IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
JANUARY 2000 SESSION
March 17, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, * No. W1999-01516-CCA-R3-CD
Appellee, * HARDEMAN COUNTY
VS. * Honorable Jon Kerry Blackwood, Judge
MICHAEL ANTHONY * (Forgery)
TURNER, SR.
Appellant. *
FOR THE APPELLANT: FOR THE APPELLEE:
C. MICHAEL ROBBINS PAUL G. SUMMERS
46 North Third Street, Suite 719 Attorney General & Reporter
Memphis, TN 38103
(On Appeal) CLINTON J. MORGAN
Counsel for the State
GARY F. ANTRICAN 425 Fifth Avenue North
District Public Defender Nashville, TN 37243
RICKEY W. GRIGGS ELIZABETH T. RICE
Assistant Public Defender District Attorney General
P. O. Box 700
Somerville, TN 38068 JAMES WALTER FREELAND, JR.
(At Trial and On Appeal) Assistant District Attorney General
302 Market Street
Somerville, TN 38068
OPINION FILED: _______________
AFFIRMED
JOHN EVERETT WILLIAMS,
Judge
OPINION
INTRODUCTION
The defendant, Michael Anthony Turner, Sr., appeals from his conviction of
three counts of forgery entered pursuant to his guilty plea in a Hardeman County
Court. The defendant was sentenced as a Career Offender to three concurrent six-
year terms; these terms were ordered to run consecutive to another unrelated
sentence for which the defendant was on parole at the time of the instant offenses.
The defendant has filed a timely notice of appeal and a brief; further, in this brief,
counsel for defendant, while arguing one issue, has cited Anders v. California, 366
U.S. 738 (1967). After reviewing the entire record before us, we conclude that this
is not a true Anders case, but rather its citation is superfluous and misplaced.
Therefore, we ignore its citation and choose to rule upon the merits of the
defendant’s appeal. Accordingly, we AFFIRM the judgment and sentence from the
trial court.
FACTS
The facts relevant to this appeal begin after the defendant entered a plea of
guilty to three forgery charges1. After his plea, the court held a sentencing hearing
on May 28, 1999. At the sentencing hearing, the events occurred that gave rise to
this appeal.
1
The guilty plea, as the defendant concedes, is facially valid in all respects.
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The hearing begins with the state’s explaining that the defendant was not
served with the state’s Career Offender notice until May 21, 1999 because the
defendant had failed to appear for arraignment and a failure to appear warrant had
to be issued. However, the defendant was served prior to his guilty plea but not the
required ten days. That being the case, the ten day notice requirement imposed by
Tenn. Code Ann. § 40-35-202(a) was violated. The defendant did not request a
continuance, as is his absolute right, but rather, at the hearing, simply continued
and presented argument. This argument followed the state’s only proof, certified
copies of the defendant’s previous convictions. Rather than citing mitigating factors
or any other evidence, counsel for the defendant argued that the state should be
procedurally barred from now requesting that the defendant be classified a Career
Offender. The court heard this argument and rejected it. Thereafter, it sentenced
the defendant to three six-year concurrent terms as a Career Offender.
A timely notice of appeal was filed, and counsel submitted an appellate brief.
This brief argues one substantive issue: the violation of the Career Offender notice
requirement. However, it concludes by citing Anders. This appeal and this brief are
now before this Court.
ANALYSIS
Before addressing the defendant’s one substantive issue, this Court wishes
to express its concern over the increasing number of so-called Anders filings. Our
first, and preliminary, concern is that a number of these Anders filings were not
accompanied with a separate motion to withdraw. Instead, counsel has either filed
no such motion, as in this case, or simply in his brief asked this Court to grant his
withdrawal. This is not proper Anders procedure. This Court requires that the
motion to withdraw be filed separately and not in the appellate brief. See, e.g.,
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State v. Ingram, 994 S.W.2d. 626 (Tenn. Crim. App. 1998). As a direct result of
counsel’s failure to file a separate motion to withdraw as required, processing of this
case has been unduly delayed.2 Therefore, we must insist that counsel file a
separate motion to withdraw at the time of filing an Anders brief. If done, this Court
will be appropriately notified of a request for relief and there will be no undue delay
in the processing of the case.
Next, and this concern begins our resolution of the instant case, this Court
detects some confusion over the applicability of Anders. Anders does not provide
that counsel for a defendant file a motion to withdraw and an Anders brief whenever
counsel feels, based upon review of the relevant case law, that the claim will not
succeed. Instead, the scope of Anders’ applicability is much more narrow. Anders
applies when counsel, bound to argue for the defendant, has before him nothing but
entirely “frivolous” arguments. A frivolous argument is one that is not only against
the overwhelming weight of legal authority but also entirely without any basis in law
or fact or without any logic supporting a change of law. For guidance’s sake,
(1) it is not frivolous to make a “good faith argument for an extension,
modification or reversal of existing law;”
(2) an action is not frivolous even though counsel believes that
appellant’s position ultimately will not prevail; and
(3) counsel must resolve all doubts and ambiguous legal questions in
favor of his client.
See generally Tenn. S.Ct. R. 8, EC-7-1, EC-7-2, EC -7-3, EC-7-4.
When counsel presents a non-meritorious argument, counsel is not in
violation of any ethical duty; counsel is simply fulfilling ethical duties of effective and
zealous representation. A non-meritorious argument, while against the weight of
legal authority, nevertheless has some basis in either law or fact. Counsel, in
fulfilling ethical duties, will often present arguments that will ultimately be found non-
2
Under this Court’s current docketing procedure, our first notice of an Anders filing when filed
without a separate mo tion to withd raw is upo n the ass igned judge ’s first r ead ing of the b riefs. This
comes much too late.
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meritorious. We fully acknowledge that counsel may at the outset know that an
argument does not stand a good chance of succeeding; however, counsel must
argue. It is only in the very rare situation when counsel is left with no argument but
merely frivolous ones that counsel may file a motion to withdraw and submit an
Anders brief. Again, such Anders filings will be very rare.
In this case, counsel’s cite to Anders is entirely superfluous. He has argued
one issue and that issue is not frivolous. His citation to Anders is therefore not well-
taken. As such, this Court chooses to ignore that citation and, reviewing the record,
adjudicate the merits of his issue.
The defendant argues that the state violated its requirement to file ten day
notice of career offender designation as required by Tenn. Code Ann. § 40-35-
202(a). The state conceded that it did, in fact, fail to provide the ten days notice
required by statute; nevertheless, it argues that once the sentencing hearing began
and the defendant, then apprised of the state’s intention to seek Career Offender
designation, failed to request a continuance, the issue was waived. The defendant,
principally by way of his argument before the sentencing court, asserts that a more
appropriate remedy for the notice violation would be a procedural bar or waiver; that
is, he argues that the state should be barred from thereafter seeking Career
Offender designation. Accordingly, he notes that, all along, the state had in its
control and access the defendant’s prior convictions and records.
Versions of this argument were previously heard in State v. Stephenson, 752
S.W.2d 80 (Tenn. 1988), and State v. Adams, 788 S.W.2d 557 (Tenn. 1990). In
both cases, the Court recognized an absolute right on behalf of the defendant to a
continuance where, as here, the state had failed in its statutory notice duty. Absent
the showing of prejudice to the defendant by reason of the untimely filing, or absent
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a sentencing court’s decision to strike the motion for Career Offender designation,
a continuance is the defendant’s exclusive remedy. See Stephenson, 752 S.W.2d
at 81. Accordingly, failure to request a continuance amounts to waiver. Id. In this
case, such waiver has occurred, and while this Court acknowledges the defendant’s
argument and its logic, we reject its conclusion. The issue is therefore non-
meritorious.
CONCLUSION
Accordingly, we AFFIRM the judgment and sentence from the trial court.
_______________________________
JOHN EVERETT WILLIAMS, Judge
CONCUR:
______________________________
DAVID G. HAYES, Judge
______________________________
ALAN E. GLENN, Judge
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