§ 28.04 The Right to Counsel: On Appeal
| Jurisdiction | North Carolina |
[A] Inapplicability of the Sixth Amendment
By its language, the Sixth Amendment does not apply to criminal appeals. The amendment entitles a person to the assistance of counsel "for his defence" in "criminal prosecutions." By the time the trial and sentencing are completed, the "prosecution" has ended. On appeal, it is the defendant/appellant who seeks to upset the status quo, and it is the prosecutor who seeks to "defend" the conviction.
Despite the inapplicability of the Sixth Amendment to criminal appeals, appellate procedures are subject to the standards of the Fourteenth Amendment Equal Protection and Due Process Clauses. In Griffin v. Illinois,70 the Supreme Court held that a state that requires a defendant to furnish a trial transcript to the appellate court as a condition of hearing his appeal must provide the transcript at state expense for in-digents. Justice Black, writing for a four-justice plurality, applied both due process and equal protection standards to reach this conclusion. He wrote:
[A] State can no more discriminate on account of poverty than on account of religion, race, or color. Plainly the ability to pay costs in advance bears no rational relationship to a defendant's guilt or innocence. . . . [¶] There can be no equal justice where the kind of trial a man gets depends on the amount of money he has. Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.71
The Griffin equality principle has been applied in various contexts to ensure that indigent defendants at trial and on appeal obtain meaningful access to procedures available to nonindigents.72 It serves as the point of departure for consideration of an indigent's right to assistance of counsel on appeal.
[B] First Appeal (as of Right)
[1] In General
The Court has frequently repeated the dictum that a convicted defendant has no constitutional right to appeal his conviction.73 Nonetheless, every state permits a convicted person at least one appeal as of right following a conviction after trial. Thereafter, courts have discretion not to hear appeals of criminal convictions.
In Douglas v. California,74 the Supreme Court, per Justice Douglas, held that the Fourteenth Amendment requires a state to provide counsel for an indigent on his first statutory appeal of right. In doing so, the Court invalidated a California rule that permitted appellate courts, on the request of an indigent for the assistance of appellate counsel, to look at the trial record to determine whether the defendant would be benefitted by appointment of counsel.
The Court stated that although states do not have to provide absolute equality to the rich and the poor in their procedures, "where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor." Without distinguishing between due process and equal protection principles, the justices concluded that it is impermissible to require an indigent appellant to "run this gantlet of a preliminary showing of merit," if persons wealthy enough to hire a lawyer do not have to face the same obstacle.
As Justice Douglas explained, the discrimination in the case was not between "possibly good and obviously bad cases," but between people rich enough to hire lawyers and those who were not. In this case, the Court said, "[t]here is lacking that equality demanded by the Fourteenth Amendment . . . The indigent . . . has only the right to a meaningless ritual, while the rich man has a meaningful appeal."
[2] Special Problem: Frivolous Appeals
A defendant does not have a constitutional right to demand that his attorney act unethically by prosecuting a frivolous appeal, i.e., an appeal that includes no arguable claims for reversal of the conviction.75 In other words, he does not have a constitutional right to require his attorney to file a brief making spurious arguments. Instead, an attorney appointed to represent an indigent on direct appeal may request that the appellate court allow him to withdraw from the case. On the other hand, the Supreme Court determined in Anders v. California76 that "in order to protect indigent defendants" constitutional right to appellate counsel, courts must safeguard against the risk of granting such requests in cases where the appeal is not actually frivolous."77
For decades, the general understanding of Anders was that a state appellate procedure was constitutionally infirm unless the appointed appellate counsel, in seeking to withdraw, filed a brief referring to anything in the record that arguably supported the appeal, including citations to case or statutory authority supporting the attorney's conclusion that the appeal...
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