Wednesday, April 04, 2007

How to Deal with Anders Brief Where Client Instructs You to Appeal Sentence Only, Not Guilty Plea

United States v. Garcia, No. 05-11418 (5th Cir. Mar. 28, 2007) (per curiam) (Davis, Stewart, Godbey)

Here's an interesting question: Your indigent client, whom you've been appointed to represent, wants to appeal. He instructs you to appeal his sentence only, and not to challenge his guilty plea. You conclude that there are no non-frivolous issues pertaining to the sentence, and accordingly file an Anders brief. But must you also Anders-brief any potential issues relating to the guilty plea, notwithstanding your client's instructions not to challenge his plea?

Answer per Garcia:
We are persuaded that the Prado-Prado/Jones approach to this problem is a sensible one. Read together these cases at least implicitly require the record to reflect confirmation of the defendant’s request that counsel forego any challenge of his guilty plea before counsel can pretermit consideration of the plea in his Anders brief. Requiring that the record demonstrate a defendant’s agreement or acquiescence in foregoing an appeal on this issue, enables us to determine from the record that the decision was the defendant’s own - that is, “the client has ‘suggested, acquiesced in, or concurred with’” the decision. What form must this agreement or acquiescence take? Certainly a defendant’s response to counsel’s Anders brief such as the one filed by Prado-Prado raising issues unrelated to the plea without questioning any plea related issue would qualify. Also, a written statement by the defendant that after receiving the advice of counsel he does not wish to challenge his guilty plea would qualify. Additionally, counsel's recommendation in writing to the defendant that he forego a challenge to the guilty plea and the defendant's failure to respond to this recommendation after a reasonable lapse of time after defendant's receipt of the recommendation (approximately 30 days) may be sufficient.


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