FILED

March 17, 2000

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON 

JANUARY 2000 SESSION

STATE OF TENNESSEE, * No. W1999-01516-CCA-R3-CD

Appellee, * HARDEMAN COUNTY

VS. * Honorable Jon Kerry Blackwood, Judge

MICHAEL ANTHONY * (Forgery)

TURNER, SR. 

Appellant. *

FOR THE APPELLANT: FOR THE APPELLEE:

C. MICHAEL ROBBINS PAUL G. SUMMERS

46 North Third Street, Suite 719 Attorney General & Reporter

Memphis, TN 38103

(On Appeal) CLINTON J. MORGAN

Counsel for the State

GARY F. ANTRICAN 425 Fifth Avenue North

District Public Defender Nashville, TN 37243

RICKEY W. GRIGGS ELIZABETH T. RICE

Assistant Public Defender District Attorney General

P. O. Box 700

Somerville, TN 38068 JAMES WALTER FREELAND, JR.

(At Trial and On Appeal) Assistant District Attorney General

302 Market Street

Somerville, TN 38068

 

OPINION FILED: _______________

AFFIRMED

JOHN EVERETT WILLIAMS,
1

 The guilty plea, as the defendant concedes, is facially valid in all respects.

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Judge

OPINION

INTRODUCTION

The defendant, Michael Anthony Turner, Sr., appeals from his conviction of

three counts of forgery entered pursuant to his guilty plea in a Hardeman County

Court. The defendant was sentenced as a Career Offender to three concurrent sixyear terms; these terms were ordered to run consecutive to another unrelated

sentence for which the defendant was on parole at the time of the instant offenses.

The defendant has filed a timely notice of appeal and a brief; further, in this brief,

counsel for defendant, while arguing one issue, has cited Anders v. California, 366

U.S. 738 (1967). After reviewing the entire record before us, we conclude that this

is not a true Anders case, but rather its citation is superfluous and misplaced.

Therefore, we ignore its citation and choose to rule upon the merits of the

defendant’s appeal. Accordingly, we AFFIRM the judgment and sentence from the

trial court. 

FACTS

The facts relevant to this appeal begin after the defendant entered a plea of

guilty to three forgery charges1. After his plea, the court held a sentencing hearing

on May 28, 1999. At the sentencing hearing, the events occurred that gave rise to

this appeal.
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The hearing begins with the state’s explaining that the defendant was not

served with the state’s Career Offender notice until May 21, 1999 because the

defendant had failed to appear for arraignment and a failure to appear warrant had

to be issued. However, the defendant was served prior to his guilty plea but not the

required ten days. That being the case, the ten day notice requirement imposed by

Tenn. Code Ann. § 40-35-202(a) was violated. The defendant did not request a

continuance, as is his absolute right, but rather, at the hearing, simply continued

and presented argument. This argument followed the state’s only proof, certified

copies of the defendant’s previous convictions. Rather than citing mitigating factors

or any other evidence, counsel for the defendant argued that the state should be

procedurally barred from now requesting that the defendant be classified a Career

Offender. The court heard this argument and rejected it. Thereafter, it sentenced

the defendant to three six-year concurrent terms as a Career Offender.

A timely notice of appeal was filed, and counsel submitted an appellate brief.

This brief argues one substantive issue: the violation of the Career Offender notice

requirement. However, it concludes by citing Anders. This appeal and this brief are

now before this Court.

ANALYSIS

Before addressing the defendant’s one substantive issue, this Court wishes

to express its concern over the increasing number of so-called Anders filings. Our

first, and preliminary, concern is that a number of these Anders filings were not

accompanied with a separate motion to withdraw. Instead, counsel has either filed

no such motion, as in this case, or simply in his brief asked this Court to grant his

withdrawal. This is not proper Anders procedure. This Court requires that the

motion to withdraw be filed separately and not in the appellate brief. See, e.g.,
2

 Under this Court’s current docketing procedure, our first notice of an Anders filing when filed

without a separate mo tion to withd raw is upo n the ass igned judge ’s first r eading of the briefs. This

comes much too late.

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State v. Ingram, 994 S.W.2d. 626 (Tenn. Crim. App. 1998). As a direct result of

counsel’s failure to file a separate motion to withdraw as required, processing of this

case has been unduly delayed.2

 Therefore, we must insist that counsel file a

separate motion to withdraw at the time of filing an Anders brief. If done, this Court

will be appropriately notified of a request for relief and there will be no undue delay

in the processing of the case.

Next, and this concern begins our resolution of the instant case, this Court

detects some confusion over the applicability of Anders. Anders does not provide

that counsel for a defendant file a motion to withdraw and an Anders brief whenever

counsel feels, based upon review of the relevant case law, that the claim will not

succeed. Instead, the scope of Anders’ applicability is much more narrow. Anders

applies when counsel, bound to argue for the defendant, has before him nothing but

entirely “frivolous” arguments. A frivolous argument is one that is not only against

the overwhelming weight of legal authority but also entirely without any basis in law

or fact or without any logic supporting a change of law. For guidance’s sake,

(1) it is not frivolous to make a “good faith argument for an extension,

modification or reversal of existing law;”

(2) an action is not frivolous even though counsel believes that

appellant’s position ultimately will not prevail; and 

(3) counsel must resolve all doubts and ambiguous legal questions in

favor of his client.

See generally Tenn. S.Ct. R. 8, EC-7-1, EC-7-2, EC -7-3, EC-7-4.

When counsel presents a non-meritorious argument, counsel is not in

violation of any ethical duty; counsel is simply fulfilling ethical duties of effective and

zealous representation. A non-meritorious argument, while against the weight of

legal authority, nevertheless has some basis in either law or fact. Counsel, in

fulfilling ethical duties, will often present arguments that will ultimately be found non-
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meritorious. We fully acknowledge that counsel may at the outset know that an

argument does not stand a good chance of succeeding; however, counsel must

argue. It is only in the very rare situation when counsel is left with no argument but

merely frivolous ones that counsel may file a motion to withdraw and submit an

Anders brief. Again, such Anders filings will be very rare. 

In this case, counsel’s cite to Anders is entirely superfluous. He has argued

one issue and that issue is not frivolous. His citation to Anders is therefore not welltaken. As such, this Court chooses to ignore that citation and, reviewing the record,

adjudicate the merits of his issue. 

The defendant argues that the state violated its requirement to file ten day

notice of career offender designation as required by Tenn. Code Ann. § 40-35-

202(a). The state conceded that it did, in fact, fail to provide the ten days notice

required by statute; nevertheless, it argues that once the sentencing hearing began

and the defendant, then apprised of the state’s intention to seek Career Offender

designation, failed to request a continuance, the issue was waived. The defendant,

principally by way of his argument before the sentencing court, asserts that a more

appropriate remedy for the notice violation would be a procedural bar or waiver; that

is, he argues that the state should be barred from thereafter seeking Career

Offender designation. Accordingly, he notes that, all along, the state had in its

control and access the defendant’s prior convictions and records.

Versions of this argument were previously heard in State v. Stephenson, 752

S.W.2d 80 (Tenn. 1988), and State v. Adams, 788 S.W.2d 557 (Tenn. 1990). In

both cases, the Court recognized an absolute right on behalf of the defendant to a

continuance where, as here, the state had failed in its statutory notice duty. Absent

the showing of prejudice to the defendant by reason of the untimely filing, or absent
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a sentencing court’s decision to strike the motion for Career Offender designation,

a continuance is the defendant’s exclusive remedy. See Stephenson, 752 S.W.2d

at 81. Accordingly, failure to request a continuance amounts to waiver. Id. In this

case, such waiver has occurred, and while this Court acknowledges the defendant’s

argument and its logic, we reject its conclusion. The issue is therefore nonmeritorious. 

CONCLUSION

Accordingly, we AFFIRM the judgment and sentence from the trial court.

_______________________________

JOHN EVERETT WILLIAMS, Judge

CONCUR:

______________________________

DAVID G. HAYES, Judge

______________________________

ALAN E. GLENN, Judge