Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Walter H. Edwards, Jr.
APPELLANT Howard L. Drake, pro se.
ATTORNEY FOR APPELLEE Michael C. O'Malley Cuyahoga County
Prosecutor Justice Center.
BEFORE: Laster Mays, J., Stewart, P.J., and Boyle, J.
JOURNAL ENTRY AND OPINION
LASTER MAYS, JUDGE.
This is an appeal from defendant-appellant Howard L.
Drake's ("Drake") conviction in the Cuyahoga
County Common Pleas Court where he entered a plea of guilty
to one count of felonious assault, in violation of R.C.
2903.11(A)(1). The trial court sentenced Drake to seven years
Drake was appointed counsel who has filed a motion to
withdraw and a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967), indicating that, after a thorough review of the
record, proceeding with the appeal would be frivolous. An
Anders brief must meet the protocol designed to
honor and protect an indigent defendant's constitutional
right to counsel, requiring that counsel seeking to withdraw
from representation demonstrate good faith and diligence in
investigating potential grounds for appeal. "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." Anders at 745.
On May 26, 2016, Drake was indicted on one count of felonious
assault, a second-degree felony, in violation of R.C.
2903.11(A)(1); one count of felonious assault, a
second-degree felony, in violation of R.C. 2903.11(A)(2); and
attempted murder, a first-degree felony, in violation of R.C.
2923.02. On September 15, 2016, Drake entered a plea of
guilty to Count 1 and the remaining counts were dismissed.
The trial court sentenced Drake to seven years in prison at
the sentencing hearing.
Drake's appointed appellate counsel filed a notice of
appeal, and subsequently filed a motion to withdraw and a
brief pursuant to Anders. Appellate counsel has
asserted that, after a thorough review of the record,
proceeding with the appeal would be frivolous.
Appellant's counsel served Drake with a copy of the
motion to withdraw and the Anders brief This court
notified Drake that he could file his own appellate brief,
but he has not done so even after given an extension to file
In Anders, the United States Supreme Court held if,
after a conscientious examination of the record, a
defendant's counsel concludes the case is wholly
frivolous, then counsel should so advise the court and
request permission to withdraw. Id. at 744. Counsel
must accompany the request with a brief identifying anything
in the record that could arguably support the client's
appeal. Id. Counsel also must: (1) furnish the
client with a copy of the brief and request to withdraw; and
(2) allow the client sufficient time to raise any matters
that the client chooses. Id.
The appellate court must then fully examine the proceedings
below to determine if any arguably meritorious issues exist.
The court may grant counsel's request to withdraw from
the case and dismiss the appeal without violating
constitutional requirements if the court determines that the
appeal is wholly frivolous, or may proceed to a decision on
the merits where required by state law. Id.
Counsel bears the burden of demonstrating the efficacy of the
motion; thus, the Anders brief must reference
"anything in the record that might arguably support the
appeal[.]" McCoy v. Court of Appeals of
Wisconsin, 486 U.S. 429, 439, 108 S.Ct. 1895, 100
L.Ed.2d 440 (1988) (quoting Anders at 744).
Appellant's counsel has complied with the Anders
requirements. Appellant's counsel determined that
Drake's guilty plea was made knowingly, intelligently,
and voluntarily. He also determined that the trial court
fully complied with Crim.R. 11. Additionally, the trial court
did not err in sentencing Drake to seven years imprisonment.
After conducting an independent assessment of the record, we
find no ...