State v. Kalaher

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IN THE UTAH COURT OF APPEALS ----ooOoo---State of Utah, Plaintiff and Appellee, v. Thomas Reed Kalaher, Defendant and Appellant. ) ) ) ) ) ) ) ) ) MEMORANDUM DECISION (Not For Official Publication) Case No. 20090412-CA F I L E D (April 1, 2010) 2010 UT App 75 ----Second District, Ogden Department, 081901494 The Honorable Michael D. Lyon Attorneys: Randall W. Richards, Ogden, for Appellant Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee ----- Before Judges Davis, Thorne, and Roth. PER CURIAM: Thomas Reed Kalaher appeals from his conviction and sentence for theft. Kalaher's counsel filed a brief in accordance with Anders v. California, 386 U.S. 783 (1967), and State v. Clayton, 639 P.2d 168 (Utah 1981). The brief "objectively demonstrate[s] that the issues raised are frivolous."1 State v. Flores, 855 P.2d 258, 260 (Utah Ct. App. 1993) (per curiam); see also Dunn v. Cook, 791 P.2d 873, 877 (Utah 1990) (stating that an Anders brief must demonstrate any "potentially meritorious" issues are actually frivolous). Based upon our independent examination of the record, we determine that the appeal is, indeed, wholly 1 Counsel indicates that he was unable to locate Kalaher in order to provide him a copy of the proposed brief before filing. However, counsel demonstrated that he made a diligent effort to locate Kalaher in order to comply with his obligations under Anders. See e.g., State v. Mayfield, 446 S.E.2d 150, 152 (N.C. Ct. App. 1994) ("[d]elivery of the necessary documents to the defendant is not required if the defendant's attorney has, after a diligent effort, been unable to locate the defendant and deliver the documents."). frivolous, and accordingly, we affirm the decision of the district court and grant counsel's motion to withdraw. ______________________________ James Z. Davis, Presiding Judge ______________________________ William A. Thorne Jr., Judge ______________________________ Stephen L. Roth, Judge 20090412-CA 2

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