PENSON V. OHIO, 488 U. S. 75 (1988)

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U.S. Supreme Court

Penson v. Ohio, 488 U.S. 75 (1988)

Penson v. Ohio

No. 87-6116

Argued October 12, 1988

Decided November 29, 1988

488 U.S. 75


After the indigent petitioner and two codefendants were found guilty of several serious crimes in an Ohio state court, the new counsel appointed to represent petitioner on appeal filed with the Ohio Court of Appeals a document captioned "Certification of Meritless Appeal and Motion," which recited that the attorney had carefully reviewed the record, that he had found no errors requiring reversal, and that he would not file a meritless appeal, and which requested leave to withdraw. The court entered an order that granted the latter motion and that specified that the court would thereafter independently review the record thoroughly to determine whether any reversible error existed. The court later denied petitioner's request for the appointment of a new attorney. Subsequently, upon making its own examination of the record without the assistance of counsel for petitioner, the court noted that counsel's certification of meritlessness was "highly questionable," since petitioner had "several arguable claims," and, in fact, reversed one of petitioner's convictions for plain error, but concluded that petitioner "suffered no prejudice" as a result of "counsel's failure to give a more conscientious examination of the record" because the court had thoroughly examined the record and received the benefit of arguments advanced by the codefendants' counsel. The court therefore affirmed petitioner's convictions on the remaining counts, and the State Supreme Court dismissed his appeal.


1. Petitioner was deprived of constitutionally adequate representation on appeal by the Ohio Court of Appeals' failure to follow the procedures set forth in Anders v. California, 386 U. S. 738, for allowing appointed counsel for an indigent criminal defendant to withdraw from a first appeal as of right on the basis that the appeal is frivolous. Under those procedures, counsel must first conduct a "conscientious examination" of the case and support a request to withdraw with a brief referring to anything in the record that might arguably support the appeal, and the court must then conduct a full examination of all the proceedings and permit withdrawal if its separate inquiry reveals no nonfrivolous issue, but must appoint new counsel to argue the appeal if such an issue exists. The state court erred in two respects in not denying counsel's motion to withdraw. First, the motion was not supported with an "Anders brief," so chanrobles.com-red

Page 488 U. S. 76

that the court was left without an adequate basis for determining that counsel had performed his duty of carefully searching the record for arguable error, and was deprived of assistance in the court's own review of the record. Second, the court should not have acted on the motion before it made its own examination of the record to determine whether counsel's evaluation of the case was sound. Most significantly, the court erred by failing to appoint new counsel to represent petitioner after determining that the record supported "several arguable claims." Such a determination creates a constitutional imperative that counsel be appointed, since the need for forceful and vigorous advocacy to ensure that rights are not forgone and that substantial legal and factual arguments are not passed over is of paramount importance in our adversary system of justice, whether at the trial or the appellate stage. Pp. 488 U. S. 79-85.

2. In cases such as this, it is inappropriate to apply either the lack of prejudice standard of Strickland v. Washington, 466 U. S. 668, or the harmless error analysis of Chapman v. California, 386 U. S. 18. Such application would render the protections afforded by Anders meaningless, since the appellant would suffer no prejudice or harm from the denial of counsel, and would thus have no basis for complaint, whether the court, on reviewing the bare appellate record, concluded either that the conviction should not be reversed or that there was a basis for reversal. The Court of Appeals' consideration of the appellate briefs filed on behalf of petitioner's codefendants does not alter this conclusion, since a criminal appellant is entitled to a single-minded advocacy for which the mere possibility of a coincidence of interest with a represented codefendant is an inadequate proxy. More significantly, the question whether the briefs filed by the codefendants, along with the court's own review of the record, adequately focused the court's attention on petitioner's arguable claims is itself an issue that should have been resolved in an adversary proceeding. Furthermore, it is important that the denial of counsel in this case left petitioner completely without representation during the appellate court's actual decisional process, since such a total denial is legally presumed to result in prejudice, and can never be considered harmless error, whether at the trial or the appellate stage. Pp. 488 U. S. 85-89.

Reversed and remanded.

STEVENS, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 488 U. S. 89. REHNQUIST, C.J.,filed a dissenting opinion, post, p. 488 U. S. 89. chanrobles.com-red

Page 488 U. S. 77


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