[Cite as State v. Schroyer, 2012-Ohio-4978.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                            :

        Plaintiff-Appellee                               :   C.A. CASE NOS. 25108 and 25109

v.                                                       :   T.C. NO. 09CR3423 and 10CR820

MICHAEL SCHROYER                                         :   (Criminal appeal from
                                                              Common Pleas Court)
        Defendant-Appellant                              :

                                                         :

                                               ..........

                                               OPINION

                         Rendered on the          26th       day of    October   , 2012.

                                               ..........

CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

JEREMIAH DENSLOW, Atty. Reg. No. 0074784, 130 W. Second Street, Suite 1818,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                               ..........

DONOVAN, J.
[Cite as State v. Schroyer, 2012-Ohio-4978.]
        {¶ 1}     This matter is before the Court on the Notices of Appeal of Michael

Schroyer, filed March 27, 2012, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967). Counsel for Schroyer asserts that he, “after diligently and

conscientiously investigating the court record in the case, and researching potential legal

issues, has determined that there is no merit to an appeal” herein. This Court notified

Schroyer of his counsel’s submission, and invited him to file a pro se brief assigning any

errors for this Court’s review within 60 days. Schroyer did not file a response. Pursuant to

our responsibilities under Anders, we have undertaken an independent review of the record

on appeal, and having done so, we conclude, as did defense counsel, that there are no

arguably meritorious issues for appellate review. The judgment of conviction is affirmed.

        {¶ 2}     The record reflects that on June 8, 2010, Schroyer entered pleas of guilty to

one count of felonious assault, in violation of R.C. 2903.11(A)(1), a felony of the second

degree, in case no. 2009 CR 03423, and one count of breaking and entering, in violation of

R.C. 2911.13(A), a felony of the fifth degree, in case no. 2010 CR 00820. In exchange for

his pleas, in case no. 2009 CR 03423, one count of aggravated robbery was dismissed, and in

case no. 2010 CR 00820, one count of possessing criminal tools, and one count of criminal

damaging, were also dismissed. The trial court agreed to impose a negotiated sentence of

three to five years, and Schroyer agreed to cooperate with the Trotwood Police Department

in solving several other incidents of breaking and entering of which he had knowledge.

        {¶ 3}      The record before us reflects a thorough Crim.R. 11 colloquy, in the course

of which Schroyer clearly stated that he completed tenth grade; that he understood the nature

of the charges against him; that he was satisfied with defense counsel’s representation; that

he understood the plea agreement as well as the rights he gave up by entering his pleas; and
                                                                                             3

that he entered his pleas voluntarily.   The trial court specifically asked Schroyer if he was

able “to read and understand” his plea forms, and he stated that he could do so. Before

accepting his pleas, the court advised Schroyer to “go over the plea form one last time.”

After his pleas were accepted, Schroyer was released on a COR bond, and the court set the

matter for sentencing on July 6, 2010.

       {¶ 4}    On that date, Schroyer failed to appear, and he filed a motion to withdraw

his guilty pleas on February 7, 2011, and substitute counsel filed an amended motion to

withdraw his pleas on June 13, 2011.     In his amended motion, Schroyer asserted that he is

unable to read, has a learning disability that prevented him from comprehending the plea

colloquy, and that he “was wholly innocent of the felonious assault charge.” A hearing on

the motion commenced on June 14, 2011. At the start of the hearing, the court indicated as

follows: “We were off the record. We had some discussions. There was an issue of the

parties not being ready to proceed.” In response to the court’s subsequent inquiry, defense

counsel indicated that one of two eyewitnesses to the felonious assault failed to appear at the

hearing. The court declined to continue the hearing.

       {¶ 5}     During direct examination, Schroyer indicated that he has trouble reading,

and that he “always said I can read when I can’t.”               Schroyer further expressed

dissatisfaction with defense counsel’s representation, asserting that he wanted to take the

matter to trial, but that defense counsel failed to contact his witnesses. Regarding the

felonious assault charge, Schroyer described the events that resulted in the charge without

objection, and he asserted that he acted in self-defense. At the close of Schroyer’s evidence,

the prosecutor requested a sidebar, during which she indicated to the court that she “didn’t
                                                                                             4

know that the nature of the hearing would be [Schroyer’s] ability to read and his learning

disabilities,” and further that she was covering the hearing for another attorney.   The court

continued the hearing until June 20, 2011.

       {¶ 6}    Schroyer failed to appear on June 20, 2011, and the record indicates that he

was arrested on August 30, 2011. On November 15, 2011, the hearing on Schroyer’s

motion to withdraw his pleas resumed with new counsel representing Schroyer.                On

cross-examination, Schroyer acknowledged that he indicated to the court at the plea hearing

that he understood and agreed with the plea agreement, but that he failed to appear for

sentencing because he later realized that his plea form indicated a possible maximum

sentence of eight years for the felonious assault. When the State began to question Schroyer

about the events giving rise to the felonious assault charge, defense counsel objected “to the

questioning as being irrelevant to this proceeding,” and the following exchange occurred:

               MR. GRAMZA: We are withdrawing the issue of actual innocence for

       this proceeding, Your Honor.

               ***

               THE COURT: And I think because we’re in a strange situation in

       that it has taken us numerous months to finish this hearing. Some of the

       problems in finishing this hearing are brought on by the Defense. And the

       Defendant. The Court can look at those issues when the time comes. But I

       would rather err against the State if there is any error in not having you deal

       with the issues now that it is on the record that innocence is not part of this

       hearing. And just not create any issue.
                                                                                               5

       MS. MADZEY: Okay.

       {¶ 7}      On recross-examination, Schroyer again indicated that at the time of the

plea he understood that pursuant to the plea agreement, he would be subject to a sentence

within the range of three to five years, but that after he was arrested for failing to appear, he

believed that he was subject to an eight year sentence and accordingly filed his motion to

withdraw his pleas.

       {¶ 8}    The following exchange occurred between Schroyer and the court:

               THE COURT: * * * You were in jail when the plea took place, were

       you not?

               THE WITNESS: Yes.

               THE COURT: All right. And you understood that the Court gave

       you a COR bond to get your affairs in order, right?

               THE WITNESS: Yes.

               THE COURT: And you understood that you needed to appear back on

       the date of sentencing or all bets were off?

               THE WITNESS: No, I didn’t understand that part.

               THE COURT: All right. And if the record says you said yes, what

       does that mean? That you lied?

               THE WITNESS:         * * * no, the record states three to five and I can

       give you no less than three and no more than five and that was the end of it to

       my understanding.

               THE COURT: No, sir, you’re playing. No, don’t play with me. I’m
                                                                                           6

       making a decision, I told you that if you returned on the day that you were

       supposed to for sentencing, you would receive the three to five years.

               ***

               THE COURT: Do you agree?

               THE WITNESS: I don’t recall. I don’t remember that.

               THE COURT: If the record says yes, what does that mean?

               THE WITNESS: That means you said it.

               THE COURT: Does that mean you understood or you agreed to it?

               THE WITNESS: It means I understood it or I agreed to it.

               THE COURT: And the fact that you did not show means that you did

       not fulfill your part of the bargain.

               THE WITNESS: Yes.

               THE COURT: All right. And if the Court told you that if you did not

       come back, all bets were off, what does that mean to you?

               THE WITNESS: I don’t recall the Court saying that, no, I don’t.

               THE COURT: If the record says that, what does that mean?

               THE WITNESS: That means all bets was off.

               THE COURT: That means that the Court could have given you more

       than three to five years. * * *

       {¶ 9}      Finally, Chris Thompson, who initially represented Schroyer, testified that

Schroyer provided a list of witnesses but then told him “to not contact them,” because “he

didn’t trust his friends.” Regarding the plea deal, Thompson stated Schroyer was “happy
                                                                                                    7

with it,” and that Schroyer only “objected to the robbery. That was his bone of contention.

And frankly, I agreed with him.         He admitted to striking the man. And as this case

progressed, he protested the robbery. Did not protest the felonious assault.” We note that

the “Offender’s Statement” section of the presentence investigation report provides: “* * *

Michael Shroyer reported that he was the wrong place at the wrong time with some friends

and ended up getting into a simple fight with a man. He stated that the guy got beat up

because he said something that Mr. Schroyer didn’t like. Mr. Schroyer stated that the guy

swung first so he finished him off.”        The report further notes that the victim lost all sight in

his right eye as a result of the assault.

        {¶ 10} Thompson stated that Schroyer always had the option of going to trial, but

that “once the robbery was done, trial wasn’t really an issue.” Thompson stated that

Schroyer did not specifically tell him that he was unable to read, and that he did not learn of

that possibility until after Schroyer “was arrested for being on the run for six months.”

Thompson testified:

                What happened was he got released from jail. I expected him to do a

        couple of things. One, to see me and two, to call the Trotwood Police

        Department. He dropped off the face of the earth. I heard nothing from

        him, his friends, his relatives. Until he was placed back in the County Jail.

        Then I got a flurry of telephone calls. And specifically they said that they

        wanted to withdraw his plea because I didn’t do something and that he can’t

        read.

Regarding the plea form, Thompson stated, “I recall that I did not read it to him verbatim
                                                                                            8

like I would had he told me at the time that he couldn’t read.”

       {¶ 11}    On cross-examination, Thompson stated that Schroyer never indicated to

him that he felt pressured to accept the plea agreement or that he was dissatisfied with

Thompson’s representation. Thompson stated that he filed the motion to withdraw the

pleas after Schroyer’s arrest for failing to appear. Thompson stated that with first offenders

or defendants with low IQs, he thoroughly goes over the plea form, and “then there’s people

like Mr. Schroyer who is a veteran of the system and has gone through this quite a few times

and he expressed in our meetings that he knew what was going on. And he understood the

process.” Thompson stated that Schroyer never claimed self-defense.

       {¶ 12} At the conclusion of the hearing, the court asked defense counsel, “what if

anything does the length of time between the actual plea and the sentencing hearing, what

effect if any should that have on the Court’s decision?” Defense Counsel responded that the

court remained bound by the original plea agreement and directed the court’s attention to

State v. Layman, 2d Dist. Montgomery No. 22307, 2008-Ohio-759 (reversing and remanding

for imposition of the original negotiated sentence agreed to by the trial court, or for

permission for Layman to withdraw his guilty plea, since the trial court did not warn Layman

of the consequences of a failure to appear for sentencing, and then failed to honor the plea

agreement when Layman failed to appear).

       {¶ 13}    In its January 31, 2012 decision overruling Schroyer’s motion to withdraw

his pleas, after reviewing Crim.R. 32.1, the court determined that Schroyer was represented

by competent counsel when he entered his plea, that Schroyer was afforded a full Crim.11

hearing, as well as a complete and impartial hearing on his motion to withdraw his pleas,
                                                                                             9

and the court concluded that Schroyer’s motion was based upon a change of heart. On

February 27, 2012, the court sentenced Schroyer to four years for felonious assault and to 12

months for breaking and entering, to be served consecutively, for an aggregate term of five

years.

         {¶ 14} Crim.R. 32.1 provides: “A motion to withdraw a plea of guilty or no contest

may be made only before sentence is imposed; but to correct manifest injustice the court

after sentence may set aside the judgment of conviction and permit the defendant to

withdraw the plea.” A “presentence motion to withdraw a guilty plea should be freely given

and liberally granted. Nevertheless, it must be recognized that a defendant does not have an

absolute right to withdraw a plea prior to sentencing.       Therefore, the trial court must

conduct a hearing to determine whether there is a reasonable and legitimate basis for the

withdrawal of the plea.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). “A

mere change of heart is insufficient for the withdrawal of a guilty plea, even when the

motion to withdraw is made before sentencing.” State v. Hacker, 2d Dist. Clark No.

2001-CA-85, 2002-Ohio-2920.         Presentence motions to withdraw guilty pleas are within

the trial court’s discretion. Xie, id.

         {¶ 15}   Significantly, we note Schroyer’s own statements suggest that he was

motivated to withdraw his plea based upon an apprehension that he was facing eight years.

This would have come as no surprise based upon reading disability, if any, as he was advised

of the maximum sentence orally. Such was the statutory maximum, but the court in fact

adhered to the plea bargain and sentenced within the range of three to five years as initially

agreed upon. Finally, at the time of the plea, Schroyer specifically indicated that he was able
                                                                                          10

to read and understand the plea forms.

       {¶ 16} Having undertaken a thorough and independent review of the entire record,

pursuant to Anders, we agree with counsel’s assessment that no meritorious claim exists

upon which to predicate an appeal. Accordingly, the judgment of the trial court is affirmed.

                                         ..........

FAIN, J. and HALL, J., concur.

Copies mailed to:

Carley J. Ingram
Jeremiah Denslow
Michael Schroyer
Hon. Frances E. McGee
