Dana Cline appeals a judgment entered by the district court after he pleaded guilty to knowing receipt of child pornography. His court-appointed counsel has moved to withdraw on the ground that the appeal presents no non-frivolous issue. See Anders v. California, 386 U.S. 738 (1967).
The first issue is whether the district court erred by denying Cline’s motion to withdraw his guilty plea. The brief relates that Cline’s motion to withdraw also alleged that he had been taking medications with side effects that interfered with his ability to make a knowing and intelligent plea.
Counsel accurately reports that before Cline pleaded guilty, he testified that he was not under the influence of any drug, medication, or alcoholic beverage that may affect his ability to understand what was happening.
As a second issue, counsel raises whether this court could review Cline’s sentence, given that the court imposed a prison term within the advisory guideline range, and that Cline signed a plea agreement that includes a waiver of his right to appeal the sentence. Counsel’s brief recognizes that United States v. Andis, 333 F.3d 886 (8th Cir. 2003) (en banc) provides for non-enforcement of an appeal waiver if it would constitute a “miscarriage of justice,” such as where the court imposed a sentence in excess of the statutory maximum, the government violated a plea agreement, or the court selected a sentence based on an impermissible factor such as race or religion. Counsel concludes, however, that there is no non-frivolous basis on which to challenge the appeal waiver in this case, because Cline knowingly agreed to the waiver, the court sentenced Cline within the guideline range that he proposed in his sentencing memorandum, and there is no evidence that the court considered an impermissible factor.
Counsel acknowledges this court’s decisions holding that a sentence within the guideline range is “presumptively reasonable,” United States v. Canania, 532 F.3d 764, 773 (8th Cir. 2008). Given the record in this case, counsel concludes that it “would be a frivolous argument to contend that the sentence was calculated and imposed as the result of an incorrect application of the law.”
Having independently reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), we conclude that there is no non-frivolous issue for appeal. On the first issue explored by counsel, the district court clearly did not abuse its discretion in denying Cline’s motion to withdraw his guilty plea. The court observed that the judge taking the plea made “a very strong record” that ran in “many respects counter to the defendant’s motion.” R. Doc. 99, at 4.
Cline told the court that he was “just on auto pilot” when he testified at the plea hearing that he understood the proceedings. Id. at 12.The court ultimately found that the record did not support Cline’s claim that his plea was not entered willingly and knowingly, and with effective assistance of counsel.
The court plainly did not abuse its discretion in denying Cline’s motion to withdraw the plea. See United States v. Cruz, 643 F.3d 639, 641-42 (8th Cir. 2011).
Because writings in recent unpublished decisions of this court have raised the possibility that leave to withdraw should be denied where counsel’s brief declines to argue frivolous points and explains why an appeal is frivolous, we elaborate on our decision.
The Constitution, as construed in Douglas v. California, 372 U.S. 353 (1963), guarantees the right of an indigent accused in a criminal case to have the assistance of counsel on appeal. This right, however, does not include an entitlement to have a court-appointed attorney advocate frivolous positions on appeal. A procedure under which counsel was allowed to withdraw after submitting only a conclusory letter stating that “there is no merit to the appeal” did not meet constitutional standards. Anders, 386 U.S. at 741-42.
A final section of the Anders opinion described a process that the Court deemed sufficient to satisfy the Constitution. Under that procedure, counsel’s request to withdraw should state his conclusion that the appeal is frivolous and should be “accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. at 744.
The Anders procedure is not “the only prophylactic framework that could adequately vindicate this right;” it is “merely one method of satisfying the requirements of the Constitution for indigent criminal appeals.” Smith v. Robbins, 528 U.S. 259, 273, 276 (2000) (quoting Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)).
The Supreme Court has explained: “If an attorney can advise the court of his or her conclusion that an appeal is frivolous without impairment of the client’s fundamental rights, it must follow that no constitutional deprivation occurs when the attorney explains the basis for that conclusion.” McCoy v. Ct. of Appeals of Wis., Dist. 1, 486 U.S. 429, 443 (1988). The Court in McCoy thus approved, as consistent with Anders, a Wisconsin procedure that required an attorney who sought to withdraw to include in his or her brief a statement of “anything in the record that might arguably support the appeal and a discussion of why the issue lacks merit.” Id. at 431 n.1 (emphasis added).
The twin references to “arguable” matters have been criticized by some as “incoherent and thus impossible to follow.” Robbins, 528 U.S. at 282 & n.12 (citing Anders, 386 U.S. at 746 (Stewart, J., dissenting), and C. Wolfram, Modern Legal Ethics 817 (1986)).
Two other decisions of this court that discuss Anders bear mention here, as they have been cited in unpublished writings as authority for denying motions to withdraw. In the course of those opinions, Evans v. Clarke, 868 F.2d 267 (8th Cir. 1989) and Robinson v. Black, 812
F.2d 1084 (8th Cir. 1987) criticized counsel for filing a brief in which the lawyer concluded that the client’s claims were meritless. Robinson cited the 1967 Smith decision and characterized counsel as “joining the forces of the state and working against his client.” 812 F.2d at 1086-87. Evans, citing Robinson, concluded that counsel’s performance “fell short of Anders as this Court has understood and applied it,” because counsel presented no arguments for reversal, and stated only arguments in favor of affirming the convictions. 868 F.2d
at 268. Insofar as the discussion in these cases was premised on the notion that counsel’s brief must advocate for reversal when there is no arguable basis to do so, or that counsel may not explain why he has concluded that the appeal is frivolous, the discussion is no longer good law in light of McCoy and Robbins. Robbins recognized that the Wisconsin procedure approved in McCoy provided for “one-sided briefing by counsel against his own client’s best claims.” 528 U.S. at 272.
As explained, Evans (like Robinson) held that where a direct appeal in state court presented arguable, non-frivolous issues, it was constitutional error for the state court to allow the appellant’s counsel leave to withdraw without filing an adversarial brief in support of the appeal. Evans did not address the intervening Supreme Court decision filed eight months earlier, so it is not controlling on the import of McCoy in any event.
The procedure employed in this case satisfies the constitutional requirements for an indigent criminal appeal. This court has conducted an independent review of the record and concluded that the appeal is frivolous. In sum, the purposes of the Anders brief have been served, and the constitutional requirements have been satisfied.
More than a month after the deadline to submit a pro se brief, Cline filed a letter stating that the court should disregard any brief filed by counsel as “incomplete,” but he did not identify any issue for the court’s consideration.
It is an important point, because as the court tells it, it might seem like counsel can simply provide a short and plain statement of why the appeal is frivolous and move on. See Smith v. Robbins, 528 U.S. 259, 281 (2000) (explaining that Anders briefs must include more than just “a one- paragraph ‘bare conclusion’”).
As the Supreme Court has put it, attorneys cannot “mere[ly]” conclude that an appeal is frivolous. McCoy, 486 U.S. at 442. They must also “submit for the court’s consideration references to anything in the record that might arguably support the appeal.” Id.; see also Anders v. California, 386 U.S. 738, 744 (1967) (stating that the request to withdraw, even if the appeal is “wholly frivolous . . . must . . .be accompanied by a brief referring to anything in the record that might arguably support the appeal” (emphasis added)). Because they “must resolve all doubts and ambiguous legal questions in favor of [their] client,” which if done properly, may result in the “discover[y] [of] previously unrecognized aspects of the law.” McCoy, 486 U.S. at 442, 444 (emphasis added).
Indeed, Evans was decided after three of those four decisions, and Robbins, for its part, discusses why California could adopt a different procedure from Anders. Robbins, 528 U.S. at 276–84 (discussing California’s Wende procedure).
Attorneys must show their work and cannot act “as an advocate” for the other side. Evans v. Clarke, 868 F.2d 267, 268 (8th Cir. 1989) (emphasis in original)4; see Robbins, 528 U.S. at 272 (suggesting that “one-sided briefing” does not satisfy Anders); Mo. Sup. Ct. R. 4-1.7 cmt. 6 (emphasizing that an attorney’s duty of loyalty precludes acting in ways that are “directly adverse to” the client); Mo.Sup. Ct. R. 4, pmbl., para.  (explaining that a lawyer has an “obligation [to] zealously . . . protect and pursue [his or her] client’s legitimate interests”). To be sure, attorneys can sift through the record, note potential arguments, and ultimately conclude they are frivolous. After all, Cline is entitled to an attorney who “act[s] in the role of an active advocate [o]n [his] behalf” and “support[s] his . . . appeal to the best of his ability.” Anders, 386 U.S. at 744 (emphases added); Penson v. Ohio, 488 U.S. 75, 82 (1988) (explaining that Anders requires courts to “determin[e] whether the appeal is . . . frivolous” and “determin[e] whether appointed counsel ha[s] fully performed their duty to support their clients’ appeal” (emphasis added)).
Unless the court is saying that a lack of “independence and thoroughness” is a good thing, this passage hardly signals approval either. See Robbins, 528 U.S. at 281 (observing that “[c]ounsel’s summary of the case’s procedural and factual history, with citations of the record,” did the job).
Threading the needle between acting with the necessary candor toward the court and remaining an advocate for one’s own client is not that difficult. Out of the hundreds of Anders briefs I have considered over the past 11 years, all but two have found the right balance.