Opinion
Case No. 20090412-CA.
Filed April 1, 2010. NOT FOR OFFICIAL PUBLICATION
Appeal from the Second District, Ogden Department, 081901494 The Honorable Michael D. Lyon.
Randall W. Richards, Ogden, for Appellant.
Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee.
Before Judges Davis, Thorne, and Roth.
MEMORANDUM DECISION
Thomas Reed Kalaher appeals from his conviction and sentence for theft. Kalaher's counsel filed a brief in accordance withAnders 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." 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 frivolous, and accordingly, we affirm the decision of the district court and grant counsel's motion to withdraw.
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 underAnders. 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.").