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Name: People v. Serrano
Case #: H036373
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 11/28/2012
Summary

When an appeal originates from a postconviction proceeding rather than a first appeal of right, the Court of Appeal is not required to conduct a Wende review. Appellant faced deportation as a result of a criminal conviction. He initially appealed the conviction but voluntarily abandoned his appeal. After he served his prison sentence, he filed a motion in the trial court to vacate the conviction based on the trial court’s alleged failure to provide a Penal Code section 1016.5 admonition (regarding immigration consequences) at the time of the plea. He also alleged he did not understand the plea and his attorney was ineffective with respect to advice regarding immigration consequences of the plea. He appealed the denial of his motion. His appellate attorney filed a no issue brief pursuant to People v. Wende (1979) 225 Cal.3d 436. Defendant did not file a brief in pro per. Held: Appeal dismissed. Where a defendant has been afforded all the constitutional protections of a first appeal of right, including the right to Wende review when appropriate, he is not entitled to Wende procedures in subsequent appeals, including collateral attacks on the judgment. The review procedures set forth in Wende and Anders v. California (1967) 386 U.S. 738 are in place to protect an indigent defendant’s constitutional right to effective assistance of appellate counsel. The U.S. Supreme Court has refused to extend Anders procedures to the state-created right to counsel on postconviction review. Because defendant’s right to counsel was not constitutional but State created, he was not entitled to a Wende review of the record. Although appellant’s interests in avoiding deportation are weighty, his conviction has long been final and he chose to dismiss his direct appeal. Requiring a Wende review of postconviction proceedings would unduly burden the judicial system. The appropriate procedure in such cases is for appointed counsel to advise the court no issues have been found and file a brief setting forth the applicable facts and law. Appellant will be advised of his/her right to file a brief. Thereafter, the court may dismiss or retain the case on its own motion.