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Anders
cases present a challenge to the ordinary appellate process. When
appointed counsel, after a thorough examination of the trial court
record, is unable to identify any non-frivolous issues, counsel
should file an Anders brief pursuant to Anders v.
California, 386 U.S. 738 (1967).
The Anders brief, prepared in
the form of a traditional appellate brief that complies with the
Ohio Rules of Appellate Procedure and this Court’s Local Rules,
identifies possible issues for appeal and applies the relevant facts
to the applicable law. See, e.g., State v. Sergent,
2016-Ohio-2696, ¶ 8, n.1. This Court must then review the possible
issues and conduct its own review of the record.
Filing an
Anders brief should be the last resort, not the first option.
Appellate counsel should not file an Anders brief simply
because counsel cannot find an issue that might win. Anders
does not require winning issues, only arguable ones. An Anders
brief is appropriate only where appellate counsel cannot find any
issue that is not “wholly frivolous.” The standard is high, and it
is the rare case where there are only “wholly frivolous” issues.
If appellate
counsel files an Anders brief, counsel must serve that brief
on the appellant and note appellant’s name and address in the proof
of service on the brief. Counsel should also file a motion to
withdraw as appellate counsel with the brief. This Court will then
enter an order setting a deadline for the appellant to file a brief
setting forth any additional arguments for the Court to consider. The case will then be
submitted to a panel for decision or, if the panel determines there
is a non-frivolous issue, the panel will appoint new counsel to file
a merit brief.
When considering
an Anders brief in a criminal case, counsel should review the
following areas for possible issues:
(1)
Sufficiency of the indictment or complaint;
(2) Adverse
pretrial rulings (for example, motions to suppress or motions to
dismiss);
(3) Adverse
rulings during trial on objections or motions (for example,
objections regarding the admission or exclusion of evidence);
(4) Adverse
rulings on post-trial motions (for example, motion for new trial
or motion for acquittal);
(5) Jury
selection or jury waiver;
(6) Jury
instructions;
(7)
Sufficiency and weight of the evidence, including recitation of
the elements of the offense, and evidence introduced at trial
relevant to the offense;
(8) Guilty or
no contest plea issues; and
(9)
Sentencing issues (for example, allied offenses, consecutive
sentences, and the reasonableness of the sentence imposed).
If counsel
addresses these issues when drafting an Anders brief, then
counsel may identify an issue that is not wholly frivolous. If
appellate counsel only finds wholly
frivolous issues, counsel should address these issues in the Anders
brief. A thorough Anders brief will give appellant, and this
Court, the benefit of counsel’s efforts to review the entire record
to ensure that there are no arguable issues for appeal. |
