People v. Holloway

Appellate Division of the Supreme Court of New York, Third Department · 2024 · Criminal Law

Criminal Lawguilty pleaappeal waiverassigned appellate counselno nonfrivolous issuesmotion to withdrawaffirmancescrivener's error

Facts

Defendant was indicted on two counts and, in full satisfaction of the indictment, was permitted to plead guilty to the reduced charge of attempted promoting prison contraband in the first degree. The plea agreement provided that he would be sentenced as a second felony offender to 1½ to 3 years in prison, to run consecutively to the prison term he was already serving, and that he would waive his right to appeal. Defendant pleaded guilty in accordance with that agreement, and County Court imposed the agreed-upon sentence. On appeal, assigned counsel asserted that the record presented no nonfrivolous issues.

Issue

After a guilty plea entered pursuant to an agreement that included an appeal waiver and a specified sentence, should assigned appellate counsel be relieved because the appeal presents no nonfrivolous issues, and should the conviction be affirmed?

Rule

Where assigned appellate counsel seeks to withdraw on the ground that there are no nonfrivolous issues to be raised on appeal, the appellate court reviews the record and counsel's brief; if it agrees that no nonfrivolous issues exist, it may affirm the judgment of conviction and grant counsel's request to withdraw. A scrivener's error in the uniform sentence and commitment form should be corrected by remittal for entry of an amended form.

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In Albany, Marcus Duran pleaded guilty to a reduced felony charge under an agreement that included a specified prison term and a waiver of appeal. On appeal, his assigned lawyer filed a brief stating that, after reviewing the record, she found no nonfrivolous issues and asked to withdraw; the appellate court's own review of the record and the brief reached the same conclusion.

What is the most appropriate disposition?

Explanation. The governing rule is that when assigned appellate counsel seeks to withdraw on the ground that there are no nonfrivolous issues, the appellate court reviews the record and counsel's brief. If the court agrees that no nonfrivolous issues exist, it may affirm the judgment of conviction and grant counsel's request to withdraw. The opinion did not treat the appeal waiver as itself requiring dismissal, nor did it require vacatur or resentencing.