Attorney Charles W. Hokanson of Long Beach recently wrote to me concerning my August 12th post on “What is an arguable issue on appeal?” After reading what he had to say, I invited him to submit a guest blog, which is printed below. I am not a criminal appellate attorney and welcomed the opportunity for some solid input.
Here it is:
“I don’t think the appellate court in People v. Hernandez was rejecting Anders/Wende briefs. Rather, the court was rejecting briefs that assert the attorney cannot find an issue to argue, but the attorney was still suggesting there were some issues that might be arguable. In other words, the court was rejecting an attempt to have one’s cake and eat it too.
Anders/Wende briefs are a subject that is unique to criminal appeals, where counsel is appointed to represent a convicted defendant. Unlike a civil appeal where a party retains counsel who decides whether there are issues to appeal, in a typical criminal case, counsel is appointed by the court of appeal to represent the defendant and has an obligation to find issues to argue on behalf of the defendant/appellant. But sometimes appointed counsel just cannot find anything to argue. Of course, the appointed attorney does not want to raise anything frivolous and get into trouble.
When that happens, the appointed attorney can file a brief that says simply he or she fulfilled the duties of reading the record and looking for issues, but could not find any issues. This follows the precedent in Andersand Wende (hence the name). What is filed is a short brief that concludes, “I cannot find any arguable issues to attack this judgment.”
When an Anders/Wende brief is filed, the responsibilities for ensuring that the judgment is correct shifts to the appellate court. While it also offers the defendant a chance to have a say by filing his or her own brief, it also has a duty to review the entire record to determine if there are any arguable issues. Importantly, the court has no such duty where any issues are raised and argued by appointed counsel – it only has to rule on the issues raised.
In light of these rules, attorneys file Anders/Wende briefs (stating they cannot find any arguable issues) but still discuss their research and analysis while “suggesting” areas that the appellate court might want to consider in its own evaluation of the case. Essentially, these attorneys are trying to have their cake and eat it too. They are trying to trigger the court’s duty to independently analyze the record for issues, but still “suggest” issues for the court to analyze (as well as explain the attorney’s own analysis of all the issues). I believe attorneys do this to justify their efforts and show they really did the required work. But the Hernandez court is saying do not do that (or perhaps more correctly, we are not going to pay you as appointed counsel to do that). The court is advising, “Take one position or the other. Decide whether there are legitimate issues to argue and, if there are, argue them. If there are not, don’t argue, just submit your Anders/Wende brief and we will take it from there.”
In my experience, appointed appellate counsel don’t like filing Anders/Wende briefs and work extremely hard to find legitimate issues to argue. The vernacular calls such issues “Wende Busters.” This may have something to do with the pay difference inherent in filing full briefs and arguing to the court (versus a short Wende brief and no argument), but I believe it more likely just a point of professional pride. Appointed appellate counsel are true believers in the rights of their clients and fight hard to vindicate them. They want to find issues to argue and are disappointed when required to file an Anders/Wende brief.”
Mr. Hokanson can be reached at cwhokanson@towerlawcenter.com. For a good case on the subject, take a look at the recent case of People v. Anderson (2014) ___ Cal.App.4th ___ and People v. Kent (2014) ___ Cal.Rptr.3d ___. The court of appeal in Hernandez vacated its earlier opinion, and granted a rehearing. The decision in Hernandez is no longer citeable as published law.