Davis, J., dissenting:
In this juvenile delinquency proceeding, the juvenile was appointed counsel by
the circuit court.
(See footnote 1)
However, during the adjudicatory phase of the proceeding, the circuit
court permitted counsel for the juvenile's parents to participate fully in
the proceeding, along with
appointed counsel. The majority opinion has determined that counsel for the
juvenile's parents should not have been allowed to participate in conducting
the defense. However, the
majority opinion concluded that there was no prejudice shown from such participation.
For the reasons set out below, I dissent.
Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674, 696 (1984). The United States Supreme Court “has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.” United States v. Cronic, 466 U.S. 648, 659 n.25, 104 S. Ct. 2039, 2047 n.25, 80 L. Ed. 2d 657, 668 n.25 (1984).
Thus, when a defendant is completely denied assistance of
counsel during a critical stage of judicial proceedings, when the
state interferes in various ways with counsel's assistance, or
when certain types of conflicts of interest are present, prejudice
is presumed simply upon a showing that the actual or
constructive deprivation occurred.
People v. Robles, 74 P.3d 437, 439 (Colo. Ct. App. 2003). Moreover, “constructive denial
will be found when counsel fails 'to subject the prosecution's case to meaningful adversarial
testing. . . .'” Childress v. Johnson, 103 F.3d 1221, 1228 (5th Cir. 1997) (quoting Cronic, 466
U.S. at 659, 104 S. Ct. at 2047, 80 L. Ed.2d at 668). This is to say that, although counsel is
present, “the performance of counsel may be so inadequate that, in effect, no assistance of
counsel is provided.” Cronic, 466 U.S. at 654 n.11, 104 S. Ct. at 2044 n.11, 80 L. Ed. 2d at
665 n.11. See also Holloway v. Arkansas, 435 U.S. 475, 489-90, 98 S. Ct. 1173, 1181, 55
L. Ed. 2d 426, 438 (1978) (noting that the mere physical presence of an attorney does not
fulfill the Sixth Amendment guarantee when the advocate is silent on crucial matters);
Belcher v. State, 93 S.W.3d 593, 598 (Tex. Ct. App. 2003) (“[T]he physical presence of
counsel does not prevent his 'absence' . . . . To the contrary, 'absence' means simply the
defendant was without counsel, either literally or figuratively.” (Citation omitted)).
The presumption of prejudice when there is an actual or constructive denial of
counsel is necessary because, “'[o]f all the rights that an accused person has, the right to be
represented by counsel is by far the most pervasive for it affects his ability to assert any other
rights he may have.'” Cronic, 466 U.S. at 654, 104 S. Ct. at 2044, 80 L. Ed. 2d at 664
(footnote omitted).
(See footnote 2)
See also Judith P. v. Superior Court, 102 Cal. App. 4th 535, 555, 126
Cal. Rptr. 2d 14, 30 (2002) (“[E]rrors that result in automatic reversal . . . include . . .
deprivation of the right to counsel[.]”); Wofford v. State, 819 So. 2d 891, 892 (Fla. Dist.
Ct. App. 2002) (“[D]enial of the Sixth Amendment right to counsel is per se reversible
error.”); Propes v. State, 550 N.E.2d 755, 758 (Ind. 1990) (“[V]iolation of the right to
counsel is fundamental error, reversible per se despite other, independent evidence sufficient
to support a conviction.”); State v. Thompson, 355 S.C. 255, 261, 584 S.E.2d 131, 134 (Ct.
App. 2003) (“The erroneous deprivation of a defendant's fundamental right to the assistance
of counsel is per se reversible error.”); D.L.J. v. State, 981 S.W.2d 815, 816 (Tex. Ct. App.
1998) (“Denial of the right to counsel at the certification hearing was structural error that is
per se reversible; no harmless error analysis is required.”).
In the instant case, a constructive denial of counsel occurred. This is true
because the juvenile's counsel shared the duty to represent him with an attorney that was
under no legal obligation to represent the juvenile.
(See footnote 3)
Two cases will help illustrate my
position.
In the first case, People v. McGraw, 119 Cal. App. 3d 582, 174 Cal. Rptr. 711 (1981), the defendant was charged separately for committing burglary and possession of stolen property. The defendant was represented by retained counsel for the burglary charge, and was appointed a public defender for the possession of stolen property charge. The two charges were consolidated for a single trial. With the trial court's permission and the defendant's consent, retained counsel did not assist with or participate in the selection of the jury. The defendant was ultimately convicted by a jury on both charges. In the appeal, the defendant argued that the failure of appointed counsel to participate in jury selection denied him the constitutional right to assistance of counsel on the possession of stolen property charge. The appellate court agreed with the defendant as follows:
What retained counsel characterized as “minimal”
representation, this court holds to be a denial of appellant's
constitutional right to assistance of counsel, reversible error per
se. Unless waived, a criminal defendant is entitled to the
assistance of a competent, active and diligent attorney during
jury impanelment.
The People contend that the record demonstrates that [the
retained counsel] “in fact substituted” for [the appointed
counsel] during jury selection. The People's contention is
without merit. Further, appellant's asserted consent to and
apparent approval of [the appointed counsel's] “minimal”
representation . . . did not meet even the minimal constitutional
requisites for a valid waiver of the right to counsel.
McGraw, 119 Cal. App. 3d at 587, 174 Cal. Rptr. at 712 (internal citations omitted).
The second case I wish to consider is Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed.2d 300 (1988). In Penson, the defendant and two co-defendants were found guilty by an Ohio jury of several crimes. The defendant was sentenced to a term of imprisonment of eighteen to twenty-eight years. The defendant was subsequently appointed counsel to perfect an appeal. However, his counsel filed a “Certification of Meritless Appeal and Motion,” wherein it was said that there were no grounds for reversing the conviction. The defendant's counsel also asked to withdraw as appellate counsel. The Ohio appellate court permitted counsel to withdraw. The appellate court eventually reviewed the defendant's appeal based upon the record in the case. The appellate court also considered the briefs and arguments by counsel for the co-defendants:
In reviewing the record and the briefs filed by counsel on
behalf of [defendant's] codefendants, the court found “several
arguable claims.” Indeed, the court concluded that plain error
had been committed in the jury instructions concerning one
count. The court therefore reversed [defendant's] conviction
and sentence on that count but affirmed the convictions and
sentences on the remaining counts. It concluded that
[defendant] “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 had
received the benefit of arguments advanced by counsel for
[defendant's] two codefendants.
Penson, 488 U.S. at 79, 109 S. Ct. at 349, 102 L. Ed. 2d at 308 (internal citations omitted).
The Ohio supreme court affirmed the appellate court decision. The United States Supreme
Court granted certiorari and reversed the decision on the following grounds:
No one disputes that the Ohio Court of Appeals concluded that
the record below supported a number of arguable claims. Thus,
in finding that petitioner suffered no prejudice, the court was
simply asserting that, based on its review of the case, it was
ultimately unconvinced that petitioner's conviction--with the
exception of one count--should be reversed. Finding harmless
error or a lack of Strickland [v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] prejudice in cases such as
this, however, would leave indigent criminal appellants without
any of the protections afforded by Anders [v. California, 386
U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967)]. . . .
Nor are we persuaded that the Court of Appeals'
consideration of the appellate briefs filed on behalf of
petitioner's codefendants alters this conclusion. One party's
right to representation on appeal is not satisfied by simply
relying on representation provided to another party. To the
contrary, “[t]he right to counsel guaranteed by the Constitution
contemplates the services of an attorney devoted solely to the
interests of his client. Glasser v. United States, 315 U.S. 60, 70,
62 S. Ct. 457, 465, 86 L. Ed. 680 [ (1942) ].” Von Moltke v.
Gillies, 332 U.S. 708, 725, 68 S. Ct. 316, 324, 92 L. Ed. 309
(1948) (plurality opinion). 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.
Penson, 488 U.S. at 86-87, 109 S. Ct. at 353 (internal citation to record and footnote
omitted).
The decisions in Penson and McGraw stand for the proposition that, absent a
valid waiver by a defendant, only the counsel of record for a defendant on a charge may
represent the defendant during critical stages of a prosecution. Under Penson and McGraw,
prejudice is presumed when a defendant's counsel relinquishes any part of the representation
of the defendant to an attorney who is not on record as counsel for the defendant.
Penson and McGraw should have controlled the outcome of the instant case. The record is devoid of any evidence of a valid waiver by the juvenile of his right to have appointed counsel conduct his defense. See State v. Sugg, 193 W. Va. 388, 397, 456 S.E.2d 469, 478 (1995) (“Thus, when a constitutional right is at stake, its waiver must be knowing, intelligent, and voluntary.”). Absent such a waiver, the juvenile's counsel could not agree to let counsel for the juvenile's parents have an active role in the defense. See Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 835, 83 L. Ed. 2d 821, 828 (1985) (“[An effective attorney] must play the role of an active advocate, rather than a mere friend of the court.”). By doing so, the juvenile's constitutional right to counsel during every critical stage of the prosecution was constructively denied. (See footnote 4) Consequently, the issue of prejudice was irrelevant.
See Perry v. Leeke, 488 U.S. 272, 280, 109 S. Ct. 594, 600, 102 L. Ed. 2d 624, 633 (1989)
(actual or constructive denial of the assistance of counsel is not subject to prejudice analysis);
Herring v. New York, 422 U.S. 853, 864, 95 S. Ct. 2550, 2556, 45 L. Ed. 2d 593, 601-02
(1975) (presumption of prejudice where defense counsel denied right to give closing
argument); Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim. App. 1999) (En banc) (“In
these circumstances no affirmative proof of prejudice is required because prejudice is
irrefutably presumed.”).
In view of the foregoing, I dissent.
1926, 1932, 18 L. Ed. 2d 1149, 1157 (1967) (footnote omitted).