The South Carolina Supreme Court recently issued a reminder to lawyers in the state. If a client asks them to file a notice of appeal, they are required to do so—regardless of whether the appeal has any merit.
In a Dec. 7 per curiam opinion, the Supreme Court held that an attorney who secured a plea deal for a man charged with murder provided ineffective legal counsel because he failed to file an appeal his client had requested.
In making that finding, the justices rejected the unnamed attorney’s argument that he did not file the appeal because he believed it would be frivolous.
“A lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable, regardless of whether the appeal would have had merit,” the justices wrote.
Criminal defense attorney James Snell of Lexington said the Supreme Court’s decision in Kinard v. State reiterates how lawyers should proceed when a client requests a notice of appeal.
“Even if there are no issues, lawyers should file a notice of appeal that comes out and says they are not aware of any issues but are filing the notice at the request of their client,” Snell said. “Now that the Supreme Court has set a bright line, there may be ethical implications for attorneys who do not do as their client asks.”
No basis for appeal?
In 2010, Maurice Kinard, now 37, was charged with murder in connection with the Thanksgiving night shooting death of Desmond Lewis, 31, of Columbia. Under a deal struck with prosecutors, Kinard agreed to enter a guilty plea in exchange for the murder charge being reduced to voluntary manslaughter.
However, after pleading guilty, Kinard asked his attorney to submit a notice of appeal. The attorney later testified that he did not see a reason to appeal the case.
Defendants who are convicted of a crime typically do not need to state a reason for why they are appealing their case. But that changes when a defendant enters a guilty plea.
In those cases, the appellant must file a written explanation showing that there is an issue which can be reviewed on appeal.
But in Kinard’s case, the attorney simply chose not to file a notice of appeal.
Judge Brooks Goldsmith, who oversaw Kinard’s post-conviction relief hearing, ruled Kinard’s trial attorney was not ineffective. Goldsmith also found that the attorney had “credibly emphasized” that the plea deal was “a near best-case scenario” for Kinard.
However, the Supreme Court determined Goldsmith used the wrong standard in evaluating Kinard’s allegation that the attorney was ineffective.
The justices said the merits of an appeal are relevant when an attorney is accused of failing to advise a client of his or her right to appeal. But the potential merits are not relevant where a defendant alleges their attorney failed to file an appeal after being asked to do so,” the Supreme Court said.
That said, the Supreme Court went on to uphold Kinard’s conviction and sentence on the grounds that he had failed to submit a written explanation of issues to be reviewed on appeal.
Kinard was represented on appeal by Kathering Hudgins of the South Carolina Commission on Indigent Defense’s appellate division. Hudgins said in an email that she thought the court’s decision was straightforward and applied current law.
The three-page opinion is Kinard v. State (Lawyers Weekly No. 010-095-16). An opinion digest is available at sclawyersweely.com
Follow Jeff Jeffrey on Twitter @SCLWJeffrey.