State v. Davis

[Cite as State v. Davis, 2021-Ohio-2766.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109923
v. :
MICHAEL DAVIS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: August 12, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-620566-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, for appellee.
Rick Ferrara, for appellant.
EILEEN A. GALLAGHER, J.:
Defendant-appellant, Michael Davis (“Davis”), filed a notice of appeal
of the final judgment and sentence of the Cuyahoga County Court of Common Pleas
in this case.
On April 13, 2021, counsel filed a motion to withdraw as counsel of
record and dismiss appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967). Counsel identified only one issue that potentially could
be raised, that being:
The trial court did not sufficiently establish that appellant knowingly
and intelligently enter [sic] a plea.
Counsel, however, determined that appellant was, in fact, properly
informed of his rights and knowingly and intelligently waived his constitutional
rights pursuant to Crim.R. 11 and he concluded, pursuant to Anders, that an appeal
based on this issue would be “wholly frivolous.”
Counsel duly served Davis with said motion and this court allowed
Davis to file a pro se brief by May 28, 2021. Davis has failed to file his own brief.
This court has fully examined the proceedings below to determine if
any arguably meritorious issues exist. Id. And, after a thorough review of the record,
we grant counsel’s motion to withdraw and dismiss this appeal.
Accordingly, the appeal is dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
LISA B. FORBES, J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY WITH SEPARATE
ATTACHED OPINION
SEAN C. GALLAGHER, P.J., CONCURRING IN JUDGMENT ONLY:
I concur in judgment only. This court continues to accept the Anders
procedure, and I will adhere to that precedent. Anders, 386 U.S. 738, 87 S.Ct. 1396,
18 L.Ed.2d 493. See, e.g., State Ruffin, 8th Dist. Cuyahoga Nos. 109134 and 109135,
2020-Ohio-5085 (S. Gallagher, J., dissenting); State v. Sims, 2019-Ohio-4975, 149
N.E.3d 1143 (8th Dist.) (Boyle, J., dissenting). I, however, fundamentally disagree
with the practice of permitting appellate counsel to withdraw from the case, leaving
indigent defendants to fend for themselves while this court continues to address the
same or similar arguments on the merits in other cases in which the defendant is
duly represented by counsel. See, e.g., State v. Carson, 8th Dist. Cuyahoga No.
109592, 2021-Ohio-209, ¶ 12 (finding argument that defendant was taking
medication and unable to enter a guilty plea to be “wholly frivolous”); but see State
v. McClendon, 8th Dist. Cuyahoga No. 103202, 2016-Ohio-2630, ¶ 16; State v.
Robinson, 8th Dist. Cuyahoga No. 89136, 2007-Ohio-6831, ¶ 18 (addressing the
same argument raised in Carson on the merits). Unless this court is willing to apply
what have been deemed to be frivolous arguments to our merit cases, we should not
permit this practice to continue in the interests of justice. Nevertheless, the weight
of our authority in this district favors this practice, and thus, I am compelled to
concur in judgment only.