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State v. Sims

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 5, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
DWAYNE SIMS, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-616120-B

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, for appellee.

          Richard E. Hackerd, for appellant.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

         {¶ 1} Defendant-appellant, Dwayne Sims ("Sims"), appeals his convictions and sentence following his mid-trial guilty plea. Sims's assigned appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and now seeks leave to withdraw as appellate counsel. After thoroughly reviewing the record, we grant counsel's motion to withdraw and dismiss the appeal.

         Procedural History and Facts

         {¶ 2} On April 25, 2017, a grand jury returned a 30-count indictment charging Sims, along with four codefendants, with aggravated murder, murder, aggravated robbery, aggravated burglary, felonious assault, kidnapping, and having weapons while under disability.[1] The charges resulted from the October 2016 execution-styled killing of Melissa Brinker, a bartender at the Cooley Lounge, and the robbery of several patrons of the lounge.

         {¶ 3} In June 2018, following numerous pretrials, Sims filed a motion to suppress. After a hearing, the trial court denied the motion, and a joint jury trial commenced the same day.

         {¶ 4} At trial, the state presented 22 witnesses, including 13 police officers, four patrons of the Cooley Lounge, and four medical examiners. After approximately one week of testimony, in the middle of trial, Sims withdrew his previously entered not guilty pleas, and proceeded to plead guilty to two amended counts of aggravated robbery, one with a three-year firearm specification attached.

         {¶ 5} In August 2018, the trial court sentenced Sims to 11 years on the first count of aggravated robbery and three years for the attached firearm specification. The trial court sentenced Sims to ten years on the second count of aggravated robbery and ordered both sentences to be served concurrently for a total of 14 years in prison.

         {¶ 6} In September 2018, Sims filed his notice of appeal. Based on the belief that no prejudicial error occurred below and that any grounds for appeal would be frivolous, Sims's assigned appellate counsel filed a motion to withdraw under Anders. Sims has had the opportunity to file his own merit brief, but has not done so.

         Anders Standard

         {¶ 7} Anders outlines the procedure that counsel must follow to withdraw because of the lack of any meritorious grounds for appeal. In Anders, the United States Supreme Court held that if appointed counsel, after a conscientious examination of the case, determines the appeal to be wholly frivolous, he or she should advise the court of that fact and request permission to withdraw. Anders, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. This request, however, must be accompanied by a brief identifying anything in the record that could arguably support the appeal. Id. Counsel must also furnish the client with a copy of the brief, and allow the client sufficient time to file his or her own brief, pro se. Id.

         {¶ 8} Once appellate counsel satisfies these requirements, this court must fully examine the proceedings below to determine if any arguably meritorious issues exist. Id.; former LocApp.R. 16(C). If we determine that the appeal is wholly frivolous, we may grant counsel's request to withdraw and dismiss the appeal without violating constitutional requirements, or we may proceed to a decision on the merits if state law so requires. Anders at 744; former LocApp.R. 16(C).

         {¶ 9} On February 1, 2019, LocApp.R. 16(C), which previously set forth the procedure governing Anders briefs and motions to withdraw, was amended and no longer includes any procedure regarding Anders briefs. Notwithstanding our recent amendment of LocApp.R. 16(C), this court has addressed the duties of appellate counsel when filing an Anders brief and our duties when ruling on counsel's motion to withdraw on the grounds that the appeal would be frivolous. See State v. Richardson, 8th Dist. Cuyahoga No. 104958, 2017-Ohio-4441; State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978). Thus, the absence of a local rule governing Anders briefs does not prevent this court from accepting these briefs nor from following the procedure the United States Supreme Court outlined in Anders.

         {¶ 10} We note that the Fourth Appellate District, in State v. Wilson, 2017-Ohio-5772, 83 N.E.3d 942 (4th Dist.), adopted a new procedure of no longer accepting motions to withdraw pursuant to Anders. In reaching its decision in Wilson, the Fourth District cited several criticisms of the procedure outlined in Anders and stressed that the procedure is a constitutional safeguard, but not a constitutional requirement. Wilson at ¶ 23; State v. Gillian, 4th Dist. Gallia No. 16CA11, 2017-Ohio-7386 (following Wilson).

         {¶ 11} In State v. Cruz-Ramos, 2018-Ohio-1583, 125 N.E.3d 193, ¶ 14-17 (7th Dist.), the Seventh Appellate District agreed with Wilson and held that it was no longer acceptable for counsel to file an Anders brief, which means counsel may no longer file a motion to withdraw on the grounds that the appeal is frivolous. Also, in State v. Wenner, 2018-Ohio-2590, 114 N.E.3d 800 (6th Dist), the Sixth Appellate District adopted the holding in Wilson and declared that the court will no longer accept motions to withdraw or briefs filed pursuant to Anders.

         {¶ 12} However, not all appellate districts are in agreement with Wilson. In State v. Lawrence, 2018-Ohio-3987, 121 N.E.3d 1 (12th Dist.), the Twelfth Appellate District observed that "the Fourth District's position is not without criticism." Id. at ¶ 14. In declining to adopt Wilson's holding, the Twelfth Appellate District stated it will continue to accept Anders briefs because they are appropriate in certain situations. Id. at ¶ 33-36. The Eleventh Appellate District recognized the divide between our sister districts on a suitable approach, but noted, "nevertheless, [it is] the precedent of this district and most others in Ohio, to follow the procedure outlined in Anders." In re. A.J.F., 2018-Ohio-1208, 110 N.E.3d 42, ¶ 24 (11th Dist.), fn. 1.

         {¶ 13} Interestingly, in Gillian, the dissent highlighted this divide stating:

I respectfully dissent and note I was not on the panel in [Wilson.] While I recognize that the Anders process used in Ohio may not be perfect, I believe a better approach, if change is warranted, would have been to seek rule changes at the Ohio Supreme Court because of the constitutional and ethical harmonics at play. This approach allows any stakeholders involved to have input via the public comment period if they so desire and assists in the interests of judicial economy.
Now, I encourage my colleagues to certify a conflict. My hope is the Ohio Supreme Court expeditiously resolves this split among Ohio Courts of Appeals as to the application of Anders and provides guidelines for Ohio attorneys and judges alike in this important area of the law.

Gillian, 4th Dist. Gallia No. 16CA11, 2017-Ohio-7386, at ¶ 10-11.

         {¶ 14} We acknowledge the split and appreciate that there may be genuine criticisms of the Anders approach. However, until the Ohio Supreme Court resolves the split among the Ohio Appellate Districts regarding the application of Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, we decline to adopt the reasoning of the Fourth Appellate District. As a result, we will continue to adhere to the procedures outlined in Anders pertaining to both counsel and the court when appointed appellate counsel files a motion to withdraw because an appeal would be wholly frivolous.

         {¶ 15} In the instant case, appointed appellate counsel complied with the requirements of Anders. Sims did not file a pro se brief.

         Potential Issues for Review Under Anders

         {¶ 16} Sims's appointed counsel, possessing 28 years of experience representing criminal defendants in both trial and appellate practice, reviewed the voluminous record, containing over 3, 000 pages, and concluded he could not make any meritorious arguments on Sims's behalf. Nevertheless, counsel presents the following potential issues for our Anders review: (1) the trial court could have sustained Sims's motion to suppress, and (2) that his plea hearing failed to comply with Crim.R. 11.

         {¶ 17} First, as it relates to the potential issue that the trial court could have sustained the motion to suppress, the record indicates that Sims argued in his motion that he was not at the scene of the robbery that turned fatal. Thus, the eyewitness identification by codefendant, Garry Lake, who cooperated with the state, should have been suppressed. We agree with appointed counsel that there would be no merit in raising this issue.

         {¶ 18} A guilty plea is a complete admission of the facts set forth in the indictment. State v. Colon, 2017-Ohio-8478, 99 N.E.3d 1197 (8th Dist), citing State v. Greathouse, 158 Ohio App.3d 135, 2004-Ohio-3402, 814 N.E.2d 502, ¶ 7 (2d Dist.); State v. Stumpf, 32 Ohio St.3d 95, 104, 512 N.E.2d 598 (1987); Crim.R. 11(B)(1). Therefore, a defendant who pleads guilty may only attack the voluntary, knowing, and intelligent nature of the plea on appeal. Id. at ¶ 15, citing State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992); State v. Gaston, 8th Dist. Cuyahoga No. 92242, 2009-Ohio-3080, ¶ 7.

         {¶ 19} Here, as previously noted, in the middle of trial and after one week of testimony, Sims plead guilty to two counts of aggravated robbery, thereby admitting that he was present at the lounge and participated in the robbery. As a result, it would not have been worthwhile to raise this argument.

         {¶ 20} Second, as it relates to the potential issue that the trial court did not comply with Crim.R. 11, we also agree with appointed counsel that there would be no merit to raising this issue.

         {¶ 21} When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution. State v. Veney, 120 Ohio St.3d 176, 2008- Ohio-5200, 897 N.E.2d 621, ¶ 7. In considering whether a criminal defendant knowingly, intelligently, and voluntarily entered a guilty plea, we first review the record to determine whether the trial court complied with Crim.R. 11(C). State v. Davner, 2017-Ohio-8862, 100 N.E.3d 1247, ¶ 41 (8th Dist).

         {¶ 22} Crim.R. 11(C) sets forth certain constitutional and procedural requirements with which a trial court must comply prior to accepting a guilty plea. Under Crim.R. 11(C)(2), the trial court shall not accept a guilty plea in a felony case without personally addressing the defendant and doing all of the following:

(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty * * *, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.

         {¶ 23} The purpose of Crim.R. 11(C)(2) is to convey to the defendant certain information so that he can make a voluntary and intelligent decision whether to plead guilty. State v. Albright, 8th Dist. Cuyahoga No. 107632, 2019-Ohio-1998, citing State v. Woodall, 8th Dist. Cuyahoga No. 102823, 2016-Ohio-294, ¶ 12. Whether the trial court accepted a plea in compliance with Crim.R. 11(C)(2) is subject to de novo review, based on the totality of the circumstances. See, e.g., State v. ...


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