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MILTON KILLINGSWORTH v. STATE OF MISSISSIPPI

MAY 28, 1986

MILTON KILLINGSWORTH
v.
STATE OF MISSISSIPPI



EN BANC

ROBERTSON, JUSTICE, FOR THE COURT:

We are today called upon to face yet another troublesome aftermath to the call of Gideon's trumpet. *fn1 Court-appointed counsel for an indigent convicted defendant has advised us that he has diligently and in good faith considered his client's prospects on appeal and found them hopeless. He seeks leave to withdraw from further representation.

Our foremost value in this context is the provision to all persons of equal justice under law without regard to economic status or financial resources. To the extent reasonably practicable, we have sought to assure the poor, when confronted by the awesome machinery of our criminal justice system, have the same protections as are enjoyed by the rich. Most important have been our efforts to assure the indigent defendant enjoys the effective assistance of counsel, both at trial and on appeal.

 Milton Killingsworth is one clearly the object of this constitutionally mandated concern. He stands convicted of aggravated assault in the Circuit Court o the Second Judicial District of Bolivar County, Mississippi. Miss. Code Ann. 97-3-7 (2) (Supp.1985). He has been sentenced to twelve years imprisonment. A certified indigent, he desires an appeal to this Court.

 Killingsworth's court-appointed attorney, R. L. Wong, Esq., of Cleveland, Mississippi, relies in his motion to withdraw upon Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d 493 (1967). Anders holds consistent with federal constitutional requirements a procedure which would allow court-appointed counsel, finding without merit the proposed appeal of his client after a conscientious examination of it, to so advise the Court and request permission to withdraw. To obtain this rain check, counsel is required by Anders to file with the appellate court a brief "referring to anything in the record that might arguably support the appeal" , 386 U.S. at 744, 18 L.Ed.2d at 498, to furnish his client a copy of the brief, and to allow the client time to raise any points he chooses. Where these requirements are met, Anders holds there is no impairment of the indigent's federal constitutional rights by the granting of the motion to withdraw.

 The Constitution and laws of the State of Mississippi require more.

 We begin with the proposition that any person convicted of an offense in a circuit court may of right appeal to this Court. Miss. Code Ann. 99-35-101 (1972). This is so whether the defendant be rich or poor. If the defendant signifies his desire to exercise this statutory right and if he otherwise establishes that he is indigent in fact, the defendant may proceed in forma pauperis, Miss. Code Ann. 99-35-105 (Supp.1985), and is entitled to the appointment of counsel to represent him on appeal. Miss. Code Ann. 99-15-15 (1972) and -17 (Supp.1985).

 Killingsworth has such counsel in the person of R. L. Wong, Esq. His counsel has faithfully tracked the Anders procedure. He has furnished to us his affidavit to the effect that he considers any possible appeal wholly without merit. He has filed an Anders brief discussing three possible points for consideration on appeal, including the question of whether the verdict was supported by the evidence. He has notified his client of his actions and furnished him a copy of the Anders brief. We note that the record, however, has not yet been prepared.

 Upon careful reflection, Anders to the contrary notwithstanding, it becomes painfully apparent that there is no way to vindicate Killingsworth's state constitutional right to the effective assistance of counsel incident to his appeal other than requiring appointment of counsel who, without fear or favor, will press such possible assignments of error as in the exercise of his professional judgment and responsibility he must.

 The problem with Anders is that the process it sanctions belies its underlying premise. The Anders court at the outset states that

 The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae.

 386 U.S. at 744, 18 L.Ed.2d at 498.

 The procedure there authorized - and that followed in this case - has reduced Wong to the status of an amicus curiae. Such is the inevitable result of allowing an indigent defendant's court-appointed counsel, on the one hand, to state that he regards the appeal as "wholly frivolous" , and on the

 other, to require that he file a brief raising any points "that might arguably support the appeal" . 386 U.S. at 744, 18 L.Ed.2d at 498. Fortunately, we are not bound by the minimum "federal requirements" of Anders and may construe our own Constitution and laws to afford greater protections for an accused. See Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 3474, 3476, 77 L.Ed.2d 1201, 1212, 1214-15 (Miss.1983); Pruneyard Shopping Center v. Robbins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040-41, 64 L.Ed.2d 741, 752 (1980); Penick v. State, 440 So.2d 547, 551 (1983). We regard that the Anders procedure would compromise the indigent's rights incident to his appeal to the ...


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