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. 

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JAN 0 if 2022 

Bowen Greenwood 

Clerk of Supreme Court 

State of Montana 

ORDER 

Caitlin Boland Aarab, appointed counsel for Appellant Robert Mathew Holguin, Jr., 

moves to withdraw as counsel in this appeal. Counsel states that she has identified a 

potentially meritorious appealable issue in Holguin's case, but Holguin has instructed her 

not to appeal that issue. Instead, Holguin has requested that counsel raise other issues 

which counsel believes the Montana Rules of Professional Conduct preclude her from 

arguing because, in her professional opinion, these issues do not have a bona fide basis in 

law and fact. Counsel further asserts that it is her understanding that the Appellate 

Defender Division would decline to appoint Holguin new counsel absent an order of this 

Court. 

Aarab asks to be relieved of her duty as assigned counsel under § 46-8-103(1), 

MCA. As an exhibit to her motion, she provides the document she would file as the 

Opening Brief in this case if Holguin so agreed, and she asks this Court to review the 

document and determine whether the issue she would raise is meritorious and if not, to 

deem the brief to be an Anders brief in compliance with § 46-8-103(2), MCA, and Anders 

v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). 

An indigent defendant has the right to counsel on appeal. Mont. Const. Art. II, § 24; 

State v. Swan, 199 Mont. 459, 467, 649 P.2d 1297, 1301-02 (1982) (citing Douglas v. 

Califbrnia, 372 U.S. 353, 83 S. Ct. 814 (1963)). The situation Aarab faces, while 

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Case Number: DA 19-0247
challenging, is not unique. In similar instances, counsel may choose to file an Anders brief 

and motion to withdraw pursuant to Anders, noting their identification of a potentially 

meritorious issue and the client's decision not to pursue that issue on appeal. The challenge 

of such situation does not obviate appellant counsel's obligation to either file an opening 

brief or an Anders brief if counsel is unable to identify any other nonfrivolous issues on 

appeal. As set forth in Anders, if counsel on appeal "finds [the] case to be wholly frivolous, 

after a conscientious examination of it, [counsel] should so advise the court and request 

permission to withdraw." Anders, 386 U.S. at 744. This request to withdraw rnust be 

"accompanied by a brief referring to anything in the record that might arguably support the 

appeal." Anders, 386 U.S. at 744. 

Aarab is correct that she cannot go against Holguin's wishes regarding the 

potentially meritorious issue she identified. When counsel identifies a potentially 

meritorious issue to pursue on appeal, but her client does not wish to appeal that issue, 

counsel cannot proceed against the client's wishes. M. R. Pro. Cond. 1.2(a) ("a lawyer 

shall abide by a client's decisions concerning the objectives of representation"); Jones v. 

Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312 (1983) ("the accused has the ultimate 

authority to make certain fundamental decisions regarding the case, as to whether to plead 

guilty, waive a jury, testify in his or her own behalf, or take an appeal" (citations omitted)). 

Aarab points out that in Jones, the United States Supreme Court explained that an 

indigent defendant does not have the constitutional right to compel appointed counsel to 

press nonfrivolous points requested by the client if counsel, as a matter of professional 

judgment, decides not to present those points. Jones, 463 U.S. at 751, 103 S. Ct. at 3312. 

However, in Jones, the defendant's appellate counsel had rejected his client's suggested 

issues on appeal in order to focus on arguments counsel found more promising—a tactic 

the Supreme Court looked upon favorably, commenting, "Experienced advocates since 

time beyond rnemory have emphasized the importance of winnowing out weaker 

arguments on appeal and focusing on one central issue if possible, or at most on a few key 

issues." Jones, 463 U.S. at 751-52, 103 S. Ct. at 3313. Jones does not provide that counsel 

can disregard nonfrivolous issues in favor of arguing no issues at all. 

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The Court has reviewed the brief filed by Aarab with her Motion to Withdraw and 

has determined that Appellant has raised an issue this Court should address. Therefore, 

IT IS THEREFORE ORDERED that the motion to withdraw as counsel is 

GRANTED. 

IT IS FURTHER ORDERED that the Clerk of Court accept the brief as Appellant's 

brief on the merits, and the State shall file a response brief in due course. Further, OAD 

shall review both Appellant's brief and the State's brief and determine whether to file a 

reply brief. 

The Clerk is directed to provide a copy of this Order to counsel of record and to 

Robert Mathew Holguin, Jr., personally. 

DATED this LA —day of January, 2022. 

Chief Justice 

42.•? J•tt- ___

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