Opinion
Court of Appeals Nos. L-98-1196, L-98-1195, L-98-1194 Trial Court Nos. CR-0199801222, CR-0199606368, CR-0199506916
Decided: June 18, 1999.
Carol L. Damrauer, for appellant.
OPINION AND JUDGMENT ENTRY
This matter is before the court as an appeal from the Lucas County Court of Common Pleas. It comes before the court on counsel's motion to withdraw as appellant's attorney and the Anders Brief submitted in support. Pursuant to 6th Dist.Loc.App.R. 12(C), this appeal is hereby assigned to the accelerated calendar.
Appellant, Andre Harper, was convicted of aggravated riot in 1996 and aggravated assault in 1997. The trial court sentenced him to eighteen months in prison on each count, to be served concurrently. Appellant was subsequently released on shock probation.
In 1998, appellant was convicted of attempted possession of cocaine. The trial court sentenced him to serve twelve months. The trial court also reimposed the sentences in the two earlier cases. The trial court ordered all sentences to be served consecutively to each other.
Appellant filed a notice of appeal and appellate counsel was appointed to represent him. Appellant's appointed counsel has filed a brief accompanied by a motion to withdraw as counsel pursuant to Anders v. California(1967), 386 U.S. 738, 744. In support of her request, and pursuant to the guidelines set forth in Anders, appellant's counsel asserts that after an extensive review of the record, she was unable to find any valid, arguable issues for appeal. As a result, counsel has submitted a brief setting forth three potential assignments of error which might arguably support an appeal and furnished a copy of the brief and motion to appellant. Anders, 386 U.S. at 744.
Because counsel fulfilled these requirements, this court must conduct a full examination of the proceedings to decide whether the case is wholly frivolous. Id. Our independent review of the record confirms that an arguable issue concerning sentencing exists for appeal, which appellate counsel did not raise in one of her three potential assignments of error. Therefore, this case is not wholly frivolous. Because we must not assume the role of counsel, we decline to discuss whether the three potential assignments of error included in the Anders brief raise further arguable issues. See Penson v. Ohio(1988), 488 U.S. 75, 85.
Because an Anders brief is not a substitute for an appellate brief argued on the merits where an arguable issue exists for appeal, we must proceed to the next step and appoint counsel to prepare an advocate's brief and pursue the appeal before we can decide the merits. McCoy v. Court of Appeals of Wisconsin, District 1(1983), 486 U.S. 429, 439, 444; see Penson v. Ohio, 488 U.S. 75, 85.
Accordingly, we grant the motion to withdraw filed by attorney Carol L. Damrauer. Further, attorney Samuel Z. Kaplan, Suite 835 Spitzer Building, 520 Madison Avenue, Toledo, Ohio 43604, is hereby appointed to prepare an appellate brief in this case discussing the arguable issue already identified by this court and any further arguable issues which may be found in the record. Appellant's brief is to be filed within thirty days of the date of this opinion.
Peter M. Handwork, P.J. Melvin L. Resnick, J. Richard W. Knepper, J.