Rule 3.6 Failure to Appeal or File Briefs; Duty of Counsel; Scope of Review
A. An appearance of record before this Court requires counsel to diligently proceed with the appeal including the filing of a brief, until and unless withdrawal as the attorney of record is granted by this Court. When the briefs are not filed, or when an appearance is not made, the appeal may be dismissed or submitted for review on the record as filed; PROVIDED HOWEVER, this Court, on its own motion, may summarily submit an appeal for decision prior to the expiration of time authorized for the submission of the briefs when, in the opinion of the Court, the appeal is frivolous. Prior to summary submission, this Court will notify the attorney of record for the appellant, and it is the attorney's duty to immediately notify the appellant in writing of the Court's proposed action. See also Rule 3.12.
B. Appellate counsel may file with this Court a brief stating there are no serious issues in appeal, provided the following guidelines are followed, See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); McCoy v. Court of Criminal Appeals of Wisconsin, 486 US. 429, 108 S.Ct. 1895, 100 L.Ed. 440 (1988).
(1) The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate on behalf of the client, as opposed to that of amicus curiae. A simple letter stating there is no merit to an appeal is not sufficient.
(2) Counsel's role as advocate requires that counsel support the appeal to the best of counsel's ability. Counsel must function zealously and resolve all doubts and ambiguous legal questions in favor of the client.
(3) If counsel finds the case to be wholly frivolous, after a conscientious examination of it, counsel should so advise this Court and request permission to withdraw.
(4) A motion to withdraw must be accompanied by a brief referring to anything in the record that might arguably support the appeal.
(5) The motion to withdraw, with accompanying brief, must contain a statement of the facts, a description of the proceedings, and the citation of pertinent authorities sufficient to permit this Court to make a finding the appeal is frivolous. To assist this Court, a brief must be accompanied with either a transcript of proceedings, or a stipulation describing the trial proceedings pertinent to each alleged error. This brief must also certify counsel has met the requirements set forth below, and should adequately incorporate, any points the indigent client has raised with counsel. The Attorney General is not required to file a response brief, although a response brief may be filed upon proper motion and with permission of this Court.
(6) A copy of counsel's brief shall be furnished to the indigent client and the client may file any additional propositions of error within sixty (60) days of the filing of the motion to withdraw.
(7) This Court will then proceed, after a full examination of the record, and briefs, to decide whether (1) counsel has diligently searched the record for arguable claims and (2) the case is wholly frivolous.
(8) Upon a finding the appeal is frivolous, the Court may grant counsel's request to withdraw and affirm the decision of the trial court.
(9) If this Court finds any of the legal points arguable on their merits (and therefore not frivolous), it will, before reaching a decision, deny the motion to withdraw and direct counsel to argue the appeal.
In reviewing guidelines 7-9 above, this Court will grant counsel permission to withdraw and will affirm the conviction (rather than dismiss the appeal) in criminal appeals found to be wholly frivolous; however, if this Court is not unanimous in its decision to affirm, the appeal must be pursued on the merits. In such an event, this Court will either direct the moving counsel to submit a brief on the merits, or grant counsel leave to withdraw, whichever it deems appropriate in the circumstances of the individual case.
C. If an attorney for an indigent defendant fails to file a brief in accordance with these rules or Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), or if an attorney retained by a defendant fails to file a brief in accordance with these rules, this Court may summarily dismiss or submit the appeal for decision and notify the Oklahoma Bar Association of the attorney's delinquency.