[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Upkins, Slip Opinion No. 2018-Ohio-1812.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2018-OHIO-1812
              THE STATE OF OHIO, APPELLEE, v. UPKINS, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Upkins, Slip Opinion No. 2018-Ohio-1812.]
Appeal dismissed as having been improvidently accepted.
    (No. 2016-1742—Submitted December 5, 2017—Decided May 10, 2018.)
                APPEAL from the Court of Appeals for Shelby County,
                                        No. 17-16-04.
                                     _______________
          {¶ 1} This cause is dismissed as having been improvidently accepted.
          O’CONNOR, C.J., and O’DONNELL, KENNEDY, RICE, and DEWINE, JJ.,
concur.
          FISCHER, J., dissents, with an opinion joined by FRENCH, J.
          CYNTHIA WESTCOTT RICE, J., of the Eleventh District Court of Appeals,
sitting for O’NEILL, J.
                                    _________________
                             SUPREME COURT OF OHIO




       FISCHER, J., dissenting.
       {¶ 2} I disagree with the decision to dismiss this case as improvidently
accepted. There are a number of problems regarding Anders briefs in this state that
should be resolved by this court, and this case presents an opportunity to resolve
several of those problems.
                                  I. Background
       {¶ 3} Appellant, Lamone Upkins, was charged with four counts of fifth-
degree-felony drug trafficking, seven counts of fourth-degree-felony drug
trafficking, and one count of third-degree-felony drug trafficking. Upkins, assisted
by counsel, negotiated a plea agreement in the Shelby County Court of Common
Pleas whereby he pleaded guilty to two counts of fifth-degree-felony drug
trafficking, two counts of fourth-degree-felony drug trafficking, and one count of
third-degree-felony drug trafficking. In exchange for his plea, the state dismissed
the remaining counts. The agreement included a joint sentencing recommendation
of four years of incarceration.
       {¶ 4} The trial court accepted Upkins’s guilty plea and sentenced him to an
aggregate sentence of four years and ten months of incarceration.
       {¶ 5} Upkins appealed, and the same counsel that represented him in his
trial-court proceedings represented him before the Third District Court of Appeals.
Upkins’s counsel subsequently filed a no-merit brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and a motion to
withdraw as counsel. Upkins filed a pro se brief alleging, among other claims, that
his plea was not voluntary because he did not understand that the court could reject
the sentence that was jointly recommended, that the sentence was based on
incorrect information regarding prior convictions, and that his trial counsel was
ineffective in multiple ways.     Upkins also argued that he should have been
appointed new counsel because his present counsel had a conflict of interest.



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                                 January Term, 2018




       {¶ 6} The appellate court conducted an independent review of the record
and determined that there was no nonfrivolous claim. The court permitted counsel
to withdraw, and it dismissed Upkins’s appeal.
       {¶ 7} Upkins filed a pro se jurisdictional appeal with this court. The court
rephrased Upkins’s fourth proposition of law and accepted jurisdiction over that
proposition: “When appellate counsel also served as trial counsel and moves to
withdraw pursuant to Anders v. California, the court shall permit counsel to
withdraw and must then appoint new appellate counsel to review the record and
raise any nonfrivolous appealable issue.” 149 Ohio St.3d 1405, 2017-Ohio-2822,
74 N.E.3d 464.
                              II. Anders v. California
       {¶ 8} In Anders v. California, the United States Supreme Court ruled that a
defendant’s due-process and equal-protection rights are violated when defense
counsel files a no-merit letter with the appellate court and does no more. 386 U.S.
at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. The court held that counsel is required to
file a brief referring the appellate court to anything in the record that might arguably
support the appeal. Id. The defendant must be furnished a copy of his counsel’s
brief and must be given the opportunity to raise his own arguments. Id. The court
must then conduct an independent review of the record and determine whether the
case is wholly frivolous. Id. Only after these multiple levels of review are complete
can an appellate court dismiss an appeal under Anders. Id.
       {¶ 9} The Anders procedure is a constitutional floor and not a constitutional
ceiling. Smith v. Robbins, 528 U.S. 259, 265, 120 S.Ct. 746, 145 L.Ed.2d 756
(2000). In other words, states may impose greater duties on a defendant’s attorney
but may not allow counsel to fall short of this level of duty.
  III. The Anders procedure creates an ethical problem for appellate courts
       {¶ 10} Under Anders, the appellate court must complete an independent
review of the record and then appoint counsel to argue that appeal if the court finds


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                             SUPREME COURT OF OHIO




that a claim of arguable merit exists. This procedure places the court in the role of
both advocate and adjudicator. In Ohio, how can a judge who has reviewed a record
and identified issues of arguable merit then rule on the actual merits of the claims
he or she previously identified without there being an appearance of impropriety,
which is barred by the rules of judicial ethics? See Canon 1 of the Ohio Code of
Judicial Conduct.
                            IV. Anders in other states
       {¶ 11} Several other states have either decided to not accept Anders briefs
or have adopted a modified version of the procedure.
       {¶ 12} The Idaho Supreme Court has entirely barred defense counsel from
filing Anders briefs, noting that Anders is a constitutional safeguard, not a
constitutional mandate. State v. McKenney, 98 Idaho 551, 552-553, 568 P.2d 1213
(1977). The New Hampshire Supreme Court has adopted the “Idaho rule” and has
noted that provided appellate counsel has a good faith basis for bringing an appeal,
defense counsel would not run afoul of any ethical duties because wholly frivolous
appeals are “extremely rare.” State v. Cigic, 138 N.H. 313, 316-317, 639 A.2d 251
(1994). The Georgia Supreme Court has stated that Anders briefs will no longer be
considered and has specifically noted that there is nothing to suggest that defense
counsel should be disciplined or subject to disapproval for filing a “frivolous” merit
brief when representing an indigent client. Huguley v. State, 253 Ga. 709, 710, 324
S.E.2d 729 (1985).
       {¶ 13} The Massachusetts Supreme Court has ruled that Anders created
confusion for appointed counsel by requiring counsel to argue against the client’s
wishes and best interests. Commonwealth v. Moffett, 383 Mass. 201, 205-206, 418
N.E.2d 585 (1981). The court determined that counsel should not be permitted to
withdraw but should represent the client succinctly and in a way that will do the
client the least harm. Id. at 207-208. Counsel may also disassociate from the



                                          4
                                January Term, 2018




arguments in the brief but must send a copy of the brief to the client if counsel does
so. Id. at 208.
       {¶ 14} The Missouri Supreme Court has determined that it will not permit
appointed counsel in criminal appeals to withdraw under the Anders procedure and
that counsel should “ ‘communicate to the court the issues and whatever can be said
in support of them.’ ” State v. Gates, 466 S.W.2d 681, 683-684 (Mo.1971), quoting
Advisory Committee Notes to ABA Standards, The Prosecution Function and the
Defense Function 301 (1970 tentative draft). Similarly, the Colorado Supreme
Court has looked to the ABA Standards for Criminal Appeals, which state that
counsel cannot withdraw but should inform the client of the chances of success,
eliminate arguments that lack any merit, and suggest the case be submitted on the
briefs. McClendon v. People, 174 Colo. 7, 12, 481 P.2d 715, 718 (1971), citing
ABA Standards, Criminal Appeals 3.2 (1970).
       {¶ 15} The North Dakota Supreme Court has found that adopting the
Anders procedure violated the state constitution. State v. Lewis, 291 N.W.2d 735,
738 (N.D.1980). The court ruled that counsel could move to withdraw but that
replacement counsel should be appointed. Id.
       {¶ 16} In addition to the seven states discussed above, nine other states have
barred a defense attorney from filing an Anders brief. See In re Attorney’s Fees of
Mohr, 97 Haw. 1, 11, 32 P.3d 647 (2001); Mosley v. State, 908 N.E.2d 599, 607
(Ind.2009); State v. Junkins, 2001 ME 133, 779 A.2d 948, ¶ 8; Ramos v. State, 113
Nev. 1081, 1084, 944 P.2d 856 (1997); State v. Talley, 103 N.M. 33, 1985-NMCA-
058, 702 P.2d 353, ¶ 23; In re Bailey, 187 Vt. 176, 2009 VT 122, 992 A.2d 276,
¶ 64; Revised Iowa R.App.P. 6.1005(1) and Iowa R.Prof.Cond. 32:3.1, comment 4;
N.J. Court R. 3:22-6(d); W.Va.R.App.P. 3(d)(2). Kansas and Minnesota have not
specifically barred the filing of Anders briefs by rule or case law, but neither state
has adopted the Anders procedure, and Anders briefs are not filed by defense
counsel in those two states. Martha C. Warner, Anders in the Fifty States: Some


                                          5
                             SUPREME COURT OF OHIO




Appellants’ Equal Protection is More Equal Than Others, 23 Fla.St.U.L.Rev. 625,
651 and fn. 212 (1996) (“Kansas has an unwritten policy of not accepting Anders
briefs”; “Minnesota does not have Anders briefs because of its centralized public
defender system”). Rhode Island does not permit defense counsel to file an Anders
brief when the defendant has been sentenced to life imprisonment without the
possibility of parole. See Motyka v. State, 172 A.3d 1203, 1205, 1208 (R.I.2017).
       {¶ 17} Finally, Oregon and South Dakota allow Anders briefs but offer an
alternative in which counsel does not seek to withdraw but files a modified brief,
see State v. Balfour, 311 Or. 434, 448-449, 451-452, 814 P.2d 1069 (1991), and
State v. Korth, 2002 SD 101, 650 N.W.2d 528, ¶ 17, and Utah accepts Anders-type
briefs but has created more rigorous requirements than those set forth in Anders,
see Dunn v. Cook, 791 P.2d 873, 877 (Utah 1990). In sum, Anders has received far
from universal approval.
                                 V. Anders in Ohio
       {¶ 18} Ohio courts have applied the procedures announced in Anders since
at least 1970. State v. Toney, 23 Ohio App.2d 203, 207, 262 N.E.2d 419 (7th
Dist.1970). But the results have not been without flaws, and the procedures have
not been uniformly applied. Additionally, in certain situations, such as the one
presented in the case at bar, in which the same counsel represented the defendant
before both the trial and appellate courts, concerns of constitutional magnitude arise
regarding the representation afforded the defendant.
A.      Anders briefs are sometimes filed in cases when there are meritorious
                                       claims
       {¶ 19} Anders briefs have proved a less-than-effective method to determine
whether a defendant has meritorious claims on appeal. In Ohio, there are many
examples of defense counsel filing Anders briefs that were later rejected by
appellate courts because there were nonfrivolous issues for appeal. Indeed, there
are multiple examples of trial courts being reversed on one issue or another after


                                          6
                                January Term, 2018




Anders briefs were filed but rejected. In other words, not only were the appeals not
wholly frivolous, as required for the submission of an Anders brief, but assignments
of error were eventually sustained. See, e.g., State v. Williams, 6th Dist. Fulton No.
F-08-008, 2010-Ohio-391, ¶ 3, 16-17 (Anders brief rejected and sentence vacated
because plea was not made knowingly, intelligently, and voluntarily); State v.
Branham, 2d Dist. Clark No. 2013 CA 49, 2014-Ohio-5067, ¶ 4, 14-16 (Anders
brief rejected and conviction reversed because defendant had not been apprised that
consecutive sentences were mandatory); State v. Hall, 4th Dist. Lawrence No.
14CA21, 2015-Ohio-4975, ¶ 4, 10-11, 21 (Anders brief rejected and consecutive
sentences vacated); State v. Mack, 1st Dist. Hamilton No. C-140054, 2015-Ohio-
1430, ¶ 13, 30 (Anders brief rejected and sentence halved on appeal); State v. Jones,
2d Dist. Montgomery No. 25688, 2014-Ohio-5574, ¶ 3, 15 (Anders brief rejected
and conviction reversed because guilty plea was invalid); State v. Tsibouris, 1st
Dist. Hamilton Nos. C-120414 and C-120415, 2014-Ohio-2612, ¶ 14, 31, 37
(Anders brief rejected and conviction reversed because jury was instructed only on
the lesser offense); State v. May, 2d Dist. Montgomery No. 25359, 2014-Ohio-
1542, ¶ 2, 56 (Anders brief rejected and sentence reversed); State v. Roberson, 2d
Dist. Greene No. 2010-CA-66, 2012-Ohio-5106, ¶ 11, 29-31 (Anders brief rejected,
fruits of warrantless search suppressed, and conviction reversed); State v. Herron,
2d Dist. Montgomery No. 24033, 2011-Ohio-5021, ¶ 2, 9 (Anders brief rejected
and trial-court judgment reversed because murder convictions and felonious-assault
convictions merged); State v. Freeders, 2d Dist. Montgomery No. 23952, 2011-
Ohio-4871, ¶ 6-7, 28 (Anders brief rejected and sentence vacated); State v. Polus,
6th Dist. Ottawa No. OT-08-040, 2010-Ohio-25, ¶ 2, 12 (same); State v. Wilkinson,
178 Ohio App.3d 99, 2008-Ohio-4400, 896 N.E.2d 1027, ¶ 6, 20-21 (2d Dist.)
(Anders brief rejected and conviction reversed because indictment was improperly
amended); see also State v. Strickland, 2d Dist. Montgomery No. 25673, 2014-
Ohio-5451, ¶ 10, 30-31 (Anders brief rejected and new hearing ordered on plea


                                          7
                             SUPREME COURT OF OHIO




withdrawal; defendant’s Sixth Amendment rights were violated because defendant
was not represented by counsel while defense counsel testified during hearing on
motion to withdraw guilty plea); State v. Smith, 2d Dist. Montgomery No. 24402,
2013-Ohio-1586, ¶ 12-13, 30, 39 (Anders brief accepted but defendant successfully
had case reopened and conviction reversed because juror was improperly
excluded).
       {¶ 20} In State v. Gilbert, this court affirmed an appellate court’s judgment
reversing a trial court’s decision in a case in which an Anders brief was filed and
was rejected by the appellate court. 143 Ohio St.3d 150, 2014-Ohio-4562, 35
N.E.3d 493, ¶ 13-14. The court of appeals in Gilbert had rejected counsel’s Anders
brief and appointed new counsel to represent the defendant. 1st Dist. Hamilton No.
C-110382, 2012-Ohio-1366. In its subsequent decision, the appellate court held
that it had been improper for the trial court to vacate the defendant’s original
sentence and order a longer sentence. 1st Dist. Hamilton No. C-110382, 2013-
Ohio-238, ¶ 4, 18. The appellate court reinstated the defendant’s 18-year sentence
and vacated the trial court’s 18-years-to-life sentence. Id. at ¶ 3, 21. This court
accepted the state’s discretionary appeal and affirmed the appellate court’s
judgment.
       {¶ 21} This sampling of the many cases with similar processes and
outcomes demonstrates that the Anders-brief system is not effective in protecting
the appellate rights of defendants. It would be almost impossible to determine the
number of cases in which an Anders brief was filed and a reversible error went
undetected by the court, attempting to act in an unnatural role as an advocate for
the defendant, and by the pro se defendant, attempting to make his case on appeal
without the benefit of legal training.
        B.     Two Ohio appellate districts do not accept Anders briefs
       {¶ 22} In June 2017, the Fourth District Court of Appeals decided that it
would no longer accept Anders briefs. State v. Wilson, 2017-Ohio-5772, 83 N.E.3d


                                         8
                                  January Term, 2018




942 (4th Dist.). As a basis for its decision, the court cited the prejudice that the
client faced, the conflict of interest and ethical problems that counsel faced, the
burden on the judiciary to perform the role of both advocate for the defendant and
adjudicator of potential claims, the lack of uniformity among the states, and
alternative procedures that avoid at least some of those pitfalls. The court also
noted that the Anders-like procedure utilized in Ohio varies among the appellate
courts. Describing the Fourth District’s approach, the court stated that “ ‘in the
context of Anders review, * * * we fully examine the trial court proceedings,’ ”
Wilson at ¶ 21, quoting State v. Wright, 4th Dist. Scioto Nos. 15CA3705 and
15CA3706, 2016-Ohio-7795, ¶ 18. The court contrasted this approach with that
used in State v. Taylor, 8th Dist. Cuyahoga No. 101368, 2015-Ohio-420, ¶ 15-20,
in which the Eighth District reasoned that “a completely independent examination
of the entire record to determine if there are any colorable issues on appeal is
‘overkill’ and makes the court the defendant’s counsel,” Wilson at ¶ 22. The Fourth
District decided that it would adopt the Idaho rule. Id. at ¶ 23.
        {¶ 23} Even more recently, the Seventh District Court of Appeals adopted
a rule and procedure similar to those the Fourth District adopted in Wilson. State
v. Cruz-Ramos, 7th Dist. Mahoning No. 17 MA 0077, 2018-Ohio-1583, ¶ 16. The
court specifically stated its approval of the Fourth District’s reasoning. Id. at ¶ 14.
        {¶ 24} Given that the Fourth and Seventh Districts no longer accept Anders
briefs and that many other districts in Ohio continue to accept Anders briefs, there
appears to be a conflict among the appellate courts. While this case did not squarely
present the conflict issue, this court will likely have to address the conflict in the
future. Indeed, Judge McFarland of the Fourth District made a request for his
colleagues to certify a conflict on this exact issue in State v. Gillian, 4th Dist. Gallia
No. 16CA11, 2017-Ohio-7386, ¶ 11 (McFarland, J., dissenting). This court could
have ordered additional briefing or delayed final adjudication in the instant case
until the conflict was resolved. Dismissing this case as improvidently accepted


                                            9
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leaves Upkins without redress for a claim that at least two Ohio appellate districts
would hold meritorious.
         C.      Same counsel, res judicata, and the Sixth Amendment
        {¶ 25} As the parties note in their briefs, in Ohio, when appellate counsel
has also served as trial counsel, record-based claims of ineffective assistance of trial
counsel need not be presented on direct appeal and can be presented in
postconviction proceedings. State v. Cole, 2 Ohio St.3d 112, 113, 443 N.E.2d 169
(1982), fn. 1. This rule is an exception to the doctrine of res judicata, and it exists
to eliminate the conflict of interests that would arise if counsel were required to
argue their own ineffectiveness. Id.
        {¶ 26} This rule makes a lot of sense, but it creates two unintended
problems.     First, I believe that there are deeply troubling Sixth Amendment
implications. Criminal defendants have a constitutional right to counsel on direct
appeal. Douglas v. California, 372 U.S. 353, 355, 83 S.Ct. 814, 9 L.Ed.2d 811
(1963). When trial counsel also serves as appellate counsel, ineffective-assistance-
of-counsel claims, which are normally presented in the direct appeal, are preserved
for postconviction proceedings. See Cole at 113, fn. 1, and syllabus. While we do
not phrase it in this manner, the reality is that the direct appeal is split into two, with
the first part being the traditional direct appeal and the second being a
postconviction action raising the issue of ineffective assistance of trial counsel. The
problem is that criminal defendants are not guaranteed counsel during
postconviction proceedings.       Thus, under the current system, some indigent
defendants’ direct appeals are split into two distinct actions and, in one of those
actions, counsel is not appointed as a matter of course.
        {¶ 27} Many questions could be raised as to whether such a procedure
would withstand constitutional scrutiny, particularly as some Ohio appellate
districts do not permit counsel to assert their own ineffectiveness on appeal—
rendering ineffective-assistance-of-trial-counsel claims unreviewable in the


                                            10
                                January Term, 2018




traditional direct appeal, see, e.g., State v. Tinch, 84 Ohio App.3d 111, 126, 616
N.E.2d 529 (12th Dist.1992); State v. Fuller, 64 Ohio App.3d 349, 356, 581 N.E.2d
614 (2d Dist.1990).
       {¶ 28} In states such as Ohio, where a defendant has the right to appeal a
criminal conviction, indigent defendants are constitutionally entitled to counsel for
that appeal. This constitutional protection is significantly eroded if a state can
devise a procedure that bars traditional direct-appeal claims from being presented
in a direct appeal and provides an alternative action for those claims to be heard but
then fails to provide indigent defendants with counsel for those alternative actions.
In other words, the Ohio procedure arguably robs criminal defendants of some of
their Sixth Amendment protections. This case presents an opportunity to review
that arguably unconstitutional procedure.
       {¶ 29} The second problem is more particular to this case and other cases
in which Anders briefs are filed. Upkins filed a pro se brief raising the claims that
he believed were not wholly frivolous. Upkins argued that his trial counsel was
ineffective. Upkins’s counsel was not required to raise that argument because he
had a conflict of interest. See Cole, 2 Ohio St.3d at 113, 443 N.E.2d 169, fn. 1, and
syllabus. The appellate court determined that there were no nonfrivolous claims
and that the Anders brief filed by defense counsel should be accepted and the case
dismissed. This leaves the status of Upkins’s claim of ineffective assistance of trial
counsel in an unusual and problematic position. The appellate court represents that
there are no nonfrivolous claims that could be raised, Upkins has argued that there
is a nonfrivolous ineffective-assistance-of-trial-counsel claim, but Upkins’s
counsel, who filed the Anders brief, was not expected to raise that argument because
it is preserved for postconviction. This logically leads to a question: is the
ineffective-assistance claim, which was raised pro se by Upkins and reviewed and
then dismissed by the appellate court, res judicata for purposes of postconviction
proceedings, or are claims presented and adjudicated by the appellate court


                                         11
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preserved for postconviction proceedings because Upkins did not have
constitutionally required counsel to represent him regarding these claims? Either
answer is unsatisfactory and demonstrates exactly why appellate counsel who also
served as trial counsel should not be permitted to file an Anders brief. This
situation, while perhaps unusual, should be addressed by this court. Adopting
Upkins’s proposition of law would be one potential resolution. The state argued
that rulemaking is an alternative method by which these problems can be resolved.
Whether it be through case law or by rulemaking, a resolution is needed sooner
rather than later.
                                   VI. Conclusion
        {¶ 30} For the above-stated reasons, I disagree with the court’s decision to
dismiss this case as improvidently accepted. I would address the proposition of law
presented, as I have doubts regarding Anders briefs in general and the propriety of
counsel filing an Anders brief after representing a defendant in both the trial court
and the appellate court.
        FRENCH, J., concurs in the foregoing opinion.
                               _________________
        Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor,
Michael J. Hendershot, Chief Deputy Solicitor, and Peter T. Reed, Deputy
Solicitor; and Timothy S. Sell, Shelby County Prosecuting Attorney, and Melissa
L. Wood, Assistant Prosecuting Attorney, for appellee.
        Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant
Public Defender, for appellant.
                                  _______________




                                         12
