Defendant who was represented by appointed counsel in the trial court when she moved to withdraw her plea and was subject to incarceration for one day was entitled to appointed counsel in the appellate division of the superior court. Wolf pleaded guilty to a misdemeanor offense. She was not represented by counsel at the time of the plea. The court placed her on summary probation, ordered her to serve one day in jail in lieu of paying fines, and imposed a criminal protective order. Two weeks later, she moved to withdraw her plea. The public defender’s office was appointed to represent her on the motion, which was ultimately denied. Wolf appealed to the appellate division and requested appointment of counsel. The appellate division denied the request. In the Court of Appeal, Wolf filed a petition for writ of mandate directing the superior court’s appellate division to appoint appellate counsel. Held: Petition granted. California Rules of Court, rule 8.851(a)(1) provides: “On application, the appellate division must appoint appellate counsel for a defendant convicted of a misdemeanor who: [¶] (A) Is subject to incarceration or a fine of more than $500 (including penalty and other assessments), or who is likely to suffer significant adverse collateral consequences as a result of the conviction; and [¶] (B) Was represented by appointed counsel in the trial court or establishes indigency.” Wolf was subject to incarceration because a condition of her probation was that she serve one day in jail. She was “represented by appointed counsel in the trial court” because she was represented by appointed counsel at the hearing on the motion that is the subject of her appeal in the appellate division. The court disagreed with the People’s argument that Wolf was not represented by appointed counsel in the trial court for purposes of rule 8.851(a)(1)(B) because she was not represented at the time of judgment. The court also disagreed with the People’s argument that Wolf should be denied appointed counsel due to procedural errors in her request. Finally, the court concluded that the issue was not moot even though Wolf’s appeal may be untimely.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/E071318.PDF