making harassing telephone calls, a misdemeanor—was sentenced to one day in jail, and was represented by the Public Defender’s Office in moving to withdraw her plea.

“Rule 8.851(a)(1) mandates that appellate counsel be appointed when the foregoing two criteria are met,” Miller wrote. “Therefore, the appellate division was required to appoint appellate counsel for Petitioner.”

Post-Judgment Representation

The jurist said it does not matter that Wolf was only represented below in connection with a post-judgment motion. A showing of previous representation by a court-appointed lawyer, he explained, is simply an alternative to establishing indigency in the Appellate Division.

“The point of a defendant having appointed counsel in the trial court is that the defendant established indigency and is not required to establish it a second time in the appellate division,” Miller wrote. “Not having to go through a second process of establishing indigency permits appeals to proceed in an efficient manner.”

The District Attorney’s Office—the real party in interest in the proceeding—argued that Wolf’s appeal from the denial of her motion to withdraw her plea was untimely.

Trial Court Matter

 Miller responded:

“It is not for this court to decide if Petitioner’s appeal in the superior court’s appellate division is untimely. If Real Party in Interest believes Petitioner’s appeal is untimely, then Real Party in Interest should direct a motion to dismiss to the appellate division of the superior court. If Real Party in Interest moves to dismiss Petitioner’s appeal due to it being untimely, then Petitioner should be represented by counsel for purposes of responding to that motion. In other words, the possibility that Real Party in Interest could prevail on a motion to dismiss Petitioner’s appeal in the appellate division does not mean Petitioner should be denied counsel.”

The case is Wolf v. Superior Court, 2019 S.O.S. 3967.


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