State v. WennerState v. Wenner
- Reporters:
- , ,
- Before:
- Arlene Singer, Mark L. Pietrykowski, James D. Jensen
SINGER, J.
Introduction
{¶ 1} Appellant, Dana L. Wenner, appeals the February 1, 2018 judgment of the Sandusky County Court of Common Pleas, where she was convicted of theft in violation of
Background
{¶ 2} On May 19, 2017, an indictment was issued against appellant for grand theft in violation of
{¶ 3} The charge stemmed from appellant repeatedly lying to the victim, Bryan Hoang, to obtain over $90,000. Specifically, appellant lied about her medical cоndition and about needing money to pay her medical expenses, when in reality appellant was taking the money and gambling it away.
{¶ 4} On November 29, 2017, appellant entered into a guilty plea to the lesser included offense of theft in violation of
{¶ 5} On January 29, 2018, the trial court sentenced appellant to 365 days incarceration, with 180 days suspended, and imposed three years postrelease control. The sentencing entry was journalized on February 1, 2018, and appellant timely appeals.
Anders Brief
{¶ 6} The procedure to be followed by appointed counsel who desires to withdraw for want of a meritorious, appealable issue is set forth in Anders. In Anders, the U.S. Supreme Court found if counsel, after a conscientious examination of the case,
{¶ 7} The appellate court must conduct a full examination of the proceedings and decide if the appeal is indeed wholly frivolous. Id. If the appellate court determines the appeal is frivolous, it may grant counsel‘s request to withdraw and dismiss the appeal. Id.
{¶ 8} Here, counsel asserted that, after reviewing the record thoroughly, no nonfrivolous argument or defense in support of appellant could be presented. Specifically, counsel states that he found “no error by the trial сourt prejudicial to the rights of Appellant which may be argued in a nonfrivolous manner on appeal.” Counsel further states that “for pro forma purposes and to comply with the
Court Examination of Appeal
{¶ 9} In our role customarily undertaken pursuant to Anders, we will now fully examine the proceedings to decide if this appeal is indeed wholly frivоlous.
{¶ 10} Appellant pled guilty to and was convicted under
{¶ 11} Our examination of sentencing, and in specific the transcript of the hearing and the judgment entry, reveals at least one potential assignment of error: did the trial court fail to comply with
{¶ 12} ”
{¶ 13} The conditions are listed in subsections (i) through (iv) of
(i) The offender previously has not been convicted of or pleaded guilty to a felony offense.
(ii) The most serious charge against the offender at the time of sentencing is a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, the department, within the forty-five day period specified in that division, provided the court with the names of, contact information for, and program details of one or more community control sanctions of at least one year‘s duration that are available for persons sentenced by the court.
(iv) The offender previously has not been convicted of or pleaded guilty to a misdemeanor offense of violence that the offender committed within two years prior to the offense for which sentence is being imposed.
{¶ 14} Additionally,
{¶ 15} We note that the sentencing entry and record must support the court‘s findings under
{¶ 16} As we have identified a potential assignment of error and “[b]ecause an Anders brief is not a substitute for an appellate brief on the merits, we must ‘appoint counsel to pursuе the appeal and direct that counsel is to prepare an advocate‘s
Prohibition of Anders Briefs
{¶ 17} Recently, as articulated in In re K.D., 6th Dist. Sandusky No. S-16-008, 2017-Ohio-136, and In re B.H., 6th Dist. Lucas Nos. L-17-1126, L-17-1127, 2018-Ohio-1238, we prohibited Anders briefs in appeals from “neglect and dependency dispositional orders granting legal custody of a child to a nonparent” and from “cases involving the termination оf parental rights.” In re B.H. at ¶ 2-3.
{¶ 18} “Ohio courts have applied the procedures announced in Anders since at least 1970.” See State v. Upkins, Slip Opinion No. 2018-Ohio-1812, ¶ 18 (Fischer, J., dissenting), citing State v. Toney, 23 Ohio App.2d 203, 207, 262 N.E.2d 419 (7th Dist.1970). Since then, however, the Fourth and Seventh Districts of Ohio have prohibited Anders briefs from criminal appeals. Id. at ¶ 24.
{¶ 19} In State v. Wilson, 2017-Ohio-5772, 83 N.E.3d 942 (4th Dist.), the Fourth District held “that in any criminal appeal as a matter of right, it is no longer an acceptable practice in this court for counsel to file an Anders no merit brief[.]” Id. at ¶ 16. The court based its decision on the potential problems Anders briefs present, such as: the prejudice to the client, the tension between counsel‘s duty to the client and the court, the role reversal between counsel and the court, the removing of the adversarial nature of the judicial system, the role of advocate being placed on the judiciary, the potential appearance of impropriety, and the lack of nationwide uniform guidelines. See id. at ¶ 10-22. See also Upkins at ¶ 10-30. The Wilson holding and rationale were adopted by the Seventh District in State v. Cruz-Ramos, 7th Dist. Mahoning No. 17 MA 0077, 2018-Ohiо-1583, ¶ 14-17.
{¶ 20} Emphasizing each potential problem stated above is a legitimate concern, we are particularly concerned with the inherent prejudice to the client when appellate counsel identifies no nonfrivolous issue on appeal in an effort to comply with
{¶ 21} Additionally, we find Anders briefs provide a “less-than-effective” and less-than-efficient method to determine if there are meritorious defenses. See Upkins, 2018-Ohio-1812, at ¶ 9; See also Mosley (“Prohibiting Anders withdrawals may also force counsel to be more diligent and locate meritorious issues in a seemingly empty record.“). In this case, for instance, appellant‘s counsel filed an Anders brief pointing to
What is Frivolous?
{¶ 22} What constitutes a frivolous assignment of error? This requires referencing
{¶ 23} A criminal defense attorney must proceed with a basis in law (procedural and substantive) and fact. Whether the attorney believes the client has a meritorious defense or not is irrelevant, because the attorney must use the legal process for her client‘s benefit and, at a minimum, may defend as to require every element of the crime proven beyond a reasonable doubt. So long as nо abuse of the process occurs, all that is required is a good faith argument for an extension, modification, or reversal of law, and this is in light of the fact that the law is often ambiguous, in need of change, and never static.
{¶ 24}
[3] The lawyer‘s obligations under this rule are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this rule.
{¶ 25} We find this rule, and in particular comment 3, eliminates any ethical concerns counsel may have when advocating as a defense attorney and asserting the client‘s position under the rules of the adversary system. Evеn without comment 3‘s protective language added to the rule, we find a lawyer has substantial room to argue in defense of her client. This is especially on appeal where the entire record is available to be scrutinized for error.
{¶ 26} Initially, and because an attorney may require proof of the elements of a crime, we find there may be legal sufficiency and manifest weight of the evidence arguments to be made on appeal. See
{¶ 27} Moreover, and even where a no-contest or guilty plea is entered into, there may be potential errors related to the defendant‘s plea. See, e.g., State v. Gilbert, 2018-Ohio-879, 96 N.E.3d 360 (6th Dist.) (finding plea involuntary and invalid despite counsel‘s filing of Anders brief arguing no colorable argument existed).
{¶ 28} And as a final resоrt, an attorney can point to the sentencing of her client to argue an error may have occurred there. See, e.g., State v. Jones, 6th Dist. Sandusky No. S-16-040, 2018-Ohio-2033 (finding sentence contrary to law based on two meritorious defenses, despite counsel filing of Anders brief). This allows for general policy arguments to be made, including the application of punishment theories highlighted in Ohio‘s sentencing scheme. See
{¶ 29} Overall, and in consideration of comment 3 and the preclusive effect of res judicata, we find an attorney should rarely if ever concede that no nonfrivolous argument can be prеsented on direct appeal. This position is adopted in light of the fact that “[t]he Anders procedure is a constitutional floor and not a constitutional ceiling” and, therefore, its prohibition is consistent with the U.S. (and Ohio) Constitution because “states may impose greаter duties on a defendant‘s attorney but may not allow counsel to fall short of this level of duty.” See Upkins, 2018-Ohio-1812, at ¶ 9. Accordingly, as our sister
Conclusion
{¶ 30} Appointed counsel‘s motion to withdraw is granted, and we appoint Emil G. Gravelle, III, 709 Madison Avenue, Suite 216, Toledo, Ohio 43604, as appellate counsel in this matter, and direct him to рrepare an appellate brief discussing the arguable issue identified in this decision, and any additional potential errors, within 30 days of the date of this decision and judgment. The remaining briefing schedule shall proceed in accordance with
Motion granted.
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, J.
JUDGE
James D. Jensen, J.
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.