# FILED March 17, 2000 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CR IMINAL APPEALS OF TENNESSEE AT JACKSON JANUARY 2000 SESSION

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

Appellee, * HARDEMAN COUNTY VS. * Honorable Jon Kerry Black wood, Judge MICHAEL ANTHONY * (Forgery) TURNER, SR. Appellant. *

FOR THE APPELLANT : FOR THE APPELLEE : C. MICHAEL ROBBINS PAUL G. SUMMERS 46 North Third Street, Sui te 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 Def

ender Nashville, TN 37243 RICKEY W. GRIGGS ELIZABETH T. RICE Assistant Public Defender District Attorney Gener al P. O. Box 700 Somerville, TN 38068 JAMES WALTER FREELAND, JR. (At Trial and On Appeal) Assistant District A ttorney General 302 Market Street Somerville, TN 38068

OPINION FILED: _______________ AFFIRMED JOHN EVERETT WILLIAMS,1 The guilt y plea, as t he defendant concedes,is faci ally val id in al l respects. -2- Judge



### OPINI ON
INTRODUCTION The defendant, Michael Anthony Turner, Sr., appeals from his c onviction of three counts of forgery enter ed pursuant to his guilty pl ea in a Hardeman County Court. The defendant was sentenced as a Career Offender tothree concurrent sixyear terms; these term s w ere ordered to run consecuti ve to another unrelated sentence for which the defendant was on parole at the time of the instant offenses. The defendant has filed a timely notic e of appeal and a brief; further, i n this brief, counsel for defendant, while arguing one issue, h as 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 i s superfluous and misplac ed. Therefore, we ign ore 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 appea l begin after the defendantentered a plea of guilty to three forgery charges 1 . After his plea, the court held a sentenci ng hearing on May 28, 1999. At the sentencing hearing,the events occurredthat gave rise to this appeal.-3- The heari ng begins with the state’s explaining that the defenda nt was n o t served with the state’s Career Offender notice un t il May 21, 1999 because the defendanthad failed to appear for arr aignment and a failure to appear warrant had to be issued. However, the def endant was served prior to his guilty plea but not the required ten days. That beingthe case, the ten day notice requi rement imposed by Tenn. Co de Ann . § 40-35-202(a) was viol ated. The defendant did not request a continuance, as is his absolute right , but rather, at the hearing, s imply conti n ued and presented argument. This a rgument followed the state’ s only proof, certified copies of the defendant’s previous convictions. Rather than citing mitigating factors or any other evidence, counsel f or the def en dant argued that the state should be procedurally barred from now requesti ng that the defendant be classifie d 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 appell ate 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 wi shes to express its concern over the increasing number of so-called Anders filings. Our first, and preliminary, concer n is that a number of these Anders filing s we re not accompanied with aseparate motion to withdr aw. Instead, counselhas 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. Th is 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 pr

ocedure, our first not ice of an Anders fil ing when fil ed withou t a separat e mo tion to withd raw is upo n the ass igned judge ’s first r ead ing of the b riefs. This comes much too late. -4- State v. Ingram , 994 S.W.2d. 626 (Tenn. Cr im. App . 1998). As a direct resu lt of counsel’s failure to file a separat e motion towithdraw as required, processing of this case has been unduly delayed. 2 Therefore, we must ins ist 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 w ithdraw and an Anders brief whenever counsel feels, ba sed upon review of the relev ant 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 log ic supporting a change of law . For guidance’s sake, (1) it is not frivolous to make a “good faith argument for an e xtension, modification or revers

al of existing law;” (2) an action is not f rivol ous even though counsel believes that appellant’s position ulti mately will not prevai l; 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-mer itorious argumen t, couns el is not in violation of any ethical duty; counsel is simply ful filling ethical duties of effective and zealous representation. A non-meritorious ar gument, while against the w eight of legal authority, nevertheless has some basis in either law or fact. Counsel, in fulfilling ethical duties, will often present arguments that w ill ultimately be found non--5- meritorious. We ful ly acknowledge that counsel may at the outset know that an argumentdoes not stand a good chance of succ eeding; however, coun sel must argue. It is only in the

very rare situation w

hen counsel is left with n o argument but merelyfrivolous ones that counsel may file a motion to withdraw and s ubmit an Anders brief. Again, such Anders filings will be ver y rare.
In this case, counsel’s ci te 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 choo ses to ignore that citation and, r eviewing the record, adjudicate the merits of hi s issue.

The defendant argues that the state vi olat ed its requirement to fil e ten day no tice of career offender designati on as required by Tenn. Code A nn. § 40-35 - 202(a). The state conceded that it di d, in fact, fail to provide the te n days notice required bystatute; nevertheless, it argues that once the sentencing hearing began and the defendant, then apprised of the s tate’s intention to seek Car eer Offender designation, failed torequest a continuance, the iss ue was waived. The defendant, principally by way of his argument befo re the sentencing court, ass erts that a

more appropriateremedy for the notice vi olation would be a procedural bar or waiver; that is , he argues that the state should be barred from thereafter s eek ing Caree r Offender designation. Accordingly , he notes that, all along, the state had i n its control and access the defendant’s prior convictions and records.

Versionsof this argument were pr eviously 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 f ailed in its statutory no

tice duty. Absent the showing of prejudice to the defendant by reason of the untimel y filing, or absent-6- a sentencing court’s decis ion to strike the motion f or 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 towaiver. Id . In this case, such waiver

has occurred, and while this Court acknowledges the defendant’s argu mentand its logic, we rejec t its conclusion. The is sue is therefore non meritorious
.
CONCLUSION Accordingly, we AFFIR M the judgment and sentence fro m the trial court.

_______________________________ JOHN EVERETT WILLIAMS , Judge CONCUR:

______________________________ DAVID G. HAYES, Judge

______________________________ ALAN E. GLENN, Judge