State v. Bowshier (Slip Opinion)
110 N.E.3d 1255
Ohio2018Background
- The Supreme Court of Ohio dismissed the appeal in State v. Bowshier as having been improvidently accepted; no majority opinion on the accepted proposition of law was issued.
- The court had accepted review of whether a court of appeals must refuse to dismiss an appeal under Anders v. California when the appellant presents controlling case law supporting his position.
- The State argued that the Sixth Amendment threshold question controlled: Anders applies only when Sixth Amendment right to counsel has attached, and the remaining issue was a post-sentence forfeiture proceeding for which the State contended Sixth Amendment rights do not attach.
- Justice Fischer dissented: he would have decided the Anders issue on the merits, concluding the State waived or should be estopped from raising the Sixth Amendment threshold because it did not raise that argument below and had sought appointment of counsel after Bowshier filed a pro se brief.
- The State conceded at oral argument that Bowshier’s assignments of error were not wholly frivolous and that counsel should have raised them on appeal; Fischer would have held the court of appeals should have rejected the Anders brief and appointed new counsel.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Bowshier) | Held |
|---|---|---|---|
| Whether an appeals court must refuse to dismiss under Anders when appellant cites controlling precedent | Anders is only applicable if Sixth Amendment rights attached; threshold not met here (forfeiture) so Anders dismissal appropriate | Anders dismissal inappropriate where appellant cites precedential authority supporting non-frivolous claims | Case dismissed as improvidently accepted; court did not decide the issue on the merits |
| Whether Sixth Amendment right to counsel attaches to post-sentence forfeiture proceedings | Sixth Amendment does not attach to forfeiture; thus Anders inapplicable | Sixth Amendment should apply / was effectively treated as applying because counsel was appointed and issues were arguable | Not decided by majority; Fischer would assume arguendo attachment and rule for Bowshier |
| Whether the State waived or is estopped from arguing Sixth Amendment inapplicability by failing to raise it below | State did not raise threshold in lower courts; but contends threshold controls review nonetheless | Bowshier (and dissent) argue the State waived or should be estopped from raising it | Majority did not rule; dissent found waiver/estoppel and would decide in Bowshier’s favor |
| Whether court of appeals should have rejected counsel’s Anders brief and appointed new counsel when appellant’s claims are not wholly frivolous | Anders dismissal could stand if Sixth Amendment not implicated | Court of appeals should reject Anders brief and appoint new counsel where assignments are not wholly frivolous | Majority did not decide; dissent would reverse and require appointment of new counsel |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (requires appointed counsel to file an adequate brief and permits counsel to seek withdrawal only if appellate claims are frivolous; court must independently review the record)