IN THE SUPREME COURT OF MISSISSIPPI

NO. 2003-KA-00331-SCT

RANDY CAL LINDSEY

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 02/12/2003

TRIAL JUDGE: HON. MARCUS D. GORDON

COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: EDMUND J. PHILLIPS, JR.

PRO SE

ATTORNEY FOR APPELLEE:

DISTRICT ATTORNEY: OFFICE OF THE ATTORNEY GENERAL

BY: SCOTT STUART

MARK DUNCAN

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: SUPPLEMENTAL BRIEFING ORDERED -

03/17/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE WALLER, P.J., GRAVES AND DICKINSON, JJ.

WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1. Randy Cal Lindsey appeals from his conviction in Scott County Circuit Court of

burglary of a busin

ess and his sentence as a habitual offender to seven years without parole in

the custody of the Mississippi Department of Corrections. Lindsey’s appellate attorney filed

a brief arguing that Lindsey’s appeal is without merit and cited to our decision in Turner v.

State

, 818 So. 2d 1186, 1189 (Miss. 2001) (providing procedure to be followed by attorneys1 Turner was our response to United States Supreme Court precedent as well as Fifth

Circuit criticism of our former Kil lingsworth p rocedure which consisted of the following:

“Where counsel regards the appeal without merit and deems it his obligation to so state to the

Court, the full protection of the ri ghts of the accused require that he receive a copy of the

representation counsel has made to the Court a nd be furnished a reasonable opportunity to file

his own comments and raise any additional points that he chooses.” Killingsworth

, 490 So. 2d

849, 851 (Miss. 1986).

2 At the time of trial, Odom was in jail for an unrelated charge.

2 who believe indigent client’s appeal has no merit), o verruling Killingsworth v. State

, 490 So.

2d 849 (Miss. 1986). 1 Lindsey now comes before the Court pro se.

FACTS

¶2. After being dispatched to Cox’s Chevron in response to a burglary alarm, Officers Will

Jones and Russell Ellis of the Forest Police Department discovered that someone had broken

the glass in the front door wi th a brick and stolen seven cartons of Marlboro cigarettes. Upon

arriving at the scene around 5 a.m., Ellis questioned Fonzy Odom, who was standing in the area.

Odom told Ellis he had seen two black males at the scene and indicated the men went down

West Fourth Street. 2 After going down the street, Ellis noticed Randy Lindsey under a car port

and tried to question him. When Lindsey behaved defensively, Ellis took him into custody.

Upon returning to the car port to investigate, Ellis discovered seven carton s of Marlboro

cigarettes inside a stack of tires close to where Lindsey had been standing when Ellis spotted

him.

¶3. The surveillance tape revealed that the person who stole the cigarettes wore the same

outfit that Lindsey was wearing that morni ng. Furthermore, after the police took Odom into

custody, he altered his previous s tatement and told the police that after the two black males ran

off, Lindsey came up with the cigarettes in hand and said, “Fonzy, I got what you need.”3

¶4. At trial, Lindsey admitted tak ing the cigarettes, but denied breaking into Cox’s Chevron.

He explained,

I went behind the Chevron and used the bathroom. As I was getting ready to

come around the corner the alarm went off, s o I panicked at first, and I said,

‘Well, hey, I ain’t did noth ing [sic].’. . . So, when I go around front I see the front

glass broken, and I said, ‘Well, s***, this is opportunity[.]’ So I squatted down

and went on

into the store . . . and got some cigarettes and ran behind the store

to a friend’s house[.]

¶5. The following exchange took place betw een the prosecutor and Lindsey regarding

Lindsey’s partial admission.

MR. TURNER: [I]f I understand your story correctly, you’re sayin g somebody

el se just came by and did the breaking for you, but they just - they didn’t go in.

So, you fortuitously came by and saw the do or had already been broken and said,

‘Well, if I can sell that to a jury if I get caught, the worst thing they’ll get me for

is maybe jus t a little petty larceny or something.’ Is that kind of what your

thinking process was?

MR. LINDSEY: No sir, that’s not my think ing process. When I came around the

building you could see someone else leaving. I didn’t know if it was the two

men or what, but you could kind of tell from the corner there was somebody

running . . . away. So, that was my chance to get me some cigarettes[.]

¶6. The State presented no evidence revealing who broke the glass door with the brick.

After the State rested, Lind s ey’s trial counsel moved for a directed verdict, arguing the State

failed to prove all the elements of burglary beyond a reasonable doubt. The trial court

overruled the objection, and after presentation of the def ense, the jury unanimously found

Lindsey guilty of burglary. Lindsey’s attorney filed a brief purportedly complying with the

Turner decision and notified Lindsey of his right to file a brief pro se.

ANALYSIS3 We commend the State for acknowledging this problem, and note that it has previously

done so in t

he past. See B rewer v. State

, 834 So. 2d 36, 38 (Miss. 2003)(noting State’s

request that we revisit T urner but declining to do so for procedural reasons); accord Evans

v. State

, 813 So. 2d 724, 726-27, 729 (Miss. 2002). In specifically discussing the

constitutional deficiencies in our current procedure, it has greatly assisted the Court in

refining our jurisprudence.

4 ¶7. In his pro se brief, Lindsey raises sev eral grounds of reversible error: (1) he has

unconstitutionally been denied assistance of counsel a t the appellate stage; (2) the State failed

to prove beyond a rea s onable doubt Lindsey committed the crime of burglary; (3) the trial

court committed various errors in denying a continuance as well as den ying him a trial

transcript; (4) he received ineffective assistance of counsel at trial; and (5) the Mississippi

Supreme Court “error [sic] by not entertaining p etitioner [sic] unexhaustion [sic] claim.”

Finding additional briefing warranted in accord with Lindsey’s complaint s regarding issue one,

we direct further briefing consistent with this opinion.

¶8. Lindsey ci

tes the Fourteenth Amendment as well as applicable Supreme Court

prec edent and essentially complains pro se that he has been denied his constitutional right to

counsel as a result of his attorney’s failure to properly represent him before this Court. T he

Stat e acknowledges the legitimacy of Lindsey’s argument, and in its response, highlights the

unconstitutionality of our procedure for add ressing potentially frivolous claims of indigent

defendants. 3 We therefore find Lindsey has adequately raised the issue and address this

argument on its merits.

¶9. In Smith v. Robbins , 528 U.S. 259, 273-74, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000),

the United States Supreme Court, speaking through Justice Thomas, stated that although the

Court had previously laid down a “prophy l actic framework” to vindicate the Fourteenth4 The Court also noted that it would be especially egregious for an appellate court to

decide the appeal

without counsel if the court discovered arguable issues. R obbins

, 528 U.S.

at 280 (citing Penson v. Ohio , 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988)).

5 Amendment right to appel late counsel, it “expressly disclaimed any pretensions to rulemaking

authority for the States in the area of indigent criminal appeals.” Instead, the Court stated,

“States may - and, we are confident, will - craft procedures that, in terms of policy, are superior

to, or at least as good as” the framework the Court int roduced in Anders v. California , 386

U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Douglas v. California

, 372 U.S. 353,

83 S.Ct. 814, 9 L.Ed.2d 811 (1963).

¶10. Before reviewing California’s procedure, the Court stated,

[I]t is important to focus on the underlying goals that the procedure should serve

- to ensure that those indig ents whose appeals are not frivolous receive the

counsel and merits brief required by Doug las , and also to enable the State to

‘protect itself so that fri

v olous appeals are not subsidized and public moneys are

not needlessly spent.’.

. . For although, under Dougla s , indigents generally have

a right to counsel on a first appeal as of right, it i s equally true that this right

does not include the right to bring a frivolous appeal and, concomitantly, does

not include the right to counsel for bringing a frivolous appeal.

Robbins , 528 U.S. at 277-78 (citations omitted).

¶11. In its survey

of the procedures which it has found unconstitutionally inadequate in past

cases, the Court no ted four instances in which it had found State procedures to be

inappropriate: (1) when the procedure requires that a defendant be “unlikely to prevail on

appeal,” rather than requiring the appellate court or counsel to find the appeal is frivolous; (2)

when a procedure permits appellate counsel to withdraw his or her representation of the

indigent defendant and the appellate court decide the appeal without appointing new counsel ; 4

(3) when th

e procedure allows appellate counsel to submit a letter asserting the “bare6

conclusion” that the appeal is without merit; and (4) when the procedure only provides one

level of review. Id. at 279.

¶12. In Turner

, we approved the following procedure for use when defendant’s appellate

counsel believes an indigent defendant’s appeal to be frivolous:

The appellate counsel must:

(1) determine that the defendant is "unlikely to prevail on appeal."

(2) file a brief indicating "that he scoured the record thoroughly[,]" and "refe r []

to anything in the record that might arguably support the appeal[,]" and

(3) advise client of his right to file a pro se supplemental brief.

At this point, the appellate court shall then make its own independent r eview of

the record, in the manner followed in all other cases.

Turner , 818 So.2d at 1189 (citations omitted).

¶13. Today, based o n the sound logic and admonition of the Supreme Court’s holding in

Robbins , we overrule Turner in part.

¶14. First, by requiring appellate counsel to determine the client is mer ely “unlikely to

prevail on appeal,” we inadvertently endorsed one of the very problems which the Supreme

Court found to render such a procedure unconstitutional. It is more than a matter of semantics

that led the Robbins Cou rt to draw a distinction between a claimant who is unlikely to prevail

on appeal and one whose claims are altogether frivolous. A claim is frivolous when it is

“lacking in arguable issues.” R obbins

, 528 U.S. at 279-80. Although Lindsey may indeed be

unlikely to prevail in this appeal, that does not mean his arguments reach the level of frivolity

(i.e. that he presents no arguable issues), and requiring his attorney to make such a n argument

explicitly violates Robbins

.7

¶15. The second problem with the Turner procedure is less obv ious than the first.

According to Robbins

, a procedure is unconstitutional where eith e r the appellate court allows

counsel to withdraw be fore the court determines whether the appeal is frivolous or where a

procedure makes no provision for the court to receive a brief on the merits after finding

arguable issues. I

d. at 280. U

nder Turner

, when appellate counsel files a brief with the

appellate court, the client is concurrently advised of his or her right to file a pro se brief.

Turner , 818 So. 2d at 1189. Thereafter, the appellate court must “make its own independent

review of the record.” Id. This procedure potentially leaves the impression that once the

attorney has filed the Turner brief, he or she is discharg ed of his or her duty to represent the

indigent client. It is true that T urner does not explicitly state the attorney is relieved of his

or her duties prior to the appellate court’s determination of whether defend ant’s appeal is

frivolous. But neither does the T urner rule expressly state there is any further obligation after

the attorney has s ubmitted the appellate brief , even if a nonfrivolous issue exists in the record.

¶16. In the case at hand, Lindsey’s a ppellate counsel filed a one-and-a-half page brief on his

behalf, merely asserting that he had complied with Turner and that he regarded L indsey’s

appeal to be without merit since it was “unlikely to prevail on appeal.” He then requested

twenty-five days for

Lindsey to file a pro se brief. The brief filed on behalf of Lindsey was

deficient even under Turner since it did not refer to “anything in the record that might arguably

support the appeal .” T

urner

, 818 So. 2d at 1189. However, it is understandable how T urner ’s

requiremen

t that the attorney determine his client is “unlikely to prevail on appeal” lends itself

to the assumption by attorneys that they have no obligation to make fu r ther contentions in their8

briefs to the appellate co urt. We conclude the better practice is to have a procedure which

requires supplemental briefing where appellate counsel has filed an inadequate brief. Robbins

,

528 U.S. at 280 ( citing A nders v. California

, 386 U.S. at 740, n.2 and People v. Wende

, 600

P.2d 1071, 1075 n.3 (Cal. 1979)).

¶17. We therefore overrule Turner in part, rectifying the constitutional problems with our

procedure governing appeals by indigent criminal d efendants. We first note that, under the

sound guidance of the Supreme Court, we refrain from replacing the requirement tha t appellate

counsel determine that defendant is “un likely to prevail on appeal” with a requirement that

appellate counsel determine that all of the client’s claims are frivolous. The Court rightly

noted the conundrum faced by appellate attorneys forced to make any assertions under A nders

procedures about the frivolity of their client’s argument: “[There is] some tension both with

counsel’s ethical duty as an officer of the court (which requires him not to present frivolous

arguments) and also with his duty to further his client’s i nterests (which might not permit

counsel to characterize his clie nt’s claims as frivolous).” R obbins

, 528 U.S. at 281-82

(footnote omitted); see also Miss. R. Prof’l Conduct 3.1 & cmt. (2 004) (barring attorneys

from making frivolous arguments and defining such arguments as those where attorney is

“unable either to make a good faith argument on the merits of the action taken or to support

the action taken by a good faith a rgument for an extension, modification or reversal of existing

law.”). The Court then commended California’s effort to rectify this problem by (1) “not

requiring counsel to explicitly describe the cas e as frivolous” and (2) by allowing attorneys5 By no means do we imply that an indigent client has received unconstitutional

representation because his or her attorney referred to the client’s claims as “frivolous.”

Instead, this particular aspect of o ur opinion seeks to alleviate any potential concerns an

attorney may have about compliance with Mississippi Rules of Professional Co nduct and has

no effect on the constitutional rights of indigent clients.

6 We note that since counsel does not actually present an argument when filin g a Turner

brief, it would be impossible to com ply with Mississippi Rule of Appellate Procedure

28(a)(5)-(6).

9 who determine that a cas e is frivolous to limit their briefs to a statement of the facts and

applicable law. Robbins , 528 U.S. at 282 (citing People v. Wende , 600 P.2d at 1073. 5

¶18. In accord with Robbins

, we overrule Turner in part and i mplement the following

procedure to govern cases where appellate counsel represent s an indigent criminal defendant

and does not believe his or her client’s case presents any arguable issues on appeal:

(1) Counsel must file

and serve a brief in compliance with Mississippi Rule of

Appellate Procedure 28(a )(1)-(4),(7); 6 see also Robbins

, 528 U.S. at 280-81

( stating that “[c]oun sel’s summary of the case’s procedural and factual history,

with citations of the record, both ensure s that a trained legal eye has searched

the record for arguable issues and assists the reviewing court in its own

evaluation of the case.”).

(2) As a part of the brief filed in compliance with Rule 28, counsel must certify

that there are no arguable issues suppor ting the client’s appeal, and he or she has

reached this conclusion after scouring the recordthoroughly, specifically

examining: (a) the reason for the arrest and the circumstances surrounding

arrest; ( b) any possible violations of the client’s right to counsel; (c) the entire

trial transcript; (d) all rulings of the trial court; (e) pos sible prosecutorial

misconduct; (f) all

jury instructions; (g) all exhibits, whether admitted into

evidence or not; and (h) possible misapplication of the law in sentencing. See

Robbins , 528 U.S. at 280-81; Turner , 818 So. 2d at 11 89.

(3) Counsel must th

en send a copy of the appellate brief to the defendant, inform

the client that counsel could find no arguable issues in the record, and advise the7 California’s Wende procedure allows appellate counsel to withdraw when it finds the

attorney has adequatel

y discharged his duty to set forth the facts and present the applicable law.

See Wende

, 600 P.2d at 1073-74. We decline to adopt this approach in order to avoid

temporarily leaving the defendant without the benefit of counsel and possibly necessitating the

appointment of new counsel.

10 c lient of his or her right to file a pro se brief. T urner

, 818 So. 2d at 1189 ; cf.

Wende , 600 P.2d at 1074. 7

(4) Should the defendant then raise any arguable issue or should the appellate

court discover any arguable issue in its review of the record, the court must, if

circumstances warrant, require a ppellate counsel to submit supplemental briefing

on the issue, regardless of the probability of the defendant’s success on appeal.

Robbins , 528 U.S. at 280 (citing Wende , 600 P.2d at 1074).

(5) Once briefing is complete, the appellate court must consider the case on its

merits and render a dec ision.

¶19. Although this procedure more effect ively implements the constitutional mandates of

Robbins

, we do not create or imply a right to post-conviction relief for those cases decided

under Turner

. In spite of its flaws, the T urner pro cedure at least required that we conduct an

independent review of the record. T urner

, 818 So.2d at 1189. In doing so, our appellate review

afforded the protection to indigent clients they migh t not have otherwise received from their

attorneys and satisfies any concerns we may have otherwise had as to whether indigent clients

received constituti

onally adequate representation under T urner

. S ee, e.g.

, Sayles v. State

, 823

So. 2 d 537, 540-41 (Miss. 2002) (raising issue of sufficiency of evidence after independent

review of record although neither appellate counsel nor appellant raised issue on appeal).

¶20. The purpose of applying more stringent protectiv e measures is simply to safeguard the

constitutional right to counsel which is afforded to indigent criminal defendants thr oughout the

entirety of appellate proceedings. S e e Robbins

, 528 U.S. at 280. Although we remain steadfast11

in our ref usal to subsidize frivolous appeals, we also recognize the essential role of appellate

attorneys in helping us accomplish this goal. Attorneys who thoroughly brief the claims of

indigent appellants not only provide invaluable assistance to their clients and appellat e courts,

they eliminate the costs to the State that will inevitably result when attorneys fail to comply

wi th the requirements articulated today. B ecause Lindsey’s attorney has submitted a brief

simply concluding that his cli ent’s claim has no merit, we order him to submit a supplemental

brief in compliance with this opinion.

CONCLUSION

¶21. We overrule the Turner procedu re in part in order to afford adequate and effective

counse l to those indigent clients whose attorneys do not believe they have arguable issues to

present the appe llate court. We direct that the briefing schedule in this appeal be reopened for

additional briefing consistent with this opinion. The Clerk of this Court shall notify the parties

of the new briefing schedule. See M.R.A.P. 31.

¶22. SUPPLEMENTAL BRIEFING ORDERED.

SMITH, C.J., COBB, P.J., EASLEY, CARLSON, DICKINS ON AND RANDOLPH,

JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ, J., NOT

PARTICIPATING.