Skip to content

Trial attorney’s duty to assist client with an appeal

Trial “counsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” (Roe v. Flores-Ortega (2000) 528 U.S. 470, 480.) The defendant has the ultimate authority to decide whether to appeal his or her case. (Jones v. Barnes (1983) 463 U.S. 745, 751.) “[A] lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” (Roe v. Flores-Ortega (2000) 528 U.S. 470, 477.) The failure to fulfill these duties may constitute ineffective assistance of counsel.

In addition to these constitutional rules, California law requires that trial counsel for an indigent defendant in criminal, juvenile, or civil commitment cases “must provide counsel and advice as to whether arguably meritorious grounds exist for reversal or modification of the judgment on appeal.” (Pen. Code, § 1240.1, subd. (a).) Attorneys representing such defendants at the trial level have a duty “to execute and file on his or her client’s behalf a timely notice of appeal when the attorney is of the opinion that arguably meritorious grounds exist for a reversal or modification of the judgment or orders to be appealed from, and where, in the attorney’s judgment, it is in the defendant’s interest to pursue any relief that may be available to him or her on appeal; or when directed to do so by a defendant having a right to appeal.” (Pen. Code, § 1240.1, subd. (b).)

Retained counsel also has a duty under California law to assist a defendant in filing a notice of appeal. If a defendant requests that a notice of appeal be filed by an attorney who has been retained, counsel has a duty to “either file such notice or clearly and immediately inform the defendant that he will not file such notice and further inform defendant that he can himself file the notice according to the procedure detailed by the trial judge. If an attorney negligently fails to fulfill this simple, yet extremely important duty, he may be subject to disciplinary action for breach of professional duty.” (In re Benoit (1973) 10 Cal.3d 72, 88.)

What if a defendant who pleaded guilty or no contest needs help filing a statement under Penal Code section 1237.5 based upon trial counsel’s inadequate representation?

Defendants who have pleaded guilty or no contest will frequently allege ineffective assistance of counsel in requests for a certificate of probable cause. (See Pen. Code, § 1237.5.) While the California Supreme Court has acknowledged that “it might be argued that it is unreasonable to expect trial counsel to file a statement under section 1237.5 based upon counsel’s own inadequate representation,” it also recognized that “trial counsel has the duty to assist the defendant in preparing and filing the required statement of grounds” when the defendant seeks to appeal after a guilty or no contest plea. (People v. Johnson (2009) 47 Cal.4th 668, 684 fn. 6.) When a defendant wishes to raise the issue of ineffective assistance of counsel in a request for a certificate of probable cause, “[t]rial counsel has options other than alleging his or her own error or incompetence, . . . counsel may either ‘file the 1237.5 statement, instruct defendant how to file it, or secure other counsel for him.'” (Ibid., quoting People v. Ribero (1971) 4 Cal.3d 55, 65.)