Court of Appeals of Ohio, Eighth District, Cuyahoga
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
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.
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. 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
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.
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.
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
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.
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
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
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
(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. ...