State v. Brown

Court of Appeals of Ohio, Twelfth Appellate District, Preble County · 2025 · Evidence

EvidenceAnders brieffrivolous appealindependent reviewwithdrawal of counselcriminal appealappellate procedure

Facts

Appellant's counsel represented to the court that a careful review of the record revealed no prejudicial trial-court error on which an assignment of error could be based. Counsel filed a brief pursuant to Anders v. California, listed one potential issue that might arguably support the appeal, and moved to withdraw. Counsel also certified service of the brief and motion on Brown. The court allowed Brown time to respond, but no response was received.

Issue

When appellate counsel files an Anders brief stating that the appeal is wholly frivolous, identifies a potential issue, seeks withdrawal, and serves the appellant, should the appellate court grant withdrawal and dismiss the appeal after its own review if it finds no prejudicial error or constitutional infringement?

Rule

When counsel files an Anders brief indicating that a careful review of the record discloses no prejudicial error, identifies any issue that might arguably support the appeal, requests independent review, seeks withdrawal on the ground that the appeal is wholly frivolous, and certifies service on the appellant, the appellate court may grant withdrawal and dismiss the appeal if, after allowing the appellant time to respond and independently examining the record, it finds no prejudicial error and no infringement of the appellant's constitutional rights.

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In Columbus, Ohio, Nina Patel appealed her felony conviction. Her appointed appellate lawyer filed a brief stating that a careful review of the record revealed no trial-court errors prejudicial to Nina's rights, identified one issue that might arguably support the appeal, asked the court to independently review the record, moved to withdraw as counsel because the appeal was wholly frivolous, and certified service of both filings on Nina; the court gave Nina time to respond, but she filed nothing.

If the appellate court independently reviews the record and finds no prejudicial error and no infringement of Nina's constitutional rights, what is the most appropriate disposition under the governing rule?

Explanation. The majority rule permits the appellate court to grant withdrawal and dismiss the appeal when counsel files an Anders brief containing the specified features, the appellant is given time to respond, and the court's own review finds no prejudicial error or constitutional infringement. The mere fact that counsel listed one issue that might arguably support the appeal does not itself bar dismissal if the court independently concludes the appeal is wholly frivolous. (Derived from State v. Brown (n.d.).)