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Appeals Court Says Attorneys Can No Longer Withdraw if Appeal Is Frivolous


A court of appeals in Mahoning County has ruled that an attorney appointed for purposes of a criminal appeal may no longer seek to withdraw from the appeal if the attorney believes that the appeal is frivolous. That attorney must now either try to convince the defendant to dismiss the appeal or, failing that, the attorney must raise some argument with the appeals court.

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The Right to Counsel Extends to Appeals

As many know from watching just about any crime show, every criminal defendant has a right to an attorney if he or she cannot otherwise afford one. What many may not know is that the right to an attorney includes more than just the trial of the case. Criminal defendants also have the right to an attorney for the appeal.

Following a conviction in the trial court, a criminal defendant has 30 days to file a “notice of appeal” stating the intention to have an appellate court review the case and determine whether there were any errors committed that might require the reversal of the conviction. In Ohio, there are twelve appellate districts. Each district covers several counties. A conviction entered in a county must be appealed to the appellate district encompassing that county. For example, Montgomery County is covered by the Second District Court of Appeals; so any appeal from a conviction in Montgomery County will be heard by the Second District.

The Anders Case Provided a Procedure to Withdraw from Frivolous Appeals

Once an attorney has been appointed for an appeal, he or she will review the record, including any transcripts of the hearings or trial that was held, and determine whether any errors occurred that affected the outcome of the trial. These errors will then become the basis for the arguments raised in the appeal.

For example, if following the conviction of a criminal defendant an attorney appointed for the appeal believes that some evidence was improperly admitted by the trial court, or perhaps was improperly excluded, then that alleged “error” would be argued to the appeals court. If the appeals courts agreed that this admission or exclusion of evidence was erroneous, and that it had an impact on the outcome of the trial, then the appeals courts may overturn the conviction. An appeals court has great power when deciding an appropriate remedy for errors that occurred in the trial court; for example, an appeals court could order a new trial or alter the sentence imposed.

However, sometimes an attorney reviewing a case believes that everything was handled properly at the trial court level. In that case, the attorney may believe that no error occurred at the trial court. Thus, the attorney may believe that there is no argument to raise in the appeal. If the appointed attorney believes that the appeal has absolutely no merit, then that attorney may file what is called an Anders brief, based on a United States Supreme Court case from 1967 that provided a procedure to follow to allow the attorney to inform the appeals court that there is no error to raise in the appeal.

Following the submission of an Anders brief, two things happen. First, the attorney must inform the appeals court as to the possible arguments that might be raised on appeal (even though the attorney believes these arguments to be without merit) and must inform the criminal defendant that the attorney believes there are no errors to raise; the defendant may then submit his or her own arguments. Second, the appeals court is required to conduct an independent review of the case to ensure that there are no arguable issues to raise in the appeal. If the appeals court so finds, then the attorney is permitted to withdraw from the case and the appeal is dismissed.

Mahoning County Court Strikes Anders Procedure

An appointed attorney in a case from Mahoning County, covered by the Seventh District Court of Appeals, recently determined that a criminal case had no arguable errors. Thus, the attorney filed an Anders brief (what the Seventh District called a “no merit brief”) and asked the appeals court to allow the attorney to withdraw from the case.

In State v. Cruz-Ramos, 2018-Ohio-1853, decided April 23, 2018, the appeals court ruled that it would no longer permit attorneys to withdraw from the case on these grounds. The appeals court pointed out multiple problems with the Anders procedure. For example, Anders places attorneys in the difficult position of arguing against their client’s interests. Criminal defendants want, and have a right to, attorneys who will zealously argue on their behalf; but the Anders procedure allows an attorney to essentially walk away from advocating on the client’s behalf. Further, Anders basically requires the appeals court to swap places with the attorney. Because the appeals court must conduct an independent review of the case before ruling on the motion of the attorney to withdraw, the appeals court must act as the attorney, seeking any errors and looking for ways to advance the defendant’s arguments.

Given these issues, the Seventh District ruled that “in any criminal appeal as a matter of right, it is no longer an acceptable practice in this court for counsel to file an Anders no merit brief . . . . This also means that counsel may not file a motion to withdraw on the grounds that the appeal is frivolous. If a defendant does not wish to dismiss the appeal after consulting with counsel, then counsel must file a merit brief.”


It remains to be seen whether the other 11 appellate districts in Ohio will adopt a similar rule. If so, then criminal defendants will be guaranteed that at least some argument will be raised in their cases.

The attorneys of Dearie, Fischer & Martinson LLC have a wealth of experience in handling both criminal trials and appeals. If you are facing criminal charges, or have been convicted and are considering the possibility of an appeal, then don’t try to go it alone. Contact the attorneys of Dearie, Fischer & Martinson LLC today.