State v. Upkins (Slip Opinion)
110 N.E.3d 1249
Ohio2018Background
- Lamone Upkins pleaded guilty pursuant to a plea deal in Shelby County to multiple drug-trafficking counts with a joint sentencing recommendation; the trial court imposed a longer aggregate sentence than recommended.
- Appellate counsel was the same attorney who represented Upkins at trial and filed an Anders no-merit brief and a motion to withdraw; Upkins filed a pro se brief raising voluntariness of plea, sentencing errors, and trial-counsel ineffectiveness.
- The Third District independently reviewed the record, found no nonfrivolous issues, permitted counsel to withdraw, and dismissed the appeal.
- Upkins filed a jurisdictional appeal to the Ohio Supreme Court; the court accepted one proposition of law: whether appellate courts must appoint new counsel when trial counsel files an Anders brief on appeal.
- The majority dismissed the case as improvidently accepted. Justice Fischer dissented, arguing the court should decide important issues about the Anders procedure—especially when appellate counsel also served as trial counsel—and the related ethical and Sixth Amendment concerns.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether appellate counsel who also served as trial counsel may file an Anders no‑merit brief and be permitted to withdraw without appointment of new appellate counsel | Upkins: when trial counsel files an Anders brief, the court must appoint new appellate counsel to review and raise any nonfrivolous issues | State: existing Ohio practice permits Anders filings and withdrawal without automatic appointment of new appellate counsel; Cole preserves ineffective‑assistance claims for postconviction | Case dismissed as improvidently accepted; issue left unresolved (Fischer dissented and would have addressed it) |
| 2. Whether Anders procedure forces appellate courts into an advocate role, creating judicial‑ethics problems | Upkins: Anders requires courts to identify arguable issues and then rule on them, creating appearance of impropriety under judicial conduct rules | State: Anders requires independent review; courts have discretion in applying review scope | Not decided (dissent urged resolution) |
| 3. Whether permitting Anders briefs by counsel who represented defendant at trial raises Sixth Amendment problems by splitting direct appeal and postconviction review (potential denial of counsel for preserved claims) | Upkins: splitting direct appeal (reserving ineffective‑assistance claims for postconviction where counsel is not guaranteed) may erode indigent defendants’ Sixth Amendment rights | State: Ohio precedent (Cole) allows preservation for postconviction; rulemaking or case law could address concerns | Not decided; dissent argued constitutional issues merit review |
| 4. Uniformity and effectiveness of Anders practice in Ohio (including risk of meritorious claims being overlooked) | Upkins: many Ohio cases show Anders briefs have been rejected and meritorious claims pursued successfully on appeal, demonstrating Anders’ unreliability and inconsistent application | State: Anders has been long-applied in Ohio; some districts have modified or rejected Anders for policy or procedural reasons | Not decided; dissent highlighted conflict among Ohio districts and urged the court to resolve it |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (establishes counsel’s duty to file a brief pointing out anything in the record that might support an appeal and requires court’s independent review)
- Douglas v. California, 372 U.S. 353 (U.S. 1963) (recognizes constitutional right to counsel on a first appeal as of right)
- Smith v. Robbins, 528 U.S. 259 (U.S. 2000) (Anders is a constitutional floor; states may impose greater protections)
- State v. Cole, 2 Ohio St.3d 112 (Ohio 1982) (trial counsel who also serves as appellate counsel cannot be required to raise record-based ineffective-assistance claims on direct appeal; such claims are reserved for postconviction)
- State v. Gilbert, 143 Ohio St.3d 150 (Ohio 2014) (affirmed appellate reversal where an Anders brief was rejected and new counsel was appointed; illustrates practical problems with Anders procedure)