JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED

RELEASED AND JOURNALIZED: September 19, 2019

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-631243-B

Appearances:

Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Frank R. Zeleznikar, Assistant Prosecuting Attorney, for appellee.

Michael P. Maloney, for appellant.

KATHLEEN ANN KEOUGH, J.:

{¶ 1} Defendant-appellant, Alvin Williams filed a notice of appeal of his convictions and sentence following his guilty plea. After reviewing the record, Williams‘s appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), seeking leave to withdraw as counsel. After a thorough review of the record, we grant counsel‘s request to withdraw and dismiss the appeal.

{¶ 2} Williams was charged in juvenile court; after a probable cause hearing, jurisdiction was transferred to common pleas court. The 11-count indictment charged Williams with counts of felonious assault, aggravated robbery, kidnapping, grand theft, petty theft, discharge of a firearm on or near prohibited premises, improperly discharging a firearm into a habitation, and criminal damaging. Some counts carried firearm specifications. Williams pleaded not guilty to all charges.

{¶ 3} After several pretrial hearings, Williams appeared for a change-of-plea hearing. At the hearing, pursuant to a plea agreement, Williams pleaded guilty to Count 1, as amended, felonious assault in violation of R.C. 2903.11(A) with a one-year firearm specification, a second-degree felony; Count 6, aggravated robbery in violation of R.C. 2911.01(A) with a three-year firearm specification, a first-degree felony; and Count 8, kidnapping in violation of R.C. 2905.091(A), with a one-year firearm specification, a first-degree felony. Pursuant to the plea agreement, the court dismissed Counts 2, 3, 4, 5, 7, 9, 10, and 11.

{¶ 4} The state agreed that Counts 6 and 8 merged for purposes of sentencing. Thereafter, the court sentenced Williams to eight years incarceration on Count 1, felonious assault, plus the one-year firearm specification; and seven years on Count 6, plus three years for the firearm specification. The court ordered the sentences on Counts 1 and 6 to be served concurrently, for a total term of ten years incarceration. The court also ordered that Williams‘s sentences be served concurrently with the sentences in Cuyahoga J.C. Nos. DL-17-110376 and DL-17-112834.

{¶ 5} This appeal followed. Based on the belief that no prejudicial error occurred in the trial court and that any grounds for appeal would be frivolous, Williams‘s counsel filed a motion to withdraw pursuant to Anders. This court entered a judgment entry granting Williams 30 days to file a supplemental pro se brief raising any additional assignments of error. That time has expired and no supplemental brief has been filed.

{¶ 6} Anders outlined a procedure for counsel to follow to withdraw due to the lack of any meritorious grounds for appeal. In Anders, the United States Supreme Court held that if counsel thoroughly studies the case and conscientiously concludes that an appeal is frivolous, he may advise the court of that fact and request permission to withdraw from the case. Anders, 386 U.S. at 744. Counsel‘s request to withdraw must “be accompanied by a brief referring to anything in the record that might arguably support the [a]appeal.” Id. Counsel must also furnish a copy of the brief to his client, and the court must allow time for the appellant to file his own pro se brief. Id.

{¶ 7} When these requirements have been satisfied, the appellate court must complete an independent examination of the trial court proceedings to determine whether the appeal is “wholly frivolous.” Id. If the court, in its independent review, determines that a possible issue exists, it must discharge current counsel and appoint new counsel to prosecute the appeal. Id. If, however, the court determines that the appeal is wholly frivolous, the appellate court will grant the motion to withdraw and dismiss the appeal. Id.

{¶ 8} Former Loc.App.R. 16(C) of the Eighth District Court of Appeals previously set forth the procedure regarding Anders briefs and motions to withdraw. The rule was amended effective February 1, 2019, however, and no longer includes any procedure regarding Anders briefs and motions to withdraw. Nevertheless, this court has addressed the duties of defense counsel when filing an Anders brief and those of the court of appeals when ruling on motions to withdraw as counsel on grounds that an appeal would be frivolous. State v. Taylor, 8th Dist. Cuyahoga No. 101368, 2015-Ohio-420, and State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978). Accordingly, the absence of a local rule regarding Anders briefs does not mean that this court can no longer accept such briefs or follow the procedure outlined by the United States Supreme Court in Anders.

{¶ 9} We are aware of the Fourth District‘s decision in State v. Wilson, 2017-Ohio-5772, 83 N.E.3d 942 (4th Dist.), wherein that court, citing several criticisms of the Anders procedure and noting that the procedure outlined in Anders is a constitutional safeguard but not a constitutional requirement, held that after counsel is appointed to represent an indigent client during appeal on a criminal matter, it will not permit counsel to withdraw solely on the basis that the appeal is frivolous, and that counsel should file a brief on the merits. Wilson at ¶ 23; State v. Gillian, 4th Dist. Gallia No. 16CA11, 2017-Ohio-7386 (following Wilson).

{¶ 10} The Wilson holding and rationale were adopted by the Sixth and Seventh Districts in State v. Wenner, 6th Dist. Sandusky No. S-18-004, 2018-Ohio-2590, ¶ 29, and State v. Cruz-Ramos, 7th Dist. Mahoning No. 17 MA 0077, 2018-Ohio-1583, ¶ 14-17. However, not all districts have followed the Wilson approach. In State v. Lawrence, 12th Dist. Butler No. CA2017-06-078, 2018-Ohio-3987, the Twelfth District noted that “the Fourth District‘s position is not without criticism,” id. at ¶ 14, declined to adopt the Fourth District‘s position in Wilson, id. at ¶ 36, and stated it will continue accepting Anders brief because they are appropriate in certain situations. Id. at ¶ 33-36. The Eleventh District has recognized the disagreement between Ohio‘s appellate courts regarding the appropriate approach, but noted, “nevertheless, [it is] the precedent of this district and most others in Ohio, to follow the procedure outlined in Anders.” In re A.J.F., 2018-Ohio-1208, 110 N.E.3d 42, ¶ 24, fn. 1 (11th Dist.).

{¶ 11} This panel recognizes there may be some legitimate criticisms of the Anders approach. Nevertheless, as this court found in Taylor, supra, despite the various criticisms, ”Anders sets forth a procedure for ensuring that an indigent defendant‘s right to counsel on appeal is honored when his attorney asserts that the appeal is without merit.” Taylor, 8th Dist. Cuyahoga No. 101368, 2015-Ohio-420 at ¶ 6. This court noted further that “appellate counsel not only has an obligation to the client, but to the court as well. Those obligations can coexist when counsel adheres to the procedures outlined in Anders.” Id. at ¶ 11. Accordingly, we decline to adopt the reasoning of the Fourth District, and continue to adhere to the procedures announced in Anders for both counsel and the court when appointed counsel files a motion to withdraw because an appeal would be wholly frivolous.

{¶ 12} In this case, therefore, we must consider whether counsel‘s request to withdraw should be granted because any appeal would be wholly frivolous. Although Williams‘s counsel asserts that an appeal in this case is wholly frivolous, he presents as a potential error whether Williams entered his guilty plea knowingly, intelligently, and voluntarily.

{¶ 13} A defendant‘s guilty plea must be made knowingly, intelligently, and voluntarily, and “[f]ailure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). To ensure that a plea is entered knowingly, intelligently, and voluntarily, Crim.R. 11(C) requires the trial judge to determine whether the criminal defendant is fully informed of his rights, both constitutional and nonconstitutional. The court must also confirm that the defendant understands the consequences of his plea before accepting a guilty plea. Id.

{¶ 14} Counsel asserts that the trial court complied with the requirements of Crim.R. 11(C) and that Williams knowingly, intelligently, and voluntarily entered his guilty plea. We have conducted an independent examination of the record and also find that the trial court strictly complied with the dictates of Crim.R. 11(C) before accepting Williams‘s plea. The trial court advised Williams of the constitutional rights he would waive by pleading guilty, and Williams acknowledged that he understood those rights. The trial court also advised Williams of the penalties he could face by pleading guilty, which included a discussion that Williams would be sent to prison, and Williams acknowledged that he understood the possible penalties. The trial court also established that Williams was satisfied with his attorney and had discussed the change of plea with his attorney. The court further established that Williams‘s guilty plea was voluntary, and that he had no questions regarding the proceedings.

{¶ 15} Because the trial court complied with Crim.R. 11 when it accepted Williams‘s guilty plea, we agree with counsel that there are no meritorious grounds for appeal. Accordingly, pursuant to Anders, counsel‘s request to withdraw is granted, and the appeal is dismissed.

{¶ 16} Dismissed.

It is ordered that appellee recover from appellant costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

ANITA LASTER MAYS, P.J., and RAYMOND C. HEADEN, J., CONCUR