[Cite as State v. Cruz-Ramos, 2018-Ohio-1583.]




             IN THE COURT OF APPEALS OF OHIO
                            SEVENTH APPELLATE DISTRICT
                                MAHONING COUNTY

                                         STATE OF OHIO,

                                          Plaintiff-Appellee,

                                                  v.

                                    LUIS R. CRUZ-RAMOS,

                                        Defendant-Appellant.


                       OPINION AND JUDGMENT ENTRY
                                        Case No. 17 MA 0077


                              Motion to Withdraw (Anders/Toney)

                                         BEFORE:
                  Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


                                       JUDGMENT:
               Motion to withdraw sustained and new counsel to be appointed.


Assistant Prosecutor Ralph M. Rivera, 21 West Boardman Street, Youngstown, Ohio
44503-1426, for Plaintiff-Appellee and

Atty. Andrew R. Zellers, 3810 Starrs Centre Drive, Canfield, Ohio 44406, for Defendant-
Appellant.

                                RELEASED AND JOURNALIZED:
                                       April 23, 2018
Case No. 17 MA 0077                                                                      –2–


PER CURIAM.

       {¶1}   Appellant has appealed his conviction and sentence in the Mahoning
County Court of Common Pleas arising from a guilty plea to felonious assault, failure to
comply with an order or signal of a police officer, resisting arrest, and having weapons
while under a disability.    All the charges were felonies, and firearm specifications
attached to many of the charges. Appellant was sentenced to an aggregate sentence of
twenty and one-half years in prison. We appointed counsel to represent Appellant on
appeal. Counsel filed a no merit brief and a motion to withdraw as counsel pursuant to
State v. Toney, 23 Ohio App.2d 203, 262 N.Ed.2d 419 (1970) and Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).             We filed a judgment entry
granting Appellant thirty days to file any additional assignments of error and that time
has expired. Counsel's motion to withdraw is now ready for review.
       {¶2}   Under Anders, if counsel reviews the record and determines that the case
is frivolous, counsel should then file a "brief referring to anything in the record that might
arguably support the appeal.” Anders at 744.          Counsel should supply the indigent
criminal defendant with a copy of the brief, and the defendant should be given an
opportunity to raise additional issues before the motion to withdraw is heard. The court
then reviews the motion, the Anders brief, the entire record, and any points raised by
the defendant, to determine if any arguably meritorious issues exist. If the court, in its
independent review, determines that a possible issue exists, it must discharge current
counsel and appoint new counsel to prosecute the appeal. If the appeal is wholly
frivolous, the court will sustain the motion to withdraw and dismiss the appeal, or issue a
decision in accordance with state law. Id.
       {¶3}   This case provides us with an opportunity to reexamine the ethical and
constitutional obligations appointed appellate counsel has to an indigent criminal
defendant when counsel believes there are no meritorious grounds for an appeal, and
the scope of our duty to independently examine the record for any issues containing
arguable merit.
       {¶4}   First, we agree with the Fourth District Court of Appeals that the Anders
procedure is an alternative, not a constitutional mandate. State v. Wilson, 4th Dist. No.
16CA12, 2017-Ohio-5772, 83 N.E.3d 942, ¶ 9.
Case No. 17 MA 0077                                                                   –3–


       {¶5}   According to the United State Supreme Court:
       [T]he Anders procedure is not “an independent constitutional
       command,” but rather is just “a prophylactic framework” that we
       established to vindicate the constitutional right to appellate counsel
       announced in Douglas [v. California, 372 U.S. 353, 83 S.Ct. 814, 9
       L.Ed.2d 811 (1963)]. We did not say that our Anders procedure was
       the only prophylactic framework that could adequately vindicate this
       right; instead, by making clear that the Constitution itself does not
       compel the Anders procedure, we suggested otherwise. Similarly, in
       Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988),
       we described Anders as simply erecting “safeguards.” (Citations
       omitted.)
Smith v. Robbins, 528 U.S. 259, 273, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).
       {¶6}   Because the Anders procedure is not a constitutional mandate, we are
able to craft alternate procedures that fulfill the purpose of Anders. Id. at 276.
       {¶7}   Many courts have identified problems with the Anders procedure. Id. at
281. For example, when counsel files a motion to withdraw because counsel believes
the appeal is frivolous, it may prejudice the client. “An Anders withdrawal prejudices an
appellant and compromises his appeal by flagging the case as without merit, which
invites perfunctory review by the court.” Mosley v. State, 908 N.E.2d 599, 608 (Ind.
2009); see also State v. Cigic, 138 N.H. 313, 315, 639 A.2d 251, 252 (1994);
Commonwealth v. Moffett, 383 Mass. 201, 206, 418 N.E.2d 585, 590 (1981); State v.
McKenney, 98 Idaho 551, 552, 568 P.2d 1213, 1214 (1977).
       {¶8}   The Anders procedure also creates tension between counsel's duty to the
client and to the court. Robbins, 528 U.S. at 281–282. “As one former public defender
has explained, ‘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.’ ” (Citations omitted.) Id. at 282, fn. 11.
The basic contradiction is that counsel desires to withdraw because the appeal is
frivolous, while at the same time presenting arguments that it is not. See Moffett, 383
Mass. at 205–206.
Case No. 17 MA 0077                                                                   –4–


       {¶9}   The Anders procedure has also been criticized for creating a role reversal
between counsel and the court, thus removing the adversarial nature of the judicial
system in criminal cases. Counsel determines the appeal is frivolous, yet the court
scours the entire record looking for meritorious issues on the client's behalf. Huguley v.
State, 253 Ga. 709, 324 S.E.2d 729 (1985) (Anders procedure “tends to force the court
to assume the role of counsel for the appellant”).
       {¶10} Furthermore, the Anders approach has been criticized for imposing
unnecessarily heavy burdens on the judiciary, because the appellate court is forced to
provide a complete review of the entire record, including trial transcripts, in a case that
has already been identified as frivolous by appellant counsel. See Murrell v. People of
the Virgin Islands, 53 V.I. 534, 543, 2010 WL 1779930 (2010).
       {¶11} In what is now referred to as “the Idaho rule,” the Supreme Court of Idaho
rejected the Anders procedure, in part, on judicial economy grounds and held that “once
counsel is appointed to represent an indigent client during appeal on a criminal case, no
withdrawal will thereafter be permitted on the basis that the appeal is frivolous or lacks
merit.” State v. McKenney, 98 Idaho 551, 552, 568 P.2d 1213 (1977).
       {¶12} Courts have also criticized Anders for the confusing and burdensome
scope of review involved in requiring the appellate court to conduct “a full examination
of all the proceedings, to decide whether the case is wholly frivolous.” Anders, 386 U.S.
at 744. Courts have read this requirement as requiring appellate courts to comb the
entire record for possible errors. Wilson, 4th Dist. No. 16CA12, at ¶ 16.       Often, the
result of this procedure is that a case with no nonfrivolous issues receives a much more
extensive review than a case in which specific assignments of error are raised by
counsel. This review by the appellate court places the court in a position of advocate on
behalf of the indigent defendant, which is not the role of the courts.
       {¶13} We are aware that some courts, such as the Eighth District Court of
Appeals, have found that Anders does not require the appellate court to comb the entire
record for error, but rather, only requires an independent appellate review of the points
raised in the Anders no merit brief and any additional points raised by the pro se
defendant.    State v. Taylor, 8th Dist. No. 101368, 2015-Ohio-420.           To us, this
interpretation of Anders does not assist our review and may even hinder it.           Any
Case No. 17 MA 0077                                                                   –5–


suggestion of error regarding the manifest weight of the evidence, which is one of the
most common arguments made on appeal when a trial or fact-finding hearing is
involved, will inevitably require us to examine the entire factual record. Any claim that a
guilty or no contest plea is somehow problematic will inevitably require a complete and
thorough review of the plea process from beginning to end, which entails a review of the
entire record. On the other hand, if neither counsel nor the pro se defendant points to
anything specific that might be a potential error, then it would seem the Eighth District
approach would require no review at all. We do not believe that was the intent of
Anders.    Therefore, we conclude that the Eighth District approach is not a viable
solution for this court.
       {¶14} We agree with the Fourth District that our past Anders procedure
essentially required the court of appeals to act as the defendant's counsel by identifying
issues that should have been argued by appointed counsel. The defendant, in effect,
has not one appellate counsel but several—his original appointed counsel who filed the
Anders brief; a three-judge panel of this court; and new substitute counsel. If substitute
counsel also finds no meritorious issues, then the process occurs again with another
review of the entire record and the possible appointment of another attorney. This gives
the indigent defendant more than he could expect had counsel (whether retained or
appointed) decided to simply argue the appeal on its merits. The Anders procedure
attempts to protect the Sixth Amendment right to have reasonably effective professional
representation on appeal, rather than a right "to have a committee of counsel including
judges of the court of appeals." Wilson at ¶16.
       {¶15} Typically, trial counsel has filed the appeal rather than appointed appellate
counsel. Therefore, it is imperative that appellate counsel discuss the case with the
defendant and decide whether to continue the appeal based on counsel's examination
of the case.    If counsel believes the appeal is frivolous, counsel should inform the
defendant and explain why the appeal should be abandoned. If the defendant decides
that there are specific issues that he or she wishes to raise on appeal, counsel must file
a merit brief and argue the defendant's appeal as persuasively as possible regardless of
any personal belief that the appeal is frivolous. This does not mean counsel must argue
every issue the defendant believes meritorious. Counsel, as has always been the case,
Case No. 17 MA 0077                                                                       –6–


may exercise strategic judgment in the presentation of the issues in the brief. See Jones
v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). We believe that
requiring counsel to file a merit brief is "simpler, more effective, fairer, and less taxing on
counsel and the courts." Id. at ¶ 18.
       {¶16} Therefore, we hold 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, or
as we have designated it in this court, a Toney brief. This also means that counsel may
not file a motion to withdraw on the grounds that the appeal is frivolous.              If the
defendant does not wish to dismiss the appeal after consulting with counsel, then
counsel must file a merit brief.
       {¶17} We hereby overrule paragraphs two, three, four, five, six, and seven of
State v. Toney, 23 Ohio App.2d 203, 262 N.Ed.2d 419 (1970).
       {¶18} In this appeal, appointed counsel could not have anticipated our
reevaluation of Anders and Toney. Therefore, we sustain counsel's motion to withdraw
and we will appoint new counsel to assist Appellant in this appeal. Counsel to be
appointed by separate judgment entry.
       {¶19} It is so ordered.
       {¶20} Copy to counsel and to the prosecutor. Appeal continues.



              (concurs)
JUDGE GENE DONOFRIO

               (concurs)
JUDGE CHERYL L. WAITE

              (concurs)
JUDGE CAROL ANN ROBB
