State v. Dyer

[Cite as State v. Dyer, 2018-Ohio-2979.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-17-1258
Appellee Trial Court No. CR0201702122
v.
Jesse E. Dyer, Jr. DECISION AND JUDGMENT
Appellant Decided: July 27, 2018
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Patricia Horner, for appellant.
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SINGER, J.
{¶ 1} This matter is before the court on the Anders brief filed pursuant to Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), by appellant’s appointed
counsel, Patricia Horner.
{¶ 2} On June 29, 2018 we released State v. Wenner, 6th Dist. Sandusky No.
S-18-4, 2018-Ohio-2590, in which this court pronounced that it will no longer accept
Anders briefs in criminal appeals. However, because this case was filed pre-Wenner, we
proceed with our role customarily undertaken pursuant to Anders.
{¶ 3} The procedure to be followed by appointed counsel who desires to withdraw
for want of a meritorious, appealable issue is set forth in Anders, as well as State v.
Duncan, 57 Ohio App. 2d 93, 385 N.E.2d 323 (8th Dist.1978). See also 6th
Dist.Loc.App.R. 10(G).
{¶ 4} In Anders, the U.S. Supreme Court found if counsel, after a conscientious
examination of the case, determines it to be wholly frivolous, counsel should so advise
the court and request permission to withdraw. Anders at 744. This request must be
accompanied by a brief identifying anything in the record that could arguably support the
appeal. Id. In addition, counsel must furnish the client with a copy of the brief and
request to withdraw and allow the client sufficient time to raise any matters the client so
chooses. Id. Once the requirements are fulfilled, the appellate court must conduct a full
examination of the proceedings and decide if the appeal is indeed frivolous. Id. If the
appellate court determines the argument is frivolous, it may grant counsel’s request to
withdraw and dismiss the appeal or it may proceed to a decision on the merits. Id.
{¶ 5} Here, our review reveals counsel failed to include the required contents of an
Anders brief, the required statement of compliance, the required motion to withdraw, and
the required language reflecting compliance with service of the Anders brief upon
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appellant. Id. See also 6th Dist.Loc.App.R. 10(G). In that regard, because counsel did
not comply with the Anders requirements, we find the record insufficient to conduct an
examination and decide if the appeal is indeed frivolous. See, e.g., State v. Bracey, 6th
Dist. Sandusky No. S-16-025, 2017-Ohio-4334. As a result, we dismiss Patricia Horner
as counsel, and we appoint Clayton Gerbitz, P.O. Box 208, Swanton, Ohio, 43558, to
represent appellant for purposes of this appeal.
{¶ 6} Newly appointed counsel is to submit an original merit brief on this matter
pursuant to Wenner, and is granted 20 days from the date of this order to file an amended
praecipe. The record is to be filed 23 days from the date the amended praecipe is filed.
Briefing shall then proceed pursuant to App.R. 18. The clerk is ordered to serve all
parties, including the defendant, with notice of this decision.
Counsel appointed.
Arlene Singer, J. _______________________________
JUDGE
James D. Jensen, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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