STATE OF OHIO, Plaintiff-Appellee, vs. STEVEN JACKSON, Defendant-Appellant.
APPEAL NO. C-130240
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
February 21, 2014
[Cite as State v. Jackson, 2014-Ohio-613.]
TRIAL NO. B-1004540
Judgment Appealed From Is: Motion to Withdraw As Counsel for Appellant is Granted, New Counsel for Appellant is Appointed, Further Briefing is Ordered, and Appeal is Ordered to be Resubmitted
Date of Judgment Entry on Appeal: February 21, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michaela M. Stagnaro, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
O P I N I O N.
{¶1} This appeal presents a threshold question of whether we should extend the procedure set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), to appeals from civil orders of involuntary commitment. We dеcline to do so.
{¶2} Appointed counsel in this case has filed an ”Anders no-error brief” in which she states that she is unable to find any error that would entitle her client to relief, requests that this court independently review the record, and moves for permission to withdraw. We recently held that no-error briefs were not appropriate in the context of permanent-child-custody appeals, and we reach a similar conclusion here. See In re J.M., 1st Dist. Hamilton No. C-130643, 2013-Ohio-5896. The Anders decision by its terms only applies to criminal appeals, and our local rules likewise limit Anders briefs to criminal cases. Further, we have serious concerns about the effectiveness of the Anders procedure, and are reluctant to extend this procedure to other contexts. We, therefore, grant counsel‘s motion to withdraw, and appoint new counsel to argue the merits of the case.
I.
{¶3} Steven Jaсkson was charged with escape for leaving the Volunteers of America halfway-house program without permission in July 2010. He entered an insanity plea, and following a bench trial the court found him not guilty by reason of insanity (“NGRI“). As required by
{¶5} The court held a hearing to review Mr. Jackson‘s commitment in April 2013. Counsel for the state and for Mr. Jackson stipulated to the report submitted by Summit, and, based on the recommendations in the report, the court determined that Mr. Jackson remained a mentally ill person subject to hospitalization and ordered his continued commitment. Mr. Jackson notified the cоurt of his desire to appeal the decision, and the court appointed counsel to represent Mr. Jackson on appeal.
{¶6} Counsel for Mr. Jackson has filed an Anders brief, certifying that shе can find no meritorious issues to argue on appeal and asking this court to conduct an independent review of the record. Counsel also has moved fоr permission to withdraw from representation.
II.
{¶7} In J.M., we concluded that the Anders procedure was not appropriate in civil appeals from orders terminating parental rights. We notеd, in part, that the Anders decision addressed only counsel‘s duties to assist indigent clients appealing a criminal conviction and that our local appellatе rules limit no-error briefs to criminal appeals. See J.M., 1st Dist. Hamilton No. C-130643, 2013-Ohio-5896 at ¶ 12; 1st Dist.
{¶8} We find no Ohio cases permitting the use of the Anders procedure in involuntary-commitment appeals, nor do we find any Ohio cases discussing the appropriateness of extending the procedure to such cases. The few states outside of Ohio to have considered the issue are divided. States that have applied the procedure to involuntary-commitment cases emphasize the comparable restraints on physical liberty resulting from civil commitment and сriminal incarceration, as well as the need to ensure that indigent appellants are placed on equal footing with those who have the ability to retаin private counsel. See Pullen v. State, 802 So.2d 1113 (Fla.2001); In re McCoy, 360 S.C. 425, 602 S.E.2d 58 (2004); In re Rules of the Supreme Court and Court of Appeals, 2009 Ark. 449 (2009); In re McQueen, 145 Ill.App.3d 148, 495 N.E.2d 128 (1986); State ex rel. L.E.H., 228 S.W.3d 219 (Tex.App.2007). Those declining to extend Anders to involuntary-commitment appeals emphasize the civil nature of such proceedings and conclude that the Anders procedure does not reduce the likelihood of erroneous deprivations of liberty. See Conservatorship of Ben C., 40 Cal.4th 529, 53 Cal.Rptr.3d 856, 150 P.3d 738 (2007); In re Leon G., 200 Ariz. 298, 26 P.3d 481 (2001); In re Richard A., 146 N.H. 295, 771 A.2d 572 (2001).
{¶9} The Ohio Supreme Court has made clear that involuntary commitment рroceedings are civil in nature. See State v. Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, 930 N.E.2d 770, ¶ 37 (incompetency commitments under
{¶10} The Anders decision was aimed at safeguarding an indigent сriminal defendant‘s constitutional right to appellate counsel, a right derived from the convergence of a criminal defendant‘s Sixth Amendment right to the assistance of counsel and the Fourteenth Amendment‘s guarantees of due process and equal protection in criminal appeals. Smith v. Robbins, 528 U.S. 259, 264, 276-278, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Unlike in cases of criminal incarceration, the constitutional right to counsel in civil commitment proceedings originates solely from the due process clause. In re Fisher, 39 Ohio St.2d 71, 82, 313 N.E.2d 851 (1974). While we recognize the significant interests at stake where a person is involuntarily subjected to restraints on his physical liberty, we have been told that civilly-committed persons “need nоt be afforded the constitutional rights afforded to a defendant in a criminal prosecution.” Williams at ¶ 37.
{¶11} Also important to our analysis are our increasing doubts about the еfficacy of the Anders procedures. We have commented previously on the “‘consistent and severe criticism‘” Anders has received since its inception. J.M., 1st Dist. Hamilton No. C-130643, 2013-Ohio-5896 at ¶ 13, quoting Robbins at 281. Commentators contend, among other things, thаt the procedure permits counsel to neglect his duty to provide zealous representation and creates inconsistent levels of appellаte review. J.M. at ¶ 13-14. We find these criticisms to have some merit. In view of our concerns, we have concluded that it is “far more beneficial” to both the court and the client for counsel to present arguments in support of his client‘s cause. Id. at ¶ 16.
{¶13} Going forward, we reemphasize the distinction between frivolous arguments and those that are merely nonmeritorious. J.M. at ¶ 17. And we note that an attorney will fulfill his obligations to his client and the court “where he does not deceive the сourt on matters of fact and law, and where he makes a good-faith argument on behalf of his client, regardless of the ultimate unpersuasiveness of that argument.” Id. at ¶ 18. We trust that appellate attorneys will be able to make good faith arguments on behalf of their clients. For example, counsel might challenge the weight оf the evidence or the effectiveness of counsel below. Moreover, counsel must ensure that the trial court has adhered to its statutory duties, such as the obligations to notify a subject of his rights under
III.
{¶14} We decline to conduct Anders review in civil-commitment appeals. We grant аppellate counsel‘s motion to withdraw, and appoint attorney William R. Gallagher, Attorney Registration No. 0064683, to represent Mr. Jackson in his appeal. Wе further order new counsel to file a brief on the merits on or before March
Judgment accordingly.
CUNNINGHAM, P.J., and HILDEBRANDT, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.