State v. Wenner
114 N.E.3d 800
Ohio Ct. App.2018Background
- Dana L. Wenner was indicted for grand theft; she pleaded guilty to the lesser included offense of theft (felony 5) after a Crim.R. 11 colloquy.
- Sentenced to 365 days incarceration with 180 days suspended and three years postrelease control; judgment journalized Feb 1, 2018; appellant appealed.
- Appointed appellate counsel filed an Anders brief asserting the appeal was wholly frivolous and moved to withdraw, but submitted no proposed assignments of error.
- The Sixth District reviewed the record and identified a potential sentencing error under R.C. 2929.13(B)(1) (whether the trial court was required to impose community control rather than jail).
- The court granted counsel’s motion to withdraw, appointed new counsel, directed briefing on the identified sentencing issue and any other potential errors, and announced it will no longer accept Anders no-merit briefs in criminal appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Anders no-merit briefing/withdrawal is acceptable in criminal appeals | State implicitly supports normal appellate process (no direct defense of Anders in opinion) | Counsel filed Anders brief asserting appeal frivolous and requested withdrawal | Court held Anders withdrawals are prohibited in criminal appeals and discharged Anders counsel, appointing new counsel |
| Whether the trial court complied with R.C. 2929.13(B)(1) when imposing jail for a 5th-degree non-violent felony | State would support the sentence imposed | Wenner (by implication) challenges sentence as possibly contrary to law under R.C. 2929.13(B)(1) | Court found a potential error and ordered merits briefing on whether community control was required rather than jail |
| Whether an Anders brief satisfies counsel’s ethical obligations under Prof.Cond.R. 3.1 | N/A | Counsel relied on Anders procedure to justify withdrawal as ethical compliance | Court concluded Prof.Cond.R. 3.1 and its comment 3 permit zealous advocacy and reject Anders as routine practice for criminal appeals |
| Remedy when appellate counsel files an Anders brief but court detects arguable issues | State would normally respond on merits | Counsel sought withdrawal without merit brief; no pro se brief from appellant | Court granted withdrawal, appointed new counsel, and directed preparation of an advocate’s brief on the identified issues |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (establishes procedure for counsel to seek withdrawal when appeal is wholly frivolous)
- Mosley v. State, 908 N.E.2d 599 (Ind. 2009) (criticizes Anders withdrawals as prejudicial to appellants and supports prohibiting Anders in criminal appeals)
- State v. Wilson, 83 N.E.3d 942 (Ohio Ct. App. 2017) (holds Anders no-merit briefs unacceptable in criminal appeals and articulates problems with the practice)