b When evaluating the case for appeal appellate defense counsel should consider

B when evaluating the case for appeal appellate

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(b) When evaluating the case for appeal, appellate defense counsel should consider all issues that might affect the validity of the judgment of conviction and sentence, including any that might require initial presentation in a trial court. Counsel should consider raising on appeal even issues not objected to below or waived or forfeited, if in the best interests of the client. (c) After examining the record and the relevant law, counsel should provide counsel’s best professional evaluation of the issues that might be presented on appeal. Counsel should advise the client about the probable and possible outcomes and consequences of a challenge to the conviction or sentence. (d) Even if a client has agreed to a waiver of appeal, counsel should follow a client’s direction to file an appeal if there are non-frivolous grounds to argue that the waiver is not binding or that the appeal should otherwise be heard. (e) Appellate defense counsel should not file a brief that counsel reasonably believes is devoid of merit. However, counsel should not conclude that a defense appeal lacks merit until counsel has fully examined the trial court record and the relevant legal authorities. If appellate counsel does so conclude, counsel should fully discuss that conclusion with the client, and explain the “no merit” briefing process applicable in the jurisdiction if available. Counsel should endeavor to persuade the client to abandon a frivolous appeal, and to eliminate appellate contentions lacking in substance. If the client ultimately demands that a no-merit brief not be filed, defense counsel should seek to withdraw. (f) If the client chooses to proceed with a non-frivolous appeal against the advice of counsel, counsel should present the appeal. When counsel cannot continue without misleading the court, counsel may request permission to withdraw. (g) Appellate counsel should discuss with the client the arguments to present in appellate briefing and at argument, and should diligently attempt to accommodate the client’s wishes. If the client
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desires to raise an argument that is colorable, counsel should work with the client to an acceptable resolution regarding the argument. If appellate counsel decides not to brief all of the issues that the client wishes to include, appellate counsel should inform the client of pro se briefing rights and consider providing the appellate court with a list of additional issues the client would like to present. (h) In a jurisdiction that has an intermediate appellate court, appellate defense counsel should ordinarily continue to represent the client after the intermediate court renders a decision if further appeals are likely, unless a retainer agreement provides otherwise, new counsel is substituted, or a court permits counsel to withdraw. Similarly, unless a retainer agreement provides otherwise, new counsel is substituted, or a court permits counsel to withdraw, appellate counsel should ordinarily
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