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Attention Appointed Counsel: Second District joins growing number of jurisdictions in rejection of Anders briefs
Since the 1960’s, court-appointed appellate attorneys practicing in the Second District who believed there were no non-frivolous grounds for appeal in their case were permitted to file an Anders Brief in accordance with Anders v. California, 386 U.S. 740, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
In that case, Anders’ attorney faced a dilemma: he believed his client’s appeal lacked arguable merit, but he also couldn’t abandon the appeal based on the lack of representation. His solution turned out to be groundbreaking: he submitted a brief detailing potential arguable issues for the court to consider, while also asserting that he found no non-frivolous grounds for appeal.
As a result, the Anders Brief became the standard procedure across the country when court-appointed counsel believed their appeal was frivolous. These Anders briefs outlined potential issues or arguments that might exist in the case while also acknowledging the attorney’s view that there were no valid grounds for appeal. The appellate court then independently reviewed the entire record to determine whether there were, in fact, any potentially meritorious arguments to be made. If so, new counsel was appointed and the process would start again.
In the decades since Anders, however, courts have begun to question the efficacy of the process, leading some states to reject the procedure. See State v. McKenney, 98 Idaho 551, 568 P.2d 1213 (1977); Commonwealth v. Moffett, 383 Mass. 201, 418 N.E.2d 585 (1981); State v. Cigic, 138 N.H. 313, 639 A.2d 251 (1994); Mosley v. State, 908 N.E.2d 599 (Ind. 2009). In recent years, three of Ohio’s appellate districts (including the 4th, 6th, and 7th), drawing on the caselaw of these states, have also rejected the Anders procedure. Then in the fall of 2023, the Second District joined suit with the release of State v. Holbert, 2d Dist. Montgomery No. 29704, 2023-Ohio-3272.
In the Holbert opinion, the Court expressed several concerns about the Anders process. First, it opined that when counsel files to withdraw because he or she believes the appeal is frivolous, it could actually prejudice the client because the court of appeals may be more willing to believe it actually is frivolous, inviting “perfunctory review.” Next, the court stated that Anders created a tension between the attorney’s duties to the client and the court. It also, according to Holbert, essentially removes the adversarial nature of the judicial system –the court pours through the record looking for meritorious issues on the client’s behalf. In the process, “some indigent criminal defendants get more justice, i.e., an additional layer of review, than those whose counsel do not file Anders briefs.” Holbert at ¶ 23.
The Second District was also concerned about the way in which Anders may allow some appointed counsel to abdicate their role as advocate, denying indigent clients the right to appointed counsel, because “in the context of a criminal appeal, a competent attorney should be able to find non-frivolous, i.e., arguable, errors of a trial court in nearly every case – especially after reviewing the entirety of the record below.” Holbert at ¶ 24.
So, after the rejection of the Anders process, what should court-appointed appellate attorneys do? The new procedure was explained in Holbert. Appointed counsel must conduct a thorough review of the entire trial court record. If, after the review of the trial court record, counsel believes there are no non-frivolous issues, counsel should confer with the defendant and try to persuade him or her to abandon the appeal.
“If the defendant chooses to proceed with the appeal, counsel must file a merit brief and assert, as persuasively as possible, what counsel deems to be appellant's ‘best’ argument(s). This does not mean counsel must argue every
By John Lintz, Esq. Staff Attorney for Judge Epley Second District Court of Appeals lintzj@mcohio.org
issue the defendant believes to be meritorious. Counsel should exercise strategic judgment in the presentation of the issues in the brief.” Holbert at ¶ 28.
The Court will give counsel’s brief the same level of review given to all other appellate briefs and will review the assignments of error identified. It will not, however, conduct an exhaustive independent review for issues not raised.
