INTHE SUPREME COURT OF THE STATE OF MONTANA DA 19-0247
STATE OF MONTANA,

Plaintiffand Appellee,

v. ROBERT MATHEW HOLGUIN, JR.,

Defendant and Appellant. 

# FILE3 JAN 0 if 2022 Bowen Greenwood Clerk of Supreme Court State of Montana ORDER

CaitlinBolandAarab, appointed counsel forAppellant RobertMathewHolguin,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 ofthis 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 briefto be anAnders briefin compliance with §46-8-103(2), MCA, and Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). An indigent defendant hastherightto 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 01/04/2022

Case Number: DA 19-0247challenging, is notunique. In similar instances, counsel may chooseto file anAndersbrief

and motion to withdraw pursuant to Anders, noting their identification of a potentially meritorious issue andtheclient's decisionnottopursuethatissueonappeal. Thechallenge ofsuch situation does not obviate appellant counsel's obligation to either file an opening briefor an Anders briefifcounsel is unable to identify any other nonfrivolous issues on appeal. As set forth inAnders,ifcounsel on appeal "finds [the]casetobewhollyfrivolous, 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 briefreferringto anything inthe recordthatmight arguably supportthe 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 ofrepresentation"); 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 regardingthe case, as to whether to plead guilty, waive ajury, testify in his orher own behalf, ortake 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 ofprofessional 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 ifpossible, or at most on a few key issues." Jones, 463 U.S. at751-52, 103 S. Ct. at3313. Jones doesnotprovidethat counsel can disregard nonfrivolous issues in favor ofarguingno issues at all. 2The Court has reviewed the brieffiled 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 ISFURTHER ORDERED that the Clerk ofCourt accept the briefas Appellant's briefon 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 ofJanuary, 2022.

ChiefJustice



# 4 2 .•? J•tt-

___

3