[Cite as State v. Sims,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 107724 v. :

DWAYNE SIMS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED RELEASED AND JOURNALIZED: December 5, 2019

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-616120-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, for appellee.

Richard E. Hackerd, for appellant.

MARY EILEEN KILBANE, A.J.: Defendant-appellant, Dwayne Sims (“Sims”), appeals his convictions

and sentence following his mid-trial guilty plea. Sims’s assigned appellate counsel

filed a brief pursuant to Anders v. California,

,

,

(1967), and now seeks leave to withdraw as appellate counsel. After thoroughly

reviewing the record, we grant counsel’s motion to withdraw and dismiss the appeal.

Procedural History and Facts

On April 25, 2017, a grand jury returned a 30-count indictment

charging Sims, along with four codefendants, with aggravated murder, murder,

aggravated robbery, aggravated burglary, felonious assault, kidnapping, and having

weapons while under disability.1 The charges resulted from the October 2016

execution-styled killing of Melissa Brinker, a bartender at the Cooley Lounge, and

the robbery of several patrons of the lounge.

In June 2018, following numerous pretrials, Sims filed a motion to

suppress. After a hearing, the trial court denied the motion, and a joint jury trial

commenced the same day.

At trial, the state presented 22 witnesses, including 13 police officers,

four patrons of the Cooley Lounge, and four medical examiners. After

approximately one week of testimony, in the middle of trial, Sims withdrew his

previously entered not guilty pleas, and proceeded to plead guilty to two amended

counts of aggravated robbery, one with a three-year firearm specification attached.

In August 2018, the trial court sentenced Sims to 11 years on the first

count of aggravated robbery and three years for the attached firearm specification.

The trial court sentenced Sims to ten years on the second count of aggravated

1 With the exception of the charges for having weapons while under disability, all counts had one- and three-year firearm specifications attached. robbery and ordered both sentences to be served concurrently for a total of 14 years

in prison.

In September 2018, Sims filed his notice of appeal. Based on the

belief that no prejudicial error occurred below and that any grounds for appeal

would be frivolous, Sims’s assigned appellate counsel filed a motion to withdraw

under Anders. Sims has had the opportunity to file his own merit brief, but has not

done so.

Anders Standard

Anders outlines the procedure that counsel must follow to withdraw

because of the lack of any meritorious grounds for appeal. In Anders, the United

States Supreme Court held that if appointed counsel, after a conscientious

examination of the case, determines the appeal to be wholly frivolous, he or she

should advise the court of that fact and request permission to withdraw. Anders,

,

,

. This request, however, must be

accompanied by a brief identifying anything in the record that could arguably

support the appeal.

Counsel must also furnish the client with a copy of the brief,

and allow the client sufficient time to file his or her own brief, pro se.

Once appellate counsel satisfies these requirements, this court must

fully examine the proceedings below to determine if any arguably meritorious issues

exist. Id.; former Loc.App.R. 16(C). If we determine that the appeal is wholly

frivolous, we may grant counsel’s request to withdraw and dismiss the appeal without violating constitutional requirements, or we may proceed to a decision on

the merits if state law so requires.

; former Loc.App.R. 16(C).

On February 1, 2019, Loc.App.R. 16(C), which previously set forth the

procedure governing Anders briefs and motions to withdraw, was amended and no

longer includes any procedure regarding Anders briefs. Notwithstanding our recent

amendment of Loc.App.R. 16(C), this court has addressed the duties of appellate

counsel when filing an Anders brief and our duties when ruling on counsel’s motion

to withdraw on the grounds that the appeal would be frivolous. See State v.

Richardson, 8th Dist. Cuyahoga No. 104958,

; State v. Duncan,

,

(8th Dist. 1978). Thus, the absence of a local rule

governing Anders briefs does not prevent this court from accepting these briefs nor

from following the procedure the United States Supreme Court outlined in Anders.

We note that the Fourth Appellate District, in State v. Wilson, 2017-

Ohio-5772,

(4th Dist.), adopted a new procedure of no longer

accepting motions to withdraw pursuant to Anders. In reaching its decision in

Wilson, the Fourth District cited several criticisms of the procedure outlined in

Anders and stressed that the procedure is a constitutional safeguard, but not a

constitutional requirement. Wilson at ¶ 23; State v. Gillian, 4th Dist. Gallia No.

16CA11,

(following Wilson).

In State v. Cruz-Ramos,

,

(7th Dist.), the Seventh Appellate District agreed with Wilson and held that it was

no longer acceptable for counsel to file an Anders brief, which means counsel may no longer file a motion to withdraw on the grounds that the appeal is frivolous. Also,

in State v. Wenner,

,

(6th Dist.), the Sixth Appellate

District adopted the holding in Wilson and declared that the court will no longer

accept motions to withdraw or briefs filed pursuant to Anders.

However, not all appellate districts are in agreement with Wilson. In

State v. Lawrence,

,

(12th Dist.), the Twelfth Appellate

District observed that “the Fourth District’s position is not without criticism.” Id. at

¶ 14. In declining to adopt Wilson’s holding, the Twelfth Appellate District stated it

will continue to accept Anders briefs because they are appropriate in certain

situations. Id. at ¶ 33-36. The Eleventh Appellate District recognized the divide

between our sister districts on a suitable approach, but noted, “nevertheless, [it is]

the precedent of this district and most others in Ohio, to follow the procedure

outlined in Anders.” In re. A.J.F.,

,

(11th Dist.),

fn. 1.

Interestingly, in Gillian, the dissent highlighted this divide stating:

I respectfully dissent and note I was not on the panel in [Wilson.] While I recognize that the Anders process used in Ohio may not be perfect, I believe a better approach, if change is warranted, would have been to seek rule changes at the Ohio Supreme Court because of the constitutional and ethical harmonics at play. This approach allows any stakeholders involved to have input via the public comment period if they so desire and assists in the interests of judicial economy.

Now, I encourage my colleagues to certify a conflict. My hope is the Ohio Supreme Court expeditiously resolves this split among Ohio Courts of Appeals as to the application of Anders and provides guidelines for Ohio attorneys and judges alike in this important area of the law. Gillian, 4th Dist. Gallia No. 16CA11,

, at ¶ 10-11. We acknowledge the split and appreciate that there may be genuine

criticisms of the Anders approach. However, until the Ohio Supreme Court resolves

the split among the Ohio Appellate Districts regarding the application of Anders,

,

,

, we decline to adopt the reasoning of

the Fourth Appellate District. As a result, we will continue to adhere to the

procedures outlined in Anders pertaining to both counsel and the court when

appointed appellate counsel files a motion to withdraw because an appeal would be

wholly frivolous.

In the instant case, appointed appellate counsel complied with the

requirements of Anders. Sims did not file a pro se brief.

Potential Issues for Review Under Anders

Sims’s appointed counsel, possessing 28 years of experience

representing criminal defendants in both trial and appellate practice, reviewed the

voluminous record, containing over 3,000 pages, and concluded he could not make

any meritorious arguments on Sims’s behalf. Nevertheless, counsel presents the

following potential issues for our Anders review: (1) the trial court could have

sustained Sims’s motion to suppress, and (2) that his plea hearing failed to comply

with Crim.R. 11.

First, as it relates to the potential issue that the trial court could have

sustained the motion to suppress, the record indicates that Sims argued in his

motion that he was not at the scene of the robbery that turned fatal. Thus, the eyewitness identification by codefendant, Garry Lake, who cooperated with the

state, should have been suppressed. We agree with appointed counsel that there

would be no merit in raising this issue.

A guilty plea is a complete admission of the facts set forth in the

indictment. State v. Colon,

,

(8th Dist.), citing State

v. Greathouse,

,

,

(2d

Dist.); State v. Stumpf,

,

(1987); Crim.R.

11(B)(1). Therefore, a defendant who pleads guilty may only attack the voluntary,

knowing, and intelligent nature of the plea on appeal. Id. at ¶ 15, citing State v.

Spates,

,

(1992); State v. Gaston, 8th Dist.

Cuyahoga No. 92242,

, ¶ 7.

Here, as previously noted, in the middle of trial and after one week of

testimony, Sims plead guilty to two counts of aggravated robbery, thereby admitting

that he was present at the lounge and participated in the robbery. As a result, it

would not have been worthwhile to raise this argument.

Second, as it relates to the potential issue that the trial court did not

comply with Crim.R. 11, we also agree with appointed counsel that there would be

no merit to raising this issue.

When a defendant enters a plea in a criminal case, the plea must be

made knowingly, intelligently, and voluntarily. Failure on any of those points

renders enforcement of the plea unconstitutional under both the United States

Constitution and the Ohio Constitution. State v. Veney,

, 2008- Ohio-5200,

. In considering whether a criminal defendant

knowingly, intelligently, and voluntarily entered a guilty plea, we first review the

record to determine whether the trial court complied with Crim.R. 11(C). State v.

Davner,

,

(8th Dist.).

Crim.R. 11(C) sets forth certain constitutional and procedural

requirements with which a trial court must comply prior to accepting a guilty plea.

Under Crim.R. 11(C)(2), the trial court shall not accept a guilty plea in a felony case

without personally addressing the defendant and doing all of the following:

(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.

(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty * * *, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.

(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.

The purpose of Crim.R. 11(C)(2) is to convey to the defendant certain

information so that he can make a voluntary and intelligent decision whether to

plead guilty. State v. Albright, 8th Dist. Cuyahoga No. 107632,

,

citing State v. Woodall, 8th Dist. Cuyahoga No. 102823,

.

Whether the trial court accepted a plea in compliance with Crim.R. 11(C)(2) is subject to de novo review, based on the totality of the circumstances. See, e.g., State

v. Jackson, 8th Dist. Cuyahoga No. 99985,

; State v. Schmick,

8th Dist. Cuyahoga No. 95210,

.

In the instant case, appellate counsel submitted a brief in support that

outlined the trial court’s complete compliance with Crim.R. 11 during the plea

colloquy. Our review reveals the trial court began by inquiring about Sims’s

educational level, and Sims indicated he had graduated from high school and had

attended college.

Next, the trial court inquired if Sims was a United States citizen and

he answered in the affirmative; inquired whether he had consumed any drugs,

alcohol, or medication within the last 24 hours, Sims responded he had not; inquired

if he had failed to take any prescribed medication and Sims’s response was “no”;

inquired if he suffered from any mental or physical disability and Sims’s response

was “no”; and inquired if he was thinking clearly and Sims indicated he was.

The trial court went on to inquire whether Sims was currently on

supervision in any jurisdiction for probation, community control sanctions, parole,

or postrelease control, and Sims indicated he was not. The trial court inquired

whether Sims had been threatened, or if he was promised anything special as an

inducement to plead guilty. In both instances, Sims answered in the negative.

Further, the trial court inquired whether Sims was voluntarily

entering into the plea and if he had taken sufficient time to confer with his attorneys.

In both instances, Sims answered in the affirmative. The trial court then inquired if Sims understood that if he plead guilty to the charges it could proceed to sentence

in accordance with the law. Sims indicated he understood.

Thereafter, the trial court thoroughly explained to Sims his

constitutional rights and the rights he would be waiving by pleading guilty to the

charged offenses. In each instance, Sims signaled his understanding and at no point

did he ask any questions or give any indication that he did not understand the

questions asked or any of the trial court’s advisements.

Finally, the trial court reviewed the nature of the charges and the

maximum penalties involved. The trial court advised Sims that he would be subject

to postrelease control for a mandatory period of five years and advised him of the

maximum penalty for violating postrelease control.

After the aforementioned inquiries, advisements, and reviews, Sims

entered the guilty pleas. The trial court found that Sims made a knowing, intelligent,

and voluntary decision to withdraw his previous not-guilty pleas. The trial court

further found that Sims understood the nature of the charges, the effect of the guilty

pleas, and the maximum penalties involved. Sims’s defense counsel then indicated

that he was satisfied that the trial court had fully complied with Crim.R. 11.

Based on the foregoing, we find that the trial court conducted a

detailed and thorough plea colloquy prior to accepting Sims’s pleas. The totality of

the circumstances also indicates that Sims subjectively understood the implication

of his guilty pleas and the maximum penalties he could receive based on his pleas.

As a result, it would not have been worthwhile to raise this argument. Following our independent review of the entire record, we find that

no meritorious arguments exist and that an appeal would be wholly frivolous.

Appellate counsel’s request to withdraw is granted, and the appeal is dismissed.

Appeal dismissed.

It is ordered that appellee recover from appellant costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

_ ______ MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

MICHELLE J. SHEEHAN, J., CONCURS WITH SEPARATE OPINION; MARY J. BOYLE, J., DISSENTS WITH SEPARATE OPINION

MICHELLE J. SHEEHAN, J., CONCURRING:

While I concur with the majority, I recognize the numerous issues

raised in the well-reasoned dissent with regard to Anders briefs. As identified by the

majority and the dissent in this case, as well as the extensive case law concerning

Anders briefs in other districts, there are advantages and disadvantages to accepting

Anders briefs. One thing everyone can agree on, however, is that the overriding

priority in our Anders discussions is safeguarding a defendant’s Fourteenth

Amendment right to appellate counsel. And until the Ohio Supreme Court

addresses a uniform procedure for addressing Anders issues, what constitutes the proper manner in which to ensure a defendant’s right to appellate counsel will vary

depending on which appellate district reviews the appeal in Ohio.

Most states apply their own unique procedure. While no one appears

to have the perfect solution, perhaps a procedure whereby a two- or three-tier

attorney review in lieu of compelling the court to become an advocate provides

transparency and ensures equal justice to indigent defendants. Whether particular

assignments of error should be identified, at least initially, should be considered in

an attempt to avoid the potential prejudice raised by the dissent. Until a uniform

procedure is adopted in Ohio that adequately addresses the indigent defendant’s

right to appellate counsel, compelling appointed counsel to create an issue for

appeal potentially compromises an indigent’s right to effective appellate counsel,

creates ethical concerns for appointed counsel, and risks the defendant waiving

potential errors on direct appeal.

I therefore concur with the majority opinion.

MARY J. BOYLE, J., DISSENTING: I respectfully dissent. It is my view that to better protect indigent

defendants’ constitutional rights — due process, equal protection, and right to

counsel — this court should no longer accept briefs pursuant to Anders,

,

,

. Anders, the Constitution, and Other U.S. Supreme Court Cases

The Fourteenth Amendment to the U.S. Constitution states that a

person cannot be deprived of his or her life or liberty without due process of law and

ensures that a criminal defendant receive basic procedural safeguards. The

Fourteenth Amendment also ensures that all persons receive equal protection under

the law. The Sixth Amendment provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right * * * to have the Assistance of Counsel for his defense.”

It is these constitutional protections that provide the backdrop for the issues

presented in this case.

It is well settled that persons convicted of a crime do not possess a

constitutional right to appeal. Ross v. Moffitt,

,

,

(1974). But when states give convicted criminals a statutory right to

appeal their convictions (a first appeal “as a matter of right”), state appellate

procedures must comply with the Fourteenth Amendment’s guarantee of equal

protection and due process of the law. Douglas v. California,

,

,

(1963) and Gideon v. Wainwright,

, 344,

,

(1963). All 50 states provide for the statutory right to a first

appeal. Griffin v. Illinois,

,

,

(1956). The

Douglas court explained that “where the merits of the one and only appeal an

indigent has as of right are decided without benefit of counsel, we think an

unconstitutional line has been drawn between rich and poor.” Id. at 357. In Griffin,

the U.S. Supreme Court stated that “[b]oth equal protection and due process emphasize the central aim of our entire judicial system — all people charged with [a]

crime must, so far as the law is concerned, ‘stand on an equality before the bar of

justice in every American court.’” Id. at 17, quoting Chambers v. Florida,

,

,

(1940). Therefore, it is long established that an

indigent defendant has the same right to effective representation in a first appeal as

a matter of right as a defendant who can afford to retain counsel of his or her choice.

At the trial level, defense counsel’s views of the merits of a client’s case

never give rise to a duty to withdraw. McCoy v. Court of Appeals of Wisconsin, Dist.

1,

,

,

(1988). This is because

persons accused of a crime are protected by the presumption of innocence until they

are convicted. Once convicted, however, defendants are no longer protected by this

presumption. Therefore, if convicted defendants elect to appeal, they bear the

burden of convincing an appellate court that reversible error occurred at trial.

Appellate counsel for a convicted defendant must assert specific grounds for

reversal. In so doing, however, counsel may not ignore his or her professional

obligations. No attorney, whether appointed or paid, “[can] deliberately mislead [a]

court with respect to either the facts or the law, or consume the time and the energies

of the court or the opposing party by advancing frivolous arguments.”

.

Over six decades ago, the U.S. Supreme Court recognized the ethical

conundrum facing appointed appellate counsel, stating:

If [appointed] counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he [or she] may ask to withdraw on that account. If the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel’s evaluation of the case, then leave to withdraw may be allowed and leave to appeal may be denied.

Ellis v. United States,

,

,

(1958). The U.S. Supreme Court reaffirmed this principle in Anders. The

Anders court held that the “principle of substantial equality is not compromised

when appointed counsel files a ‘no merit’ brief even though such briefs are seldom,

if ever, filed by retained counsel.”

, quoting Anders,

,

,

. This is because “absolute equality is not required”

under the Fourteenth Amendment, only “substantial equality.”

Indeed, the

“central teaching of Anders” is that the principles of “substantial equality” require

appointed counsel to make the same diligent and thorough evaluation of a case as a

retained lawyer.

In doing so, an appellate lawyer “must master the trial record,

thoroughly research the law, and exercise judgment in identifying the arguments

that may be advanced on appeal.”

“Only after such an evaluation has led counsel

to the conclusion that the appeal is ‘wholly frivolous’ is counsel justified in making a

motion to withdraw.” Id. at 438-439, quoting Anders.

The question presented in Anders was: ‘“May a [s]tate appellate court

refuse to provide counsel to brief and argue an indigent criminal defendant’s first

appeal as of right on the basis of a conclusory statement by the appointed attorney

on appeal that the case has no merit and that he will file no brief?”’ McCoy,

,

,

, quoting Brief for Petitioner in Anders.

The Anders court answered “no” to that question.

citing

. The U.S. Supreme Court concluded the following in Anders:

The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished [to] the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel. The no-merit letter, on the other hand, affords neither the client nor the court any aid. The former must shift entirely for himself while the court has only the cold record which it must review without the help of an advocate. Moreover, such handling would tend to protect counsel from the constantly increasing charge that he was ineffective and had not handled the case with that diligence to which an indigent defendant is entitled. This procedure will assure penniless defendants the same rights and opportunities on appeal — as nearly as is practicable — as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel.

. Thirty-three years later, the U.S. Supreme Court recognized that the

procedures set forth in Anders have, “from the beginning, faced ‘consistent and

severe criticism.’” Smith v. Robbins,

,

,

(2000), quoting In re Sade C.,

,

,

(1996). The Robbins court noted that “[o]ne of the most consistent criticisms” of

Anders is the “tension” between appellate counsels’ ethical duty as officers of the

court to not present frivolous arguments with their duty to further their client’s

interests, which might not permit them to characterize their client’s claims as

frivolous. As one of the dissenting justices noted, “[w]hen a lawyer’s corresponding

obligations are at odds with each other, there is no perfect place to draw the line

between them.” Id. at 292 (Souter, J., dissenting).

The Robbins court made clear, however, that the procedures set forth

in Anders regarding appointed counsel’s obligations in a “wholly frivolous” appeal

were not mandatory on the states. Id. at 272. The court stated that the Anders

procedure was not “‘an independent constitutional command,’” but rather “just ‘a

prophylactic framework.’”2

, quoting Pennsylvania v. Finley,

,

,

(1987). The Robbins court explained that

any view of the procedure we described in the last section of Anders that converted it from a suggestion into a straitjacket would contravene our established practice, rooted in federalism, of allowing the [s]tates wide discretion, subject to the minimum requirements of the

2 The common dictionary definition of “prophylactic” means to “defend against” or “prevent something.” The American Heritage Dictionary 674 (4th Ed. 2001). Black’s Law Dictionary states that “prophylactic” is an adjective meaning “formulated to prevent something.” Black’s Law Dictionary 1338 (9th Ed. 2009). Prevention is the core of the legal definition of the term “prophylactic.” Fourteenth Amendment, to experiment with solutions to difficult problems of policy.

The Robbins court concluded “that the Anders procedure is merely

one method of satisfying the requirements of the Constitution for indigent criminal

appeals. States may — and, we are confident, will — craft procedures that, in terms

of policy, are superior to, or at least as good as, that in Anders. The Constitution

erects no barrier to their doing so.”

.

Former Loc.R. 16(C)

In 2014, this court promulgated former Loc.R. 16(C) setting forth our

Anders procedures, which essentially followed the contours of the Anders decision.

It provided the following:

If appellant’s counsel in a criminal appeal files a no merit brief pursuant to Anders v. California,

,

,

(1967), counsel shall also file a separate motion requesting leave to withdraw in compliance with Loc.App.R. 44(B). Counsel shall serve both a copy of the motion to withdraw and the Anders brief upon appellant as well as any further court orders that are issued in the appeal unless and until the motion to withdraw is granted.

Upon the filing of an Anders brief, the court will either grant appellant leave to file a pro se brief and assignment of error that comports with the appellate rules and local appellate rules within 45 days or, in its discretion, the court may assign new counsel. The order will also inform appellant that the court will independently examine the record regardless of whether such a brief is filed.

If the appellant files a pro se brief, the appellee may respond and the appellant may reply as provided by the appellate rules and local appellate rules. Once briefing is complete, or the 45-day period for filing a pro se brief has lapsed without a brief being filed, the appeal and the motion to withdraw will be assigned to a merit panel for review. The panel will conduct an independent examination of the record to determine if it discloses an issue of arguable merit prejudicial to the appellant. The appeal will be considered submitted on the briefs unless the court sua sponte sets an oral argument date.

Despite having this local rule, which explicitly stated that we should

“conduct an independent examination of the record,” a three-judge panel of this

court subsequently held that the “independent examination” be limited to those

issues that appellate counsel raised in the Anders brief. State v. Taylor, 8th Dist.

Cuyahoga No. 101368,

.3 Taylor also required appellant’s

counsel to include a discussion of why issues of arguable merit were wholly frivolous.

Id. at ¶ 9.

Effective February 1, 2019, this court amended Loc.R. 16 to essentially

delete subsection (C) regarding Anders. Before we did, we notified the public that

we were eliminating Anders procedures and sought comments on the change. We

explained that we were doing so for the following reason:

Based on emerging case law from other Ohio appellate districts that are no longer accepting Anders briefs (as well as the issues raised in dissenting opinions of State v. Upkins, 3d Dist. Shelby No. 17-13-02,

and State v. Bowshier, [154] Ohio St.3d [39], 2018- Ohio-2150, the provision for Anders briefs has been eliminated.

Reconsidering the Acceptance of Anders Briefs

In 2017, the Fourth Appellate District reconsidered its approach to

cases where appointed counsel believed that there are no meritorious grounds for

appeal. See Wilson,

,

(4th Dist.). The Fourth District

3The author never followed Taylor’s directive and always conducted a thorough review of the entire record to ensure that appointed counsel was effective and that defendant’s constitutional and appellate rights were protected. noted that after Robbins, it was clear that the Anders procedure was not a

“constitutional mandate” and only provided “minimum safeguards” for a convicted

criminal. Id. at ¶ 9, 34. The Fourth District discussed common criticisms of the

Anders procedure at length, including (1) prejudice to the client in the first appeal

as well as possible collateral attacks, (2) appointed counsel’s conflicting duties to

zealously represent his or her client versus being candid with the court, (3) forcing

the court to act as an advocate by scouring the record for meritorious issues, (4)

imposing heavy burdens on the judiciary, and (5) lack of uniformity across the

country and in this state. See

.

The Fourth District further discussed how states have “modified the

requirements” of Anders in an attempt to address some of the issues associated with

the procedure and have determined that these requirements do not permit counsel

to withdraw. Id. at ¶ 12. For example, California requires appointed counsel to

provide a brief that sets forth the “procedural and factual history of the case with

citations to the record, attests that counsel has reviewed the record, discussed it with

and provided it to the client, and informed the client of the right to file a pro se

supplemental brief.” Id. Appointed counsel then asks the court to independently

review the record for arguable issues but does not expressly state that the appeal is

frivolous or ask to withdraw. Id., citing People v. Wende,

,

,

(1979). Oregon has a procedure similar to California’s

procedure, “but instead of permitting the client to submit a pro se brief with

purportedly frivolous issues, counsel prepares a ‘Part A’ section of the brief * * * and a ‘Part B’ arguing the merits of the purportedly frivolous issues on behalf of the

client. Counsel signs Part A and the client signs Part B.”

citing State v. Balfour,

,

(1991).

The Fourth District ultimately adopted the “Idaho Rule,” which long

ago prohibited appointed counsel from filing an Anders brief or withdrawing from

a case. Id. at ¶ 14, 23, citing State v. McKenney,

,

(1977).4

The Idaho Supreme Court reasoned that the Anders procedures were dictum,

“impractical and illogical,” and presented “minimal constitutional safeguards for a

criminal defendant upon appeal.”

. The McKenney court

explained that the Anders procedure can only result in prejudice to the indigent

defendant.

. It further noted that even if an appeal is “wholly frivolous,

undoubtedly, less of counsel and the judiciary’s time and energy will be expended in

directly considering the merits of the case in its regular and due course as contrasted

with [the] fragmented” Anders procedure.

One judge described the superiority

of the “Idaho Rule” a few years later, stating that “even for appeals that turn out to

be frivolous, adversary procedure is much to be preferred over a process in which

the appellate judge feels obliged to act as a lawyer and the appellate lawyer feels

constrained to rule as a judge.” Gale v. United States,

, 178-183

4 In a later decision by the Fourth District, one judge dissented and stated that he was not on the panel in Wilson. See Gillian, 4th Dist. Gallia No. 16CA11,

, at ¶ 11 (McFarland, J., dissenting). This judge indicated that he believed that a “better approach” to changing Anders procedures would have been to seek “rule changes at the Ohio Supreme Court.” Id. at ¶ 10. He further urged his colleagues on the Fourth District to certify a conflict to the Ohio Supreme Court. Id. at ¶ 11. (D.C.Cir. 1981) (Ferren, J., dissenting), cert. denied,

,

,

, (1981).

The Seventh District followed the reasoning of Wilson, 2017-Ohio-

5772,

(4th Dist.) and no longer accepts Anders briefs. See Cruz-

Ramos,

,

(7th Dist.). In doing so, the Seventh

District also focused on the many criticisms of Anders procedures. See id. at ¶ 7-12.

Notably, the Seventh District explicitly rejected what it referred to as “the Eighth

District approach” set forth in Taylor, which again held that this court’s

independent review should only consist of reviewing the issues raised in an Anders

brief. Id. at ¶ 13, citing Taylor, 8th Dist. Cuyahoga No. 101368,

. The

Seventh District found that “the Eighth District approach” essentially provides “no

review at all” and is contrary to the intent of Anders.

In following Wilson and adopting the “Idaho Rule,” the Seventh

District concluded:

Typically, trial counsel has filed the appeal rather than appointed appellate counsel. Therefore, it is imperative that appellate counsel discuss the case with the defendant and decide whether to continue the appeal based on counsel’s examination of the case. If counsel believes the appeal is frivolous, counsel should inform the defendant and explain why the appeal should be abandoned. If the defendant decides that there are specific issues that he or she wishes to raise on appeal, counsel must file a merit brief and argue the defendant’s appeal as persuasively as possible regardless of any personal belief that the appeal is frivolous. This does not mean counsel must argue every issue the defendant believes meritorious. Counsel, as has always been the case, may exercise strategic judgment in the presentation of the issues in the brief. See Jones v. Barnes,

,

,

(1983). We believe that requiring counsel to file a merit brief is “simpler, more effective, fairer, and less taxing on counsel and the courts.” Id. at ¶ 18.

. In 2016, the Ohio Supreme Court accepted discretionary review of

Upkins, 3d Dist. Shelby No. 17-13-02,

, on the following proposition

of law: “When appellate counsel also served as trial counsel and moves to withdraw

pursuant to Anders v. California, the court shall permit counsel to withdraw and

must then appoint new appellate counsel to review the record and raise any

nonfrivolous appealable issue.” The Supreme Court ultimately dismissed the appeal

in 2018 as being improvidently accepted. State v. Upkins,

, 2018-

Ohio-1812. One justice, however, dissented, stating that “[t]here are a number of

problems regarding Anders briefs in this state that should be resolved by this court,

and this case presents an opportunity to resolve several of those problems.” Id. at ¶

2 (Fischer, J., dissenting) (“the Upkins dissent”). The Upkins dissent further noted

that the appeal should not be dismissed because “there appears to be a conflict

among the appellate courts” regarding whether to continue accepting Anders briefs.

Id. at ¶ 24.

The Upkins dissent also reviewed how other districts and states

handle Anders briefs, highlighting the pervasive criticisms of Anders procedures.

The Upkins dissent explained that “Anders has received far from universal

approval,” and noted that 16 states do not allow appointed counsel to file Anders

briefs. Id. at ¶ 17. One section of the Upkins dissent is especially notable, pointing out

that “Anders briefs have proved a less-than-effective method to determine whether

a defendant has meritorious claims on appeal.” Id. at ¶ 19. The dissenting justice

explained that “[i]n Ohio, there are many examples of defense counsel filing Anders

briefs that were later rejected by appellate courts because there were nonfrivolous

issues for appeal.” Id. “Indeed, there are multiple examples of trial courts being

reversed on one issue or another after Anders briefs were filed but rejected. In other

words, not only were the appeals not wholly frivolous, as required for the submission

of an Anders brief, but assignments of error were eventually sustained.” Id. (setting

forth numerous examples).

The Upkins dissent did not go as far as to opine that Ohio should not

allow appointed counsel to file Anders briefs, but the justice did express that he had

“doubts regarding Anders briefs” and said that he believed the Supreme Court

should address the issues “sooner rather than later.” Id. at ¶ 29-30.

Elimination of Anders Briefs

After much reflection, it is my view that this court should no longer

permit appointed counsel to file an Anders brief or withdraw from a case. Simply

put, I share the same practical concerns expressed in both Wilson and the Upkins

dissent. And although I agree that Anders procedures present many issues, it is my

view that the most troubling aspect is the prejudice it causes an indigent defendant

convicted of a serious crime. When appellate counsel files an Anders brief saying,

“My client should lose,” appellate counsel undoubtedly prejudices his or her client. “‘The very premise of our adversary system of criminal justice is that

partisan advocacy on both sides of a case will best promote the ultimate objective

that the guilty be convicted and the innocent go free.’” McCoy,

,

,

, quoting Herring v. New York,

,

,

(1975). Defense attorneys have an “‘overarching duty’” to

“advanc[e] ‘the undivided interests’” of their clients.

, quoting

Strickland v. Washington,

,

,

(1984),

and Polk Cty. v. Dodson,

,

,

(1981). “Our

commitment to the adversarial process, we have repeatedly recognized, is every bit

as crucial on appeal of a criminal conviction as it is at trial.”

, citing

Douglas,

,

,

. At trial or on appeal, the

Constitution guarantees an indigent defendant ‘“an active advocate, rather than a

mere friend of the court assisting in a detached evaluation of the appellant’s claim.”’

quoting Evitts v. Lucey,

,

,

(1985).

As the dissenting justice in Upkins,

, 2018-Ohio-

1812, explained:

Under Anders, the appellate court must complete an independent review of the record and then appoint counsel to argue that appeal if the court finds that a claim of arguable merit exists. This procedure places the court in the role of both advocate and adjudicator. In Ohio, how can a judge who has reviewed a record and identified issues of arguable merit then rule on the actual merits of the claims he or she previously identified without there being an appearance of impropriety, which is barred by the rules of judicial ethics? See Canon 1 of the Ohio Code of Judicial Conduct.

Id. at ¶ 10. Justice Souter also recognized the importance of this adversarial

distinction in his dissent in Robbins, stating, “Appellate counsel examines the trial

record with an advocate’s eye, identifying and weighing potential issues for appeal.

This is review not by a dispassionate legal mind but by a committed representative,

pledged to his client’s interests, primed to attack the conviction on any ground the

record may reveal.” Robbins,

,

,

(Souter, J., dissenting).

By not allowing Anders briefs, it is my view that appointed counsel

will rarely, if ever, face ethical problems by filing a merit brief for an indigent

defendant. If counsel is appointed, then he or she will be representing a defendant

on appeal who faces a serious loss of liberty in his or her only direct attack on those

convictions. Indeed, the defendant will be facing dire consequences — for even a

short time in prison is a monumental loss of liberty.

It is my view that the Model Rules of Professional Conduct, which

Ohio has adopted, support the argument that appointed appellate counsel should

always file a merit brief. Rule 3.1 of the Ohio Rules of Professional Conduct, which

is identical to Model Rule 3.1, states:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue in a proceeding, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Prof.Cond.R. 3.1. The comments to this rule make clear that a “lawyer’s obligations

under this rule are subordinate to federal or state constitutional law that entitles a

defendant in a criminal matter to the assistance of counsel in presenting a claim or

contention that otherwise would be prohibited by this rule.” Comment 3 to

Prof.Cond.R. 3.1. This comment shows that these rules were not only meant to

protect appointed counsel representing an accused at trial, but on appeal as well.

The right to counsel is imperative. Indigent defendants convicted of

a serious crime need an advocate who will work diligently to locate meritorious

issues “in a seemingly empty record.” Gale,

(Ferren, A.J.,

dissenting). Because attorneys have an ethical duty and ability to put the state’s case

to the appropriate test, attorneys, whether at trial or on appeal, can raise issues even

when they do not believe these issues will ultimately be decided in the client’s favor.

And if ultimate fairness of the proceeding is determined by the effectiveness of

counsel in representing the defendant, then the goal should be to compel full

representation through appeal and not to allow ways for that representation to be

avoided. Further, a direct appeal from conviction is the last significant chance for

substantial review of that conviction; without an attorney to guide an indigent

defendant though the maze, the client will not even get that review and, in fact, will

likely have other avenues of review closed off by procedural default. See

(Ferren, A.J., dissenting) (“The Anders approach leads to other unsettling

questions. For example, if an attorney files an Anders brief on a direct appeal, has

that attorney precluded collateral attack * * * on that record, on the ground that the court implicitly has reached and deemed frivolous all potential issues presented by

that record?”).

Moreover, when appellate attorneys find what they believe to be error

in a record on appeal, they may conclude that the reviewing court may deem it

harmless error. But in the role of an advocate, attorneys can ethically raise such an

issue and require the court to decide whether the state has proved that the error is

harmless. There are many reasons why raising such issues can be beneficial and not

detrimental to the court, although ultimately being declared harmless. First, even if

the error is harmless, the decision can be instructive to trial courts in future cases.

But more importantly, indigent defendants are entitled to have their day in court in

their first appeal as of right. Just as trial counsel should be able to force the state to

prove its case at trial, appellate counsel should be able to force the state to prove an

error was harmless on appeal.

After 20-plus years as a trial and an appellate judge, I have seen

thousands of cases. This court receives numerous first appeals as of right where a

convicted defendant’s appellate counsel raises issues that are clearly without merit

and easily overruled. In over a decade as an appellate judge, however, I am not

aware of any case where this court sanctioned appellate counsel for raising non-

meritorious issues in a defendant’s first appeal as of right. Again, a defendant’s first

appeal as of right may be the last opportunity that defendant truly has to have the

assistance of counsel take a serious look at his or her conviction and scour the record

for meritorious issues. By refusing to allow counsel to withdraw, this court will also be better

served because we will receive a brief on the merits, regardless of the issues. The

review process will be the same for all similarly-situated defendants, and all

defendants will thus receive the full extent of the Sixth Amendment’s guarantee of

right to counsel. It is my view that the preservation of the right to counsel must have

a higher priority than the possible ethical dilemma that may occasionally arise for

an attorney who finds no arguable error in an appeal.

In declining to adopt the Anders protocol, the Supreme Court of

Indiana explained:

Overall Anders is cumbersome and inefficient. An attorney who withdraws pursuant to Anders must still review the record, complete at least some legal research, consult and advise the client, and draft a brief for submission to the Court of Appeals.

. If all this is done, the attorney “may as well submit it for the purposes of an ordinary appeal.” Commonwealth v. Moffett,

,

(Mass. 1981). Furthermore, the Court of Appeals must conduct a “full examination of all the proceedings” to determine if there are any meritorious issues. Anders,

. Any saving of time and effort by counsel in preparing an Anders brief is offset by increased demands on the judiciary, which is to some extent placed in the precarious role of advocate. See Huguley v. State,

,

(Ga. 1985); State v. Gates,

(Mo. 1971). And if the reviewing court finds any meritorious issues, even more time and money must be spent in substituting new counsel and starting the appeal all over again. Dixon, 152 Ind.App. at 438, 284 N.E.2d at 106-07. Requiring counsel to submit an ordinary appellate brief the first time — no matter how frivolous counsel regards the claims to be — is quicker, simpler, and places fewer demands on the appellate courts. Cline, 253 Ind. at 269-70, 252 N.E.2d at 796; see also Martha C. Warner, Anders in the Fifty States: Some Appellants’ Equal Protection is More Equal than Others’, 23 Fla.St.U.L.Rev. 625, 643-51 (1996) (describing principal considerations of states rejecting Anders); LaFave, supra, § 11.2(c), at 634 (same). Mosley v. State,

(Ind. 2009). The Indiana Supreme Court concluded in Mosley:

In sum, we believe that disapproving Anders is simpler, more effective, fairer, and less taxing on counsel and the courts. Prohibiting Anders withdrawals may also force counsel to be more diligent and locate meritorious issues in a seemingly empty record. Gale v. United States,

(D.C. 1981) (Ferren, J., dissenting). And in those few cases that offer no colorable argument of trial court error whatsoever, counsel may still be able to solicit a sentence revision or even a change in the law. [State v.] Cigic, [

,] 639 A.2d [251,] 253 [1994]; Ind. Appellate Rule 7(B); see also Prof.Cond.R. 3.1 cmt. (“[T]he law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law’s ambiguities and potential for change.”).

Id. at 608. I agree with the well-reasoned Mosley decision. In sum, it is my view

that the justification for Anders procedures simply does not outweigh the associated

costs. The U.S. Constitution demands that indigent defendants receive their day in

court with the assistance of counsel, especially when they face the dire consequences

of such severe loss of liberty.