[Cite as State v. Tsibouris, 2013-Ohio-3324.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-120414
C-120415
Plaintiff-Appellee, : TRIAL NOS. C-11CRB-37372-A
C-11CRB-37372-B
vs. :
DENISE TSIBOURIS, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgment of Court: Motion to Withdraw As Counsel for Appellant is Granted, New
Counsel for Appellant is Appointed, Further Briefing is Ordered,
and Appeal is Ordered to be Resubmitted
Date of Judgment Entry on Appeal: July 31, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Christopher L. Jackson, for Defendant-Appellant.
Please note: these consolidated cases have been removed from the accelerated
calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
CUNNINGHAM, Presiding Judge.
{¶1} Following a jury trial, defendant-appellant Denise Tsibouris appeals
from her convictions for resisting arrest and for disorderly conduct. Her appointed
appellate counsel has filed a no-error brief in which he stated that he had thoroughly
reviewed the entire record, and had found no meritorious issues to support
Tsibouris’ appeals. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18
L.Ed.2d 493 (1967); see also State v. Williams, 183 Ohio App.3d 757, 2009-Ohio-4389,
918 N.E.2d 1043, ¶ 7 (1st Dist.). But because appointed counsel failed to
conscientiously examine the record before filing a no-error brief, Tsibouris has been
denied the effective assistance of appellate counsel.
{¶2} Tsibouris filed timely pro se notices of appeal from her convictions.
She also filed affidavits declaring that she was indigent and could not afford to
employ counsel to bring her appeal. On June 26, 2012, this court appointed counsel
to represent her and authorized the preparation of a transcript of the proceedings at
public expense. Pursuant to our scheduling order in this matter, Tsibouris was
required to file the transcript of proceedings by August 20, 2012, and her brief by
September 20, 2012.
{¶3} In September 2012, appointed counsel moved for additional time
because a transcript of the guilt-or-innocence phase of the trial had not been
prepared. A nine-page transcript of the sentencing hearing had been filed with the
court. But as counsel correctly noted, the sentencing transcript would “not show if
any [trial] errors [had been] preserved for proper appellate review.” See Knapp v.
Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980) (holding that
the duty to provide a transcript for appellate review falls upon the appellant because
2
OHIO FIRST DISTRICT COURT OF APPEALS
she bears the burden of showing error by reference to matters in the record). This
court granted the motion and extended the time for Tsibouris to file her brief and the
transcript of the proceedings until November 13, 2012.
{¶4} Over the next five months, appointed counsel filed three separate no-
error briefs in this case. Two briefs, filed in November 2012 and March 2013, were
stricken for defects as to their form. The third brief was filed in April 2013. But a
transcript of the trial proceedings was not prepared and filed until July 22, 2013, the
day before this matter was submitted for decision, and eight months after counsel
had filed his first no-error brief.
{¶5} In each no-error brief, appointed counsel acknowledged his duty “to
review the record in order to determine if there are any meritorious issues that can
be presented.” In each brief, he made the affirmative statement that “after
thoroughly reviewing the entire record and researching all possible issues and all
potential sources for error,” no meritorious issues existed to support Tsibouris’
appeals. (Emphasis added.) He then asked this court to independently review the
record and determine whether the appeals were wholly frivolous. See Anders, 386 U.S.
at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. He also moved for permission to withdraw as
counsel following his “conscientious examination of the record.”
{¶6} The procedures identified in Anders and its progeny, permit appointed
counsel to represent his indigent client and yet avoid the ethical pitfalls of filing a
frivolous appeal. See, e.g., In re Booker, 133 Ohio App.3d 387, 390, 728 N.E.2d 405
(1st Dist.1999). The initial step of this procedure is a fundamental one: “Appointed
counsel is first required to conduct ‘a conscientious examination’ of the case.” Penson
v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), quoting Anders, 386
3
OHIO FIRST DISTRICT COURT OF APPEALS
U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493; see 1st Dist. Loc.R. 16.2(B)(1). Counsel
filing a no-error brief “must still provide his or her client * * * a thorough review of the
record and a discussion of the strongest arguments revealed by that review.” McCoy v.
Court of Appeals of Wisconsin, 486 U.S. 429, 444, 108 S.Ct. 1895, 100 L.Ed.2d 440
(1988). All other obligations of counsel flow from an initial inquiry into the state of the
record. See, e.g., Williams, 183 Ohio App.3d 757, 2009-Ohio-4389, 918 N.E.2d 1043, at ¶
7. Counsel simply cannot conclude that an appeal is frivolous without first conducting a
detailed review of the case. See Penson at 81-82.
{¶7} “Requiring counsel to undertake these steps ensures that counsel, even
when presented with the unique circumstances of a no-error brief, will continue to act
‘in the role of an active advocate in behalf of his client.’ ” Williams, 183 Ohio App.3d
757, 2009-Ohio-4389, 918 N.E.2d 1043, at ¶ 10, quoting Anders, 386 U.S. at 744, 87
S.Ct. 1396, 18 L.Ed.2d 493. Without the active and meaningful assistance of counsel to
review the record, to communicate with his client, and to argue matters preserved in
the record, we are ill-equipped to review any appeal much less one brought under
Anders. See In re Booker, 1st Dist. Hamilton No. C-980214, 1999 Ohio App. LEXIS
3378, *9 (July 23, 1999).
{¶8} An appellate court reviewing a no-error brief must first “satisfy itself that
the attorney has provided the client with a diligent and thorough search of the record
for any arguable claim that might support the client’s appeal.” McCoy at 442; see
Penson at 81-82. In this case, a transcript of the guilt-or-innocence phase of the trial
was not filed until eight months after counsel had filed his first of three no-error briefs,
and one day before this matter was submitted for decision. We hold that appointed
counsel has not conducted a conscientious examination of the case–an essential
4
OHIO FIRST DISTRICT COURT OF APPEALS
prerequisite to concluding that the proceedings in the trial court were free from error–
thus depriving Tsibouris of constitutionally adequate representation on appeal.
{¶9} We, therefore, grant counsel’s motion to withdraw. We appoint
attorney William F. Oswall, Jr., Attorney Registration Number 0080597, to serve as
counsel for Tsibouris. We order him to present a brief on any matter counsel may
discover in a diligent review of the record, or if a conscientious review of the record
reveals that the appeals are wholly frivolous, to prepare a no-error brief made in
conformity with law and this opinion.
{¶10} We further order new counsel to file a brief on or before September 12,
2013, and counsel for the state to file a responsive brief on or before October 14,
2013.
Judgment accordingly.
DINKELACKER and FISCHER, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
5