Court of Appeals of Ohio, Fourth District, Gallia
E. Saunders, Gallipolis, Ohio, for appellant.
DECISION AND ORDER
A jury in the Gallipolis Municipal Court convicted Sara R.
Gillian of operating a motor vehicle while under the
influence of alcohol ("OMVI") and failure to
control. Gillian appealed; but her counsel advises us that he
has reviewed the record and can discern no meritorious claim
for appeal. Counsel moved for leave to withdraw under
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,
18 L.Ed.2d 493 (1967). However, in the time after counsel
moved for leave to withdraw, this Court decided State v.
Wilson, 4th Dist. Lawrence No. 16CA12, 2017-Ohio-XXX
(released June 23, 2017). In Wilson, we held that
this Court would no longer accept motions to withdraw and
briefs under Anders. Id. at ¶¶ 1,
36. Accordingly, we discharge current counsel and will
appoint new counsel by separate entry. Newly appointed
counsel should prepare an amended merit brief that complies
with the procedure outlined in Wilson and restated
Facts and Procedural History
A jury found Gillian guilty of OMVI in violation of R.C.
4511.19(A)(1)(a) and failure to control in violation of R.C.
4511.202. The trial court sentenced Gillian to three days in
jail and community control, and imposed a fine, court costs,
and license suspension for the OMVI charge. Gillian timely
appealed her OMVI sentence but this Court determined that
there was not a final appealable order because the trial
court failed to sentence Gillian on the failure to control
charge. Therefore, we dismissed the appeal and remanded the
matter back to the trial court to enter a final judgment
disposing of both charges. See State v. Gillian, 4th
Dist. Gallia No. 15CA3, 2016-Ohio-3232.
On remand, the trial court sentenced Gillian on the failure
to control conviction; and the sentencing entry was
journalized on July 5, 2016.
Motion to Withdraw and Anders Brief
Although Gillian appealed her conviction, her appellate
counsel filed a motion for leave to withdraw and an
Anders brief. The Supreme Court of the United States
established what has come to be known as the Anders
procedure in Anders v. California, 386 U.S. 738, 87
S.Ct. 1396, 18 L.Ed.2d 493 (1967). Under Anders, if
counsel reviews the record and determines that the case is
frivolous, counsel informs the court that the appeal is
frivolous and files a motion to withdraw as counsel, but also
"submits a brief referring to anything in the record
that might arguably support the appeal." The indigent
criminal defendant receives a copy of the brief and may raise
additional issues. Then the court reviews the motion, the
brief and the entire record to determine if any arguably
meritorious issues exist. If an issue exists, the court must
discharge current counsel and appoint new counsel to
prosecute the appeal. If the appeal is wholly frivolous, the
court grants the request to withdraw and dismisses the appeal
or proceeds with a decision in accordance with state law.
Anders at 744. "Wholly frivolous" and
"without merit" both mean "the appeal lacks
any basis in law or fact." McCoy v. Court of Appeals
of Wisconsin, Dist. 1, 486 U.S. 429, 438, 108 S.Ct.
1895, 100 L.Ed.2d 440 (1988), fn. 10 (the Court explained,
"The terms 'wholly frivolous' and 'without
merit' are often used interchangeably in the
Anders, brief context. Whatever term is used to
describe the conclusion an attorney must reach as to the
appeal before requesting to withdraw and the court must reach
before granting the request, what is required is a
determination that the appeal lacks any basis in law or
fact."). Accord Wilson, 2017-Ohio-XXX, at
Gillian's counsel complied with these requirements, and
Gillian was furnished with a copy of the brief submitted by
her counsel. Gillian had an additional 30 days to file a pro
se brief, but chose not to.
The Fourth District's Reconsideration and Abandonment of
the Anders Procedure
As mentioned above, this Court recently reexamined the
Anders procedure as well as the ethical and
constitutional obligations appointed appellate counsel has to
an indigent criminal defendant when counsel believes there
are no meritorious grounds for an appeal. See State v.
Wilson, 4th Dist. Lawrence No. 16CA12, 2017-Ohio-XXXX.
In Wilson, we noted that the Anders
procedure is an alternative, rather than constitutional
mandate. Id. at ¶ 9, quoting Smith v.
Robbins, 528 U.S. 259, 276, 120 S.Ct. 746, 145 L.Ed.2d
756 (2000) ("[W]e hold 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
in their doing so."). We also discussed the many
criticisms of the Anders procedure, including: (1)
the inherent prejudice to the defendant; (2) the tension it
creates between counsel's duty to the client and to the
court; (3) the precarious and odd position it places on the
appellate courts to essentially act as advocate in its review
of the record and on defense counsel to act as judge; (4) the
heavy burden it places on the appellate court and its judges
and staff; and (5) the lack of nationwide and even statewide
uniform guidelines among the courts that follow the
Anders procedure. Id. at ¶¶
10-22. The Wilson decision also addressed
alternative Anders procedures utilized by
jurisdictions throughout the United States. Id. at
¶¶ 12, 14, 15, 17, 18, 24, 35. With these
criticisms and considerations in mind, the Wilson
decision announced this Court's abandonment of the
Anders procedure, and held the following:
"After counsel is appointed to represent an indigent
client during appeal on a criminal matter, we will not permit
counsel to withdraw solely on the basis that the appeal is
frivolous. Instead, counsel will file a brief on the
merits." (Citation omitted.) Id. at ¶ 23.
The New Approach
The Wilson decision sets forth the new procedure in
this Court of how to deal with appeals of an indigent
criminal defendant when counsel believes ...