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Fighting the fight

Malik Wilkinson got convicted of escape and received a four-year sentence.  He appealed, and his lawyer filed an Anders brief, saying there were no meritorious assignments of error.  Wilkinson filed his own pro se brief, and last week, the 2nd District reversed his conviction.

A week earlier, in State v. Garcia, the defendant had pled guilty to a low-level cocaine charge.  He claimed that the police thereafter told him that if he worked for them as an informant and helped them make seven to eight drug deals, they'd recommend probation to the judge.  At the sentencing hearing six weeks later, the prosecutor acknowledged that Garcia had made seven or eight deals, but nonetheless said that the State felt a prison sentence was warranted.  No police officers showed up.  The judge gave Garcia eight months.  He appealed.  His attorney filed an Anders brief, and the court affirmed the sentence.

Last week, the 12th District handed down five decisions in criminal cases.  In three of them, defense counsel filed Anders briefs.

I don't know what happened in the 12th District cases, because none of the facts are given in the opinion.  It may be that there was no remotely plausible argument that could be advanced on the defendant's behalf.

But Wilkinson's is at least the second case I've run across in the past couple of years where the court wound up reversing a conviction after appellate counsel had claimed that he couldn't find any non-frivolous assignments of error.  The other one was a murder case.  And I have a hard time believing you couldn't make a cogent argument -- perhaps not a winning one, but a cogent one -- that a guy who made eight controlled buys and didn't receive the promised consideration in return got a raw deal.  I also have a hard time believing that in sixty percent of the cases out of the 12th District last week, there was no appealable issue:  no argument of weight or sufficiency of the evidence, no argument as to trial error.

The standard for determining whether your appellate claims would be frivolous should be the same as the standards for determining whether the claims in a lawsuit would be frivolous under RC 2323.51:

[The claim] is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law.

Other than that, go for it.  If you're going to do this kind of work, then do the work.

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