[Cite as State v. Taylor, 2015-Ohio-420.]


                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA



                                   JOURNAL ENTRY AND OPINION
                                           No. 101368



                                            STATE OF OHIO


                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                            MOSES TAYLOR

                                                       DEFENDANT-APPELLANT




                                           JUDGMENT:
                                     AFFIRMED AND REMANDED



                                       Criminal Appeal from the
                                Cuyahoga County Court of Common Pleas
                                      Case No. CR-14-582517-A

        BEFORE: Stewart, J., E.A. Gallagher, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                 February 5, 2015
ATTORNEY FOR APPELLANT

Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, OH 44114


ATTORNEY FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} Defendant-appellant Moses Taylor pleaded guilty to three counts of burglary and

one count of breaking and entering. The court sentenced Taylor to concurrent one-year prison

terms on each of the burglary counts, and two years of community control on the breaking and

entering count, to be served consecutively to the burglary counts and to the sentence imposed in

an unrelated case, Cuyahoga C.P. No. CR-13-579213. The court appointed new counsel for

purposes of appeal. Appellate counsel seeks permission to withdraw from the case pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), on grounds that

Taylor can raise no non-frivolous issues on appeal. We offered Taylor the opportunity to file a

merit brief, but he did not do so. Counsel’s Anders brief lists one arguable issue for appeal:

that the court erred because it did not sufficiently articulate why it imposed consecutive

sentences.

       {¶2}    Before addressing the merits of the motion to withdraw as counsel, we think it

provident to address the duties of defense counsel when filing an Anders brief and those of the

court of appeals when ruling on motions to withdraw as counsel on grounds that an appeal would

be frivolous. The Ohio Supreme Court has not addressed either of these issues, and because

there are differences in the manner in which appellate courts review motions to withdraw as

counsel, we believe some discussion is warranted.

       {¶3} Although there is no constitutional right to appeal a criminal conviction, McKane v.

Durston, 153 U.S. 684, 687, 14 S.Ct., 913, 38 L.Ed. 867 (1894), R.C. 2953.02 establishes that

“the judgment or final order of a court of record inferior to the court of appeals may be reviewed

in the court of appeals.” With there being a statutory right to appeal a criminal conviction, the

Fourteenth Amendment to the United States Constitution guarantees the right to assistance of
counsel on appeal. Douglas v. California, 372 U.S. 353, 357-358, 83 S.Ct. 814, 9 L.Ed.2d 811

(1963). Thus, the state must appoint appellate counsel to an indigent person to afford him the

same protections that a non-indigent person would have. Id.

       {¶4} A defendant’s right to appeal, however, does not include the right to a frivolous

appeal. Penson v. Ohio, 488 U.S. 75, 83-84, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). While a

lawyer has a duty to act with “reasonable diligence” in representing a client, Prof.Cond.R. 1.3

(emphasis sic),

       [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. In addition to ethical considerations for all lawyers, public defenders are

barred by statute from prosecuting any appeal “unless the county public defender is first satisfied

there is arguable merit to the proceeding.” R.C. 120.16(D); see also R.C. 120.06(B) (relating to

the state public defender).

       {¶5} The United States Supreme Court has acknowledged the dilemma posed by a

lawyer’s obligation to represent a client with reasonable diligence yet not bring frivolous actions,

noting that “‘an attorney confronted with the Anders situation has to do something that the Code

of Professional Responsibility describes as unethical; the only choice is as to which canon he or

she prefers to violate.’” Smith v. Robbins,     528 U.S. 259, 281, 120 S.Ct. 746, 145 L.Ed.2d

756, (2000), fn. 11, quoting Pengilly, Never Cry Anders: The Ethical Dilemma of Counsel

Appointed to Pursue a Frivolous Criminal Appeal, 9 Crim. Justice J. 45, 64 (1986).

       {¶6} Seeking to define the line between a right to appeal and appeals that are frivolous,

Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, sets forth a procedure for ensuring that an
indigent defendant’s right to counsel on appeal is honored when his attorney asserts that the

appeal is without merit. As currently explained by the United States Supreme Court, if an

appointed attorney concludes that the client’s appeal is wholly frivolous, the attorney must (1) so

inform the court, (2) seek permission to withdraw, and (3) file a brief “‘referring to anything in

the record that might arguably support the appeal.’” McCoy v. Court of Appeals of Wisconsin,

486 U.S. 429, 437-439, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988) (quoting Anders at 744). An

appeal is frivolous if it has no basis in law or fact. Id. at fn.10.

       {¶7} Anders is “prophylactic” in nature, and states are free to adopt different procedures

as long as the indigent person’s right to appellate counsel is adequately safeguarded. Smith at

265. Although Ohio courts have adopted Anders and its use of the “no-merit” brief, there is no

defined procedure in Ohio for what the brief must contain, at least not by rule or precedent

established by the Supreme Court of Ohio. As a result, we have seen widely varying briefs of

counsel who seek to withdraw: we note anecdotally that some Anders briefs claim to be unable to

identify any potential issues for appeal; others simply list a potential argument but fail to explain

why the argument, if raised, would be frivolous; and still others set forth an arguable issue for

review and then explain why that argument would be frivolous.

       {¶8} We believe it self-evident that any motion to withdraw as counsel on grounds that an

appeal is wholly frivolous must contain a discussion of why the appeal is frivolous. At all

times, an Anders brief is to support a motion to withdraw as counsel and, like any other movant,

counsel, in these circumstances bears the burden of showing why the motion should be granted.

The mere representation that an appeal is frivolous is nothing more than a conclusion that does

not carry the burden of showing why the motion to withdraw as counsel should be granted. To
allow counsel to do nothing more than list potential assignments of error begs the question of

why those potential assigned errors are frivolous.

       {¶9} It is for this reason that a conforming Anders brief must refer “to anything in the

record that might arguably support the appeal[.]” McCoy, 486 U.S. 429, 108 S.Ct. 1895, 100

L.Ed.2d 440, supra.    This is the only way in which counsel can show that any argument raised

on appeal would lack any basis in law or fact. We therefore find that a complying Anders brief

must not only state any potential assignments of error that the particular type of case might be

expected to involve, it must include a discussion citing relevant law and facts showing why those

potential assignments are frivolous. To hold otherwise would be to disregard the fundamental

proposition that an Anders brief is like any other brief that must conform in all respects to App.R.

16, and in particular, App.R. 16(A)(7) that requires an argument with citation to the record and

controlling legal authority.

       {¶10} Next, we consider what appellate courts should do in cases where counsel files a

non-complying Anders brief. We recognize that once counsel has represented that a client’s

appeal is frivolous, the client might very reasonably lose confidence in counsel and request that a

new lawyer be appointed. The basis for this view would be that Anders’s “guarantee of equal

and effective counsel has created a fundamental conflict between compliance with the

Constitution’s requirements and appointed counsel’s ethical obligations.” State v. Clark, 196

Ariz. 530, 2 P.3d 89 (App. 1999), ¶ 25. Clark also notes:

       Simply stated, if counsel has concluded that the appeal is “wholly frivolous,”
       counsel has also necessarily concluded that nothing in the record exists that might
       “arguably support” the appeal. If counsel must file a brief after determining that
       the appeal has no merit, that brief may ultimately be a brief against the client.
       By filing a “no-merit” brief, counsel is put in the uncomfortable, possibly
       unethical position of arguing against the client’s interests.
Id.

        {¶11} Despite this concern, we do not believe that a defendant is entitled to the

immediate withdrawal of counsel and appointment of new counsel on the mere assertion that an

appeal would be frivolous. Criminal defendants are entitled only to competent counsel, not the

counsel of their choice.     See Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100

L.Ed.2d 140 (1988). Appellate counsel not only has an obligation to the client, but to the court

as well. Those obligations can coexist when counsel adheres to the procedures outlined in

Anders.

        {¶12} In cases of de minimis compliance or non-compliance with the standards for

Anders briefs, counsel will be ordered to file a conforming brief. But in egregious cases of

non-compliance — cases where counsel completely fails to conform to App.R. 16(A)(7), we will

remove counsel and appoint new counsel instead.1

        {¶13} Having explained what we expect from an Anders brief, we next consider the

appellate court’s obligations in reviewing a motion to withdraw as counsel on grounds that an

appeal would be frivolous.

        {¶14} In general, Ohio appellate courts faced with a motion to withdraw as appellate

counsel on grounds that an appeal is frivolous must “fully examine the proceedings in the trial

court, the brief of appointed counsel, the arguments pro se of the indigent, and then determine

whether or not the appeal is wholly frivolous.” State v. Toney, 23 Ohio App.2d 203, 208, 262

N.E.2d 419 (7th Dist.1970).




        1
         Although not required, individual panels may wish to consider whether egregious non-conformance in a
motion to withdraw as counsel, as supported by an Anders brief, merits sanctions under Loc.App.R. 23(A).
       {¶15} Exactly how the appellate court should determine whether an appeal is “wholly

frivolous” has never been clearly stated. On one extreme, an appellate court could take the

motion to withdraw at face value, but that process would violate the express terms of Anders that

require the appellate court to determine whether any of the potential assignments of error are

“arguable on their merits.” Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493.

       {¶16} The other extreme is for the appellate court to undertake a completely independent

examination of the record to determine whether there might be colorable issues on appeal. This

approach has been criticized as “overkill” that makes the appellate court de facto appellate

counsel for the defendant. As one court has stated:

       The opposite extreme would be for us to comb the record even where the Anders
       brief appeared to be perfectly adequate, searching for possible nonfrivolous issues
       that both the lawyer and his client may have overlooked and, if we find them,
       appointing a new lawyer and flagging the issues we’ve found for him. We have
       done this on occasion, but have now concluded that it is not a sound practice. It
       makes this court the defendant’s lawyer to identify the issues that he should be
       appealing on and to hire another member of the bar to argue the issues that we
       have identified. The defendant ends up in effect with not one appellate counsel
       but (if he is lucky) six — his original lawyer, who filed the Anders brief; our law
       clerk or staff attorney who scours the record for issues that the lawyer may have
       overlooked; a panel of this court that on the advice of the law clerk or staff
       attorney denies the Anders motion and appoints another lawyer for the appellant;
       the new lawyer. This is overkill, this six-lawyer representation of criminal
       defendants that we have described and today renounce; it gives the indigent
       defendant more than he could expect had counsel (whether retained or appointed)
       decided to press the appeal, since counsel’s decision on which issues to raise on
       appeal would normally be conclusive.

 (Citations omitted.) United States v. Wagner, 103 F.3d 551, 552 (7th Cir. 1996).

       {¶17} In addition to being “overkill,” this approach — the appellate court conducting its

own independent review of the record for possible error — is beyond what Anders actually

requires. Anders states:
       The constitutional requirement of substantial equality and fair process can only be
       attained where counsel acts in the role of an active advocate in behalf of his client,
       as opposed to that of amicus curiae. The no-merit letter and the procedure it
       triggers do not reach that dignity. Counsel should, and can with honor and
       without conflict, be of more assistance to his client and to the court. His role as
       advocate requires that he support his client’s appeal to the best of his ability. Of
       course, if 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
       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.
       (Emphasis added.)

Anders, 386 U.S. at 744

       {¶18} We have emphasized the words “any points” and “legal points” in the quoted text

to show that the “independent review” required by Anders is (in addition to a review of counsel’s

proposed assignment of error) a review of the “points” raised by the appellant in a pro se brief

filed in response to appellate counsel’s motion to withdraw.           This conclusion is further

supported by the Supreme Court’s directive that if an appellate court finds any of the legal points

raised by the appellant to have arguable merit, the court must afford the appellant assistance of

counsel to argue the appeal.

       {¶19} Loc.App.R. 16(C) of the Eighth District Court of Appeals states:

       Anders Brief with Motion to Withdraw as Counsel. If appellant’s counsel in a
       criminal appeal files a no merit brief pursuant to Anders v. California, 386 U.S.
       738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel shall also file a separate
       motion requesting leave to withdraw in compliance with Loc.App.R. 44(B).
       Counsel shall serve both a copy of the motion to withdraw and the Anders brief
       upon appellant as well as any further court orders that are issued in the appeal
       unless and until the motion to withdraw is granted.
       Upon the filing of an Anders brief, the court will either grant appellant leave to
       file a pro se brief and assignment of error that comports with the appellate rules
       and local appellate rules within 45 days or, in its discretion, the court may assign
       new counsel. The order will also inform appellant that the court will
       independently examine the record regardless of whether such a brief is filed.

       If the appellant files a pro se brief, the appellee may respond and the appellant

       may reply as provided by the appellate rules and local appellate rules.       Once

       briefing is complete, or the 45-day period for filing a pro se brief has lapsed

       without a brief being filed, the appeal and the motion to withdraw will be assigned

       to a merit panel for review. The panel will conduct an independent examination

       of the record to determine if it discloses an issue of arguable merit prejudicial to

       the appellant.   The appeal will be considered submitted on the briefs unless the

       court sua sponte sets an oral argument date.

       {¶20} Our directive to conduct an independent examination of the record should be read

consistent with language from the Supreme Court that the independent review applies only to the

issues or points raised by either the Anders brief or the pro se brief. In McCoy, the Supreme

Court stated:

       In Anders we held that a motion to withdraw must be accompanied by “a brief
       referring to anything in the record that might arguably support the appeal.” 386
       U.S. at 744. That requirement was designed to provide the appellate courts with
       a basis for determining whether appointed counsel have fully performed their duty
       to support their clients’ appeals to the best of their ability. The Anders
       requirement assures that indigent defendants have the benefit of what wealthy
       defendants are able to acquire by purchase — a diligent and thorough review of
       the record and an identification of any arguable issues revealed by that review.
       Thus, the Anders brief assists the court in making the critical determination
       whether the appeal is indeed so frivolous that counsel should be permitted to
       withdraw. (Footnotes omitted.)

McCoy, 486 U.S. at 439.
       {¶21} It is counsel’s duty to file an Anders brief referring to “anything in the record that

might arguably support the appeal.” Our duty to examine the record is undertaken in the

context of the Anders brief or a pro se brief filed in response to the motion to withdraw. The

Supreme Court made it clear that one of the purposes of the Anders brief is to “induce the court

to pursue all the more vigorously its own review because of the ready references not only to the

record, but also to the legal authorities as furnished it by counsel.” Anders at 745.

       {¶22} When we review an Anders brief to determine whether a potential issue has

“arguable merit,” we do so understanding that the word “arguable” describes the word “merit.”

Any issue can be “argued”: this is not the same as saying that an issue is arguably “meritorious.”

       {¶23} In the case presently before us, before accepting Taylor’s guilty plea, the court

informed him that “I may decide personally, after hearing all of the information, decide to run

[the counts] concurrently, I may decide to run them consecutively, or stacking them, one on top

of the other[.]” After finding Taylor guilty, the court ordered him to serve concurrent, 12-month

prison terms on the burglary counts. It ordered Taylor to serve two years of community control

on the breaking and entering count, consecutive to the burglary counts and consecutive to the

sentence imposed in another case in which Taylor pleaded guilty, CR-13-579213.

       {¶24} Counsel lists as a possible assignment of error that “the trial court erred when it

failed to reasonably make statutorily necessitated findings before imposing consecutive

sentences.”

       {¶25} We have reviewed the sentencing transcript and conclude that the potential

assignment of error relating to consecutive offenses has no merit because the court made the

findings required by R.C. 2929.14(C)(4). In addition, we conclude that the record supports the

court’s findings. So we agree with counsel that the potential assignment of error would be
frivolous. We note, however, that the trial court’s findings are not included in the sentencing

entry.   Because this error is clerical, having no impact on the merits of Taylor’s appeal, we grant

counsel’s motion to withdraw, but remand the case to the trial court to incorporate the findings

for consecutive sentences in the sentencing entry, nunc pro tunc. State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3117, 16 N.E.3d 659, ¶ 29.

         {¶26} Affirmed and remanded.

         It is ordered that appellant and appellee share the costs herein taxed.

         The court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution. Case remanded to the trial court for correction of

the journal entry, nunc pro tunc.

         A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



________________________________________
MELODY J. STEWART, JUDGE

EILEEN A. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
