State v. Dyer

2018 Ohio 2979

• Court: Ohio Court of Appeals
• Decided: July 27, 2018
• Docket: L-17-1258
• Status: Published

Opinion

[Cite as State v. Dyer, 2018-Ohio-2979.]

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

State of Ohio Court of Appeals No. L-17-1258

Appellee Trial Court No. CR0201702122

v.

Jesse E. Dyer, Jr. DECISION AND JUDGMENT

Appellant Decided: July 27, 2018

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

Patricia Horner, for appellant.

SINGER, J.

{¶ 1} This matter is before the court on the Anders brief filed pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), by appellant’s appointed

counsel, Patricia Horner. {¶ 2} On June 29, 2018 we released State v. Wenner, 6th Dist. Sandusky No.

S-18-4, 2018-Ohio-2590, in which this court pronounced that it will no longer accept

Anders briefs in criminal appeals. However, because this case was filed pre-Wenner, we

proceed with our role customarily undertaken pursuant to Anders.

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

for want of a meritorious, appealable issue is set forth in Anders, as well as State v.

Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978). See also 6th

Dist.Loc.App.R. 10(G).

{¶ 4} In Anders, the U.S. Supreme Court found if counsel, after a conscientious

examination of the case, 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. Once the requirements are fulfilled, the appellate court must conduct a full

examination of the proceedings and decide if the appeal is indeed frivolous. Id. If the

appellate court determines the argument is frivolous, it may grant counsel’s request to

withdraw and dismiss the appeal or it may proceed to a decision on the merits. Id.

{¶ 5} Here, our review reveals counsel failed to include the required contents of an

Anders brief, the required statement of compliance, the required motion to withdraw, and

the required language reflecting compliance with service of the Anders brief upon

2. appellant. Id. See also 6th Dist.Loc.App.R. 10(G). In that regard, because counsel did

not comply with the Anders requirements, we find the record insufficient to conduct an

examination and decide if the appeal is indeed frivolous. See, e.g., State v. Bracey, 6th

Dist. Sandusky No. S-16-025, 2017-Ohio-4334. As a result, we dismiss Patricia Horner

as counsel, and we appoint Clayton Gerbitz, P.O. Box 208, Swanton, Ohio, 43558, to

represent appellant for purposes of this appeal.

{¶ 6} Newly appointed counsel is to submit an original merit brief on this matter

pursuant to Wenner, and is granted 20 days from the date of this order to file an amended

praecipe. The record is to be filed 23 days from the date the amended praecipe is filed.

Briefing shall then proceed pursuant to App.R. 18. The clerk is ordered to serve all

parties, including the defendant, with notice of this decision.

Counsel appointed.

Arlene Singer, J. _______________________________ JUDGE James D. Jensen, J. _______________________________ Christine E. Mayle, 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.supremecourt.ohio.gov/ROD/docs/.

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