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State v. Gillian

Court of Appeals of Ohio, Fourth District, Gallia

August 21, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
SARA R. GILLIAN, Defendant-Appellant.

         APPEARANCES [1]

          Thomas E. Saunders, Gallipolis, Ohio, for appellant.

          DECISION AND ORDER

          Marie Hoover, Judge

         {¶1} 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 herein.

         I. Facts and Procedural History

         {¶2} 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.

         {¶3} On remand, the trial court sentenced Gillian on the failure to control conviction; and the sentencing entry was journalized on July 5, 2016.

         II. Motion to Withdraw and Anders Brief

         {¶4} 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 ¶ 6.

         {¶5} 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.

         III. The Fourth District's Reconsideration and Abandonment of the Anders Procedure

         {¶6} 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.

         IV. The New Approach

         {¶7} 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 ...


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