         [Cite as State v. Jackson, 2014-Ohio-613.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :       APPEAL NO. C-130240
                                                              TRIAL NO. B-1004540
        Plaintiff-Appellee,                           :

  vs.                                                 :           O P I N I O N.

STEVEN JACKSON,                                       :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is:                 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: February 21, 2014


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

Michaela M. Stagnaro, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




D E W INE , Judge.

        {¶1}    This appeal presents a threshold question of whether we should extend

the procedure set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d

493 (1967), to appeals from civil orders of involuntary commitment. We decline to do

so.

        {¶2}    Appointed counsel in this case has filed an “Anders no-error brief” in

which she states that she is unable to find any error that would entitle her client to relief,

requests that this court independently review the record, and moves for permission to

withdraw. We recently held that no-error briefs were not appropriate in the context of

permanent-child-custody appeals, and we reach a similar conclusion here. See In re

J.M., 1st Dist. Hamilton No. C-130643, 2013-Ohio-5896. The Anders decision by its

terms only applies to criminal appeals, and our local rules likewise limit Anders briefs to

criminal cases. Further, we have serious concerns about the effectiveness of the Anders

procedure, and are reluctant to extend this procedure to other contexts. We, therefore,

grant counsel’s motion to withdraw, and appoint new counsel to argue the merits of the

case.

                                              I.

        {¶3}    Steven Jackson was charged with escape for leaving the Volunteers of

America halfway-house program without permission in July 2010. He entered an

insanity plea, and following a bench trial the court found him not guilty by reason of

insanity (“NGRI”). As required by R.C. 2945.40, the court held a hearing within ten

days to determine whether Mr. Jackson was a mentally ill person subject to

hospitalization. The court found Mr. Jackson to be subject to hospitalization and

ordered his commitment to Summit Behavioral Healthcare Center (“Summit”).




                                              2
                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}    R.C. 2945.401 governs the continuing jurisdiction of the trial court over

a person committed following an incompetency finding or NGRI acquittal. This section

requires the court to conduct a review hearing six months after the commitment order,

and then every two years following the initial review. R.C. 2945.401(C). Additionally,

the subject may request a hearing on the conditions of the confinement as frequently

as every six months. Id. A committed person is entitled at every hearing to be

represented by counsel, to have an evaluation conducted by an independent expert,

to present evidence and cross-examine witnesses, and to testify or remain silent. See

R.C. 2945.40(C).

       {¶5}    The court held a hearing to review Mr. Jackson’s commitment in April

2013. Counsel for the state and for Mr. Jackson stipulated to the report submitted by

Summit, and, based on the recommendations in the report, the court determined that

Mr. Jackson remained a mentally ill person subject to hospitalization and ordered his

continued commitment. Mr. Jackson notified the court of his desire to appeal the

decision, and the court appointed counsel to represent Mr. Jackson on appeal.

       {¶6}    Counsel for Mr. Jackson has filed an Anders brief, certifying that she can

find no meritorious issues to argue on appeal and asking this court to conduct an

independent review of the record. Counsel also has moved for permission to withdraw

from representation.

                                          II.

       {¶7}    In J.M., we concluded that the Anders procedure was not appropriate

in civil appeals from orders terminating parental rights. We noted, in part, that the

Anders decision addressed only counsel’s duties to assist indigent clients appealing a

criminal conviction and that our local appellate rules limit no-error briefs to criminal

appeals. See J.M., 1st Dist. Hamilton No. C-130643, 2013-Ohio-5896 at ¶ 12; 1st Dist.



                                           3
                    OHIO FIRST DISTRICT COURT OF APPEALS



Loc.R. 16.2. In light of our holding in J.M., we now consider whether to extend Anders

into the realm of involuntary commitments.

       {¶8}    We find no Ohio cases permitting the use of the Anders procedure in

involuntary-commitment appeals, nor do we find any Ohio cases discussing the

appropriateness of extending the procedure to such cases. The few states outside of

Ohio to have considered the issue are divided.        States that have applied the

procedure to involuntary-commitment cases emphasize the comparable restraints on

physical liberty resulting from civil commitment and criminal incarceration, as well

as the need to ensure that indigent appellants are placed on equal footing with those

who have the ability to retain private counsel. See Pullen v. State, 802 So.2d 1113

(Fla.2001); In re McCoy, 360 S.C. 425, 602 S.E.2d 58 (2004); In re Rules of the

Supreme Court and Court of Appeals, 2009 Ark. 449 (2009); In re McQueen, 145

Ill.App.3d 148, 495 N.E.2d 128 (1986); State ex rel. L.E.H., 228 S.W.3d 219

(Tex.App.2007).    Those declining to extend Anders to involuntary-commitment

appeals emphasize the civil nature of such proceedings and conclude that the Anders

procedure does not reduce the likelihood of erroneous deprivations of liberty. See

Conservatorship of Ben C., 40 Cal.4th 529, 53 Cal.Rptr.3d 856, 150 P.3d 738 (2007);

In re Leon G., 200 Ariz. 298, 26 P.3d 481 (2001); In re Richard A., 146 N.H. 295, 771

A.2d 572 (2001).

       {¶9}    The Ohio Supreme Court has made clear that involuntary-

commitment proceedings are civil in nature. See State v. Williams, 126 Ohio St.3d

65, 2010-Ohio-2453, 930 N.E.2d 770, ¶ 37 (incompetency commitments under R.C.

2945.39 and recommitments under R.C. 2945.401 are civil in nature); see also State

v. Tuomala, 104 Ohio St.3d 93, 2004-Ohio-6239, 818 N.E.2d 272, ¶ 16 (a

determination under R.C. 2945.40 that a criminal defendant was insane at the time



                                          4
                       OHIO FIRST DISTRICT COURT OF APPEALS



of the alleged acts is an acquittal, not a conviction). Thus, while Mr. Jackson’s

involvement with the court was initiated by a criminal indictment, this ceased to be a

criminal matter once he was acquitted of the charges by reason of insanity.

          {¶10}   The Anders decision was aimed at safeguarding an indigent criminal

defendant’s constitutional right to appellate counsel, a right derived from the

convergence of a criminal defendant’s Sixth Amendment right to the assistance of

counsel and the Fourteenth Amendment’s guarantees of due process and equal

protection in criminal appeals. Smith v. Robbins, 528 U.S. 259, 264, 276-278, 120

S.Ct. 746, 145 L.Ed.2d 756 (2000). Unlike in cases of criminal incarceration, the

constitutional right to counsel in civil commitment proceedings originates solely

from the due process clause. In re Fisher, 39 Ohio St.2d 71, 82, 313 N.E.2d 851

(1974).    While we recognize the significant interests at stake where a person is

involuntarily subjected to restraints on his physical liberty, we have been told that

civilly-committed persons “need not be afforded the constitutional rights afforded to

a defendant in a criminal prosecution.” Williams at ¶ 37.

          {¶11}   Also important to our analysis are our increasing doubts about the

efficacy of the Anders procedures.        We have commented previously on the

“ ‘consistent and severe criticism’ ” Anders has received since its inception. J.M., 1st

Dist. Hamilton No. C-130643, 2013-Ohio-5896 at ¶ 13, quoting Robbins at 281.

Commentators contend, among other things, that the procedure permits counsel to

neglect his duty to provide zealous representation and creates inconsistent levels of

appellate review. J.M. at ¶ 13-14. We find these criticisms to have some merit. In

view of our concerns, we have concluded that it is “far more beneficial” to both the

court and the client for counsel to present arguments in support of his client’s cause.

Id. at ¶ 16.



                                           5
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶12}   Because of the civil nature of involuntary commitments and our

doubts about the effectiveness of the Anders procedure, we think it unwise to extend

Anders into this realm. Therefore, we hold that Anders is not applicable to appeals

from involuntary-commitment orders.

       {¶13}   Going forward, we reemphasize the distinction between frivolous

arguments and those that are merely nonmeritorious. J.M. at ¶ 17. And we note that

an attorney will fulfill his obligations to his client and the court “where he does not

deceive the court on matters of fact and law, and where he makes a good-faith

argument on behalf of his client, regardless of the ultimate unpersuasiveness of that

argument.” Id. at ¶ 18. We trust that appellate attorneys will be able to make good-

faith arguments on behalf of their clients. For example, counsel might challenge the

weight of the evidence or the effectiveness of counsel below. Moreover, counsel must

ensure that the trial court has adhered to its statutory duties, such as the obligations

to notify a subject of his rights under R.C. 2945.40(C) and to conduct hearings within

the mandated timeframes. The role of appellate counsel undeniably contemplates

more than just making successful arguments on appeal, and where counsel truly

cannot fathom any arguable issue, counsel “may still fulfill his role as an advocate

[by] ensuring that his client’s arguments are heard by the court and assisting his

client in navigating the appellate process.” Id.

                                          III.

       {¶14}   We decline to conduct Anders review in civil-commitment appeals.

We grant appellate counsel’s motion to withdraw, and appoint attorney William R.

Gallagher, Attorney Registration No. 0064683, to represent Mr. Jackson in his

appeal. We further order new counsel to file a brief on the merits on or before March




                                           6
                     OHIO FIRST DISTRICT COURT OF APPEALS



31, 2014, or otherwise dismiss the appeal, and counsel for the state to file a

responsive brief on or before April 30, 2014.

                                                               Judgment accordingly.


C UNNINGHAM , P.J., and H ILDEBRANDT , J., concur.


Please note:

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




                                          7
