ORIGINAL 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

DA 19-0247 

STATE OF MONTANA, 

Plaintiff and Appellee, 

v. 

ROBERT MATHEW HOLGUIN, JR., 

Defendant and Appellant. 

FILED 

MAR 1 5 2022 

Bowen Greenwooc 

Clerk of Suprerne Co,,• 

St:atg. (If 

ORDER 

On December 28, 2021, Caitlin Boland Aarab, appointed counsel for Appellant 

Robert Mathew Holguin, Jr., filed a motion and brief asking to be allowed to withdraw 

from this appeal. Aarab asserted that she had identified a potentially meritorious 

appealable issue but Holguin had asserted he did not wish to pursue an appeal on those 

grounds. She further asserted that although Holguin identified arguments he wished her to 

make to the Court, she refused to do so because in her professional opinion they were 

frivolous. 

In addition to her motion to withdraw, Aarab supplied a copy of the Opening Brief 

she had prepared that raised the issue Holguin did not wish to pursue on appeal. This Court 

granted Aarab's motion to withdraw and further ordered that the Clerk of Court file the 

Opening Brief Aarab had prepared. 

Holguin, representing himself, filed an objection to this Court's acceptance of the 

Opening Brief. We found Holguin's objection well-taken and ordered the Opening Brief 

withdrawn and stricken from the record. We further ordered that Holguin could proceed 

with his appeal on his own behalf, with private counsel, or with appointed counsel if the 

Appellate Defender Division (ADD) determined that new counsel is warranted. 

Relying on Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312 (1983), 

Appellate Defender Chad Wright moves to withdraw ADD from representation. He argues 

03/15/2022

Case Number: DA 19-0247
that an appointed appellate counsel controls the manner and scope of issues presented, and 

that such counsel has no obligation to present frivolous issues over meritorious issues even 

if the defendant so demands. Wright asserts that in this instance, Aarab identified a 

potentially meritorious issue and used her expertise to provide Holguin with effective 

assistance of counsel. Wright argues that Aarab had no obligation to elevate Holguin's 

preferred issues, which she concluded were frivolous, over this potentially meritorious 

issue. Wright moves the Court to permit ADD to withdraw as counsel of record and to 

grant Holguin leave to pursue his appeal either on his own behalf or with private counsel. 

Holguin, representing himself, objects to ADD's motion to withdraw. He asserts 

that he recognizes he is not entitled to choose his counsel, but he is dissatisfied that Aarab 

refused to raise issues which Holguin believes are not frivolous. He further asserts that the 

issues he wishes to raise on appeal were preserved via objections made by his trial counsel, 

and the fact that trial counsel saw fit to object to such matters indicate that they are not 

frivolous. Holguin states that he lacks the ability to represent himself on appeal as he lacks 

the knowledge required to effectively advocate on his own behalf. Relying on Anders v. 

California, 386 U.S. 738, 87 S. Ct. 1396 (1967), Holguin argues that appellate counsel is 

obligated to support a client's appeal to the best of counsel's ability. As Anders requires, 

"[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, 

he should so advise the court and request permission to withdraw. That request must, 

however, be accompanied by a brief referring to anything in the record that might arguably 

support the appeal." Anders, 386 U.S. at 744, 87 S. Ct. at 1400. He alleges that Aarab 

failed to do so in this case. 

We note that the situation that Aarab faced in this case was not extraordinary. On 

occasion, appellants inform their appointed counsel that they do not wish to pursue an 

appeal on the grounds appellate counsel identified as being the most supportable appealable 

issue. And in those cases, as here, the appellant defendants urge their respective counsel 

to instead pursue those appeals on grounds that counsel believes are frivolous. In those 

cases, however, appellate counsel have filed Anders briefs, setting forth the issue counsel 

would pursue but cannot at their client's request, and further setting forth the issues they 

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or their client have identified but which counsel believes are frivolous.' Thus this Court, 

consistent with Anders and § 46-8-103, MCA, independently examines the record to 

determine if counsel should be allowed to withdraw. In this instance, for reasons not 

apparent to this Court, counsel chose not to do so, instead requesting that the Court accept 

an Opening Brief to which Holguin then vehemently objected, compelling us to strike it 

from the record. 

As this case now stands, we have no brief on Holguin's behalf that would allow us 

to decide his appeal on the merits. We would abrogate Holguin's right to have this Court 

make a "full examination of all the proceedings0 to decide if the case is wholly frivolous" 

and this Court would not have the benefit of "the ready references not only to the record, 

but also to the legal authorities as furnished it by counsel," if ADD withdraws without 

filing an Anders brief. Anders, 386 U.S. at 744-45, 87 S. Ct. at 1400. 

Therefore, 

IT IS HEREBY ORDERED that Appellate Defender Division's Motion to 

Withdraw is DENIED. 

IT IS FURTHER ORDERED that an Opening Brief or Anders Brief is due no later 

than May 11, 2022. 

The Clerk is directed to provide a copy of this Order to Appellant personally, the 

Appellate Defender Division, and to all parties of record. 

DATED this t S day of March, 2022. 

For the Court, 

Chief Justice 

I See, for example, Anders Brief of Appellant, State v. Collins (Oct. 22, 2018) (No. DA 17-0528); 

Anders Brief of Appellant, State v. Parker (Nov. 28, 2018) (No. DA 17-0399); Anders Brief of 

Appellant, State v. Rood (July 15, 2019) (No. DA 17-0605); Anders Brief of Appellant, State v. 

Orton (Mar. 19, 2020) (No. DA 18-0591). 

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