¶1specially concurring:
¶2I concur in the majority’s result, but I write separately because I do not think it useful to require attorneys who wish to withdraw from a frivolous appeal to manufacture “an issue that might arguably support the appeal” where none exists. Such a pretense is neither supported by Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), nor wise policy.
¶3Anders requires that a request by appointed counsel to withdraw from a meritless appeal be “accompanied by a brief referring to anything in the record that might arguably support the appeal.” Anders, 386 U.S. at 744, 18 L. Ed. 2d at 498, 87 S. Ct. at 1400. Anders does not require that any other issues be identified in the brief. Thus, no issue need be identified if no issue might arguably support an appeal.
¶4According to the majority, however, an attorney seeking to withdraw must “identify at least one potentially justiciable issue.” 345 Ill. App. 3d at 988. This rule is simply not consistent with Anders. Anders holds only that a request to withdraw must be accompanied by a brief referring to “anything,” not something in the record that might arguably support the appeal.
¶5The majority puts attorneys who wish to withdraw from cases where there is no “potentially justiciable issue” in the untenable position of having either to identify an issue that is not potentially justiciable or to bring a patently frivolous appeal. In my view, the probable effect of the majority’s rule is that attorneys in this circumstance will simply identify issues that are not potentially justiciable. The purpose of requiring the attorney to identify issues that might arguably support the appeal is to aid the court and the client in their own review of the record. See Anders, 386 U.S. at 745, 18 L. Ed. 2d at 498-99, 87 S. Ct. at 1400. do not think that identification of issues that do not potentially have merit farthers that purpose.
¶6Furthermore, Anders does not support the idea that there is a minimum number of issues that need be identified. According to Anders, counsel should identify all issues in the record that might arguably support the appeal. Nothing in Anders suggests that the number of issues, even if the number is zero, changes this analysis. Additionally, the majority’s choice of “at least one justiciable issue” as the minimum is arbitrary. There is no rational basis for choosing one issue as the minimum as opposed to, for example, four issues.
¶7Where no issue that might arguably support an appeal exists, I would allow an attorney seeking to withdraw to simply state as such in his brief. We would then deny the motion to withdraw if our review of the record revealed an issue that might arguably support the appeal. An appellate court is, after all, already supposed to undertake a full examination of all of the proceedings before granting a motion to withdraw. Anders, 386 U.S. at 744, 18 L. Ed. 2d at 498, 87 S. Ct. at 1400.
¶8United States v. Johnson, 527 F.2d 1328, 1329 (5th Cir. 1976), a case that purportedly holds that a brief from appellate counsel stating “counsel for appellant has searched the record and has failed to find anything in the record that might arguably support an appeal” is the equivalent of a “no-merit” letter and, therefore, not permitted under Anders, in substance, follows the procedure I outlined above. The court reviewed the record and determined that there was an issue that might arguably support an appeal: “Our surface review of the record convinces us that the issue of the nature and scope of the warrantless search of appellant’s apartment following his initial arrest on drug charges deserves analysis.” Johnson, 527 F.2d at 1329. To the extent that Johnson addresses the circumstance where there truly is no issue that might arguably support an appeal, it does so in dicta because in that case the court specifically cited an issue that might arguably support an appeal.
¶9While I agree with the majority that the motion to withdraw should have been denied for the notice reasons stated in the majority opinion, I would not have denied the motion on the additional basis that appellate counsel did not identify at least one potentially meritorious issue.