Penson v. Ohio
488 U.S. 75 (1988)
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Rule of Law:
The Fourteenth Amendment requires that once an appellate court reviewing an indigent defendant's first appeal as of right determines that the record supports any non-frivolous claims, it must appoint counsel to argue the appeal. The constructive denial of counsel at this critical stage is presumed to be prejudicial and is not subject to a harmless error analysis.
Facts:
- Petitioner Penson, an indigent individual, was convicted of several serious crimes in an Ohio trial court along with two codefendants.
- Penson was sentenced to a term of imprisonment of 18 to 28 years.
- New counsel was appointed to represent Penson for his first appeal as of right.
- After reviewing the case, Penson's appointed appellate counsel concluded that the appeal was without merit.
Procedural Posture:
- Penson's appointed counsel filed a 'Certification of Meritless Appeal and Motion' to withdraw with the Montgomery County, Ohio, Court of Appeals (an intermediate appellate court).
- The Court of Appeals granted counsel's motion to withdraw and denied Penson's subsequent request for a new attorney.
- The Court of Appeals conducted its own review of the record, found several arguable issues, and reversed one of Penson's convictions while affirming the others.
- The court concluded Penson suffered no prejudice from the lack of counsel.
- Penson, the appellant, appealed to the Ohio Supreme Court (the state's highest court), which dismissed his appeal.
- The U.S. Supreme Court granted Penson's petition for a writ of certiorari.
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Issue:
Does the Fourteenth Amendment require an appellate court to appoint new counsel for an indigent defendant when it permits the initial appointed counsel to withdraw on the basis of a conclusory assertion that the appeal is meritless, and the court subsequently finds non-frivolous, arguable issues for appeal?
Opinions:
Majority - Justice Stevens
Yes. The Fourteenth Amendment requires the appointment of new counsel in this situation. The Ohio Court of Appeals committed two constitutional errors. First, it violated the procedures established in Anders v. California by allowing counsel to withdraw based on a conclusory statement that the appeal was meritless, rather than requiring a brief identifying anything in the record that might arguably support the appeal. Second, and more significantly, after the court conducted its own review and found 'several arguable claims,' its failure to appoint new counsel violated the defendant's right to representation established in Douglas v. California. The Anders procedure provides a limited exception to the right to counsel for wholly frivolous appeals; once an appeal is found to have arguable merit, that exception no longer applies and the constitutional right to counsel is absolute. The complete denial of counsel during the appellate court's decisional process is a fundamental constitutional error where prejudice is legally presumed and is not subject to harmless-error analysis or the prejudice prong of Strickland v. Washington.
Dissenting - Chief Justice Rehnquist
No. The court should not have presumed prejudice but instead should have analyzed the situation under the ineffective assistance of counsel standard from Strickland v. Washington. The Sixth Amendment guarantees effective assistance, not a rigid adherence to the procedural steps outlined in Anders. Counsel's performance should be judged by whether it was deficient and whether that deficiency prejudiced the defendant. In this case, there was no prejudice because the appellate court conducted its own thorough review, considered the briefs of Penson's codefendants, and actually reversed one of his convictions. The court's independent review and the advocacy of codefendants' counsel provided Penson with more benefit than an Anders brief would have, eliminating any prejudice from his own counsel's withdrawal.
Concurring - Justice O'Connor
Yes. While joining the majority opinion, this concurrence emphasizes that not every technical violation of the Anders procedure would necessarily require reversal. However, the error in this case—failing to appoint new counsel after finding meritorious issues—was not a mere technical violation but a fundamental one, justifying the Court's decision.
Analysis:
This decision significantly strengthens the procedural safeguards for indigent appellants established in Anders v. California. It clarifies that the Anders framework is not merely a suggestion for counsel but a constitutional requirement for courts. By holding that the failure to appoint new counsel upon finding a non-frivolous issue constitutes a per se denial of counsel, the Court removes such cases from the standard ineffective assistance analysis of Strickland. This creates a bright-line rule that courts cannot substitute their own review of the record for the advocacy of counsel and then claim the error was 'harmless,' thereby reinforcing the fundamental nature of the right to counsel on appeal.
