Anders brief in Oregon

2025In McCoy v. Court of Appeals of Wisconsin, 486 US 429, 438 , 108 S Ct 1895 , 100 L Ed 2d 440 (1988), the Court reiterated that the principle of substantial equality requires “that appointed counsel make the same diligent and thorough evaluation of the case as a retained lawyer before concluding that an appeal is frivolous.” The Anders brief “was designed to provide the appellate courts with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability.” Id. at 439 .

2025In McCoy v. Court of Appeals of Wisconsin, 486 US 429, 438 , 108 S Ct 1895 , 100 L Ed 2d 440 (1988), the Court reiterated that the principle of substantial equality requires “that appointed counsel make the same diligent and thorough evaluation of the case as a retained lawyer before concluding that an appeal is frivolous.” The Anders brief “was designed to provide the appellate courts with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability.” Id. at 439 .

1991Moreover, as was recognized in State v. Horine, supra, 64 Or App at 541 , and so vividly illustrated in McCoy (where the Supreme Court itself characterized counsel’s Anders brief as “schizophrenic,” 486 US at 432 ), the rules respecting Anders briefs require counsel to take an unnatural, if not unethical, posture.

1989There are many conceptual and logical problems with the Anders decision; they were well-delineated by Judge Gillette in State v. Horine, supra, 64 Or App at 537 .

1991Following its description of the Anders brief, the Court re-emphasized its constitutional purpose, viz., to assure equality for indigent appellants: “This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a non-indigent defendant is able to obtain. * * * This procedure will assure penniless defendants the same rights and opportunities on appeal — as nearly as is practicable — as are enjoyed by those persons *440 who are in a similar situation but who are able to afford the retention of private counsel.” 386

1991Anders v. California, supra, held that California’s similar “no-merit letter” was not adequate and that “counsel should, and can with honor and without conflict, be of more assistance to his client and to the court,” 386 US at 744 , hence the requirement of the *450 Anders brief in which counsel must refer to anything that might arguably support the appeal.

2023The court’s ruling focused on the fact that by abandoning the appeal without informing defendant, defendant “was not afforded the opportunity to file an Anders brief[.]” That focus on the procedural deprivation suffered by defendant is con- sistent with our case law addressing claims where counsel’s inadequacy has resulted in a defendant being completely deprived of an appeal, which does not require an assess- ment of the merits of any potential appellate issue. “[W]hen a post-conviction petitioner establishes that [defense counsel] inadequately failed to protect the petitioner’s right to appe

2023The court’s ruling focused on the fact that by abandoning the appeal without informing defendant, defendant “was not afforded the opportunity to file an Anders brief[.]” That focus on the procedural deprivation suffered by defendant is con- sistent with our case law addressing claims where counsel’s inadequacy has resulted in a defendant being completely deprived of an appeal, which does not require an assess- ment of the merits of any potential appellate issue. “[W]hen a post-conviction petitioner establishes that [defense counsel] inadequately failed to protect the petitioner’s right to appe

2023The court’s ruling focused on the fact that by abandoning the appeal without informing defendant, defendant “was not afforded the opportunity to file an Anders brief[.]” That focus on the procedural deprivation suffered by defendant is con- sistent with our case law addressing claims where counsel’s inadequacy has resulted in a defendant being completely deprived of an appeal, which does not require an assess- ment of the merits of any potential appellate issue. “[W]hen a post-conviction petitioner establishes that [defense counsel] inadequately failed to protect the petitioner’s right to appe