What Should Asssigned Appellate Counsel Do When the Only Issues Risk Worse Outcomes for the Client?

Assigned appellate counsel, who upon a review of the record conclude that there are no non-frivolous issues, may move to be relieved of the assignment (People v Crawford, 71 AD2d 38). As I asked in a post in 2008, what do you do when the only non-frivolous issue is one that could hurt your client? For example, what if the sentence imposed was unlawfully short? Does an attorney have to file a brief challenging the sentence as unlawful? (See, People v Ammons (41 AD3d 1325)).

What if the client entered a plea to a lesser offense and already served the entire sentence and you see a possible issue regarding the plea? If you raise the issue regarding the plea and win your client faces the potential of a more serious conviction and more time. What if you are unable to get a response from your client as to what to do?

The Second Circuit provides one answer. In United States v. Ibrahim (62 F.3d 72 [2d Cir. 1995]) the Court held that where the defendant has not requested that appellate counsel challenge the validity of a plea and has not made such a challenge in a pro se brief, counsel can file an Anders brief which should either state that counsel believes that defendant would run unacceptable risk of adverse consequences in challenging the validity of the plea or discuss why there are no non-frivolous issues regarding the validity of the plea.

The Fourth Department has no clear holding guiding counsel. This situation presented itself in People v Phelps, 2011 NY Slip Op 02333 [4th Dept 3/25/11]. Ms. Phelps was convicted upon a guilty plea of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]), and was sentenced to a determinate term of imprisonment of four years and five years postrelease supervision, to be served concurrently with a determinate sentence imposed on the same date for a separate felony conviction. However, because Ms. Phelps committed that offense while awaiting sentence on the prior offense, the concurrent sentences might have been illegally imposed (see Penal Law § 70.25 [2-b]).

Thus, counsel faced a dilemma. If the sentence was challenged as illegal, Ms. Phelps could face the imposition of a longer sentence. So counsel filed a Crawford motion rather than risking the client receiving more time.

Was that the right approach? The Appellate Division, Fourth Department, held that it was not. The Court wrote “that a nonfrivolous issue exists as to whether concurrent sentences were illegally imposed (see Penal Law § 70.25 [2-b]). Therefore, we relieve counsel of his assignment and assign new counsel to brief this issue, as well as any other issues that counsel's review of the record may disclose.” What should the nest assigned counsel do, other than rasie an issue which might result in the client receiving a longer sentence?

Three possibilities come to mind. First, the attorney might advise the client that the choices are to (1) raise the sentencing issue which might result in a longer sentence; (2) seek to have the plea vacated if it was co ndtioned on the illegal sentnece (which might result in a conviction to the same [or, if it was plea to a reduced charge, higher offense] and a longer sentence; or if those alternatives are undesirable, (3) stipulate to discontinue the appeal.

Then counsel can follow the client’s preference. If the client fails to respond, after repeated communications, counsel can file a motion to dismiss the appeal for abandonment, rather than an Anders-Crawford motion.