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Indiana Supreme Court: Appointed Defense Counsel Must File Appellate Brief
Posted in Litigation

In Mosley v. State, the Indiana Supreme Court expressly departed from the United States Supreme Court’s decision in Anders v. California, 386 U.S. 738 (1967), that appointed defense counsel may withdraw from “frivolous” criminal appeals, and held that “in any direct criminal appeal as a matter of right, counsel must submit an advocative brief in accordance with Indiana Appellate Rule 46.”

The underlying case involved Bryan Mosley, who was arrested after a tussle at an Indianapolis bar and convicted of resisting law enforcement.  He was sentenced to 363 days probation.  In the Indiana Court of Appeals, Mosley’s counsel filed a brief whose argument section included only eight sentences.  The Court of Appeals affirmed the conviction, noting that “a right to an appeal . . . . does not mean that an appeal should be filed in every case.”   It recommended that counsel instead file an Anders brief as a way to avoid “the sort of perfunctory, baseless brief we have before us today.”

On transfer, the Indiana Supreme Court explained that the tension behind Anders is between the constitutional rights of defendants and the professional obligation of attorneys not to assert frivolous claims.  Under Anders, an attorney filing such a brief must advise the court of his or her withdrawal and identify anything in the record that might support an appeal.  The court then examines the record and determines whether the appeal is meritless. 

The Indiana Supreme Court labeled this framework as “cumbersome and inefficient.”  It noted that the attorney, and then the court, must in any event consider the record in detail.  “Any saving of time and effort by counsel in preparing an Anders brief is offset by increased demands on the judiciary,” the Court concluded.  The Court also worried that an Anders brief might flag a defendant’s case as frivolous, thus inviting an unfair, “perfunctory review” by an appellate court. 

The Court concluded by emphasizing that an attorney’s obligation to avoid frivolous claims is “expressly subordinate” to a criminal defendant’s constitutional rights.  Thus, Indiana Professional Conduct Rule 3.1 does not hamstring a criminal defense attorney filing a direct appeal.  The Court hoped that, in addition to promoting fairness, its ruling may encourage defense counsel to search the record with greater diligence.  And, where no colorable argument exists, “counsel may still be able to solicit a sentence revision or even a change in the law.”

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