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Johnson v State (06/22/2001) ap-1750
Johnson v State (06/22/2001) ap-1750
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
GUY W. JOHNSON, )
) Court of Appeals No. A-7401
Appellant, ) Trial Court No. 4FA-97-1876 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1750 June 22, 2001]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Dale O. Curda, Judge.
Appearances: David K. Allen, Assistant Public
Advocate, Fairbanks, and Brant G. McGee, Public Advocate, Fairbanks,
for Appellant. W. H. Hawley, Jr., Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
Guy W. Johnson was convicted of first-degree murder [Fn.
1] and sentenced to 99 years in prison. The Office of Public
Advocacy filed an appeal on Johnson's behalf, but Johnson's
appellate attorney now seeks our permission to withdraw from the
case. According to Johnson's attorney, the only issues that might
be raised on appeal are frivolous.
Competing societal values are at issue when an attorney
pursuing an appeal on behalf of an indigent criminal defendant
concludes that further litigation would be frivolous. On the one
hand, indigent defendants are entitled to an attorney who will
competently and zealously pursue their interests, and the courts
must vigilantly protect this right to effective representation. On
the other hand, attorneys are duty-bound not to pursue frivolous
litigation, [Fn. 2] and state governments have a legitimate interest
in not spending public money to subsidize frivolous appeals.
In a series of cases beginning with Anders v. California
[Fn. 3] and currently ending with Smith v. Robbins, [Fn. 4] the
United States Supreme Court has addressed and attempted to reconcile
these competing values. In Griffin v. State, [Fn. 5] we recently
reviewed these Supreme Court decisions in the context of an
application for post-conviction relief. Based on our review, we
concluded that the federal constitution prohibits a court from
allowing an indigent defendant's attorney to withdraw from the case
unless there is reasonable assurance that the indigent's appeal will
be "resolved in a way that is related to the merit" of that appeal
in other words, unless there is reasonable assurance that the appeal
indeed presents only frivolous issues. [Fn. 6]
We further concluded in Griffin that an attorney
representing an indigent defendant should not be allowed to withdraw
from an appeal until both the attorney and the court affirmatively
have determined that the appeal is frivolous i.e., that no
reasonable argument could be made in favor of the appeal:
Because an indigent litigant can be deprived of
appointed appellate counsel only if the appeal is truly frivolous,
.... an appellate court must not grant the attorney's motion to
withdraw until the court has independently assessed the case and
likewise reached the conclusion that the appeal is frivolous.[ [Fn.
7]]
In the present case, Johnson's attorney submitted a brief
identifying six issues that might be raised on appeal. However,
Johnson's attorney does not explain why he believes these issues are
frivolous. The brief contains only a cursory discussion of the
facts underlying these potential issues, and it contains no
discussion of the law.
Such abbreviated treatment does not allow this court to
discharge our constitutional duty to verify independently that
Johnson's potential appellate issues are as frivolous as his
attorney contends. We therefore direct Johnson's attorney to file
an amended brief that satisfies the requirement we established in
Griffin: "[An] attorney seeking to withdraw from [an appeal] must
provide [this] court with a full explanation of all the claims the
attorney has considered and why the attorney has concluded that
these claims are frivolous." [Fn. 8]
Johnson's attorney shall file an amended brief within
forty-five days of this decision. This brief shall be served on
both the State and Johnson himself.
If Johnson's attorney, having considered the case anew,
concludes that there are non-frivolous issues to be pursued on
appeal, he should brief those issues. The State shall then have
thirty days to file its responding brief.
If, on the other hand, Johnson's attorney again concludes
that there are no non-frivolous issues to be pursued in this appeal,
Johnson shall have the opportunity to respond. Johnson shall have
thirty days to file his own brief discussing why he believes there
are issues of arguable merit to be pursued on appeal. The State's
brief shall be due thirty days after the filing of Johnson's brief.
FOOTNOTES
Footnote 1:
AS 11.41.100(a).
Footnote 2:
See Alaska R. Prof. Conduct 3.1: ("A lawyer shall not bring or
defend a proceeding or assert or controvert an issue ... unless
there is a basis for doing so that is not frivolous[.]").
Footnote 3:
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
Footnote 4:
528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).
Footnote 5:
18 P.3d 71 (Alaska App. 2001).
Footnote 6:
Id. at 75-76 (quoting Smith v. Robbins, 528 U.S. at 277, 120
S.Ct. at 759 (discussing direct appeals)).
Footnote 7:
Id. at 73.
Footnote 8:
Id. at 77.
