# ORIGINAL

IN THE SUPREME COURT OF THE STATE OF MONTANA DA 19-0247

STATE OF MONTANA,

Plaintiffand Appellee,

v. ROBERT MATHEW HOLGUIN, JR.,

Defendant and Appellant. 

# FILED MAR 1 52022
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 assertedthat 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 ofthe Opening Brief shehad preparedthatraisedtheissueHolguin did not wishtopursue on appeal. ThisCourt granted Aarab's motion to withdraw and further ordered that the Clerk ofCourt file the OpeningBriefAarab had prepared. Holguin, representing himself, filed an objection to this Court's acceptance ofthe 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 We found Holguin's objection well-taken and ordered the Opening Brief withdrawn and stricken from the record.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 ifthe 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), AppellateDefenderChad Wright movestowithdrawADD from representation. He argues 03/15/2022

Case Number: DA 19-0247that an appointed appellate counsel controls the manner and scope ofissues 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 ofrecord and to grant Holguin leave to pursuehis appeal either on his own behalfor 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 whichHolguin believes are not frivolous. He further assertsthatthe issueshewishestoraise on appeal were preservedvia objections madebyhis trial counsel, and the fact that trial counsel saw fit to object to such matters indicate that they are not frivolous. Holguin statesthathe lacks the abilityto representhimselfon appeal ashe 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 ofcounsel's ability. As Anders requires, "[I]fcounsel finds his case to bewholly frivolous, after a conscientious examination ofit, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a briefreferringto anything in therecord 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 onthegrounds appellatecounsel identified asbeingthe mostsupportableappealable 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 2or 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 Briefto which Holguin then vehemently objected, compelling us to strike it from the record. As this case now stands, we have no briefon Holguin's behalfthat would allow us to decide his appeal on the merits. We would abrogate Holguin's right to have this Court make a "full examination ofall the proceedings0 to decide ifthe 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 anAndersbrief. 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 BrieforAnders Briefis due no later than May 11, 2022. The Clerk is directed to provide a copy ofthis Order to Appellant personally, the Appellate Defender Division, and to all parties ofrecord. DATED this t S day ofMarch, 2022. For the Court,

ChiefJustice

I See, for example,Anders BriefofAppellant,State v. Collins(Oct. 22, 2018)(No. DA 17-0528); Anders BriefofAppellant, State v. Parker (Nov. 28, 2018) (No. DA 17-0399); Anders Briefof Appellant, State v. Rood (July 15, 2019) (No. DA 17-0605); Anders BriefofAppellant, State v. Orton (Mar. 19, 2020) (No.DA 18-0591). 3