Submitted December 5, 2017
from the Court of Appeals for Shelby County, No. 17-16-04.
Michael DeWine, Attorney General, Eric E. Murphy, State
Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, and
Peter T. Reed, Deputy Solicitor; and Timothy S. Sell, Shelby
County Prosecuting Attorney, and Melissa L. Wood, Assistant
Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick,
Assistant Public Defender, for appellant.
1} This cause is dismissed as having been
O'Connor, CJ, and O'Donnell, Kennedy, Rice, and
DeWine, JJ, concur
Fischer, J., dissents, with an opinion joined by French, J.
Cynthia Westcott Rice, J., of the Eleventh District Court of
Appeals, sitting for O'Neill, J.
Fischer, J., dissenting.
2} I disagree with the decision to dismiss this case
as improvidently accepted. There 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.
3} Appellant, Lamone Upkins, was charged with four
counts of fifth-degree-felony drug trafficking, seven counts
of fourth-degree-felony drug trafficking, and one count of
third-degree-felony drug trafficking. Upkins, assisted by
counsel, negotiated a plea agreement in the Shelby County
Court of Common Pleas whereby he pleaded guilty to two counts
of fifth-degree-felony drug trafficking, two counts of
fourth-degree-felony drug trafficking, and one count of
third-degree-felony drug trafficking. In exchange for his
plea, the state dismissed the remaining counts. The agreement
included a joint sentencing recommendation of four years of
4} The trial court accepted Upkins's guilty plea
and sentenced him to an aggregate sentence of four years and
ten months of incarceration.
5} Upkins appealed, and the same counsel that
represented him in his trial-court proceedings represented
him before the Third District Court of Appeals. Upkins's
counsel subsequently filed a no-merit brief pursuant to
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,
18 L.Ed.2d 493 (1967), and a motion to withdraw as counsel.
Upkins filed a pro se brief alleging, among other claims,
that his plea was not voluntary because he did not understand
that the court could reject the sentence that was jointly
recommended, that the sentence was based on incorrect
information regarding prior convictions, and that his trial
counsel was ineffective in multiple ways. Upkins also argued
that he should have been appointed new counsel because his
present counsel had a conflict of interest.
6} The appellate court conducted an independent
review of the record and determined that there was no
nonfrivolous claim. The court permitted counsel ...