[Cite as State v. Stewart, 2016-Ohio-2979.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
State of Ohio Court of Appeals No. E-15-025
Appellee Trial Court No. 2014-CR-155
v.
Jamale A. Stewart DECISION AND JUDGMENT
Appellant Decided: May 13, 2016
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, Chief Assistant Prosecutor, for appellee.
Derek A. Farmer, for appellant.
SINGER, J.
{¶ 1} Appellant, Jamale Stewart, appeals from the March 26, 2015 judgment of
the Erie County Court of Common Pleas convicting him, following the entry of a guilty
plea to an amended charge of possession of heroin, R.C. 2925.11(A) and (C)(6)(e). This
statute is a felony of the first degree, but the agreement was to reduce the charge to a felony of the second degree, which is R.C. 2925.11(A) and (C)(6)(d). The court
sentenced appellant to the jointly recommended three years of mandatory imprisonment.
Appellee dismissed two additional counts of the indictment for preparation of heroin for
sale, R.C. 2925.03(A)(2) and 2925.03(C)(6)(f), and tampering with evidence, R.C.
2921.12(A)(1).
{¶ 2} Several retained counsel represented appellant at trial and filed a notice of
appeal from the judgment of conviction and sentencing on April 27, 2015. However,
current retained counsel entered an appearance as appellant’s counsel on June 10, 2015.
He filed an appellate brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,
18 L.Ed.2d 493 (1967), asserting that there was no arguable appeal except for the one
issue he determined lacked merit and moved to be removed as counsel for appellant.
{¶ 3} Because current counsel was retained for a presumably non-indigent
appellant, we question whether utilizing the procedure under Anders by retained counsel
is proper or possibly presents other ethical dilemmas not faced by appointed counsel. We
recognize that counsel may be attempting to protect his client.
{¶ 4} The right to be represented by retained counsel throughout the trial phase
and an appeal as of right is guaranteed under the Sixth Amendment to the United States
Constitution. Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).
The right of an indigent criminal defendant to have court-appointed counsel at state
expense is guaranteed by the Due Process Clause of the Sixth Amendment, made
applicable to the states through the Fourteenth Amendment to the United States
2. Constitution. Douglas v. California, 372 U.S. 353, 356, 83 S.Ct. 814, 9 L.Ed.2d 811
(1963). Counsel must be provided for an indigent convicted defendant for an appeal as of
right based on the guarantee of Equal Protection. Id. at 356-357. Indigent appellants are
also entitled to effective assistance of appellate counsel. Evitts at 388-389.
{¶ 5} All attorneys have an ethical duty to act diligently to advocate for their client.
Prof.Cond.R. 1.3. App.R. 16(A)(7) requires that appellant file a brief with an argument as
to each assignment of error and “with citations to the authorities, statutes, and parts of the
record on which appellant relies.” Attorneys also have an ethical duty to avoid advancing
unsupported assignments of error. Prof.Cond.R. 3.1; State v. Smith, 8th Dist. Cuyahoga
No. 88689, 2007-Ohio-3908, ¶ 14, fn. 1 (applying former DR 7-102(A)(2)).
{¶ 6} To balance the duty of appointed counsel to diligently advocate for his
indigent client with the duty to avoid pursing frivolous appeals, the United States
Supreme Court adopted a procedure for appointed counsel to withdraw from representing
the appellant if “counsel is convinced, after conscientious investigation, that the appeal is
frivolous. Anders at 740-741; Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 2
L.Ed.2d 1060 (1958). The motion to withdraw must 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
3. 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. Anders at 744.
{¶ 7} These requirements accomplish three goals: First, the brief ensures that
appointed “counsel acts in the role of an active advocate in behalf of his client” to a level
substantially equal to the advocacy a non-indigent defendant is able to receive through
retained counsel. Anders at 744-745. Second, the brief “would also induce the court to
pursue all the more vigorously its own review” with “the help of an advocate” to ensure
that the indigent defendant received substantially equal representation to non-indigent
defendants and fair process. Id. at 745. Finally, the brief “would tend to protect counsel
from the constantly increasing charge that he was ineffective and had not handled the
case with that diligence to which an indigent defendant is entitled.” Id.
{¶ 8} The United States Supreme Court has stated in dicta that when retained
counsel determines “that an appeal would be frivolous, he or she has a duty to advise the
client that it would be a waste of money to prosecute the appeal.” McCoy v. Court of
Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 437, 108 S.Ct. 1895, 100 L.Ed.2d 440
(1988). The court further noted that “no merit” briefs * * * are seldom, if ever, filed by
retained counsel.” Id. at 438.
4. {¶ 9} We note this court requires any attorney, retained or appointed, who has
entered an appearance in this court to seek leave to withdraw by filing a motion to
withdraw pursuant to the requirements of 6th Dist.Loc.App.R. 1(B). Under that rule, the
attorney must show “good cause” to withdraw, “proof of service of the motion to
withdraw upon the client and the name and address of any substitute counsel, or, if none,
the name and address of the client.” Appellant counsel in the case before us has
requested leave to withdraw on grounds of irreconcilable differences with his client.
However, as we have found nothing to prohibit retained counsel from filing a no-merit
brief pursuant to Anders, we will proceed with an examination of the record and
evidence.
{¶ 10} Appellant’s counsel states in his motion that he thoroughly reviewed the
record in this case and concluded that the trial court did not commit any error prejudicial
to appellant and that an appeal would be frivolous. He further states that appellant has
expressed irreconcilable differences with the attorney. Counsel has, therefore, filed his
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[Cite as State v. Stewart, 2016-Ohio-2979.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
State of Ohio Court of Appeals No. E-15-025
Appellee Trial Court No. 2014-CR-155
v.
Jamale A. Stewart DECISION AND JUDGMENT
Appellant Decided: May 13, 2016
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, Chief Assistant Prosecutor, for appellee.
Derek A. Farmer, for appellant.
SINGER, J.
{¶ 1} Appellant, Jamale Stewart, appeals from the March 26, 2015 judgment of
the Erie County Court of Common Pleas convicting him, following the entry of a guilty
plea to an amended charge of possession of heroin, R.C. 2925.11(A) and (C)(6)(e). This
statute is a felony of the first degree, but the agreement was to reduce the charge to a felony of the second degree, which is R.C. 2925.11(A) and (C)(6)(d). The court
sentenced appellant to the jointly recommended three years of mandatory imprisonment.
Appellee dismissed two additional counts of the indictment for preparation of heroin for
sale, R.C. 2925.03(A)(2) and 2925.03(C)(6)(f), and tampering with evidence, R.C.
2921.12(A)(1).
{¶ 2} Several retained counsel represented appellant at trial and filed a notice of
appeal from the judgment of conviction and sentencing on April 27, 2015. However,
current retained counsel entered an appearance as appellant’s counsel on June 10, 2015.
He filed an appellate brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,
18 L.Ed.2d 493 (1967), asserting that there was no arguable appeal except for the one
issue he determined lacked merit and moved to be removed as counsel for appellant.
{¶ 3} Because current counsel was retained for a presumably non-indigent
appellant, we question whether utilizing the procedure under Anders by retained counsel
is proper or possibly presents other ethical dilemmas not faced by appointed counsel. We
recognize that counsel may be attempting to protect his client.
{¶ 4} The right to be represented by retained counsel throughout the trial phase
and an appeal as of right is guaranteed under the Sixth Amendment to the United States
Constitution. Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).
The right of an indigent criminal defendant to have court-appointed counsel at state
expense is guaranteed by the Due Process Clause of the Sixth Amendment, made
applicable to the states through the Fourteenth Amendment to the United States
2. Constitution. Douglas v. California, 372 U.S. 353, 356, 83 S.Ct. 814, 9 L.Ed.2d 811
(1963). Counsel must be provided for an indigent convicted defendant for an appeal as of
right based on the guarantee of Equal Protection. Id. at 356-357. Indigent appellants are
also entitled to effective assistance of appellate counsel. Evitts at 388-389.
{¶ 5} All attorneys have an ethical duty to act diligently to advocate for their client.
Prof.Cond.R. 1.3. App.R. 16(A)(7) requires that appellant file a brief with an argument as
to each assignment of error and “with citations to the authorities, statutes, and parts of the
record on which appellant relies.” Attorneys also have an ethical duty to avoid advancing
unsupported assignments of error. Prof.Cond.R. 3.1; State v. Smith, 8th Dist. Cuyahoga
No. 88689, 2007-Ohio-3908, ¶ 14, fn. 1 (applying former DR 7-102(A)(2)).
{¶ 6} To balance the duty of appointed counsel to diligently advocate for his
indigent client with the duty to avoid pursing frivolous appeals, the United States
Supreme Court adopted a procedure for appointed counsel to withdraw from representing
the appellant if “counsel is convinced, after conscientious investigation, that the appeal is
frivolous. Anders at 740-741; Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 2
L.Ed.2d 1060 (1958). The motion to withdraw must 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
3. 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. Anders at 744.
{¶ 7} These requirements accomplish three goals: First, the brief ensures that
appointed “counsel acts in the role of an active advocate in behalf of his client” to a level
substantially equal to the advocacy a non-indigent defendant is able to receive through
retained counsel. Anders at 744-745. Second, the brief “would also induce the court to
pursue all the more vigorously its own review” with “the help of an advocate” to ensure
that the indigent defendant received substantially equal representation to non-indigent
defendants and fair process. Id. at 745. Finally, the brief “would tend to protect counsel
from the constantly increasing charge that he was ineffective and had not handled the
case with that diligence to which an indigent defendant is entitled.” Id.
{¶ 8} The United States Supreme Court has stated in dicta that when retained
counsel determines “that an appeal would be frivolous, he or she has a duty to advise the
client that it would be a waste of money to prosecute the appeal.” McCoy v. Court of
Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 437, 108 S.Ct. 1895, 100 L.Ed.2d 440
(1988). The court further noted that “no merit” briefs * * * are seldom, if ever, filed by
retained counsel.” Id. at 438.
4. {¶ 9} We note this court requires any attorney, retained or appointed, who has
entered an appearance in this court to seek leave to withdraw by filing a motion to
withdraw pursuant to the requirements of 6th Dist.Loc.App.R. 1(B). Under that rule, the
attorney must show “good cause” to withdraw, “proof of service of the motion to
withdraw upon the client and the name and address of any substitute counsel, or, if none,
the name and address of the client.” Appellant counsel in the case before us has
requested leave to withdraw on grounds of irreconcilable differences with his client.
However, as we have found nothing to prohibit retained counsel from filing a no-merit
brief pursuant to Anders, we will proceed with an examination of the record and
evidence.
{¶ 10} Appellant’s counsel states in his motion that he thoroughly reviewed the
record in this case and concluded that the trial court did not commit any error prejudicial
to appellant and that an appeal would be frivolous. He further states that appellant has
expressed irreconcilable differences with the attorney. Counsel has, therefore, filed his
motion for leave to withdraw and a no-merit brief in compliance with the requirements of
Anders, setting forth only one potential error.
{¶ 11} No objection was made at the time of sentencing to the mandatory
sentence. However, appellant’s retained counsel has argued that appellant was not
informed that his sentence could be a mandatory term of three years imprisonment nor of
the meaning of that term mandatory until the time of sentencing. At the time of
sentencing, appellant made a video documentary advising youths to stay crime free with
5. the hope that the judge would sentence appellant to the mandatory minimum of two years
or some alternative.
{¶ 12} R.C. 2925.11(C)(6)(d) requires that the penalty for possession of heroin be
a mandatory prison term equal to that prescribed for a felony of the second degree. The
mandatory minimum prison term for a felony of the second degree is two, three, four,
five, six, seven, or eight years.
{¶ 13} Appellant signed a plea agreement form on November 6, 2014, which
indicated a minimum prison sentence of two years. The plea agreement set forth the
maximum possible sentence the court could impose, “8 years” of imprisonment, “of
which at least 2 years is mandatory.” Furthermore, on the second page the “Agreed
Recommended Sentence” section indicated that the parties had jointly agreed to
recommend three years imprisonment.
{¶ 14} Appellant was informed by the court at the plea hearing that the court was
not required to accept the recommended sentence. At that time, the court advised
appellant that “[m]andatory prison, felony of the second degree, begins at two years, and
goes up to eight years, in increments of a year.” Appellant inquired whether the court
could sentence appellant to anything it wanted and the court responded: “[a]ll the way to
eight years and all the way down to two years.”
{¶ 15} We agree that there is nothing in the plea form which indicates a joint
recommendation of three years of imprisonment would be a mandatory term. However,
the crime for which appellant was charged requires that a mandatory term of
6. imprisonment be imposed. Furthermore, appellant was informed at the plea hearing that
the term would be mandatory. Therefore, we find appellant had notice that any agreed
sentence would be a mandatory term.
{¶ 16} Finally, this court has the obligation to fully examine the record in this case
to determine whether an appeal would be frivolous. Anders, 386 U.S. at 744, 87 S.Ct.
1396, 18 L.Ed.2d 493. Our review of the record does not disclose any errors by the trial
court which would justify a reversal of the judgment. Therefore, we find this appeal to be
wholly frivolous. Counsel’s “potential” assignment of error is found not well-taken.
Counsel’s request to withdraw as appellate counsel is found well-taken and is hereby
granted.
{¶ 17} Having found that the trial court did not commit error prejudicial to
appellant, the judgment of the Erie County Court of Common Pleas is affirmed. Pursuant
to App.R. 24, appellant is hereby ordered to pay the court costs incurred on appeal. The
clerk is ordered to serve all parties with notice of this decision.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
7. State v. Stewart C.A. No. E-15-025
Arlene Singer, J. _______________________________ JUDGE Stephen A. Yarbrough, J. _______________________________ James D. Jensen, 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.sconet.state.oh.us/rod/newpdf/?source=6.
8.