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State v. Upkins

Supreme Court of Ohio

May 10, 2018

The State of Ohio, Appellee,
v.
Upkins, Appellant.

          Submitted December 5, 2017

          Appeal 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 improvidently accepted.

          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.

         I. Background

         {¶ 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 incarceration.

         {¶ 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 ...


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