[Cite as State v. Tsibouris, 2013-Ohio-3324.]



                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO,                                  :      APPEAL NOS. C-120414
                                                                   C-120415
          Plaintiff-Appellee,                   :   TRIAL NOS. C-11CRB-37372-A
                                                               C-11CRB-37372-B
        vs.                                     :

DENISE TSIBOURIS,                               :            O P I N I O N.

          Defendant-Appellant.                  :




Criminal Appeals From: Hamilton County Municipal Court

Judgment of Court: 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: July 31, 2013




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Christopher L. Jackson, for Defendant-Appellant.




Please note: these consolidated cases have been removed from the accelerated
             calendar.
                    OHIO FIRST DISTRICT COURT OF APPEALS



CUNNINGHAM, Presiding Judge.

       {¶1}   Following a jury trial, defendant-appellant Denise Tsibouris appeals

from her convictions for resisting arrest and for disorderly conduct. Her appointed

appellate counsel has filed a no-error brief in which he stated that he had thoroughly

reviewed the entire record, and had found no meritorious issues to support

Tsibouris’ appeals. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18

L.Ed.2d 493 (1967); see also State v. Williams, 183 Ohio App.3d 757, 2009-Ohio-4389,

918 N.E.2d 1043, ¶ 7 (1st Dist.).        But because appointed counsel failed to

conscientiously examine the record before filing a no-error brief, Tsibouris has been

denied the effective assistance of appellate counsel.

       {¶2}   Tsibouris filed timely pro se notices of appeal from her convictions.

She also filed affidavits declaring that she was indigent and could not afford to

employ counsel to bring her appeal. On June 26, 2012, this court appointed counsel

to represent her and authorized the preparation of a transcript of the proceedings at

public expense. Pursuant to our scheduling order in this matter, Tsibouris was

required to file the transcript of proceedings by August 20, 2012, and her brief by

September 20, 2012.

       {¶3}   In September 2012, appointed counsel moved for additional time

because a transcript of the guilt-or-innocence phase of the trial had not been

prepared. A nine-page transcript of the sentencing hearing had been filed with the

court. But as counsel correctly noted, the sentencing transcript would “not show if

any [trial] errors [had been] preserved for proper appellate review.” See Knapp v.

Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980) (holding that

the duty to provide a transcript for appellate review falls upon the appellant because

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                     OHIO FIRST DISTRICT COURT OF APPEALS



she bears the burden of showing error by reference to matters in the record). This

court granted the motion and extended the time for Tsibouris to file her brief and the

transcript of the proceedings until November 13, 2012.

       {¶4}    Over the next five months, appointed counsel filed three separate no-

error briefs in this case. Two briefs, filed in November 2012 and March 2013, were

stricken for defects as to their form. The third brief was filed in April 2013. But a

transcript of the trial proceedings was not prepared and filed until July 22, 2013, the

day before this matter was submitted for decision, and eight months after counsel

had filed his first no-error brief.

       {¶5}    In each no-error brief, appointed counsel acknowledged his duty “to

review the record in order to determine if there are any meritorious issues that can

be presented.”     In each brief, he made the affirmative statement that “after

thoroughly reviewing the entire record and researching all possible issues and all

potential sources for error,” no meritorious issues existed to support Tsibouris’

appeals. (Emphasis added.) He then asked this court to independently review the

record and determine whether the appeals were wholly frivolous. See Anders, 386 U.S.

at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. He also moved for permission to withdraw as

counsel following his “conscientious examination of the record.”

       {¶6}    The procedures identified in Anders and its progeny, permit appointed

counsel to represent his indigent client and yet avoid the ethical pitfalls of filing a

frivolous appeal. See, e.g., In re Booker, 133 Ohio App.3d 387, 390, 728 N.E.2d 405

(1st Dist.1999). The initial step of this procedure is a fundamental one: “Appointed

counsel is first required to conduct ‘a conscientious examination’ of the case.” Penson

v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), quoting Anders, 386

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                     OHIO FIRST DISTRICT COURT OF APPEALS



U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493; see 1st Dist. Loc.R. 16.2(B)(1). Counsel

filing a no-error brief “must still provide his or her client * * * a thorough review of the

record and a discussion of the strongest arguments revealed by that review.” McCoy v.

Court of Appeals of Wisconsin, 486 U.S. 429, 444, 108 S.Ct. 1895, 100 L.Ed.2d 440

(1988). All other obligations of counsel flow from an initial inquiry into the state of the

record. See, e.g., Williams, 183 Ohio App.3d 757, 2009-Ohio-4389, 918 N.E.2d 1043, at ¶

7. Counsel simply cannot conclude that an appeal is frivolous without first conducting a

detailed review of the case. See Penson at 81-82.

       {¶7}    “Requiring counsel to undertake these steps ensures that counsel, even

when presented with the unique circumstances of a no-error brief, will continue to act

‘in the role of an active advocate in behalf of his client.’ ” Williams, 183 Ohio App.3d

757, 2009-Ohio-4389, 918 N.E.2d 1043, at ¶ 10, quoting Anders, 386 U.S. at 744, 87

S.Ct. 1396, 18 L.Ed.2d 493. Without the active and meaningful assistance of counsel to

review the record, to communicate with his client, and to argue matters preserved in

the record, we are ill-equipped to review any appeal much less one brought under

Anders. See In re Booker, 1st Dist. Hamilton No. C-980214, 1999 Ohio App. LEXIS

3378, *9 (July 23, 1999).

       {¶8}    An appellate court reviewing a no-error brief must first “satisfy itself that

the attorney has provided the client with a diligent and thorough search of the record

for any arguable claim that might support the client’s appeal.” McCoy at 442; see

Penson at 81-82. In this case, a transcript of the guilt-or-innocence phase of the trial

was not filed until eight months after counsel had filed his first of three no-error briefs,

and one day before this matter was submitted for decision. We hold that appointed

counsel has not conducted a conscientious examination of the case–an essential

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                     OHIO FIRST DISTRICT COURT OF APPEALS



prerequisite to concluding that the proceedings in the trial court were free from error–

thus depriving Tsibouris of constitutionally adequate representation on appeal.

        {¶9}   We, therefore, grant counsel’s motion to withdraw.             We appoint

attorney William F. Oswall, Jr., Attorney Registration Number 0080597, to serve as

counsel for Tsibouris. We order him to present a brief on any matter counsel may

discover in a diligent review of the record, or if a conscientious review of the record

reveals that the appeals are wholly frivolous, to prepare a no-error brief made in

conformity with law and this opinion.

        {¶10} We further order new counsel to file a brief on or before September 12,

2013, and counsel for the state to file a responsive brief on or before October 14,

2013.

                                                                   Judgment accordingly.


DINKELACKER and FISCHER, JJ., concur.


Please note:
        The court has recorded its own entry on the date of the release of this opinion.




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