State v. Jackson , 2014 Ohio 613 ( 2014 )

[Cite as State v. Jackson, 2014-Ohio-613.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130240
TRIAL NO. B-1004540
Plaintiff-Appellee, :
vs. : O P I N I O N.
STEVEN JACKSON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Motion to Withdraw As Counsel for Appellant is
Granted, New Counsel for Appellant is
Appointed, Further Briefing is Ordered, and
Appeal is Ordered to be Resubmitted
Date of Judgment Entry on Appeal: February 21, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michaela M. Stagnaro, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} This appeal presents a threshold question of whether we should extend
the procedure set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967), to appeals from civil orders of involuntary commitment. We decline to do
so.
{¶2} Appointed counsel in this case has filed an “Anders no-error brief” in
which she states that she is unable to find any error that would entitle her client to relief,
requests that this court independently review the record, and moves for permission to
withdraw. We recently held that no-error briefs were not appropriate in the context of
permanent-child-custody appeals, and we reach a similar conclusion here. See In re
J.M., 1st Dist. Hamilton No. C-130643, 2013-Ohio-5896. The Anders decision by its
terms only applies to criminal appeals, and our local rules likewise limit Anders briefs to
criminal cases. Further, we have serious concerns about the effectiveness of the Anders
procedure, and are reluctant to extend this procedure to other contexts. We, therefore,
grant counsel’s motion to withdraw, and appoint new counsel to argue the merits of the
case.
I.
{¶3} Steven Jackson was charged with escape for leaving the Volunteers of
America halfway-house program without permission in July 2010. He entered an
insanity plea, and following a bench trial the court found him not guilty by reason of
insanity (“NGRI”). As required by R.C. 2945.40, the court held a hearing within ten
days to determine whether Mr. Jackson was a mentally ill person subject to
hospitalization. The court found Mr. Jackson to be subject to hospitalization and
ordered his commitment to Summit Behavioral Healthcare Center (“Summit”).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} R.C. 2945.401 governs the continuing jurisdiction of the trial court over
a person committed following an incompetency finding or NGRI acquittal. This section
requires the court to conduct a review hearing six months after the commitment order,
and then every two years following the initial review. R.C. 2945.401(C). Additionally,
the subject may request a hearing on the conditions of the confinement as frequently
as every six months. Id. A committed person is entitled at every hearing to be
represented by counsel, to have an evaluation conducted by an independent expert,
to present evidence and cross-examine witnesses, and to testify or remain silent. See
R.C. 2945.40(C).
{¶5} The court held a hearing to review Mr. Jackson’s commitment in April
2013. Counsel for the state and for Mr. Jackson stipulated to the report submitted by
Summit, and, based on the recommendations in the report, the court determined that
Mr. Jackson remained a mentally ill person subject to hospitalization and ordered his
continued commitment. Mr. Jackson notified the court of his desire to appeal the
decision, and the court appointed counsel to represent Mr. Jackson on appeal.
{¶6} Counsel for Mr. Jackson has filed an Anders brief, certifying that she can
find no meritorious issues to argue on appeal and asking this court to conduct an
independent review of the record. Counsel also has moved for permission to withdraw
from representation.
II.
{¶7} In J.M., we concluded that the Anders procedure was not appropriate
in civil appeals from orders terminating parental rights. We noted, in part, that the
Anders decision addressed only counsel’s duties to assist indigent clients appealing a
criminal conviction and that our local appellate rules limit no-error briefs to criminal
appeals. See J.M., 1st Dist. Hamilton No. C-130643, 2013-Ohio-5896 at ¶ 12; 1st Dist.
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OHIO FIRST DISTRICT COURT OF APPEALS
Loc.R. 16.2. In light of our holding in J.M., we now consider whether to extend Anders
into the realm of involuntary commitments.
{¶8} We find no Ohio cases permitting the use of the Anders procedure in
involuntary-commitment appeals, nor do we find any Ohio cases discussing the
appropriateness of extending the procedure to such cases. The few states outside of
Ohio to have considered the issue are divided. States that have applied the
procedure to involuntary-commitment cases emphasize the comparable restraints on
physical liberty resulting from civil commitment and criminal incarceration, as well
as the need to ensure that indigent appellants are placed on equal footing with those
who have the ability to retain private counsel. See Pullen v. State, 802 So.2d 1113(Fla.2001); In re McCoy, 360 S.C. 425, 602 S.E.2d 58 (2004); In re Rules of the
Supreme Court and Court of Appeals, 2009 Ark. 449 (2009); In re McQueen, 145
Ill.App.3d 148, 495 N.E.2d 128 (1986); State ex rel. L.E.H., 228 S.W.3d 219(Tex.App.2007). Those declining to extend Anders to involuntary-commitment
appeals emphasize the civil nature of such proceedings and conclude that the Anders
procedure does not reduce the likelihood of erroneous deprivations of liberty. See
Conservatorship of Ben C., 40 Cal.4th 529, 53 Cal.Rptr.3d 856, 150 P.3d 738 (2007);
In re Leon G., 200 Ariz. 298, 26 P.3d 481 (2001); In re Richard A., 146 N.H. 295, 771
A.2d 572 (2001).
{¶9} The Ohio Supreme Court has made clear that involuntary-
commitment proceedings are civil in nature. See State v. Williams, 126 Ohio St.3d
65, 2010-Ohio-2453, 930 N.E.2d 770, ¶ 37 (incompetency commitments under R.C.
2945.39 and recommitments under R.C. 2945.401 are civil in nature); see also State
v. Tuomala, 104 Ohio St.3d 93, 2004-Ohio-6239, 818 N.E.2d 272, ¶ 16 (a
determination under R.C. 2945.40 that a criminal defendant was insane at the time
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OHIO FIRST DISTRICT COURT OF APPEALS
of the alleged acts is an acquittal, not a conviction). Thus, while Mr. Jackson’s
involvement with the court was initiated by a criminal indictment, this ceased to be a
criminal matter once he was acquitted of the charges by reason of insanity.
{¶10} The Anders decision was aimed at safeguarding an indigent criminal
defendant’s constitutional right to appellate counsel, a right derived from the
convergence of a criminal defendant’s Sixth Amendment right to the assistance of
counsel and the Fourteenth Amendment’s guarantees of due process and equal
protection in criminal appeals. Smith v. Robbins, 528 U.S. 259, 264, 276-278, 120
S.Ct. 746, 145 L.Ed.2d 756 (2000). Unlike in cases of criminal incarceration, the
constitutional right to counsel in civil commitment proceedings originates solely
from the due process clause. In re Fisher, 39 Ohio St.2d 71, 82, 313 N.E.2d 851(1974). While we recognize the significant interests at stake where a person is
involuntarily subjected to restraints on his physical liberty, we have been told that
civilly-committed persons “need not be afforded the constitutional rights afforded to
a defendant in a criminal prosecution.” Williams at ¶ 37.
{¶11} Also important to our analysis are our increasing doubts about the
efficacy of the Anders procedures. We have commented previously on the
“ ‘consistent and severe criticism’ ” Anders has received since its inception. J.M., 1st
Dist. Hamilton No. C-130643, 2013-Ohio-5896 at ¶ 13, quoting Robbins at 281.
Commentators contend, among other things, that the procedure permits counsel to
neglect his duty to provide zealous representation and creates inconsistent levels of
appellate review. J.M. at ¶ 13-14. We find these criticisms to have some merit. In
view of our concerns, we have concluded that it is “far more beneficial” to both the
court and the client for counsel to present arguments in support of his client’s cause.
Id. at ¶ 16.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} Because of the civil nature of involuntary commitments and our
doubts about the effectiveness of the Anders procedure, we think it unwise to extend
Anders into this realm. Therefore, we hold that Anders is not applicable to appeals
from involuntary-commitment orders.
{¶13} Going forward, we reemphasize the distinction between frivolous
arguments and those that are merely nonmeritorious. J.M. at ¶ 17. And we note that
an attorney will fulfill his obligations to his client and the court “where he does not
deceive the court on matters of fact and law, and where he makes a good-faith
argument on behalf of his client, regardless of the ultimate unpersuasiveness of that
argument.” Id. at ¶ 18. We trust that appellate attorneys will be able to make good-
faith arguments on behalf of their clients. For example, counsel might challenge the
weight of the evidence or the effectiveness of counsel below. Moreover, counsel must
ensure that the trial court has adhered to its statutory duties, such as the obligations
to notify a subject of his rights under R.C. 2945.40(C) and to conduct hearings within
the mandated timeframes. The role of appellate counsel undeniably contemplates
more than just making successful arguments on appeal, and where counsel truly
cannot fathom any arguable issue, counsel “may still fulfill his role as an advocate
[by] ensuring that his client’s arguments are heard by the court and assisting his
client in navigating the appellate process.” Id.
III.
{¶14} We decline to conduct Anders review in civil-commitment appeals.
We grant appellate counsel’s motion to withdraw, and appoint attorney William R.
Gallagher, Attorney Registration No. 0064683, to represent Mr. Jackson in his
appeal. We further order new counsel to file a brief on the merits on or before March
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OHIO FIRST DISTRICT COURT OF APPEALS
31, 2014, or otherwise dismiss the appeal, and counsel for the state to file a
responsive brief on or before April 30, 2014.
Judgment accordingly.
C UNNINGHAM , P.J., and H ILDEBRANDT , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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