State v. Bowshier (Slip Opinion) , 154 Ohio St. 3d 39 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Bowshier, Slip Opinion No. 2018-Ohio-2150.]
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SLIP OPINION NO. 2018-OHIO-2150
THE STATE OF OHIO, APPELLEE, v. BOWSHIER, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Bowshier, Slip Opinion No. 2018-Ohio-2150.]
Appeal dismissed as having been improvidently accepted.
(No. 2017-0936—Submitted April 11, 2018—Decided June 6, 2018.)
APPEAL from the Court of Appeals for Clark County,
Nos. 15-CA-54 and 15-CA-73.
_______________
{¶ 1} This cause is dismissed as having been improvidently accepted.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, DEWINE, and DEGENARO,
JJ., concur.
FISCHER, J., dissents, with an opinion joined by FRENCH, J.
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FISCHER, J., dissenting.
{¶ 2} I respectfully disagree with the decision to dismiss this case as
improvidently accepted.
SUPREME COURT OF OHIO
{¶ 3} The court accepted the following issue for review: a court of appeals
must not dismiss a case pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct.
1396, 18 L. Ed. 2d 493 (1967), when the appellant presents case law in support of
his or her position. See 150 Ohio St. 3d 1451, 2017-Ohio-8136, 83 N.E.3d 938. No
proposition of law was asserted or accepted regarding the Sixth Amendment rights
of an incarcerated criminal defendant when the only issue remaining in the case
relates to forfeiture of property. However, appellee, the state of Ohio, argues that
this Sixth Amendment issue is a necessary threshold question because Anders is
applicable only when Sixth Amendment rights have attached. The state adds that
Sixth Amendment rights do not attach to forfeiture proceedings, and the appeal in
this case is taken from a “post-sentence” forfeiture proceeding.
{¶ 4} There could be good reasons to dismiss a case as improvidently
accepted when no proposition of law was accepted on a threshold question. I would
find, however, that the state’s failure to present its Sixth Amendment argument to
the lower courts constitutes a waiver of that argument. Indeed, the state should be
judicially estopped from arguing that the Sixth Amendment does not apply in this
case; not only did the state fail to argue that appellant, Jeffrey Bowshier, had no
right to counsel, but the state represented at oral argument that the state requested
that counsel be appointed for Bowshier after he filed a pro se brief in the court of
appeals. For these reason, I believe the court should proceed to rule on the accepted
proposition of law but should do so without deciding whether Sixth Amendment
rights attach in this factual scenario.
{¶ 5} This case is simple. The state conceded at oral argument that
Bowshier has assignments of error that are not “wholly frivolous” and that should
have been raised by counsel on appeal. Under these circumstances, and assuming
but without deciding that Bowshier’s Sixth Amendment rights attached to the
proceeding, the Second District Court of Appeals should have rejected defense
counsel’s Anders brief and appointed new counsel to represent Bowshier.
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January Term, 2018
{¶ 6} Moreover, I would hold, seemingly uncontroversially, that a court of
appeals should not dismiss a case pursuant to Anders when the appellant presents
precedential case law in support of his or her argument. I would also emphasize
that this holding does not determine whether Sixth Amendment rights attach to
forfeiture proceedings.
{¶ 7} Finally, this is the second case that this court has recently dismissed
as improvidently accepted that challenged the manner in which Ohio applies
Anders. See State v. Upkins, ___ Ohio St.3d ___, 2018-Ohio-1812, __ N.E.3d ___.
As I stated in my dissent in Upkins, the Anders landscape in Ohio has been evolving
and this court needs to determine whether Ohio’s appellate courts should continue
to accept Anders briefs. Id. at ¶ 24 (Fischer, J., dissenting). At a minimum, this
court must provide guidance to the lower courts as to how to apply Anders
consistently and correctly.
{¶ 8} For these reasons, I respectfully dissent.
FRENCH, J., concurs in the foregoing opinion.
_________________
D. Andrew Wilson, Clark County Prosecuting Attorney, and Andrew P.
Pickering, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant
Public Defender, for appellant.
_________________
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