[Cite as State v. Lawrence, 2018-Ohio-3987.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                               BUTLER COUNTY




STATE OF OHIO,                                       :

        Plaintiff-Appellee,                          :     CASE NO. CA2017-06-078

                                                     :            DECISION
  - vs -                                                           10/1/2018
                                                     :

DUSTIN LAWRENCE,                                     :

        Defendant-Appellant.                         :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No.CR2016-10-1598



Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Charles M. Conliff, 5145 Pleasant Avenue, Suite 18, P. O. Box 18424, Fairfield, Ohio 45018-
0424, for defendant-appellant



        Per Curiam.

        {¶1}    Appellant, Dustin Lawrence, appeals his conviction for domestic violence,

gross sexual imposition, and three counts of rape.             Counsel appointed to represent

Lawrence in this appeal filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396 (1967), in which counsel represents that he can find no meritorious issues for

appellate review. In addition, counsel requests permission to withdraw, asks this court to
                                                                      Butler CA2017-06-078

perform an independent review of the record, and raises 15 potential assignments of error

which might arguably support the appeal.

       {¶2}   Lawrence filed a pro se brief, raising seven assignments of error. In addition,

Lawrence argues this case is not appropriate for briefing pursuant to Anders. Instead, he

urges this court to adopt the Fourth District's position in State v. Wilson, 4th Dist. No.

16CA12, 2017-Ohio-5772, and no longer accept Anders briefs. We begin our discussion

with this issue.

                                   Anders v. California

       {¶3}   In Anders, the United States Supreme Court examined the constitutional

safeguards necessary to protect an indigent's right to effective counsel on appeal when

counsel determines the appeal is frivolous. Specifically, the Anders court examined "the

extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a

criminal conviction, after that attorney has conscientiously determined there is no merit to

the indigent's appeal." Anders at 739.

       {¶4}   After consideration of the issues, the court crafted a procedure to protect an

indigent's rights on appeal:

              [I]f counsel finds his case to be wholly frivolous, after a
              conscientious examination of it, he should so advise the court
              and request permission to withdraw. That request must,
              however, be accompanied by a brief referring to anything in the
              record that might arguably support the appeal. A copy of
              counsel's brief should be furnished the indigent and time
              allowed him to raise any points that he chooses; the court—not
              counsel—then proceeds, after a full examination of all the
              proceedings, to decide whether the case is wholly frivolous. If
              it so finds it may grant counsel's request to withdraw and dismiss
              the appeal * * *." On the other hand, if it finds any of the legal
              points arguable on their merits (and therefore not frivolous) it
              must, prior to decision, afford the indigent the assistance of
              counsel to argue the appeal.

Id. at 744.


                                           -2-
                                                                      Butler CA2017-06-078

       {¶5}   The Supreme Court later determined that the Anders procedure is not

mandatory and states are "free to adopt different procedures, so long as those procedures

adequately safeguard a defendant's right to appellate counsel." Smith v. Robbins, 528 U.S.

259, 265, 120 S.Ct. 746 (2000).

                                   Anders in Ohio

       {¶6}   Given the limited legal discussion from the Supreme Court subsequent to the

Anders decision, and the Court's later determination that the Anders procedure is not the

only method of protecting an indigent's appellate rights, there has been little uniformity in

the manner in which states protect the rights of indigent defendants in Anders-type

situations. See Wilson, 2017-Ohio-5772 at ¶ 20.

       {¶7}   Ohio courts have generally followed the Anders procedure. See State v.

Upkins, Slip Opinion No. 2018-Ohio-1812, ¶ 18 (Fischer, J. dissenting). However, Ohio

courts have applied Anders in a variety of ways and there is no defined procedure from the

Ohio Supreme Court to give guidance to appeals courts. See State v. Taylor, 8th Dist.

Cuyahoga No. 101368, 2015-Ohio-420, ¶ 7.

       {¶8}   For example, some Ohio appellate courts issue decisions with full legal

discussions of the potential assignments of error. See, e.g., State v. Mayberry, 2d Dist.

Montgomery No. 27530, 2018-Ohio-2220; State v. Walton, 8th Dist. Cuyahoga No. 106103,

2018-Ohio-1963. The Eighth District has determined that a court's duty to perform an

independent review in Anders cases requires it to address only the potential assignments

of error (and any pro se arguments) and does not involve a comprehensive review of the

record. See Taylor. Some courts do not allow Anders briefs in permanent custody cases.

See, e.g., In re J.M., 1st District Hamilton No. C-130643, 2013-Ohio-5896. Some courts

have local rules counsel must follow in filing an Anders brief. See 1st Dist. Loc.App.R. 16.2;

8th Dist. Loc.App.R. 16(C). Previously, the Sixth District had a local rule that allowed

                                           -3-
                                                                      Butler CA2017-06-078

Anders briefs only in criminal cases. See In re B.H., 6th Dist. Lucas Nos. L-17-1126, L-17-

1127, 2018-Ohio-1238.

                                   State v. Wilson

       {¶9}   The Fourth District's recent decision in Wilson marks a departure from Ohio

courts' approach to Anders cases. In Wilson, the Fourth District reviewed the Supreme

Court's determination in Smith v. Robbins that the Anders procedure is not a Constitutional

mandate. Id. at ¶ 9. The Wilson court then discussed the criticisms of the Anders approach.

These criticisms include the following: prejudice to the defendant by flagging the case as

without merit and by involving a perfunctory review by the court; creation of a conflict for

counsel between his duty to the court and his duty to his client; existence of a role reversal

for counsel and court by placing the court in the role of defense counsel; creation of a

greater burden on the judiciary by requiring a full review of the record; and the confusion

created by a lack of uniformity in the courts regarding the degree of scrutiny given to Anders

cases. Wilson at ¶ 10-22.

       {¶10} With its review of these criticisms and considerations in mind, the Fourth

District decided to "reverse the direction" taken in Anders cases and adopt the Idaho Rule:

"After counsel is appointed to represent an indigent client during an appeal on a criminal

matter, we will not permit counsel to withdraw solely on the basis that the appeal is

frivolous." Wilson at ¶ 23.

       {¶11} The court then crafted a procedure for appointed counsel to follow when

counsel believes an appeal is frivolous. This procedure initially involves a discussion with

the client in which counsel informs his client that he believes the appeal is frivolous and

tries to persuade his client to abandon the appeal. Wilson at ¶ 25. However, "if the

defendant chooses to proceed with the appeal nonetheless, counsel must file a merit brief

and argue the defendant's appeal as persuasively as possible regardless of any personal

                                           -4-
                                                                        Butler CA2017-06-078

belief that the appeal is frivolous." The Fourth District also outlined a procedure for an

indigent to file a supplemental brief when counsel does not raise all issues the indigent

believes should be raised. Wilson at ¶ 25-26.

       {¶12} The Fourth District then concluded that although not perfect, this approach,

which goes beyond the minimum safeguards afforded by Anders, was a better alternative

to the Anders method, as it addresses the concerns and criticisms of Anders more

comprehensively than other approaches. Wilson at ¶ 34-35.

       {¶13} The Seventh and Sixth Districts have formally decided to follow the Fourth

District's decision in Wilson and no longer accept Anders briefs. State v. Cruz-Ramos, 7th

Dist. Mahoning No. 17 MA 077, 2018-Ohio-1583; Ohio v. Wenner, 6th Dist. No. S-18-004,

2018-Ohio-2590.

       {¶14} The Fourth District's position is not without criticism, however.             In a

subsequent opinion, one Fourth District judge dissented, stating that he was not on the

panel in Wilson, and while recognizing the process used in Ohio is not perfect, indicated

that the better approach would have been to seek rule changes at the Ohio Supreme Court.

State v. Gillian, 4th Dist. Gallia No. 16CA11, 2017-Ohio-7386 (McFarland, J., dissenting).

       {¶15} The Eleventh District has noted 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.,

11th Dist. Lake No. 2016-L-115, 2018-Ohio-1208.

       {¶16} In November 2016, the Ohio Supreme Court accepted a case involving the

issue of whether an appellate court must appoint new counsel when appellate counsel, who

also served as trial counsel, files an Anders brief. State v. Upkins, 149 Ohio St.3d 1405,

2017-Ohio-2822. However, the appeal was later dismissed as having been improvidently

allowed. State v. Upkins, Slip Opinion No. 2018-Ohio-1812. In a dissenting opinion, Justice

                                             -5-
                                                                       Butler CA2017-06-078

Fischer, joined by Justice French, argued "[t]here 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." Upkins, Slip Opinion at ¶ 2. The dissent

summarized Anders, the response to Anders in other states, and the treatment of Anders

in Ohio courts, including a discussion of the appellate districts which have decided not to

accept Anders briefs. The dissent noted the conflict between districts and indicated that

"[w]hile this case did not squarely present the conflict issue, this court will likely have to

address the conflict in the future" and argued that the court could have ordered additional

briefing on the issue or delayed adjudication of the case until the conflict was resolved.

Upkins, Slip Opinion at ¶ 24.

                                Issues Raised by Lawrence

       {¶17} Lawrence's request for this court to adopt the Fourth District's reasoning in

Wilson brings the question of this court's position on Anders appeals squarely before us. In

addition, the facts surrounding Lawrence's appeal raise several of the problems in Anders

briefs discussed by the Wilson decision.

       {¶18} Lawrence was charged with gross sexual imposition, kidnapping with a sexual

purpose and five counts of rape. The victim in these offenses was his girlfriend's 16-year-

old daughter.    In addition, Lawrence was convicted of domestic violence against his

girlfriend. After a three-day jury trial, Lawrence was found guilty on all counts.

       {¶19} The trial court determined three of the rape offenses were allied offenses and

that the kidnapping with a sexual purpose offense was allied to the five rape offenses. After

merger of the allied offenses, Lawrence was sentenced to consecutive 11-year prison terms

on each of the three rape convictions and 18 months each on the gross sexual imposition

and domestic violence convictions, to run concurrently to the rape sentences, for an

aggregate sentence of 33 years. He was also sentenced to five years postrelease control

                                            -6-
                                                                      Butler CA2017-06-078

and classified as a Tier III sex offender.

       {¶20} As mentioned above, counsel's Anders brief contains fifteen potential

assignments of error that might arguably support the appeal. The issues raised include the

certification of expert witnesses, the admission of opinions regarding DNA, the admission

of evidence collected by a relative of the sexual offense victim, issues involving the denial

of cross-examination of the sexual offense victim regarding text messages she sent to

Lawrence, jury instructions, the sufficiency and weight of the evidence, allied offenses, the

vindictiveness of the sentence because Lawrence exercised his right to trial, classification

as a Tier III sex offender, prosecutorial misconduct, and ineffective assistance of counsel.

       {¶21} In his pro se brief, Lawrence raises issues related to prosecutorial

misconduct, including coaching the victim during her testimony, false allegations by defense

counsel and impermissible opinion testimony in closing arguments. Lawrence also raises

issues involving his conviction of multiple counts of rape with the same animus and the

court's decision to certify a witness as a DNA expert. Finally, he also argues his sentence

was not supported by the record based on statutory findings without factual support, and

he was not given the opportunity to review the presentence report as required by Ohio law.

       {¶22} Clearly, the case before us presents many of the problems outlined in Wilson.

There are numerous potential issues raised both by counsel and pro se by Lawrence. The

case involves a three-day jury trial, with considerable testimony, as witnesses included the

sexual offense victim, her friend, her father, a SANE nurse, a BCI forensic scientist, a BCI

forensic scientist in the DNA field, a Hamilton police detective, the defendant's girlfriend,

the domestic violence victim. A review of the entire record and consideration of the potential

issues without argument by defense counsel puts not only a burden on judicial resources,

but also places the court in the role of defense counsel to search out and consider issues

when performing such a considerable review.

                                             -7-
                                                                                 Butler CA2017-06-078

        {¶23} Although this court acknowledges problems in the consideration of this appeal

under the Anders framework, we decline the opportunity to adopt the approach taken in

Wilson.    Instead, we find that clarification and discussion of when an Anders brief is

appropriate and setting a standard counsel must follow when considering drafting a brief is

the proper approach to resolve many of the problems with Anders briefs discussed in

Wilson.

                             When is an Anders Brief Appropriate?

        {¶24} Appellate counsel not only has a duty to his client, but to the court as well.

Taylor, 2015-Ohio-420 at ¶ 11. The Anders procedure allows these obligations to co-exist

as it ensures an indigent's right to counsel on appeal is honored when counsel finds the

appeal is without merit. Id. at ¶ 6. The Anders procedure "permit[s] appellate counsel to

represent an indigent client and yet avoid the ethical pitfall of filing a frivolous appeal." State

v. Tsibouris, 1st Dist. Hamilton Nos. C-120414 and C-120415, 2013-Ohio-3324.

        {¶25} A defendant's right to appeal does not include a frivolous appeal. Taylor at ¶

4, citing Penson v. Ohio, 488 U.S. 75, 83-84, 109 S.Ct. 346 (1988). The Anders procedure

is designed for cases in which "counsel finds his case to be wholly frivolous, after a

conscientious examination" of the record. Anders at 744. Accordingly, a comprehensive

review of the record is a fundamental first step. "Counsel cannot conclude an appeal is

frivolous without first conducting a detailed review of the case." Tsibiouris at ¶ 6. This

detailed review must include a complete review of the case, including all transcripts.1 See

Tsibouris; In re A.J.F., Lake Nos. 2016-L-114, 2016-L-115, 2018-Ohio-1208, ¶ 22-24.

        {¶26} An Anders brief should only be filed when counsel finds no legal points

arguable on their merits. It should not be used as a method for counsel to shirk his duty to



1. Resolution of this case was delayed because counsel was instructed to obtain and review a transcript of
voir dire and file a supplemental brief after the court discovered not all proceedings had been transcribed.
                                                  -8-
                                                                      Butler CA2017-06-078

represent his client. Robbins, 528 U.S. 259, at 282, fn. 2. Therefore, while conducting a

complete review, counsel must carefully and conscientiously search the record for

arguments on behalf of his client.

         {¶27} The terms "wholly frivolous," "without merit" and "arguable issue" used in

Anders have not been clearly defined in later decisions from the Supreme Court, and the

confusion surrounding the use of these terms in Anders and in later cases has been widely

noted.    See, e.g., Robbins at 282, 284-285.      The Supreme Court has indicated that

"[w]hatever term is used to describe the conclusion an attorney must reach as to the appeal

before requesting to withdraw and the court must reach before granting the request, what

is required is a determination that the appeal lacks any basis in law or fact." McCoy v. Court

of Appeals of Wisconsin, 486 U.S. 431, 438, 108 S.Ct. 1895 (1988) fn. 10. The McCoy

definition of a frivolous appeal as one which "lacks any basis in law or fact" has been

followed by Ohio courts. See, e.g., Taylor at ¶ 6; Wilson at ¶ 6.

         {¶28} Decisions from Ohio appellate courts provide more specific guidance

regarding the duties of appellate counsel when filing an Anders brief. Both the First and

Eighth districts have looked to the Rules of Professional Responsibility in defining what a

frivolous appeal and arguable issue are in the context of Anders briefs. In re J.M., 1st Dist.

Hamilton No. C-130643, 2013-Ohio-5896; State v. Anderson, 8th Dist. Cuyahoga No.

103490, 2016-Ohio-3323.       These rules state "[a] lawyer shall not bring or defend a

proceeding, or assert or controvert an issue in a proceeding, unless there is a basis in law

and fact for doing so that is not frivolous, which includes a good faith argument for an

extension, modification or reversal of existing law." Prof.Cond.R. 3.1.

         {¶29} As the Eighth District stated, "[a]t the heart of any motion to withdraw as

appellate counsel on grounds there are no nonfrivolous issues to be raised on appeal is the

distinction between a losing argument and one that is frivolous." Anderson at ¶ 2. We

                                           -9-
                                                                        Butler CA2017-06-078

agree that there is a distinction between appeals that may ultimately be unsuccessful and

those that are wholly frivolous. The comments to the Rules of Professional Responsibility

indicate that "[a]n appeal is not frivolous even though the lawyer believes that the client's

position ultimately will not prevail." In re J.M. at ¶ 17, citing Prof.Cond.R. 3.1, comment 2;

see also Smith at 279-280 (discussing flaws in state procedures that "did not require either

counsel or the court to determine that the appeal was frivolous" but instead, "required only

that they determine that the defendant was unlikely to prevail on appeal" or required only a

finding only that the appeal "would be unsuccessful").

       {¶30} Likewise, the Second District has stated "[a]n issue does not lack arguable

merit simply because the prosecution can be expected to present a strong argument in reply

or because it is uncertain whether a defendant will ultimately prevail." State v. Marbury, 2d

Dist. Montgomery No. 19226, 2003-Ohio-3242. Instead, "[a]n issue lacks arguable merit if,

on the facts and law involved, no responsible contention can be made that it offers a basis

for reversal." State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. Even

when the only issues in a case are pure application of settled law, it is possible an attorney

can make a good faith argument for the extension, modification or reversal of existing law.

See Anderson at ¶ 3.

       {¶31} Some Ohio courts have discussed the appropriateness of Anders briefs in

certain types of cases. We agree that because factual issues are involved, "[r]arely will an

Anders brief be appropriate for appellate review of a jury trial." State v. Tall, 6th Dist. Lucas

App. No. L-08-1112, 2009-Ohio-5503.           Likewise, courts have stated that Anders is

inappropriate for cases where the record is extensive and highly fact-based because it

places an inordinate burden on the appellate court to scour a voluminous record for error,

a task which is far better performed by the active and meaningful assistance of counsel.

See In re J.M., 2013-Ohio-5896, at ¶ 16 (finding Anders not appropriate for parental

                                            - 10 -
                                                                         Butler CA2017-06-078

termination cases because of the extensive and fact-based record). In addition, "[i]t is

difficult to imagine any appeal challenging the weight of the evidence that would be deemed

frivolous." See id. at ¶ 17 (discussing counsel's ability to craft arguments in a permanent

custody appeal).

       {¶32} The polestar of cases discussing the Anders procedure is the necessity of

determining that an indigent was provided constitutionally adequate appellate counsel – not

whether the issues raised on appeal will ultimately prevail. This constitutional protection is

not provided when counsel views potential issues only in light of whether they are likely to

succeed on appeal, and then files an Anders brief. Instead, an indigent is entitled to counsel

who will vigorously represent him to the best of his ability within the bounds of his

professional responsibility. Therefore, we find that counsel must view an "arguable issue"

broadly and on finding an arguable issue, must file a merit brief even if counsel considers

the arguments unlikely to prevail or anticipates a strong argument in reply from the

prosecution.

       {¶33} However, even given this broad definition of an "arguable issue," we

recognize there are situations in which an Anders brief may be appropriate. For example,

it is possible an Anders brief may be appropriate when an indigent pleads guilty and the

court has scrupulously adhered to Crim.R. 11 before accepting the plea, or in cases where

there is no discretion in sentencing the defendant. See Anderson, 2016-Ohio-3323, at ¶ 5-

9. In cases where there are no factual issues involved, and the court has meticulously

followed the applicable legal rules, principles, or statutes, it is possible no arguable issues

may remain for appeal.

       {¶34} In those cases where counsel finds no arguable issues that can be presented

on appeal, an Anders brief is appropriate. In addition to filing a request to withdraw, Anders

instructs counsel to file a "brief referring to anything in the record that might arguably support

                                             - 11 -
                                                                       Butler CA2017-06-078

the appeal." Anders at 744. These are arguments counsel considered, but ultimately

determined frivolous. This requirement is designed to provide the appellate court with a

basis for determining whether appointed counsel has fully performed the duty to support

the defendant's appeal to the best of their ability and to "assist the court in the critical

determination of whether the appeal is indeed so frivolous that counsel should be permitted

to withdraw." McCoy, 486 U.S. 431 at 439.

       {¶35} Finally, if an Anders brief is filed with this court, counsel must serve a copy of

the brief on the defendant and inform the defendant that he may file a pro se brief if he so

desires. See Anders at 744. Counsel should include notice of these requirements in the

Anders brief so that the court can determine whether counsel has fulfilled his duty to his

client in this regard.

                                    Lawrence's Appeal

       {¶36} Given our decision to continue accepting Anders briefs in the cases where no

arguable issue can be found, we decline Lawrence's request to adopt the Fourth District's

position in Wilson. However, we must determine whether an Anders brief is appropriate for

this appeal using the principles and guidelines discussed above.

       {¶37} As previously discussed, the case before us involved a three-day jury trial for

charges of domestic violence, gross sexual imposition, kidnapping with a sexual purpose

and five counts of rape. Several witnesses testified, including the victim of the sexual

offenses, her father, and her friend. Other witnesses included a SANE nurse, a BCI forensic

scientist, a BCI forensic scientist in the DNA field, a Hamilton police detective, and the

defendant's girlfriend who was the victim in the domestic violence charge.

       {¶38} As also mentioned above, numerous "potential issues" were raised by

counsel and were raised pro se by Lawrence. These issues include the certification of

expert witnesses, the admission of opinions regarding DNA, the admission of evidence

                                           - 12 -
                                                                     Butler CA2017-06-078

collected by the victim's relative, issues involving the denial of cross-examination of the

victim regarding text messages she sent to Lawrence, jury instructions, sufficiency and

weight of the evidence, issues involving allied offenses, the vindictiveness of the sentence

because Lawrence exercised his right to trial, classification as a Tier III sex offender,

prosecutorial misconduct, sentencing, review of the PSI report and ineffective assistance

of counsel.

       {¶39} After considering the type of case, the factual and evidentiary issues and

possible arguments on appeal, we find several of the possible issues presented in the brief

appear to have arguable merit under the standards set forth above.

       {¶40} Accordingly, counsel's motion to withdraw is granted. By separate entry, the

court will appoint new counsel to represent Lawrence on appeal. After review of the record,

new counsel may argue any of the potential errors raised in the Anders or pro se briefs, or

any other issues identified in a review of the record.


       S. POWELL, P.J., RINGLAND and M. POWELL, JJ., concur.




                                           - 13 -
