State v. Wilson

• Decision Date: 23 June 2017
• Docket Number: No. 16CA12.,16CA12.
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Justin A. WILSON, Defendant–Appellant.
• Court: Ohio Court of Appeals

83 N.E.3d 942

2017 Ohio 5772

STATE of Ohio, Plaintiff–Appellee,

v.Justin A. WILSON, Defendant–Appellant.

No. 16CA12.

Court of Appeals of Ohio, Fourth District, Lawrence County.

RELEASED: June 23, 2017

J. Roger Smith, II, Huntington, West Virginia, for appellant.

Brigham M. Anderson, Lawrence County Prosecuting Attorney, Ironton, Ohio, for appellee.

DECISION AND ORDER

Harsha, J.

{¶ 1} A jury convicted Justin A. Wilson of aggravated murder with a firearm specification and tampering with evidence. Wilson appealed, but his counsel advises us that he has reviewed the record and can discern no meritorious claim for appeal. Counsel moved for leave to withdraw under Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). After considering the ethical and constitutional requirements of appointed appellate counsel in a criminal appeal, we conclude that this Court will no longer accept motions to withdraw under Anders. Accordingly, we discharge current counsel, and by separate entry will appoint new counsel who should prepare an amended merit brief that complies with the procedure outlined in this decision.

I. FACTS

{¶ 2} A Lawrence County grand jury indicted Wilson on one count of aggravated murder with a firearm specification and one count of tampering with evidence. Wilson pleaded not guilty and waived his right to a speedy trial.

{¶ 3} At trial the state presented testimony that as part of a drug-related robbery in January 2015, Wilson entered a residence and beat and shot the victim Justin Adams in the face, killing him. Two of the state's witnesses testified that they were in the residence with Wilson and Adams during the altercation and they saw Wilson shoot Adams. Wilson's girlfriend, Angela Bailey, testified that when Wilson returned home, he told her that he had just shot a man in the face. After Wilson left her home, Bailey notified the authorities.

{¶ 4} The state presented evidence that after Wilson left Bailey's home, he fled to West Virginia. The cab driver who transported Bailey to West Virginia testified that Wilson was talking on his phone and told someone that he had "done something really, really bad but did not want to talk about it on the phone." Wilson was apprehended several weeks later and brought back to Ohio. While in custody Wilson made several conflicting statements to investigators. In statements that were presented to the jury, Wilson first admitted that he shot Adams after Adams pulled a knife on him. However, Wilson later recanted and gave several other conflicting versions of events.

{¶ 5} A jury convicted Wilson as charged and the trial court sentenced him to a term that included life without parole.

II. MOTION TO WITHDRAW AND ANDERS BRIEF

{¶ 6} Although Wilson appealed his conviction, his appellate counsel has filed a motion for leave to withdraw and an Anders brief. The Supreme Court of the United States established what has come to be known as the Anders procedure in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).¹ Under Anders , if counsel reviews the record and determines that the case is frivolous, counsel informs the court of that opinion and files a motion to withdraw as counsel, but also "submits a brief referring to anything in the record that might arguably support the appeal." The indigent criminal defendant receives a copy of counsel's brief and may raise additional issues. Then the court reviews the motion, the Anders brief and the entire record to determine if any arguably meritorious issues exist. If an issue exists, the court must discharge current counsel and appoint new counsel to prosecute the appeal. If the appeal is wholly frivolous, the court grants the request to withdraw and dismisses the appeal or proceeds with a decision in accordance with state law. Anders at 744, 87 S.Ct. 1396. "Wholly frivolous" and "without merit" both mean "the appeal lacks any basis in law or fact." McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 438, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988), fn. 10 (the Court explained, "The terms ‘wholly frivolous' and ‘without merit’ are often used interchangeably in the Anders , brief context. Whatever term is used to describe the conclusion an attorney must reach as to the appeal before requesting to withdraw and the court must reach before granting the request, what is required is a determination that the appeal lacks any basis in law or fact.").

{¶ 7} Wilson's counsel complied with these requirements by filing a motion for leave to withdraw and furnishing Wilson with a copy of the brief. Wilson had an additional 30 days to file a pro se brief, but chose not to.

A. Reconsideration of Anders Approach

{¶ 8} 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 looking for any issues containing arguable merit.

{¶ 9} It is now clear that the Anders procedure is an alternative, not a constitutional mandate:

[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. Californi a, 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).

Accordingly, we hold that the Anders procedure is merely one method of satisfying the requirements of the Constitution for indigent criminal appeals. States may—and, we are confident, will—craft procedures that, in terms of policy, are superior to, or at least as good as, that in Anders . The Constitution erects no barrier to their doing so.

Robbins at 276, 120 S.Ct. 746.

B. Criticisms of Anders

1. Prejudice to client

{¶ 10} Many courts have identified problems with the Anders procedure.

Robbins at 281, 120 S.Ct. 746 ("Turning first to the procedure we set out in the final section of Anders , we note that it has, from the beginning, faced ‘consistent and severe criticism.’ "). 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) ; State v. Cigic , 138 N.H. 313, 315, 639 A.2d 251, 252 (1994) ("a review may be prejudiced by the fact that appellate counsel has already determined after a ‘conscientious examination’ of the record, that the appeal is wholly frivolous"); Commonwealth v. Moffett, 383 Mass. 201, 206, 418 N.E.2d 585, 590 (1981) ("courts have recognized that the mere submission by appointed counsel of a request to withdraw on grounds of frivolousness may result in prejudice to the indigent defendant"); State v. McKenney , 98 Idaho 551, 552, 568 P.2d 1213, 1214 (1977) ("[W]e deem it clear that the mere submission of such a motion by appellate counsel cannot but result in prejudice."). Not only may counsel's pronouncement that the appeal is frivolous prejudice the client's direct appeal, but at least one judge has expressed concern that the Anders brief may prejudice the client's future collateral attacks. See Gale v. United States, 429 A.2d 177,182 (D.C. 1981), fn. 11 (Ferren, A.J., dissenting) ("The Anders approach leads to other unsettling questions. For example, if an attorney files an Anders brief on a direct appeal, has that attorney precluded collateral attack * * * on that record, on the ground that the court implicitly has reached and deemed frivolous all potential issues presented by that record?").

2. Counsel's Conflict

{¶ 11} The Anders procedure also creates tension between counsel's duty to the client and to the court. Smith v. Robbins , 528 U.S. at 281–282, 120 S.Ct. 746 ("One of the most consistent criticisms, * * * is in some tension both with counsel's ethical duty as an officer of the court (which requires him not to present frivolous arguments) and also with his duty to further his client's interests (which might not permit counsel to characterize his client's claims as frivolous)"). "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, 120 S.Ct. 746, fn. 11. This tension has been described as "contradictory," "schizophrenic," and "Janus-faced" because counsel files a motion to withdraw arguing the appeal is frivolous and an Anders brief essentially arguing that it may not be. See Moff e tt at 205–206, 418 N.E.2d 585 ; McKenney at 552–553, 568 P.2d 1213 ("counsel who has made a motion for withdrawal is also necessarily caught up in a conflict of interest between his duties toward his client and his duty toward the court of candor and truthfulness"); Cigic at 315, 639 A.2d 251 ("the Anders approach puts counsel at odds with the client, forcing counsel into the awkward position of arguing against the client before the reviewing court"); State v. Korth , 650 N.W.2d 528, 535 (S.D. 2002) (criticizing the Anders procedure for putting attorneys "on the ethical horns of a dilemma"); Ramos v. State , 113 Nev. 1081, 1083, 944 P.2d 856, 857 (1997) ("The Anders approach is schizophrenic in nature.") Lindsey v....