[Cite as State v. Schneider, 2011-Ohio-4097.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                              Nos. 95824, 95855, and 95856




                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                              JOANNE SCHNEIDER
                                                      DEFENDANT-APPELLANT




                         JUDGMENT:
              REVERSED, VACATED AND REMANDED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-472739

        BEFORE:            Rocco, J., Kilbane, A.J., and Boyle, J.

        RELEASED AND JOURNALIZED:                       August 18, 2011

                                                -i-
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ATTORNEY FOR APPELLANT

Claire R. Cahoon
Assistant Public Defender
Office of the Ohio Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215-9311

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Daniel M. Kasaris
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




KENNETH A. ROCCO, J.:

      {¶ 1} In these three appeals that have been consolidated for briefing,

hearing, and disposition, defendant-appellant Joanne Schneider challenges

the trial court’s denial of her motion to withdraw her guilty pleas, and her

convictions and the sentences the trial court imposed, after her case returned

to the trial court for resentencing pursuant to this court’s opinion in State v.

Schneider, Cuyahoga App. No. 93128, 2010-Ohio-2089 (“Schneider I”).

      {¶ 2} Schneider presents four assignments of error.      She argues the

trial court abused its discretion in denying her motion to withdraw her guilty
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pleas in this case. She further argues the trial court acted improperly in

appointing new counsel to represent her for purposes of the resentencing

hearing when Schneider already had counsel of record.           Schneider also

argues her original defense attorney provided ineffective assistance by failing

to properly advise her prior to the plea hearing of the consequences of her

guilty pleas.    Finally, Schneider asserts the trial court violated her

constitutional rights by sentencing her to a greater prison term than the one

originally imposed.

      {¶ 3} The state concedes Schneider’s first assignment of error has

merit.   Since the record reflects the trial court abused its discretion in

denying Schneider’s motion to withdraw her guilty pleas, her convictions and

sentences are vacated, and her case is remanded for further proceedings.

This disposition renders Schneider’s remaining assignments of error moot.

App.R. 12(A)(1)(c).

      {¶ 4} The underlying facts in this case previously were set forth in

Schneider I, ¶4-6, as follows:

      {¶ 5} “In November 2005, Schneider was indicted on 163 counts

involving an alleged pattern of corrupt activity, theft, false representation in

the sale of securities, money laundering, telecommunications fraud, and

securities fraud violations.
                                       4

         {¶ 6} “In March 2009, Schneider entered into a plea bargain with the

state.    In exchange for all other counts being dismissed, Schneider pled

guilty to 13 counts: Count 1, engaging in a pattern of corrupt activity, a felony

of the first degree; Count 21, securities fraud, a felony of the first degree;

Count 35, false representation in the sale of a security, a felony of the first

degree; Count 38, sale of unregistered securities, a felony of the first degree;

Count 49, theft, a felony of the second degree; Count 61, securities fraud, a

felony of the first degree; Count 74, sale of unregistered securities, a felony of

the second degree; Count 78, false representation in the sale of a security, a

felony of the second degree; Count 81, securities fraud, a felony of the first

degree; Count 84, securities fraud, a felony of the first degree; Count 91, sale

of unregistered securities, a felony of the second degree; Count 111, securities

fraud, a felony of the first degree; and Count 140, money laundering, a felony

of the third degree.

         {¶ 7} “The trial court sentenced Schneider to three years on Count 1,

three years on each of the remaining counts, and ordered that they all run

concurrent to each other, for an aggregate term of three years in prison. The

trial court also informed Schneider that she would be subject to five years of

postrelease control upon her release from prison.”
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      {¶ 8} The state instituted an appeal in Schneider I, arguing that

Schneider’s three-year sentence was contrary to law; the state pointed out

that, pursuant to R.C. 2929.14(D)(3)(a), Schneider’s conviction for engaging in

a pattern of corrupt activity required a mandatory ten-year term in light of

her other convictions. After reviewing the facts of the case, this court agreed

with the state’s position, although acknowledging at ¶14 that:

      {¶ 9} “ * * * the state wrongly informed the trial court that for a first

degree felony it could sentence Schneider anywhere from three to ten years. *

* * But the state cannot validly recommend to the trial court that it impose a

sentence that is contrary to law; a sentence that is contrary to law is void * *

*. See State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d

568, ¶14 * * * .”

      {¶ 10} This court concluded:

      {¶ 11} “Schneider’s sentence is reversed, and the case [is] remanded to

the trial court with orders to vacate the sentence in Count 1 and to resentence

Schneider according to law.” Schneider I, at ¶20.

      {¶ 12} The record reflects that Schneider’s case returned to the

Cuyahoga County Court of Common Pleas in late July 2010.                    The

administrative judge assigned Schneider’s case to a new trial judge.       Soon
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thereafter, an assistant state public defender (“SPD”) entered a notice of

appearance on Schneider’s behalf.

        {¶ 13} On August 27, 2010, the SPD filed a motion seeking leave for

Schneider to withdraw her guilty pleas. In a supporting brief attached to the

motion, the SPD argued that Schneider entered her pleas without a full

understanding of the maximum penalty involved.

        {¶ 14} Four days later, on August 31, 2010, without notice, the trial

court called the case for resentencing. The court noted that Schneider filed a

motion to withdraw her guilty pleas, but that “counsel who prepared this

motion [wa]s not present.” The trial court stated that it had “appointed” an

attorney to represent Schneider, and that the attorney “ha[d] conferred with

her.”

        {¶ 15} The trial court then asked the attorney if he wanted to be heard

with reference to the motion the SPD filed on Schneider’s behalf.          The

attorney indicated Schneider entered her pleas “under the impression that

[three years] was an agreed sentence.”

        {¶ 16} The trial court allowed that Schneider was told at her plea

hearing that “the range was gonna’ be from 3 to 10 years,” and that “was a

mistake.”    Nevertheless, the trial court stated that, since Schneider had

“always known what her exposure was,” her motion was denied.
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      {¶ 17} The trial court asked Schneider if she wanted to say anything

before turning to the prosecutor to ask what “the original fine was.” Upon

being informed no fine had been imposed previously, the trial court proceeded

to impose a fine of “250 and costs,” and sentenced Schneider on Count 1 to “10

years at the Ohio State Reformatory for Women.”               No mention was made of

Schneider’s other convictions and sentences.

      {¶ 18} The trial court subsequently issued three separate journal entries

in Schneider’s case.

      {¶ 19} The first indicates the trial court conducted a “hearing on [SPD]’s

motion for new trial.”1 This entry further states:

      {¶ 20} “The court finds [SPD]s office and Cuyahoga County Defenders

Office to co-exist as same entity.         The local defender’s office represented

Defendant’s husband.         With this existing obvious conflict, the Defendant

being indigent is appointed [counsel]. * * * Upon review, this Court denies

motion for new trial and motion to withdraw plea.”

      {¶ 21} The    second     journal    entry    indicates    “Defendant   indigent.

Attorney * * * assigned. * * * Ohio Public Defender’s motion for leave to

withdraw guilty plea held [sic]. No one from public defender’s office present;

motion denied.”


      1Schneider   did not file a “motion for a new trial.”
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      {¶ 22} The third journal entry is that of Schneider’s convictions and

sentences.2

      {¶ 23} Schneider filed three separate appeals from those three separate

trial court journal entries. This court consolidated Schneider’s appeals for

briefing, hearing, and disposition.

      {¶ 24} Schneider presents the following four assignments of error.3

      {¶ 25} “I.     The trial court abused its discretion and violated Ms.

Schneider’s constitutional right to due process of law by overruling

the Motion for Leave to Withdraw Her Guilty Plea.

      {¶ 26} “II.     Trial counsel provides constitutionally ineffective

assistance by failing to properly advise Ms. Schneider of the effect of

her plea.

      {¶ 27} “III.    The trial court erred in denying Ms. Schneider her

constitutionally guaranteed counsel of choice.




      2 The  journal entry notes each conviction to which Schneider originally
entered a guilty plea, and states that the court sentenced Schneider to “10 years on
Counts 1, 21, 35, 38, 49, 61, 74, 78, 81, 84, 91, 111, and 140; counts to run
concurrently.”
      3The citations to authority and to the record that Schneider placed in her
assignments of error have been omitted.
                                        9

        {¶ 28} “IV.      The    trial   court   violated     Ms.    Schneider’s

constitutional right to due process in sentencing her to a greater

punishment following reversal of her original sentence.”

        {¶ 29} Schneider argues in her first assignment of error that the trial

court abused its discretion when it denied her motion to withdraw her guilty

pleas. She contends that the record reflects her plea hearing was flawed.

She further asserts that the trial court failed to provide her either a full

hearing on her motion or fair consideration of her request to withdraw her

pleas. Her argument has merit.

        {¶ 30} In State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, 906

N.E.2d 422, ¶1, the supreme court held that, when a defendant’s “sentence is

void as contrary to law, the defendant must be resentenced, and his motion to

withdraw his plea must be treated as a presentence motion under Crim.R.

32.1. ‘[A] presentence motion to withdraw a guilty plea should be freely and

liberally granted.’ State v. Xie (1992), 62 Ohio St.3d 521, 527, 584 N.E.2d

715.”       See, also, State v. Peterseim (1979), 68 Ohio App.2d 211, 214, 428

N.E.2d 863.4




       See the discussion in State v. Hubbard, Summit App. No. 25141,
        4

2011-Ohio-2770, ¶3-4, regarding whether State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332, has called “its holding in Boswell into question.”
                                     10

      {¶ 31} When ruling on a presentence motion to withdraw a plea, the

trial court is required to conduct a hearing, in order to decide whether there

is a reasonable and legitimate basis for withdrawal of the plea. Xie at 527.

The decision to grant or deny such a motion is within the sound discretion of

the trial court. Id.

      {¶ 32} The trial court does not abuse its discretion in denying a

presentence motion to withdraw a guilty plea when the record reflects: 1) the

defendant was represented by competent counsel; 2) the defendant was given

a full and proper Crim.R. 11 hearing before entering the plea; and, 3) the trial

court provided a hearing on the defendant’s motion to withdraw that plea,

during which the court gave full and fair consideration to the defendant’s

arguments in support of the motion.      State v. Zaslov, Cuyahoga App. No.

95470, 2011-Ohio-2786, ¶9. See, also, Peterseim, at 214.

      {¶ 33} In this case, the record of Schneider’s plea hearing fails to

demonstrate that Schneider fully understood the consequences of her guilty

pleas; she was told that a term of only three years was “mandatory.” As the

supreme court noted in State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748,

893 N.E.2d 462, ¶25-26:

      {¶ 34} “A criminal defendant’s choice to enter a plea of guilty or no

contest is a serious decision. The benefit to a defendant of agreeing to plead
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guilty is the elimination of the risk of receiving a longer sentence after trial.

But, by agreeing to plead guilty, the defendant loses several constitutional

rights. [Citations omitted.] The exchange of certainty for some of the most

fundamental protections in the criminal justice system will not be permitted

unless the defendant is fully informed of the consequences of his or her plea.

Thus, unless a plea is knowingly, intelligently, and voluntarily made, it is

invalid. [Citation omitted.]

      {¶ 35} “To ensure that pleas conform to these high standards, the trial

judge must engage the defendant in a colloquy before accepting his or her

plea. [Citations omitted.]     It follows that, in conducting this colloquy, the

trial judge must convey accurate information to the defendant so that the

defendant can understand the consequences of his or her decision and enter a

valid plea.” (Emphasis added.)

      {¶ 36} This court declared Schneider’s sentence void in Schneider I.

Thus, when the case was remanded, and Schneider filed a motion to

withdraw her pleas, the trial court was required to treat it as one made prior

to sentence. Boswell.5

      {¶ 37} The original trial court’s complete failure to inform Schneider of

the maximum penalty involved with respect to her plea rendered it invalid.


      5But,   see, fn.4.
                                     12

State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d, 1224,

paragraph two of the syllabus. On remand pursuant to Schneider I, the trial

court did not consider the record of Schneider’s plea hearing. Rather, the

trial court compounded the error.

      {¶ 38} The state concedes Schneider’s argument with respect to her first

assignment of error. Hubbard; cf., Zaslov. Consequently, Schneider’s first

assignment of error is sustained.

      {¶ 39} This disposition renders Schneider’s remaining assignments of

error moot. App.R. 12(A)(1)(c); see, also, State v. Wilson, Cuyahoga App. No.

92149, 2009-Ohio-4879.

      {¶ 40} The trial court’s orders are reversed, Schneider’s pleas and

convictions are vacated, and this case is remanded for further proceedings.

      It is ordered that appellant recover from appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to
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Rule 27 of the Rules of Appellate Procedure.



____________________________________
KENNETH A. ROCCO, JUDGE

MARY EILEEN KILBANE, A.J., and
MARY J. BOYLE, J., CONCUR
