[Cite as State v. Wenner, 2018-Ohio-2590.]




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


State of Ohio                                         Court of Appeals No. S-18-004

        Appellee                                      Trial Court No. 17 CR 497

v.

Dana L. Wenner                                        DECISION AND JUDGMENT

        Appellant                                     Decided: June 29, 2018

                                               *****

        Brett A. Klimkowsky, for appellant.

                                               *****

        SINGER, J.

                                             Introduction

        {¶ 1} Appellant, Dana L. Wenner, appeals the February 1, 2018 judgment of the

Sandusky County Court of Common Pleas, where she was convicted of theft in violation

of R.C. 2913.02(A)(3), a felony of the fifth degree. Appellant’s counsel filed a request to

withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967), on March 26, 2018. For reasons stated below, we discharge counsel and appoint

new counsel to prepare an amended merit brief. Further, we declare that our court will no

longer accept motions to withdraw or briefs filed pursuant to Anders.

                                       Background

       {¶ 2} On May 19, 2017, an indictment was issued against appellant for grand theft

in violation of R.C. 2913.02(A)(3), a felony of the fourth degree.

       {¶ 3} The charge stemmed from appellant repeatedly lying to the victim, Bryan

Hoang, to obtain over $90,000. Specifically, appellant lied about her medical condition

and about needing money to pay her medical expenses, when in reality appellant was

taking the money and gambling it away.

       {¶ 4} On November 29, 2017, appellant entered into a guilty plea to the lesser

included offense of theft in violation of R.C. 2913.02(A)(3), a felony of the fifth degree.

The court proceeded with its Crim.R. 11 colloquy. The court accepted appellant’s plea,

ordered a presentence investigation report, and set the matter for sentencing.

       {¶ 5} On January 29, 2018, the trial court sentenced appellant to 365 days

incarceration, with 180 days suspended, and imposed three years postrelease control.

The sentencing entry was journalized on February 1, 2018, and appellant timely appeals.

                                       Anders Brief

       {¶ 6} The procedure to be followed by appointed counsel who desires to withdraw

for want of a meritorious, appealable issue is set forth in Anders. In Anders, the U.S.

Supreme Court found if counsel, after a conscientious examination of the case,




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determines it to be wholly frivolous, counsel should so advise the court and request

permission to withdraw. Anders at 744. This request must be accompanied by a brief

identifying anything in the record that could arguably support the appeal. Id. In addition,

counsel must furnish the client with a copy of the brief and request to withdraw, and

allow the client sufficient time to raise any matters the client so chooses. Id.

       {¶ 7} The appellate court must conduct a full examination of the proceedings and

decide if the appeal is indeed wholly frivolous. Id. If the appellate court determines the

appeal is frivolous, it may grant counsel’s request to withdraw and dismiss the appeal.

Id.

       {¶ 8} Here, counsel asserted that, after reviewing the record thoroughly, no

nonfrivolous argument or defense in support of appellant could be presented.

Specifically, counsel states that he found “no error by the trial court prejudicial to the

rights of Appellant which may be argued in a nonfrivolous manner on appeal.” Counsel

further states that “for pro forma purposes and to comply with the Ohio Rules of

Professional Conduct,” he requests permission “to withdraw as counsel of record for

Appellant on the basis that the instant appeal is frivolous.” Counsel did not submit any

potential assignment of error, appellant did not submit a pro se brief, and the state did not

file a response brief.

                              Court Examination of Appeal

       {¶ 9} In our role customarily undertaken pursuant to Anders, we will now fully

examine the proceedings to decide if this appeal is indeed wholly frivolous.




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       {¶ 10} Appellant pled guilty to and was convicted under R.C. 2913.02(A)(3),

which provides: “No person, with purpose to deprive the owner of property or services,

shall knowingly obtain or exert control over either the property or services * * * [b]y

deception[.]” This guilty plea limits our review where the trial court proceeded with

sentencing, and because no issue exists with the plea, we proceed with a review of the

sentencing.

       {¶ 11} Our examination of sentencing, and in specific the transcript of the hearing

and the judgment entry, reveals at least one potential assignment of error: did the trial

court fail to comply with R.C. 2929.13(B)(1) when imposing a jail sentence on appellant?

       {¶ 12} “R.C. 2929.13(B)(1)(a) states in pertinent part that if an offender ‘pleads

guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a

qualifying assault offense, the court shall sentence the offender to a community control

sanction of at least one year’s duration’ if certain conditions are met.” See State v. Holt,

2d Dist. Montgomery No. 26031, 2014-Ohio-2204, ¶ 12.

       {¶ 13} The conditions are listed in subsections (i) through (iv) of R.C.

2929.13(B)(1)(a) as follows:

              (i) The offender previously has not been convicted of or pleaded

       guilty to a felony offense.

              (ii) The most serious charge against the offender at the time of

       sentencing is a felony of the fourth or fifth degree.




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              (iii) If the court made a request of the department of rehabilitation

       and correction pursuant to division (B)(1)(c) of this section, the department,

       within the forty-five day period specified in that division, provided the

       court with the names of, contact information for, and program details of one

       or more community control sanctions of at least one year’s duration that are

       available for persons sentenced by the court.

              (iv) The offender previously has not been convicted of or pleaded

       guilty to a misdemeanor offense of violence that the offender committed

       within two years prior to the offense for which sentence is being imposed.

       {¶ 14} Additionally, R.C. 2929.13(B)(1)(b) provides that a trial court only has

discretion to impose a prison term for a felony of the fourth or fifth degree, that is not an

offense of violence, when one of the enumerated exceptions apply. See, e.g., State v.

Missler, 6th Dist. Huron No. H-15-012, 2016-Ohio-3204, ¶ 9 (finding section

(B)(1)(b)(x) applicable because the offender had previously served a prison term).

       {¶ 15} We note that the sentencing entry and record must support the court’s

findings under R.C. 2929.13(B)(1), otherwise the sentence is contrary to law. Id. See

also State v. Freeman, 8th Dist. Cuyahoga No. 103677, 2016-Ohio-3178, ¶ 21.

       {¶ 16} As we have identified a potential assignment of error and “[b]ecause an

Anders brief is not a substitute for an appellate brief on the merits, we must ‘appoint

counsel to pursue the appeal and direct that counsel is to prepare an advocate’s




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Brief * * *’ before we can decide the merit of the issue.” State v. Hopkins, 6th Dist.

Lucas No. L-10-1127, 2011-Ohio-4144, ¶ 11.

                               Prohibition of Anders Briefs

       {¶ 17} Recently, as articulated in In re K.D., 6th Dist. Sandusky No. S-16-008,

2017-Ohio-136, and In re B.H., 6th Dist. Lucas Nos. L-17-1126, L-17-1127, 2018-Ohio-

1238, we prohibited Anders briefs in appeals from “neglect and dependency dispositional

orders granting legal custody of a child to a nonparent” and from “cases involving the

termination of parental rights.” In re B.H. at ¶ 2-3.

       {¶ 18} “Ohio courts have applied the procedures announced in Anders since at

least 1970.” See State v. Upkins, Slip Opinion No. 2018-Ohio-1812, ¶ 18 (Fischer, J.,

dissenting), citing State v. Toney, 23 Ohio App.2d 203, 207, 262 N.E.2d 419 (7th

Dist.1970). Since then, however, the Fourth and Seventh Districts of Ohio have

prohibited Anders briefs from criminal appeals. Id. at ¶ 24.

       {¶ 19} In State v. Wilson, 2017-Ohio-5772, 83 N.E.3d 942 (4th Dist.), the Fourth

District held “that in any criminal appeal as a matter of right, it is no longer an acceptable

practice in this court for counsel to file an Anders no merit brief[.]” Id. at ¶ 16. The

court based its decision on the potential problems Anders briefs present, such as: the

prejudice to the client, the tension between counsel’s duty to the client and the court, the

role reversal between counsel and the court, the removing of the adversarial nature of the

judicial system, the role of advocate being placed on the judiciary, the potential

appearance of impropriety, and the lack of nationwide uniform guidelines. See id. at




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¶ 10-22. See also Upkins at ¶ 10-30. The Wilson holding and rationale were adopted by

the Seventh District in State v. Cruz-Ramos, 7th Dist. Mahoning No. 17 MA 0077, 2018-

Ohio-1583, ¶ 14-17.

       {¶ 20} Emphasizing each potential problem stated above is a legitimate concern,

we are particularly concerned with the inherent prejudice to the client when appellate

counsel identifies no nonfrivolous issue on appeal in an effort to comply with

Prof.Cond.R. 3.1, despite counsel’s ultimate duty to advocate for her client. See

Prof.Cond. Preamble: A lawyer’s responsibilities (“As advocate, a lawyer asserts the

client’s position under the rules of the adversary system.”). Particularly troublesome is

that counsel then posits potential assignments of error while arguing why the potential

errors are frivolous, a role properly assigned to appellee. Such a schizophrenic approach

not only confuses the client and leads to distrust of the justice system, but also could

result in a miscarriage of justice because in reality it invites perfunctory review by the

court. See also Mosley v. State, 908 N.E.2d 599, 608 (Ind.2009) (“An Anders withdrawal

prejudices an appellant and compromises his appeal by flagging the case as without

merit, which invites perfunctory review by the court.”).

       {¶ 21} Additionally, we find Anders briefs provide a “less-than-effective” and

less-than-efficient method to determine if there are meritorious defenses. See Upkins,

2018-Ohio-1812, at ¶ 9; See also Mosley (“Prohibiting Anders withdrawals may also

force counsel to be more diligent and locate meritorious issues in a seemingly empty

record.”). In this case, for instance, appellant’s counsel filed an Anders brief pointing to




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no potential assignment of error; despite our finding otherwise. Perhaps counsel should

focus diligently on locating meritorious issues.

                                       What is Frivolous?

          {¶ 22} What constitutes a frivolous assignment of error? This requires referencing

Prof.Cond.R. 3.1, infra. This rule and its three comments address an Ohio lawyer’s

obligations with respect to “meritorious claims and contentions.” The ethical guidelines

therein, with respect to criminal defense, can be summarized as follows.

          {¶ 23} A criminal defense attorney must proceed with a basis in law (procedural

and substantive) and fact. Whether the attorney believes the client has a meritorious

defense or not is irrelevant, because the attorney must use the legal process for her

client’s benefit and, at a minimum, may defend as to require every element of the crime

proven beyond a reasonable doubt. So long as no abuse of the process occurs, all that is

required is a good faith argument for an extension, modification, or reversal of law, and

this is in light of the fact that the law is often ambiguous, in need of change, and never

static.

          {¶ 24} Prof.Cond.R. 3.1, comment 3, further adds:

                 [3] The lawyer’s obligations under this rule are subordinate to

          federal or state constitutional law that entitles a defendant in a criminal

          matter to the assistance of counsel in presenting a claim or contention that

          otherwise would be prohibited by this rule.




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See Mosley, 908 N.E.2d at 608 (using similarly worded “Ind. Professional Conduct Rule

3.1 cmt.” and the Indiana oath of attorneys to support the prohibition of Anders briefs in

criminal appeals).

       {¶ 25} We find this rule, and in particular comment 3, eliminates any ethical

concerns counsel may have when advocating as a defense attorney and asserting the

client’s position under the rules of the adversary system. Even without comment 3’s

protective language added to the rule, we find a lawyer has substantial room to argue in

defense of her client. This is especially on appeal where the entire record is available to

be scrutinized for error.

       {¶ 26} Initially, and because an attorney may require proof of the elements of a

crime, we find there may be legal sufficiency and manifest weight of the evidence

arguments to be made on appeal. See Prof.Cond.R. 3.1 (“A lawyer for the defendant in a

criminal proceeding * * * may nevertheless so defend the proceeding as to require that

every element of the case be established.”); State v. Hall, 8th Dist. Cuyahoga No.

103760, 2016-Ohio-4962, ¶ 15 (Gallagher, P.J. concurring) (“I am concerned that the

nature of a criminal manifest weight challenge, including arguments relating to the

assessment of witness credibility and the weight to be given to testimony, are

nonfrivolous legal points that are inherently ‘arguable on their merits.’”); State v. Cigic,

639 A.2d 251, 253 (1994) (“Provided that appellate counsel has a good faith basis for

doing so, it would also not be frivolous, for example, to challenge the sufficiency of the

evidence used to convict the defendant.”).




9.
       {¶ 27} Moreover, and even where a no-contest or guilty plea is entered into, there

may be potential errors related to the defendant’s plea. See, e.g., State v. Gilbert, 2018-

Ohio-879, 96 N.E.3d 360 (6th Dist.) (finding plea involuntary and invalid despite

counsel’s filing of Anders brief arguing no colorable argument existed).

       {¶ 28} And as a final resort, an attorney can point to the sentencing of her client to

argue an error may have occurred there. See, e.g., State v. Jones, 6th Dist. Sandusky No.

S-16-040, 2018-Ohio-2033 (finding sentence contrary to law based on two meritorious

defenses, despite counsel filing of Anders brief). This allows for general policy

arguments to be made, including the application of punishment theories highlighted in

Ohio’s sentencing scheme. See R.C. 2929.11 and 2929.12 (recidivism and seriousness

factors); see also Mosley, 908 N.E.2d at 608 (“And in those few cases that offer no

colorable argument of trial court error whatsoever, counsel may still be able to solicit a

sentence revision[.]”). We stress that the eventual outcome of the appeal does not matter.

       {¶ 29} Overall, and in consideration of comment 3 and the preclusive effect of res

judicata, we find an attorney should rarely if ever concede that no nonfrivolous argument

can be presented on direct appeal. This position is adopted in light of the fact that “[t]he

Anders procedure is a constitutional floor and not a constitutional ceiling” and, therefore,

its prohibition is consistent with the U.S. (and Ohio) Constitution because “states may

impose greater duties on a defendant’s attorney but may not allow counsel to fall short of

this level of duty.” See Upkins, 2018-Ohio-1812, at ¶ 9. Accordingly, as our sister




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districts in Wilson and Cruz-Ramos, we expand our prohibition of Anders briefs to

criminal appeals.

                                        Conclusion

       {¶ 30} Appointed counsel’s motion to withdraw is granted, and we appoint

Emil G. Gravelle, III, 709 Madison Avenue, Suite 216, Toledo, Ohio 43604, as appellate

counsel in this matter, and direct him to prepare an appellate brief discussing the arguable

issue identified in this decision, and any additional potential errors, within 30 days of the

date of this decision and judgment. The remaining briefing schedule shall proceed in

accordance with App.R. 18. The clerk is ordered to serve by regular mail all parties,

including Dana L. Wenner, with notice of this decision.


                                                                             Motion granted.




Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
James D. Jensen, 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.supremecourt.ohio.gov/ROD/docs/.




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