[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

v. Upkins, Slip Opinion No. 2018-Ohio-1812.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2018-OHIO-1812

THE STATE OF OHIO, APPELLEE, v. UPKINS, APPELLANT. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State v. Upkins, Slip Opinion No. 2018-Ohio-1812.] 

Appeal dismissed as having been improvidently accepted. 

(No. 2016-1742—Submitted December 5, 2017—Decided May 10, 2018.) 

APPEAL from the Court of Appeals for Shelby County, 

No. 17-16-04. 

_______________ 

{¶ 1} This cause is dismissed as having been improvidently accepted. 

O’CONNOR, C.J., and O’DONNELL, KENNEDY, RICE, and DEWINE, JJ., 

concur. 

FISCHER, J., dissents, with an opinion joined by FRENCH, J. 

CYNTHIA WESTCOTT RICE, J., of the Eleventh District Court of Appeals, 

sitting for O’NEILL, J. 

_________________ 

 
SUPREME COURT OF OHIO

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FISCHER, J., dissenting.

{¶ 2} I disagree with the decision to dismiss this case as improvidently 

accepted. There are a number of problems regarding Anders briefs in this state that 

should be resolved by this court, and this case presents an opportunity to resolve 

several of those problems. 

I. Background 

{¶ 3} Appellant, Lamone Upkins, was charged with four counts of fifthdegree-felony drug trafficking, seven counts of fourth-degree-felony drug 

trafficking, and one count of third-degree-felony drug trafficking. Upkins, assisted 

by counsel, negotiated a plea agreement in the Shelby County Court of Common 

Pleas whereby he pleaded guilty to two counts of fifth-degree-felony drug 

trafficking, two counts of fourth-degree-felony drug trafficking, and one count of 

third-degree-felony drug trafficking. In exchange for his plea, the state dismissed 

the remaining counts. The agreement included a joint sentencing recommendation 

of four years of incarceration. 

{¶ 4} The trial court accepted Upkins’s guilty plea and sentenced him to an 

aggregate sentence of four years and ten months of incarceration. 

{¶ 5} Upkins appealed, and the same counsel that represented him in his 

trial-court proceedings represented him before the Third District Court of Appeals. 

Upkins’s counsel subsequently filed a no-merit brief pursuant to Anders v. 

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and a motion to 

withdraw as counsel. Upkins filed a pro se brief alleging, among other claims, that 

his plea was not voluntary because he did not understand that the court could reject 

the sentence that was jointly recommended, that the sentence was based on 

incorrect information regarding prior convictions, and that his trial counsel was 

ineffective in multiple ways. Upkins also argued that he should have been 

appointed new counsel because his present counsel had a conflict of interest. 
January Term, 2018 

3

{¶ 6} The appellate court conducted an independent review of the record 

and determined that there was no nonfrivolous claim. The court permitted counsel 

to withdraw, and it dismissed Upkins’s appeal. 

{¶ 7} Upkins filed a pro se jurisdictional appeal with this court. The court 

rephrased Upkins’s fourth proposition of law and accepted jurisdiction over that 

proposition: “When appellate counsel also served as trial counsel and moves to 

withdraw pursuant to Anders v. California, the court shall permit counsel to 

withdraw and must then appoint new appellate counsel to review the record and 

raise any nonfrivolous appealable issue.” 149 Ohio St.3d 1405, 2017-Ohio-2822, 

74 N.E.3d 464. 

II. Anders v. California

{¶ 8} In Anders v. California, the United States Supreme Court ruled that a 

defendant’s due-process and equal-protection rights are violated when defense 

counsel files a no-merit letter with the appellate court and does no more. 386 U.S. 

at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. The court held that counsel is required to 

file a brief referring the appellate court to anything in the record that might arguably 

support the appeal. Id. The defendant must be furnished a copy of his counsel’s 

brief and must be given the opportunity to raise his own arguments. Id. The court 

must then conduct an independent review of the record and determine whether the 

case is wholly frivolous. Id. Only after these multiple levels of review are complete 

can an appellate court dismiss an appeal under Anders. Id. 

{¶ 9} The Anders procedure is a constitutional floor and not a constitutional 

ceiling. Smith v. Robbins, 528 U.S. 259, 265, 120 S.Ct. 746, 145 L.Ed.2d 756 

(2000). In other words, states may impose greater duties on a defendant’s attorney 

but may not allow counsel to fall short of this level of duty.

III. The Anders procedure creates an ethical problem for appellate courts

{¶ 10} Under Anders, the appellate court must complete an independent 

review of the record and then appoint counsel to argue that appeal if the court finds 
SUPREME COURT OF OHIO

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that a claim of arguable merit exists. This procedure places the court in the role of 

both advocate and adjudicator. In Ohio, how can a judge who has reviewed a record 

and identified issues of arguable merit then rule on the actual merits of the claims 

he or she previously identified without there being an appearance of impropriety, 

which is barred by the rules of judicial ethics? See Canon 1 of the Ohio Code of 

Judicial Conduct. 

IV. Anders in other states

{¶ 11} Several other states have either decided to not accept Anders briefs 

or have adopted a modified version of the procedure. 

{¶ 12} The Idaho Supreme Court has entirely barred defense counsel from 

filing Anders briefs, noting that Anders is a constitutional safeguard, not a 

constitutional mandate. State v. McKenney, 98 Idaho 551, 552-553, 568 P.2d 1213 

(1977). The New Hampshire Supreme Court has adopted the “Idaho rule” and has 

noted that provided appellate counsel has a good faith basis for bringing an appeal, 

defense counsel would not run afoul of any ethical duties because wholly frivolous 

appeals are “extremely rare.” State v. Cigic, 138 N.H. 313, 316-317, 639 A.2d 251 

(1994). The Georgia Supreme Court has stated that Anders briefs will no longer be 

considered and has specifically noted that there is nothing to suggest that defense 

counsel should be disciplined or subject to disapproval for filing a “frivolous” merit 

brief when representing an indigent client. Huguley v. State, 253 Ga. 709, 710, 324 

S.E.2d 729 (1985). 

{¶ 13} The Massachusetts Supreme Court has ruled that Anders created 

confusion for appointed counsel by requiring counsel to argue against the client’s 

wishes and best interests. Commonwealth v. Moffett, 383 Mass. 201, 205-206, 418 

N.E.2d 585 (1981). The court determined that counsel should not be permitted to 

withdraw but should represent the client succinctly and in a way that will do the 

client the least harm. Id. at 207-208. Counsel may also disassociate from the 
January Term, 2018 

5

arguments in the brief but must send a copy of the brief to the client if counsel does 

so. Id. at 208. 

{¶ 14} The Missouri Supreme Court has determined that it will not permit 

appointed counsel in criminal appeals to withdraw under the Anders procedure and 

that counsel should “ ‘communicate to the court the issues and whatever can be said 

in support of them.’ ” State v. Gates, 466 S.W.2d 681, 683-684 (Mo.1971), quoting 

Advisory Committee Notes to ABA Standards, The Prosecution Function and the 

Defense Function 301 (1970 tentative draft). Similarly, the Colorado Supreme 

Court has looked to the ABA Standards for Criminal Appeals, which state that 

counsel cannot withdraw but should inform the client of the chances of success, 

eliminate arguments that lack any merit, and suggest the case be submitted on the 

briefs. McClendon v. People, 174 Colo. 7, 12, 481 P.2d 715, 718 (1971), citing 

ABA Standards, Criminal Appeals 3.2 (1970). 

{¶ 15} The North Dakota Supreme Court has found that adopting the 

Anders procedure violated the state constitution. State v. Lewis, 291 N.W.2d 735, 

738 (N.D.1980). The court ruled that counsel could move to withdraw but that 

replacement counsel should be appointed. Id.

{¶ 16} In addition to the seven states discussed above, nine other states have 

barred a defense attorney from filing an Anders brief. See In re Attorney’s Fees of 

Mohr, 97 Haw. 1, 11, 32 P.3d 647 (2001); Mosley v. State, 908 N.E.2d 599, 607 

(Ind.2009); State v. Junkins, 2001 ME 133, 779 A.2d 948, ¶ 8; Ramos v. State, 113 

Nev. 1081, 1084, 944 P.2d 856 (1997); State v. Talley, 103 N.M. 33, 1985-NMCA058, 702 P.2d 353, ¶ 23; In re Bailey, 187 Vt. 176, 2009 VT 122, 992 A.2d 276, 

¶ 64; Revised Iowa R.App.P. 6.1005(1) and Iowa R.Prof.Cond. 32:3.1, comment 4; 

N.J. Court R. 3:22-6(d); W.Va.R.App.P. 3(d)(2). Kansas and Minnesota have not 

specifically barred the filing of Anders briefs by rule or case law, but neither state 

has adopted the Anders procedure, and Anders briefs are not filed by defense 

counsel in those two states. Martha C. Warner, Anders in the Fifty States: Some 
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Appellants’ Equal Protection is More Equal Than Others, 23 Fla.St.U.L.Rev. 625, 

651 and fn. 212 (1996) (“Kansas has an unwritten policy of not accepting Anders 

briefs”; “Minnesota does not have Anders briefs because of its centralized public 

defender system”). Rhode Island does not permit defense counsel to file an Anders

brief when the defendant has been sentenced to life imprisonment without the 

possibility of parole. See Motyka v. State, 172 A.3d 1203, 1205, 1208 (R.I.2017). 

{¶ 17} Finally, Oregon and South Dakota allow Anders briefs but offer an 

alternative in which counsel does not seek to withdraw but files a modified brief, 

see State v. Balfour, 311 Or. 434, 448-449, 451-452, 814 P.2d 1069 (1991), and 

State v. Korth, 2002 SD 101, 650 N.W.2d 528, ¶ 17, and Utah accepts Anders-type 

briefs but has created more rigorous requirements than those set forth in Anders, 

see Dunn v. Cook, 791 P.2d 873, 877 (Utah 1990). In sum, Anders has received far 

from universal approval.

V. Anders in Ohio 

{¶ 18} Ohio courts have applied the procedures announced in Anders since 

at least 1970. State v. Toney, 23 Ohio App.2d 203, 207, 262 N.E.2d 419 (7th 

Dist.1970). But the results have not been without flaws, and the procedures have 

not been uniformly applied. Additionally, in certain situations, such as the one 

presented in the case at bar, in which the same counsel represented the defendant 

before both the trial and appellate courts, concerns of constitutional magnitude arise 

regarding the representation afforded the defendant. 

A. Anders briefs are sometimes filed in cases when there are meritorious 

claims 

{¶ 19} Anders briefs have proved a less-than-effective method to determine 

whether a defendant has meritorious claims on appeal. In Ohio, there are many 

examples of defense counsel filing Anders briefs that were later rejected by 

appellate courts because there were nonfrivolous issues for appeal. Indeed, there 

are multiple examples of trial courts being reversed on one issue or another after 
January Term, 2018 

7

Anders briefs were filed but rejected. In other words, not only were the appeals not 

wholly frivolous, as required for the submission of an Anders brief, but assignments 

of error were eventually sustained. See, e.g., State v. Williams, 6th Dist. Fulton No. 

F-08-008, 2010-Ohio-391, ¶ 3, 16-17 (Anders brief rejected and sentence vacated 

because plea was not made knowingly, intelligently, and voluntarily); State v. 

Branham, 2d Dist. Clark No. 2013 CA 49, 2014-Ohio-5067, ¶ 4, 14-16 (Anders 

brief rejected and conviction reversed because defendant had not been apprised that 

consecutive sentences were mandatory); State v. Hall, 4th Dist. Lawrence No. 

14CA21, 2015-Ohio-4975, ¶ 4, 10-11, 21 (Anders brief rejected and consecutive 

sentences vacated); State v. Mack, 1st Dist. Hamilton No. C-140054, 2015-Ohio1430, ¶ 13, 30 (Anders brief rejected and sentence halved on appeal); State v. Jones, 

2d Dist. Montgomery No. 25688, 2014-Ohio-5574, ¶ 3, 15 (Anders brief rejected 

and conviction reversed because guilty plea was invalid); State v. Tsibouris, 1st 

Dist. Hamilton Nos. C-120414 and C-120415, 2014-Ohio-2612, ¶ 14, 31, 37 

(Anders brief rejected and conviction reversed because jury was instructed only on 

the lesser offense); State v. May, 2d Dist. Montgomery No. 25359, 2014-Ohio1542, ¶ 2, 56 (Anders brief rejected and sentence reversed); State v. Roberson, 2d 

Dist. Greene No. 2010-CA-66, 2012-Ohio-5106, ¶ 11, 29-31 (Anders brief rejected, 

fruits of warrantless search suppressed, and conviction reversed); State v. Herron, 

2d Dist. Montgomery No. 24033, 2011-Ohio-5021, ¶ 2, 9 (Anders brief rejected 

and trial-court judgment reversed because murder convictions and felonious-assault 

convictions merged); State v. Freeders, 2d Dist. Montgomery No. 23952, 2011-

Ohio-4871, ¶ 6-7, 28 (Anders brief rejected and sentence vacated); State v. Polus, 

6th Dist. Ottawa No. OT-08-040, 2010-Ohio-25, ¶ 2, 12 (same); State v. Wilkinson, 

178 Ohio App.3d 99, 2008-Ohio-4400, 896 N.E.2d 1027, ¶ 6, 20-21 (2d Dist.) 

(Anders brief rejected and conviction reversed because indictment was improperly 

amended); see also State v. Strickland, 2d Dist. Montgomery No. 25673, 2014-

Ohio-5451, ¶ 10, 30-31 (Anders brief rejected and new hearing ordered on plea 
SUPREME COURT OF OHIO

8

withdrawal; defendant’s Sixth Amendment rights were violated because defendant 

was not represented by counsel while defense counsel testified during hearing on 

motion to withdraw guilty plea); State v. Smith, 2d Dist. Montgomery No. 24402, 

2013-Ohio-1586, ¶ 12-13, 30, 39 (Anders brief accepted but defendant successfully 

had case reopened and conviction reversed because juror was improperly 

excluded). 

{¶ 20} In State v. Gilbert, this court affirmed an appellate court’s judgment 

reversing a trial court’s decision in a case in which an Anders brief was filed and 

was rejected by the appellate court. 143 Ohio St.3d 150, 2014-Ohio-4562, 35 

N.E.3d 493, ¶ 13-14. The court of appeals in Gilbert had rejected counsel’s Anders

brief and appointed new counsel to represent the defendant. 1st Dist. Hamilton No. 

C-110382, 2012-Ohio-1366. In its subsequent decision, the appellate court held 

that it had been improper for the trial court to vacate the defendant’s original 

sentence and order a longer sentence. 1st Dist. Hamilton No. C-110382, 2013-

Ohio-238, ¶ 4, 18. The appellate court reinstated the defendant’s 18-year sentence 

and vacated the trial court’s 18-years-to-life sentence. Id. at ¶ 3, 21. This court 

accepted the state’s discretionary appeal and affirmed the appellate court’s 

judgment. 

{¶ 21} This sampling of the many cases with similar processes and 

outcomes demonstrates that the Anders-brief system is not effective in protecting 

the appellate rights of defendants. It would be almost impossible to determine the 

number of cases in which an Anders brief was filed and a reversible error went 

undetected by the court, attempting to act in an unnatural role as an advocate for 

the defendant, and by the pro se defendant, attempting to make his case on appeal 

without the benefit of legal training. 

B. Two Ohio appellate districts do not accept Anders briefs 

{¶ 22} In June 2017, the Fourth District Court of Appeals decided that it 

would no longer accept Anders briefs. State v. Wilson, 2017-Ohio-5772, 83 N.E.3d 
January Term, 2018 

9

942 (4th Dist.). As a basis for its decision, the court cited the prejudice that the 

client faced, the conflict of interest and ethical problems that counsel faced, the 

burden on the judiciary to perform the role of both advocate for the defendant and 

adjudicator of potential claims, the lack of uniformity among the states, and 

alternative procedures that avoid at least some of those pitfalls. The court also 

noted that the Anders-like procedure utilized in Ohio varies among the appellate 

courts. Describing the Fourth District’s approach, the court stated that “ ‘in the 

context of Anders review, * * * we fully examine the trial court proceedings,’ ” 

Wilson at ¶ 21, quoting State v. Wright, 4th Dist. Scioto Nos. 15CA3705 and 

15CA3706, 2016-Ohio-7795, ¶ 18. The court contrasted this approach with that 

used in State v. Taylor, 8th Dist. Cuyahoga No. 101368, 2015-Ohio-420, ¶ 15-20, 

in which the Eighth District reasoned that “a completely independent examination 

of the entire record to determine if there are any colorable issues on appeal is 

‘overkill’ and makes the court the defendant’s counsel,” Wilson at ¶ 22. The Fourth 

District decided that it would adopt the Idaho rule. Id. at ¶ 23. 

{¶ 23} Even more recently, the Seventh District Court of Appeals adopted 

a rule and procedure similar to those the Fourth District adopted in Wilson. State 

v. Cruz-Ramos, 7th Dist. Mahoning No. 17 MA 0077, 2018-Ohio-1583, ¶ 16. The 

court specifically stated its approval of the Fourth District’s reasoning. Id. at ¶ 14. 

{¶ 24} Given that the Fourth and Seventh Districts no longer accept Anders

briefs and that many other districts in Ohio continue to accept Anders briefs, there 

appears to be a conflict among the appellate courts. While this case did not squarely 

present the conflict issue, this court will likely have to address the conflict in the 

future. Indeed, Judge McFarland of the Fourth District made a request for his 

colleagues to certify a conflict on this exact issue in State v. Gillian, 4th Dist. Gallia 

No. 16CA11, 2017-Ohio-7386, ¶ 11 (McFarland, J., dissenting). This court could 

have ordered additional briefing or delayed final adjudication in the instant case 

until the conflict was resolved. Dismissing this case as improvidently accepted 
SUPREME COURT OF OHIO

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leaves Upkins without redress for a claim that at least two Ohio appellate districts 

would hold meritorious. 

C. Same counsel, res judicata, and the Sixth Amendment 

{¶ 25} As the parties note in their briefs, in Ohio, when appellate counsel 

has also served as trial counsel, record-based claims of ineffective assistance of trial 

counsel need not be presented on direct appeal and can be presented in 

postconviction proceedings. State v. Cole, 2 Ohio St.3d 112, 113, 443 N.E.2d 169 

(1982), fn. 1. This rule is an exception to the doctrine of res judicata, and it exists 

to eliminate the conflict of interests that would arise if counsel were required to 

argue their own ineffectiveness. Id. 

{¶ 26} This rule makes a lot of sense, but it creates two unintended 

problems. First, I believe that there are deeply troubling Sixth Amendment 

implications. Criminal defendants have a constitutional right to counsel on direct 

appeal. Douglas v. California, 372 U.S. 353, 355, 83 S.Ct. 814, 9 L.Ed.2d 811 

(1963). When trial counsel also serves as appellate counsel, ineffective-assistanceof-counsel claims, which are normally presented in the direct appeal, are preserved 

for postconviction proceedings. See Cole at 113, fn. 1, and syllabus. While we do 

not phrase it in this manner, the reality is that the direct appeal is split into two, with 

the first part being the traditional direct appeal and the second being a 

postconviction action raising the issue of ineffective assistance of trial counsel. The 

problem is that criminal defendants are not guaranteed counsel during 

postconviction proceedings. Thus, under the current system, some indigent 

defendants’ direct appeals are split into two distinct actions and, in one of those 

actions, counsel is not appointed as a matter of course. 

{¶ 27} Many questions could be raised as to whether such a procedure 

would withstand constitutional scrutiny, particularly as some Ohio appellate 

districts do not permit counsel to assert their own ineffectiveness on appeal—

rendering ineffective-assistance-of-trial-counsel claims unreviewable in the 
January Term, 2018 

11 

traditional direct appeal, see, e.g., State v. Tinch, 84 Ohio App.3d 111, 126, 616 

N.E.2d 529 (12th Dist.1992); State v. Fuller, 64 Ohio App.3d 349, 356, 581 N.E.2d 

614 (2d Dist.1990). 

{¶ 28} In states such as Ohio, where a defendant has the right to appeal a 

criminal conviction, indigent defendants are constitutionally entitled to counsel for 

that appeal. This constitutional protection is significantly eroded if a state can 

devise a procedure that bars traditional direct-appeal claims from being presented 

in a direct appeal and provides an alternative action for those claims to be heard but 

then fails to provide indigent defendants with counsel for those alternative actions. 

In other words, the Ohio procedure arguably robs criminal defendants of some of 

their Sixth Amendment protections. This case presents an opportunity to review 

that arguably unconstitutional procedure. 

{¶ 29} The second problem is more particular to this case and other cases 

in which Anders briefs are filed. Upkins filed a pro se brief raising the claims that 

he believed were not wholly frivolous. Upkins argued that his trial counsel was 

ineffective. Upkins’s counsel was not required to raise that argument because he 

had a conflict of interest. See Cole, 2 Ohio St.3d at 113, 443 N.E.2d 169, fn. 1, and 

syllabus. The appellate court determined that there were no nonfrivolous claims 

and that the Anders brief filed by defense counsel should be accepted and the case 

dismissed. This leaves the status of Upkins’s claim of ineffective assistance of trial 

counsel in an unusual and problematic position. The appellate court represents that 

there are no nonfrivolous claims that could be raised, Upkins has argued that there 

is a nonfrivolous ineffective-assistance-of-trial-counsel claim, but Upkins’s 

counsel, who filed the Anders brief, was not expected to raise that argument because 

it is preserved for postconviction. This logically leads to a question: is the 

ineffective-assistance claim, which was raised pro se by Upkins and reviewed and 

then dismissed by the appellate court, res judicata for purposes of postconviction 

proceedings, or are claims presented and adjudicated by the appellate court 
SUPREME COURT OF OHIO

12 

preserved for postconviction proceedings because Upkins did not have 

constitutionally required counsel to represent him regarding these claims? Either 

answer is unsatisfactory and demonstrates exactly why appellate counsel who also 

served as trial counsel should not be permitted to file an Anders brief. This 

situation, while perhaps unusual, should be addressed by this court. Adopting 

Upkins’s proposition of law would be one potential resolution. The state argued 

that rulemaking is an alternative method by which these problems can be resolved. 

Whether it be through case law or by rulemaking, a resolution is needed sooner 

rather than later. 

VI. Conclusion 

{¶ 30} For the above-stated reasons, I disagree with the court’s decision to 

dismiss this case as improvidently accepted. I would address the proposition of law 

presented, as I have doubts regarding Anders briefs in general and the propriety of 

counsel filing an Anders brief after representing a defendant in both the trial court 

and the appellate court. 

FRENCH, J., concurs in the foregoing opinion. 

_________________ 

Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, 

Michael J. Hendershot, Chief Deputy Solicitor, and Peter T. Reed, Deputy 

Solicitor; and Timothy S. Sell, Shelby County Prosecuting Attorney, and Melissa 

L. Wood, Assistant Prosecuting Attorney, for appellee. 

Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant 

Public Defender, for appellant. 

_______________