State v. AndersonState v. Anderson
{¶1} Defendant-appellant Aaron A. Anderson pleaded guilty in two cases: in Cuyahoga C.P. No. CR-14-589633-A, he pleaded guilty to failing to verify a current address; in Cuyahoga C.P. No. CR-14-590789-A, he pleaded guilty to robbery. The court ordered Anderson to serve 18 months in prison on the failure to verify count and a prison term of eight years on the robbery count. The sentences are to be served concurrently. Appellate counsel seeks permission to withdraw from the case pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because appellate counsel believes that Anderson has no nonfrivolous issues to raise on appeal. We offered Anderson the opportunity to file a merit brief, but he did not do so. Consistent with Anders and Loc.App.R. 16(C) of the Eighth District Court of Appeals, counsel filed a no-merit brief in conjunction with his motion to withdraw as counsel. The no-merit brief considered four possible issues that could be raised on appeal and explained why it would be frivolous for counsel to raise those issues. We examine those arguments in light of the record and legal precedent. State v. Taylor, 8th Dist. Cuyahoga No. 101368, 2015-Ohio-420, ¶ 20.
{¶2} At the heart of any motion to withdraw as appellate counsel on grounds that there are no nonfrivolous issues to be raised on appeal is the distinction between a losing argument and an argument that is frivolous. Prof.Cond.R. 3.1. states that “[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue in a proceeding,
{¶3} That one attorney might consider an argument frivolous under the facts of a particular case does not mean that the same argument would be frivolous if raised in a different case. To be sure, when issues on appeal involve the pure application of law, there is generally no basis for disagreement unless an attorney can make a good faith argument for the extension, modification, or reversal of existing law. It is inconceivable, for example, that an attorney could make a good faith argument that there is a five-year statute of limitations for the crime of murder when
{¶4} But when an issue involves the application of disputable facts to settled principles of law, we recognize that different attorneys could disagree about what may or may not be subject to good faith argument in a particular case. It is one thing to say as a matter of law that
{¶5} Turning to the merits of counsel‘s motion to withdraw, counsel suggests that Anderson might complain that the court failed to comply with
{¶6} We likewise agree with counsel that any argument Anderson might raise that his maximum sentences on both counts are contrary to law would be frivolous because a sentence is only considered contrary to law if it falls outside the statutory range for the applicable degree of felony. State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 21; State v. Powell, 8th Dist. Cuyahoga No. 99386, 2014-Ohio-2048, ¶ 115. The sentences imposed were within the applicable statutory range, so they were not contrary to law.
{¶7} Counsel raises the possibility that Anderson might argue that the court erred by failing to hold a competency hearing after referring him for a competency evaluation as required by
{¶8} The final potential issue raised by counsel — that the court failed to consider the sentencing factors of
{¶9} We would add that an assignment of error relating to the weight the court gave to the
{¶10} The recent Supreme Court decision in State v. Marcum, Slip Opinion No. 2016-Ohio-1002, does not change this conclusion. Even though appellate courts can vacate or modify sentences if they find by clear and convincing evidence that the record does not support the sentence, id. at ¶ 23, Marcum did not consider whether the right to appeal the sentencing court‘s weighing of sentencing factors is barred as a matter of law by
{¶11} We grant appellate counsel‘s motion to withdraw as counsel. Anderson did not file a pro se brief when informed of appellate counsel‘s desire to withdraw from representation because counsel could not ethically find nonfrivolous issues to raise in this appeal. The failure to file a brief is the functional equivalent of abandoning the appeal. We therefore dismiss this appeal for nonprosecution.
{¶12} Appeal dismissed.
It is ordered that appellee recover of said appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
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MELODY J. STEWART, PRESIDING JUDGE
SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY;
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE OPINION)
MARY J. BOYLE, J., CONCURRING IN JUDGMENT ONLY:
{¶13} I write separately to express my view that State v. Taylor, 8th Dist. Cuyahoga No. 101368, 2015-Ohio-420, expressly contradicts our role as a reviewing court set forth in Loc.R. 16(C), as well as reviewing courts’ role under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Under Loc.R. 16(C) and Anders, this court has an obligation to independently review the record to determine whether the appellant has an issue of arguable merit. Anders at 744. Thus, I respectfully concur in judgment only with the lead opinion.