dissenting:
I respectfully dissent because, in my view, the petitioner Brewer made an adequate showing that the trial transcript was essential to his constitutional right to effective assistance of counsel during the post-trial and appellate phases of this case.
A criminally accused is constitutionally entitled not only to the assistance of counsel but to the effective assistance of counsel. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Where, as here, the state provides for the appellate review of criminal convictions, the constitutional right to effective assistance of counsel extends to the appellate process. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). The perfection of any meaningful appeal in Colorado requires that the asserted errors be expressly set forth in a motion for a new trial. “Only questions presented in such motion will be considered by the appellate court on review.” Crim.P. 33(a). In this case Brewer is claiming that the representation furnished by his first attorney fell below the constitutional minimum and deprived him of effective assistance of counsel during trial. Whatever merit or lack thereof might be in this assertion, Brewer has the right to assert it as grounds for a new trial, along with any other matters which arguably constitute legal error.
“A defendant who claims the right to a free transcript does not ... bear the burden of proving inadequate such alternatives as may be suggested by the State or conjured up by the court in hindsight.” Britt v. North Carolina, 404 U.S. 226, 230, 92 S.Ct. 431, 435, 30 L.Ed.2d 400, 405 (1971). To require Brewer to make some showing, in addition to that obvious from the record, as the basis for his entitlement to a transcript only serves to compound the dilemma confronting him in seeking a meaningful judicial review of his trial and conviction. The respondent court, we must assume, was sufficiently impressed with Brewer’s claim to permit his first appointed attorney to withdraw and to appoint a second attorney for the purposes of post-trial and appellate proceedings. Brewer’s new attorney advised the trial court that he had no knowledge of possible error and that, in addition, he believed it inappropriate to confer with the first appointed attorney because of Brewer’s claim of ineffective assistance of counsel. The position of Brewer’s new attorney is well-taken. With an anticipated claim of ineffective assistance of counsel stemming from representation provided by Brewer’s first attorney, it would hardly be provident for Brewer’s new attorney to rely upon the former attorney as the source of information upon which to predicate a motion for a new trial. Such reliance would only exacerbate the claimed deprivation arising from the representation furnished by Brewer’s first attorney.
Under these circumstances what further showing Brewer needs to make in order to establish his entitlement to a transcript escapes my imagination. The peculiar posture of this case is such that I believe the district court erred in not providing him with a transcript of the trial at state expense. See Britt v. North Carolina, supra; Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967). I therefore would make the rule absolute.
DUBOFSKY, J., joins in this dissent.