PG X(K) Ineffective Assistance of Counsel On Appeal.
(1) Complete Denial Of Appeal. Strickland v. Washington (884) 466 US 668 [80 LEd2d 674; 104 SCt 2052] does not apply, and prejudice is presumed, where a defendant has been actually or constructively denied the assistance of appellate counsel altogether (Penson v. Ohio (88) 488 US 75 [102 LEd2d 300; 109 SCt 346, 353-54]), or the defendant has been totally denied the right to appeal. (See Evitts v. Lucey (85) 469 US 387 [83 LEd2d 821; 105 SCt 830] [failure of counsel to file statement of appealability was prejudicial ineffectiveness under due process principles]; see also Lozada v. Deeds (9th Cir. 1992) 964 F2d 956, 958.)
In Roe v. Flores-Ortega (2000) 528 US 470 [145 LEd2d 985; 120 SCt 1029], the court rejected an argument that counsel’s performance is per se deficient if he/she fails to file a notice of appeal within the applicable time limits absent evidence that defendant requested that she do so. The court held that while consulting with a client regarding his desire to appeal is the better practice, failure to do so is evaluated under Strickland v. Washington (84) 466 US 668 [80 LEd2d 674; 104 SCt 2052]. Counsel has a constitutionally imposed duty to consult with the client regarding appeal only where a rational defendant would want to appeal, or the defendant has affirmatively demonstrated to counsel that he is interested in appealing. To show prejudice, the defendant must demonstrate that there is a reasonable probability that but for counsel’s failure, he would have appealed. (Ibid.)
PRACTICE NOTE: Normally, it should not be difficult to demonstrate that the defendant would have appealed if his counsel had advised him that there was a meritorious issue for appeal. What rational defendant wouldn’t.
(2) Failure To Raise Specific Issues. Appellate counsel is obligated to “raise crucial assignments of error that arguably could have resulted in reversal.” (People v. Lang (74) 11 C3d 134, 142 [113 CR 9]; see also In re Harris (93) 5 C4th 813, 832-34 [21 CR2d 373].) This duty is especially important as to errors in instructing the jury since this is one of the most fertile areas for finding reversible error. (See People v. Thompkins (87) 195 CA3d 244, 252 [240 CR 516] [ “… [N]othing results in more cases of reversible error than mistakes in jury instructions]; see also People v. Rhoden (72) 6 C3d 519, 525-29 [99 CR 751] [appellate counsel ineffective for failing to raise arguably reversible instructional errors];Maples v. Coyle (6th Cir. 1999) 171 F3d 408 [no plausible justification for omitting appellate issues].)
Pre-Strickland v. Washington (84) 466 US 668 [80 LEd2d 674; 104 SCt 2052] cases such as Lang and Rhoden required the court of appeal to reconsider the appeal based on a determination that the omitted issues “arguably could have resulted in reversal.” (Lang, at 142.) Now, under the two-prong Strickland test the determination will likely focus on whether the omission was sound strategy and whether the error, if raised, was reversible. (See e.g., Miller v. Keeney (9th Cir. 1989) 882 F2d 1428, 1434.) However, as a practical matter the inquiry shouldn’t change much. Ultimately, the substantive issue must be evaluated to determine if there was “reasonable probability of reversal” from the omitted claim. (Ibid.) If there was, then it is prejudicial under Strickland, and even a strategic decision to omit the claim should not be justified as acceptable strategy. (How is it strategically reasonable to omit a winning argument?)
In sum: “The defendant need not show he was entitled to a reversal, but only that inexcusable failure of appellate counsel to raise crucial assignments of error [occurred], which arguably could have resulted in reversal.” (5 Witkin & Epstein, Calif. Crim. Law (2d ed. 1989) Trial § 2790, pp. 3383-84; see also People v. Mitchell (99) 68 CA4th 1489 [81 CR2d 339].)
(3) "No Merit" Briefs: Anders/Wende. Under Anders v. California (67) 386 US 738 [18 LEd2d 493; 87 SCt 1396] and People v. Wende (79) 25 C3d 436, 441-42, appellate counsel who finds no "arguable issue" in the record submits a "no-merit" brief to the appellate court which must then review the entire record for arguable issues. (See also Smith v. Robbins (2000) 528 US 259 [145 LEd2d 756; 120 SCt 746] [California’s Wende procedure for determining when an indigent’s direct appeal is frivolous affords adequate and effective appellate review for criminal indigents].) However, counsel’s obligation to raise arguable issues is actually broader in scope than the Strickland standard for ineffective counsel.Anders creates a very low threshold for which arguments counsel must brief for the court. (See United States v. Griffy (9th Cir. 1990) 895 F2d 561, 563; Lombard v. Lynaugh (5th Cir. 1989) 868 F2d 1475, 1487 (Goldberg, J., concurring).) Certainly, counsel need not argue only "winning" arguments. Instead, counsel must bring to the court’s attention "anything in the record that might arguably support the appeal." (Anders, 386 US at 744.)
In this regard, counsel has the duty to advocate "changes in the law if argument can be made supporting change." (People v. Feggans (67) 67 C2d 444, 447.) For purposes of California law, an issue is "arguable" when it has some potential for success, meaning some possibility of a result requiring reversal or modification of the judgment. (People v. Johnson (81) 123 CA3d 106, 109.) "Because the defendant in a Wende appeal has a right to file supplemental contentions, the Court of Appeal must consider these contentions in the course of disposing of the cause." (People v. Kelly (2006) 40 C4th 106, 109-110.)
(3.1) Appellate Counsel Who Served At Trial Should Never File Anders/Wende Brief. In light of the bias that counsel may have in evaluating his or her own performance at trial, and the reality that counsel who does not understand the law at trial may also not recognize the same error on appeal, appellate counsel who also served as trial counsel should never file a “no-merit” brief. (See Chandler v. State (TX 1999) 988 SW2d 827, 828 [1999 Tex.App. LEXIS 940]; see alsoPeople v. Bailey (92) 9 CA4th 1252, 1254 [12 CR2d 339] [“there is an inherent conflict when appointed trial counsel in a criminal case is also appointed to act as counsel on appeal”].) In such a situation, counsel should file a motion to withdraw and explain the conflict. (Ibid.)
(4) Ineffective Assistance Of Counsel On Appeal: Failure To Keep Abreast Of Legal Developments Relevant To The Appeal. (See United States v. Williamson (5th Cir. 1999) 183 F3d 458 [appellate counsel performed deficiently in failing to discover recently issued and directly controlling precedent of petitioner’s arguments; reasonably competent appellate counsel keeps abreast of legal developments that relate to his or her cases].)
