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What's required by Anders

I filed my first Anders brief about fifteen years ago.  The defendant, an employee at Sears, had swiped some clothing.  When she carried the stuff out to her car at the end of her shift, the security guards followed her.  She jumped in the car and took off, bumping one of the guards with her door.  She skidded on some ice in the parking lot and hit another car.  That led to charges of aggravated robbery, felonious assault, aggravated vehicular assault, and theft.

The jury convicted her of theft, and acquitted her of everything else.  I called up the lawyer, and she said she might have screwed up:  she couldn't remember whether there was proof that the amount of the goods was over $500 (this was back before it was upped to $1,000), so it may only have been a misdemeanor.  I wrote about a ten-page Anders brief, explaining all this, suggesting that the only potential assignment of error was ineffective assistance of counsel for not arguing the amount, but pointing out that it was pretty absurd to suggest that the attorney who'd gotten that astonishing result was a dullard, and besides, one of the witnesses from the store had indeed testified to the amount.

Turns out, according to the 8th District's decision last week in State v. Taylor, what I wrote wasn't good enough.  But neither was how the court handled it.

Moses Taylor pled out to three counts of burglary and one of breaking and entering.  The judge sentenced him to concurrent one-year prison terms on each of the burglary counts, and two years of community control sanctions on the B&E, and ran the latter consecutive to the prison terms.  The judge appointed a lawyer for the appeal, and the lawyer filed an Anders brief, indicating there were no non-frivolous issues.  The court finds it "provident to address the duties of defense counsel when filing an Anders brief and those of the court of appeals when ruling on motions to withdraw as counsel," noting that the Ohio Supreme Court has never addressed those issues.  And so address it the panel does. 

It begins by noting the ethical dilemma counsel faces:  he has a duty to the client to represent him, but a duty to the court not to present frivolous arguments.  The courts have resolved that dilemma by concluding that if an attorney concludes that the appeal is totally frivolous, the attorney must so inform the court, seek permission to withdraw, and file a brief "referring to anything in the record that might arguably support the appeal." 

So what must the brief contain?  More than a mere assertion that the appeal is frivolous; this is a motion, and counsel bears the burden of showing why the motion should be granted:

We therefore find that a complying Anders brief must not only state any potential assignments of error that the particular type of case might be expected to involve, it must include a discussion citing relevant law and facts showing why those potential assignments are frivolous. 

Of course, that puts the attorney in the position of arguing that against his own client.  Too bad; counsel still has the obligation to do it, and if he doesn't, the court will order him to file a conforming brief.  Only in "egregious" cases of non-compliance, counsel will be removed and new counsel appointed.  (And, the court says in a footnote, "individual panels may wish to consider whether egregious non-conformance in a motion to withdraw as counsel, as supported by an Anders brief, merits sanctions under Loc.App.R. 23(A)."  Ouch!)

What about the court?  It's required to "fully examine the proceedings in the trial court, the brief of appointed counsel, the arguments pro se of the indigent, and then determine whether or not the appeal is wholly frivolous."  How rigorous does that examination have to be?  The court doesn't have "to undertake a completely independent examination of the record to determine whether there might be colorable issues on appeal."  That's overkill, and essentially makes the appellate court the defendant's counsel.  Instead, the requirement for independent review by the court "applies only to the issues or points raised by either the Anders brief or the pro se brief."  That sigh you just heard is one of relief by the court's staff attorneys, knowing that when an Anders brief comes in, they will no longer have to scour the transcripts to see what might have been missed.

But the court still has to write an opinion, which it only recently started doing.  In my first Anders brief, I didn't find out whatever happened to the case until I checked the docket a few months later, and saw that my motion had been granted, the defendant never filed a pro se brief, and the conviction was affirmed.  I was deficient too, though, at least according to Taylor:  not only must the attorney file an Anders brief, under the 8th District's Local Rule 16(C), he has to file a separate motion requesting leave to withdraw.

So now you know what to do if you've read over the transcripts, reviewed the court file, researched the law, and realize you don't have squat.

And if you're wondering, yes, Taylor's appeal was frivolous.

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