[Cite as State v. Stewart, 2016-Ohio-2979.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                        ERIE COUNTY


State of Ohio                                     Court of Appeals No. E-15-025

        Appellee                                  Trial Court No. 2014-CR-155

v.

Jamale A. Stewart                                 DECISION AND JUDGMENT

        Appellant                                 Decided: May 13, 2016

                                              *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Mary Ann Barylski, Chief Assistant Prosecutor, for appellee.

        Derek A. Farmer, for appellant.

                                              *****

        SINGER, J.

        {¶ 1} Appellant, Jamale Stewart, appeals from the March 26, 2015 judgment of

the Erie County Court of Common Pleas convicting him, following the entry of a guilty

plea to an amended charge of possession of heroin, R.C. 2925.11(A) and (C)(6)(e). This

statute is a felony of the first degree, but the agreement was to reduce the charge to a
felony of the second degree, which is R.C. 2925.11(A) and (C)(6)(d). The court

sentenced appellant to the jointly recommended three years of mandatory imprisonment.

Appellee dismissed two additional counts of the indictment for preparation of heroin for

sale, R.C. 2925.03(A)(2) and 2925.03(C)(6)(f), and tampering with evidence, R.C.

2921.12(A)(1).

       {¶ 2} Several retained counsel represented appellant at trial and filed a notice of

appeal from the judgment of conviction and sentencing on April 27, 2015. However,

current retained counsel entered an appearance as appellant’s counsel on June 10, 2015.

He filed an appellate brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,

18 L.Ed.2d 493 (1967), asserting that there was no arguable appeal except for the one

issue he determined lacked merit and moved to be removed as counsel for appellant.

       {¶ 3} Because current counsel was retained for a presumably non-indigent

appellant, we question whether utilizing the procedure under Anders by retained counsel

is proper or possibly presents other ethical dilemmas not faced by appointed counsel. We

recognize that counsel may be attempting to protect his client.

       {¶ 4} The right to be represented by retained counsel throughout the trial phase

and an appeal as of right is guaranteed under the Sixth Amendment to the United States

Constitution. Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).

The right of an indigent criminal defendant to have court-appointed counsel at state

expense is guaranteed by the Due Process Clause of the Sixth Amendment, made

applicable to the states through the Fourteenth Amendment to the United States




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Constitution. Douglas v. California, 372 U.S. 353, 356, 83 S.Ct. 814, 9 L.Ed.2d 811

(1963). Counsel must be provided for an indigent convicted defendant for an appeal as of

right based on the guarantee of Equal Protection. Id. at 356-357. Indigent appellants are

also entitled to effective assistance of appellate counsel. Evitts at 388-389.

       {¶ 5} All attorneys have an ethical duty to act diligently to advocate for their client.

Prof.Cond.R. 1.3. App.R. 16(A)(7) requires that appellant file a brief with an argument as

to each assignment of error and “with citations to the authorities, statutes, and parts of the

record on which appellant relies.” Attorneys also have an ethical duty to avoid advancing

unsupported assignments of error. Prof.Cond.R. 3.1; State v. Smith, 8th Dist. Cuyahoga

No. 88689, 2007-Ohio-3908, ¶ 14, fn. 1 (applying former DR 7-102(A)(2)).

       {¶ 6} To balance the duty of appointed counsel to diligently advocate for his

indigent client with the duty to avoid pursing frivolous appeals, the United States

Supreme Court adopted a procedure for appointed counsel to withdraw from representing

the appellant if “counsel is convinced, after conscientious investigation, that the appeal is

frivolous. Anders at 740-741; Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 2

L.Ed.2d 1060 (1958). The motion to withdraw must 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




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       withdraw and dismiss the appeal insofar as federal requirements are concerned, or

       proceed to a decision on the merits, if state law so requires. 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. Anders at 744.

       {¶ 7} These requirements accomplish three goals: First, the brief ensures that

appointed “counsel acts in the role of an active advocate in behalf of his client” to a level

substantially equal to the advocacy a non-indigent defendant is able to receive through

retained counsel. Anders at 744-745. Second, the brief “would also induce the court to

pursue all the more vigorously its own review” with “the help of an advocate” to ensure

that the indigent defendant received substantially equal representation to non-indigent

defendants and fair process. Id. at 745. Finally, the brief “would tend to protect counsel

from the constantly increasing charge that he was ineffective and had not handled the

case with that diligence to which an indigent defendant is entitled.” Id.

       {¶ 8} The United States Supreme Court has stated in dicta that when retained

counsel determines “that an appeal would be frivolous, he or she has a duty to advise the

client that it would be a waste of money to prosecute the appeal.” McCoy v. Court of

Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 437, 108 S.Ct. 1895, 100 L.Ed.2d 440

(1988). The court further noted that “no merit” briefs * * * are seldom, if ever, filed by

retained counsel.” Id. at 438.




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       {¶ 9} We note this court requires any attorney, retained or appointed, who has

entered an appearance in this court to seek leave to withdraw by filing a motion to

withdraw pursuant to the requirements of 6th Dist.Loc.App.R. 1(B). Under that rule, the

attorney must show “good cause” to withdraw, “proof of service of the motion to

withdraw upon the client and the name and address of any substitute counsel, or, if none,

the name and address of the client.” Appellant counsel in the case before us has

requested leave to withdraw on grounds of irreconcilable differences with his client.

However, as we have found nothing to prohibit retained counsel from filing a no-merit

brief pursuant to Anders, we will proceed with an examination of the record and

evidence.

       {¶ 10} Appellant’s counsel states in his motion that he thoroughly reviewed the

record in this case and concluded that the trial court did not commit any error prejudicial

to appellant and that an appeal would be frivolous. He further states that appellant has

expressed irreconcilable differences with the attorney. Counsel has, therefore, filed his

motion for leave to withdraw and a no-merit brief in compliance with the requirements of

Anders, setting forth only one potential error.

       {¶ 11} No objection was made at the time of sentencing to the mandatory

sentence. However, appellant’s retained counsel has argued that appellant was not

informed that his sentence could be a mandatory term of three years imprisonment nor of

the meaning of that term mandatory until the time of sentencing. At the time of

sentencing, appellant made a video documentary advising youths to stay crime free with




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the hope that the judge would sentence appellant to the mandatory minimum of two years

or some alternative.

       {¶ 12} R.C. 2925.11(C)(6)(d) requires that the penalty for possession of heroin be

a mandatory prison term equal to that prescribed for a felony of the second degree. The

mandatory minimum prison term for a felony of the second degree is two, three, four,

five, six, seven, or eight years.

       {¶ 13} Appellant signed a plea agreement form on November 6, 2014, which

indicated a minimum prison sentence of two years. The plea agreement set forth the

maximum possible sentence the court could impose, “8 years” of imprisonment, “of

which at least 2 years is mandatory.” Furthermore, on the second page the “Agreed

Recommended Sentence” section indicated that the parties had jointly agreed to

recommend three years imprisonment.

       {¶ 14} Appellant was informed by the court at the plea hearing that the court was

not required to accept the recommended sentence. At that time, the court advised

appellant that “[m]andatory prison, felony of the second degree, begins at two years, and

goes up to eight years, in increments of a year.” Appellant inquired whether the court

could sentence appellant to anything it wanted and the court responded: “[a]ll the way to

eight years and all the way down to two years.”

       {¶ 15} We agree that there is nothing in the plea form which indicates a joint

recommendation of three years of imprisonment would be a mandatory term. However,

the crime for which appellant was charged requires that a mandatory term of




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imprisonment be imposed. Furthermore, appellant was informed at the plea hearing that

the term would be mandatory. Therefore, we find appellant had notice that any agreed

sentence would be a mandatory term.

       {¶ 16} Finally, this court has the obligation to fully examine the record in this case

to determine whether an appeal would be frivolous. Anders, 386 U.S. at 744, 87 S.Ct.

1396, 18 L.Ed.2d 493. Our review of the record does not disclose any errors by the trial

court which would justify a reversal of the judgment. Therefore, we find this appeal to be

wholly frivolous. Counsel’s “potential” assignment of error is found not well-taken.

Counsel’s request to withdraw as appellate counsel is found well-taken and is hereby

granted.

       {¶ 17} Having found that the trial court did not commit error prejudicial to

appellant, the judgment of the Erie County Court of Common Pleas is affirmed. Pursuant

to App.R. 24, appellant is hereby ordered to pay the court costs incurred on appeal. The

clerk is ordered to serve all parties with notice of this decision.


                                                                         Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




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                                                                     State v. Stewart
                                                                     C.A. No. E-15-025




Arlene Singer, J.                             _______________________________
                                                          JUDGE
Stephen A. Yarbrough, J.
                                              _______________________________
James D. Jensen, P.J.                                     JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE


           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.sconet.state.oh.us/rod/newpdf/?source=6.




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