In the CCAP Manual for Panel Attorneys, court-appointed counsel is advised of specific procedures to be followed in the event that counsel is unable to find any meritorious issues to raise in the opening brief. These procedures have been adopted by the Third and Fifth District Courts of Appeal to implement the decision of the United States Supreme Court in Anders v. California (1967) 386 U.S. 738, as interpreted by the California Supreme Court in People v. Wende (1979) 25 Cal.3d 436. The United States Supreme Court has found the California Wende procedure to be a constitutionally acceptable means of implementing the requirements of Anders (Smith v. Robbins (2000) 528 U.S. 259 [145 L.Ed.2d 756], overruling the Ninth Circuit's decision in Robbins v. Smith (1997) 125 F.3d 831). If counsel has not yet reviewed these materials and cases, it is strongly recommended that counsel do so in order to properly understand how these procedures have evolved and what is required of appellate counsel to provide effective representation in this situation.
The CCAP "Wende packet" provided here is designed to assist you in preparing a Wende brief in court-appointed cases in the Third and Fifth District Courts of Appeal. This packet includes samples and forms, expectations of appointed assist and independent counsel, and compensation tips:
Sample format for Wende brief for Third & Fifth District cases
A format for the Wende brief itself, consisting of the cover page, and the basic Wende format stating the statement of appealability, the argument, and the attorney's supporting declaration.
NOTE: Don't forget to add the table of contents, table of authorities (citing Wende), a word-length certificate for the brief, and a proof of service!
The Wende brief format presented here is the one preferred by the Third and Fifth District Courts of Appeal. Other project Wende formats may differ. The court clerk may refuse to file a brief that does not comply with their requirements.
Suggested checklist for Wende Briefs
This is a suggested checklist to tailor to your own needs. CCAP recommends that your file be fully documented and that the file be retained after the case is over in accordance with current State Bar recommendations and ethics guidelines.
A sample letter to the client advising that counsel has been unable to identify any meritorious issue
CCAP recommends that this not be used as a "form letter" since each case and each appellant will differ requiring communication unique to the case, potential issues, and response to appellant's previous input or inquiries. Caution should also be exercised in using "form letters" as they tend to be passed around in prison.
The addresses of the California Supreme Court and the Courts of Appeal
It is always wise to double check that the address that you send the appellant reflects the correct court, particularly when you practice in more than one Court of Appeal.
Sample Word Count Certification
A word-length certificate pursuant to the Rules of Court is required for filing a Wende brief. This format is also included in the sample Wende format document located above.
CCAP's view on handling criminal cases where there are either no arguable issues, or only minimal-relief issues (such as small sentencing fines) is that if there is an arguable issue, it is counsel's duty to raise it; if not, don't. However, counsel should not hesitate to take full advantage of a second review of the transcript by the buddy project attorney to see if an arguable (non-frivolous) issue exists. If neither appointed counsel, nor the project staff attorney spot an issue, then the Wende procedure gives the appellant the benefit of a third review by the court. If an arguable issue is spotted, the court will instruct counsel to brief the identified issue. In addition to the three reviews of the transcripts, there is another benefit gained because the appellant will also be able to file a pro per supplemental brief. Ordinarily, a litigant represented by counsel has access to the court only through counsel and thus has no right to submit pro per filings; Wende is the exception. The Third and the Fifth will always address the merits of an appellant's supplemental brief, even if only to say they are non-meritorious issues.
In the situation where a small fine or error in the Abstract of Judgment exists, counsel is urged to resolve these in the trial court first, leaving the advantages of Wende available once the correction has been made. See Fares procedures.
Finally, appointed counsel should always be mindful of the Third District's stated Frivolous Issues Policy. If in doubt, contact your CCAP buddy before drafting a marginal issue.
Remember that CCAP expects appointed counsel to consult with the CCAP staff attorney assigned to the case not only before the filing of a Wende brief, but also before counsel even writes to the client regarding the conclusion that there are no issues to be briefed. It can severely undermine the client's confidence in you and even trigger a serious breakdown in the attorney-client relationship if you deliver this disappointing news and then have to retract it because CCAP subsequently identifies an issue that was missed.
The requirement that no Wende brief or abandonment be filed without prior consultation with CCAP applies both to assisted and independent appointed cases without exception. It is best to first phone the assigned CCAP buddy to alert him or her that you anticipate filing a Wende brief. Your buddy will then let you know what s/he needs to complete CCAP's review of the record:
In Assisted Cases that will occur only after the staff attorney has thoroughly reviewed the record on appeal, including any augmentation that was received after the original memo was sent, and has reviewed your draft Wende brief. In assisted cases, counsel should contact his or her CCAP buddy to let him or her know that the record is coming along with the Wende draft and a list of issues considered and rejected. CCAP staff attorneys always appreciate receiving a short memo from assisted counsel in which the issues considered and rejected are set forth, together with supporting authorities.
Summary of steps for assist-appointed cases:
In Independent Cases CCAP staff attorneys have considerable more latitude. The assigned CCAP buddy is listed in the initial CCAP "thank you for accepting appointment letter" for each independent case. The staff attorney may want to review the record, or simply review a memo from counsel setting forth the facts, and detailing the issues considered and rejected. As a result, in independent cases counsel should contact the CCAP staff attorney assigned to the case to determine how to proceed.
Summary of steps for independent-appointed cases:
In both assisted and independent cases the Wende review is designed to explore issues not mentioned in your Wende memorandum of unbriefed issues sent to us along with the transcripts. During our review, CCAP staff counsel will typically read selected portions of the record, but not necessarily all of it, and use the Wende review to mention possible issues we feel are among those which may require additional research or consideration. Our time constraints prevent us from fully researching suggested issues. We also recognize your complete research and reading of the record may demonstrate that issues we suggest are not ultimately arguable in the particular case. We recognize that the panel attorney is the attorney of record, and is fully responsible for all aspects of the case, including doing all of the research and making a final determination on the merits of an issue. We are always available to discuss any possible issues with you.
If contact with the client has been lost, a Wende brief should not be filed until counsel has exercised due diligence in an attempt to locate the client. Such due diligence should include searching the record for alternative addresses for the client and for the addresses of friends or relatives who might be able to assist in locating your client. Trial counsel may also be able to assist in this process. The prison locator number should also be called to determine whether the client has been released or transferred. Checking with CCAP to see if we have an alternative address for the appellant is also prudent. Contact with the probation or parole officers in order to locate a defendant may result in revocation of probation or parole and other consequences harmful to the defendant. CCAP suggests that you may well want to discuss this matter and how to proceed with your CCAP buddy before filing any brief or abandonment. At the same time, counsel should remember that it is the client's duty to keep his or her attorney apprised of any change in his or her address, and that the failure to do so could impair the client's rights on appeal.
No interim claims may be filed in Wende or Sade C. cases. However, appointed counsel may file an early final claim after 30 days has elapsed from the time of filing the Wende/Sade C. with the court and the court has not requested supplemental briefing in the case. If counsel elects to file a final claim after 30 days has lapse and before the court issues its opinion, counsel waives claiming further time and expenses for any subsequent services such as reading the opinion or communication with their client, unless the court requests supplemental briefing after the filing of the final claim. If the court requests supplemental briefing, counsel may file a supplemental final claim only after the opinion issues.
No compensation is permitted for review of the opposing brief or letter.