[Cite as State v. Schmidt, 2010-Ohio-4809.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MERCER COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 10-10-04

        v.

PHILLIP SCHMIDT,                                          OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Mercer County Common Pleas Court
                           Trial Court No. 09-CRM-064

                                      Judgment Affirmed

                            Date of Decision: October 4, 2010




APPEARANCES:

        Gerald F. Siesel for Appellant

        Matthew K. Fox for Appellee
Case No. 10-10-04


WILLAMOWSKI, P.J.,

      {¶1} Defendant-Appellant, Phillip Schmidt (“Schmidt”), appeals the

judgment of the Mercer County Court of Common Pleas finding him guilty of

reckless homicide and two related drug offenses. On appeal, Schmidt claims that

the trial court erred when it denied his pre-sentencing motion to withdraw his

Alford guilty plea and that he was denied effective assistance of counsel. For the

reasons set forth below, the judgment is affirmed.

      {¶2} On the evening of June 9, 2009, Brett Riley (“Mr. Riley”) and his

wife, Michelle Riley (“Mrs. Riley”), decided that they wanted to purchase

Fentanyl drug patches for recreational drug use at their residence in Celina, Ohio.

Mr. Riley told the police that he had purchased Fentanyl from Schmidt in the past

and he called Schmidt again to arrange a purchase. Mr. Riley met Schmidt, paid

$56 for the patch, and returned home to ingest the Fentanyl patch with his wife.

      {¶3} Fentanyl is a Schedule II controlled prescription drug that is a

powerful synthetic opiate many times stronger than morphine. A Fentanyl patch is

designed to be applied to the skin and used for 48 to 72 hours for timed-release

dispensing of the drug in order to manage pain. Drug abusers will cut up and

chew on the patch in order to ingest the drug and experience a high.

      {¶4} The Rileys’ children found their parents passed out and were unable

to awaken them, so they called 9-1-1. The police and EMS squads arrived and



                                        -2-
Case No. 10-10-04


found that Mrs. Riley was completely unresponsive without a pulse, heartbeat or

blood pressure; she was deceased. Mr. Riley was very near death, but they were

able to resuscitate him and transport him to the hospital. His condition eventually

improved and he survived. The cause of death for Mrs. Riley was determined to

be Fentanyl and alcohol intoxication.

        {¶5} On July 16, 2009, the Mercer County Grand Jury returned a thirteen-

count indictment against Schmidt, charging him with multiple counts of

Involuntary Manslaughter, Reckless Homicide, Corrupting Another with Drugs,

Trafficking in a Schedule II Controlled Substance (Fentanyl), and Possession of

Drugs. In all, he was charged with five first degree felonies, six third degree

felonies, and two fifth degree felonies, carrying an aggregate penalty of

approximately 89 years of imprisonment. (Dec. 23, 2009, Sentencing Hearing Tr.,

pp. 29-31.) Due to the fact that several of the counts were allied offenses and

potentially subject to merger at sentencing, the total maximum prison time for all

of the offenses was thought to be approximately 26 to 36 years. (Id. at p. 31.)

        {¶6} Counsel was appointed for Schmidt1 and he entered pleas of not

guilty to all thirteen counts in the indictment. Plea negotiations remained on-




1
  Schmidt’s original appointed counsel withdrew because of a conflict. Another counsel was appointed,
and then Schmidt requested co-counsel, so Schmidt was represented by two attorneys throughout the
proceedings. The day before his scheduled trial, Schmidt requested new counsel, but this request was
denied. Schmidt also requested new counsel after he asked to withdraw his guilty plea, but discussions
with the trial court indicated that this request would not be granted.


                                                 -3-
Case No. 10-10-04


going in the weeks and days leading up to trial. The trial was originally scheduled

for October 6, 2009, but was rescheduled for 9:00 a.m. on December 8, 2009.

       {¶7} On the morning of the trial, while a prospective jury panel was

awaiting voir dire, the State offered to allow Schmidt to enter an Alford guilty plea

to three of the counts: Count 5 – Reckless Homicide, in violation of R.C. 2903.41,

a third degree felony; an amended Count 9 – Corrupting Another with Drugs, in

violation of R.C. 2925.02(A)(3);(c)(1), a second degree felony (which was

reduced from a first degree felony by deleting reference to the offence occurring

within 1,000 feet of a school); and Count 10 – Trafficking in Drugs, in violation of

R.C. 2925.03(A)(1);(C)(1)(b), a third degree felony.          This negotiated plea

agreement reduced the potential maximum prison time down to no more than 18

years. The State also agreed to forgo filing a community control violation arising

from Schmidt’s previous felony weapons conviction.           Schmidt continued to

dispute the acts that were attributed to him but agreed to enter an Alford guilty

plea in order to avoid the risks of proceeding to trial.

       {¶8} The trial court then held a change of plea hearing and accepted

Schmidt’s Alford plea of guilty to the reduced charges. The trial court questioned

Schmidt extensively to verify that he had had an opportunity to discuss the plea

with his attorneys and to be certain that he understood what an Alford plea meant.

Schmidt answered in the affirmative and the trial court stated:



                                          -4-
Case No. 10-10-04


       The court’s understanding is that an Alford Plea is a complete
       admission of a guilty plea, but you do not admit the operative
       facts of the offenses and continue to maintain your actual
       innocence of the charges. The guilty plea is based upon a
       substantial certainty of a far greater penalty and finding by the
       jury in this case than would occur by which the State is willing
       to allow you to plead to these three offenses. Is that your
       understanding?

(Dec. 8, 2009 Hearing Tr., p. 5.) Schmidt again answered in the affirmative, and

indicated that he did not have any questions about the procedure. The State

outlined its case against Schmidt and summarized all of the evidence that it had

been prepared to present. The trial court continued with the Criminal Rule 11

colloquy and then found Schmidt guilty of the three counts and approved the nolle

prosequi of the remaining counts. Sentencing was scheduled for December 23,

2009. Schmidt also signed a written negotiated plea agreement and a waiver of

constitutional rights prior to entering a plea.

       {¶9} Two days prior to the sentencing hearing, Schmidt filed a motion to

withdraw his Alford plea. He claimed that “given the undue influence exerted on

me by my own attorney’s [sic] and [the prosecutor] on a quick decision, I signed

the plea bargain against my better judgment and wishes.” Schmidt contended that

his legal counsel had misled him and exerted undue pressure on him to agree to

the plea in the context of the immediacy of the trial waiting to go forward on the

morning of December 8th.




                                          -5-
Case No. 10-10-04


       {¶10} On December 23, 2009, the trial court conducted a full hearing on

Schmidt’s motion to withdraw his plea. After hearing Schmidt’s testimony and

professional statements from his attorney and the prosecutor, the trial court denied

his motion to withdraw the plea, finding that “evidence would support that it is

simply a change of heart on the part of the defendant after the fact.” (Dec. 23,

2009, Sentencing Hearing Tr., p. 33.) The trial court further stated that “there is

reason to believe that the defendant’s motion is simply an effort to delay the

inevitable.” (Id. at p. 34.)

       {¶11} The trial court sentenced Schmidt to five years in prison on each of

Counts 5 and 10, and three years on Count 9, with the sentences to be served

consecutively for a total of thirteen years in prison. It is from this judgment that

Schmidt now appeals, raising the following three assignments of error.

                                First Assignment of Error

       The trial court erred in not allowing [Schmidt] to withdraw his
       Alford guilty plea prior to sentencing and thereby violated
       [Schmidt’s] constitutional right to due process under the Fifth,
       Sixth and Fourteenth Amendments to the United States
       Constitution and Article I, Section 10 of the Ohio Constitution.

                               Second Assignment of Error

       The trial Court abused its discretion by denying [Schmidt’s]
       pre-sentence motion to withdraw his Alford guilty plea,
       pursuant to Ohio Criminal Rule 32.1.




                                           -6-
Case No. 10-10-04


                           Third Assignment of Error

       [Schmidt] was denied effective assistance of counsel when trial
       counsel failed to recuse themselves after it became evident
       counsel were potential witnesses in [Schmidt’s] motion to
       withdraw his Alford plea, and because trial counsel failed to
       present sufficient evidence at [Schmidt’s] hearing to withdraw
       his Alford plea of guilty.

       {¶12} In his first assignment of error, Schmidt maintains that he should

have been permitted to withdraw his guilty plea because the trial court violated his

constitutional rights when it failed to follow requisite procedures before accepting

his Alford guilty plea. Specifically, Schmidt claims that: there was no meaningful

dialogue by the Court with Schmidt; there was no statement summarizing the

defense counsel’s separate investigation; and, there was no sworn statement of

evidence presented by the State.

       {¶13} An “Alford plea” is a specialized type of guilty plea where the

defendant, although pleading guilty, continues to deny his or her guilt but enters

the plea because the defendant believes that the offered sentence is better than

what the outcome of a trial is likely to be. State v. Howe, 3d Dist. No. 13-02-01,

2002-Ohio-2713.     The term “Alford plea” originated with the United States

Supreme Court’s decision in North Carolina v. Alford (1971), 400 U.S. 25, 91

S.Ct. 160, 27 L.Ed.2d 162, wherein the Supreme Court held that guilty pleas

linked with claims of innocence may be accepted provided the “defendant

intelligently concludes that his interests require entry of a guilty plea and the


                                        -7-
Case No. 10-10-04


record before the judge contains strong evidence of actual guilt.” Id., 400 U.S. at

37, 91 S.Ct. at 167, 27 L.Ed.2d at 171. “An individual accused of a crime may

voluntarily, knowingly, and understandingly consent to the imposition of a prison

sentence even if he is unwilling or unable to admit his participation in the acts

constituting the crime.” Id. An Alford plea has the same legal effect as a guilty

plea. State v. Vogelsong, 3d Dist. No. 5-06-60, 2007-Ohio-4935, ¶15.

      {¶14} All pleas, including an Alford plea, must meet the general

requirement that the defendant knowingly, voluntarily, and intelligently waived

his right to trial. See, e.g., State v. Padgett (1990), 67 Ohio App.3d 332, 337-38,

586 N.E. 2d 1194, construing Crim.R. 11(C). Because pleas accompanied by

protestations of innocence give rise to an inherent suspicion that a knowing,

voluntary, and intelligent waiver may not have occurred, an Alford plea places a

heightened duty upon the trial court to ensure that the defendant's rights are

protected and that entering the plea is a rational decision on the part of the

defendant. Id.; State v. Jackson, 3d Dist. No. 9-99-50, 2000-Ohio-1700 (Shaw, J.,

concurring in judgment only.)        “In accepting an Alford plea, absent the

presentation of some basic facts surrounding the charge, there can be no

determination that the accused made an intelligent and voluntary guilty plea,

because the absence of a basic factual framework precludes a trial judge from

evaluating the reasonableness of the defendant's decision to plead guilty



                                        -8-
Case No. 10-10-04


notwithstanding the protestation of innocence.” State v. Hayes (1995), 101 Ohio

App.3d 73, 75, 654 N.E.2d 1348, 1350.

       {¶15} The Ohio Supreme Court has held that a court may find that an

Alford guilty plea has been voluntarily and intelligently made where the record

affirmatively discloses that “(1) defendant's guilty plea was not the result of

coercion, deception or intimidation; (2) counsel was present at the time of the plea;

(3) counsel's advice was competent in light of the circumstances surrounding the

indictment; (4) the plea was made with the understanding of the nature of the

charges; and, (5) defendant was motivated either by a desire to seek a lesser

penalty or a fear of the consequences of a jury trial, or both.” State v. Piacella

(1971), 27 Ohio St.2d 92, 271 N.E.2d 852, at the syllabus. This Court has also

recognized a heightened duty associated with the acceptance of an Alford plea.

       In order for the trial court to establish that an Alford plea is
       knowing, voluntary, and intelligent, the court must conduct
       what is commonly referred to as an “Alford inquiry.” An “Alford
       inquiry” requires that the trial court question the defendant
       concerning the reasons for deciding to plead guilty,
       notwithstanding the protestations of innocence. The record also
       must contain strong evidence of guilt before an Alford plea may
       be accepted. Therefore, the plea should not be made without the
       presentation of some basic facts surrounding the offenses
       charged. (Citations omitted.)

State v. Scott, 3d Dist. No. 13-2000-34, 2001-Ohio-2098.

       {¶16} In this case, the trial court conducted a thorough hearing and

addressed Schmidt at length about his Alford plea, his understanding of the plea,


                                         -9-
Case No. 10-10-04


and his understanding of the rights he was waiving. Prior to the acceptance of

Schmidt’s guilty plea, the trial court asked Schmidt over twenty-four questions

concerning his understanding of his Alford plea and whether he was voluntarily

changing the plea of his own free will, and another dozen questions concerning his

understanding of the ramifications of the plea and the potential sentences and

consequences that he would be facing as a result.          Schmidt answered in the

affirmative to every one of the trial court’s inquiries, including the following:

       The Court: Mr. Schmidt, this is what we call an Alford plea.
       Have you had time to discuss the import of this type of plea with
       your attorneys this morning?

       Schmidt:     Yes, sir.
       ***
       The Court: Have you read the negotiated plea agreement and
       waiver of rights form that was presented to you this morning?

       Schmidt:      Yes, sir.

       The Court: Do you think you understand everything in those
       forms?

       Schmidt:      Yes, sir.

       The Court: Have you had ample opportunity to discuss these
       forms and the facts therein with your attorneys here this
       morning?

       Schmidt:    Yes, sir.
       ***
       The Court: Are you satisfied with the service and advice of
       your attorneys up to the present time?

       Schmidt:      Yes, sir.


                                         -10-
Case No. 10-10-04



       The Court: Do you understand that no one can compel you to
       enter this plea?

       Schmidt:      Yes, sir.

       The Court: Are you changing this plea freely and voluntarily?

       Schmidt:      Yes, sir.

(Dec. 8, 2009, Change of Plea Hearing Tr., pp. 4-5, 8, and 21.) Although Schmidt

did not personally state his specific reasons for the Alford plea in his own words,

he concurred with the trial court’s statement of its understanding of his reasoning.

(See ¶8 above.) Schmidt’s attorney also spoke on Schmidt’s behalf. See State v.

Harvey, 3d Dist. No. 1-09-48, 2010-Ohio-1627, ¶10 (stating that “[w]hen an

accused is present in the court; when the record shows clearly that he knew and

understood what was being done; and when it is clear that he acquiesced in a

guilty plea entered for him by his attorney; then the plea has the exact same force

and effect as though he had personally spoken the words of the attorney.”) His

attorney stated:

       Mr. Schmidt has made it abundantly clear, I think, throughout
       this that by his Alford plea that he does dispute the acts that are
       attributed to him; but in terms of entering his plea of guilty, he
       does so because of the risk of proceeding to trial.

(Dec. 8, 2009, Change of Plea Hearing Tr., pp. 27-28.)

       {¶17} The trial court complied with all of the Crim.R. 11 plea acceptance

requirements and also conducted an enhanced “Alford inquiry.” Based on the


                                       -11-
Case No. 10-10-04


above, it is clear that the record discloses that Schmidt’s plea met all of the factors

outlined in State v. Piacella that would enable a trial court to find that an Alford

guilty plea has been voluntarily and intelligently made. There is no merit to

Schmidt’s contention that the trial court did not conduct a “meaningful dialogue”

with Schmidt.

         {¶18} Furthermore, we do not find, nor does Schmidt provide, any legal

support for his complaints that his constitutional rights require that there must be a

statement summarizing the defense counsel’s separate investigation and a sworn

statement of evidence presented by the State.2 While this Court has held that the

record should contain strong evidence of guilt before an Alford plea is accepted

and it should contain “the presentation of some basic facts surrounding the

offenses charged,” there are no requirements such as those suggested by Schmidt.

See State v. Scott, supra, citing State v. Nicely, 6th Dist. No. F-99-014, 2000 WL

864448. See, also, State v. Howe, supra, at ¶23, fn.1.

         {¶19} At the change of plea hearing, the State made a professional

statement outlining the case it was prepared to present against Schmidt, including

the many witnesses it planned to call, a summary of their proposed testimony, and

a review of the physical evidence that it had. The State represented that Mr. Riley


2
  Although this did occur in the original North Carolina v. Alford case, that type of evidentiary presentation
is not a requirement for accepting an Alford plea. Furthermore, in the federal courts, Fed.R.Crim.P. 11
expressly provides that a court “shall not enter a judgment upon a plea of guilty unless it is satisfied that
there is a factual basis for the plea.” Ohio’s Crim.R. 11 does not contain that language.


                                                    -12-
Case No. 10-10-04


would testify that for some period of time prior to June 9, 2009, he had purchased

Fentanyl patches from Schmidt; that Schmidt was a regular dealer of drugs for the

Rileys; and that Schmidt had sold Mr. Riley a Fentanyl patch on the evening of

June 9, 2009. In addition to the testimony of Mr. Riley, EMS responders, doctors,

and a toxicologist, the State was prepared to submit surveillance video tapes and

telephone records linking Schmidt with Mr. Riley that evening, along with

literature found in Schmidt’s apartment delineating the nature and potency of

Fentanyl, as well as its potential dangers.

       {¶20} Notwithstanding Schmidt's protestations of innocence, the State was

prepared to present considerable evidence of his guilt. We find that the trial court

had before it sufficient basic facts to allow the trial judge to ascertain that Schmidt

had made a rational calculation that it was in his best interest to accept the plea

bargain offered by the State. There was no indication that any of Schmidt’s

constitutional rights to due process were violated. Based on all of the above,

Schmidt’s first assignment of error is overruled.

       {¶21} In his second assignment of error, Schmidt asserts that he should

have been permitted to withdraw his presentence plea pursuant to Crim.R. 32.1

because Ohio courts have held that a presentence motion to withdraw a guilty plea

should be freely and liberally granted. See, e.g., State v. Peterseim (1980), 68

Ohio App.2d 211, 213-214, 428 N.E.2d 863. Schmidt claims that there existed



                                         -13-
Case No. 10-10-04


cogent reasons for allowing the withdrawal of his guilty plea in this case, namely

that he believed he was under considerable duress and was coerced into making

the plea; that he had requested the termination of his legal counsel because they

unduly influenced him into entering the plea; and that he did not understand the

charge and possible penalties in the case.

       {¶22} Crim.R. 32.1 provides that “[a] motion to withdraw a plea of guilty *

* * 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 his or her plea.” Generally, a motion to withdraw a guilty

plea that is filed prior to sentencing will be freely allowed. State v. Drake (1991),

73 Ohio App.3d 640, 598 N.E.2d 115; State v. Thomas, 3d Dist. No. 1-08-36,

2008-Ohio-6067, ¶6.

       {¶23} However, this does not mean that a motion to withdraw a guilty plea

will be granted automatically. Drake, at 645. “A defendant does not have an

absolute right to withdraw a guilty plea prior to sentencing. A 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 (1992), 62 Ohio St.3d 521, 584

N.E.2d 715, at paragraph one of the syllabus. It is within the trial court's sound

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

withdrawal of a guilty plea and, absent an abuse of discretion, the trial court's



                                        -14-
Case No. 10-10-04


decision on the matter must be affirmed. Id. at 527. An abuse of discretion is

more than an error of judgment; it implies that the decision was “unreasonable,

arbitrary, or unconscionable.” State v. Adams (1980), 62 Ohio St.2d 151, 157, 404

N.E.2d 144.

       {¶24} Appellate courts often consider the following factors when

reviewing a trial court’s decision concerning a pre-sentence motion to withdraw a

guilty plea:

       1) whether the State will be prejudiced by withdrawal; 2) the
       representation afforded to the defendant by counsel; 3) the
       extent of the Crim.R.11 plea hearing; 4) the extent of the hearing
       on the motion to withdraw; 5) whether the trial court gave full
       and fair consideration to the motion; 6) whether the timing of
       the motion was reasonable; 7) the reasons for the motion; 8)
       whether the defendant understood the nature of the charges and
       potential sentences; and 9) whether the accused was perhaps not
       guilty or had a complete defense to the charge.

State v. Leffler, 3d Dist. No. 6-07-22, 2008-Ohio-3057, ¶11; State v. Lewis, 3d

Dist. No. 1-02-10, 2002-Ohio-3950, ¶11; State v. Fish (1995), 104 Ohio App.3d

236, 240, 661 N.E.2d 788, 790.

       {¶25} An examination of the above factors, first enumerated in State v.

Fish, supra, does not weigh in Schmidt's favor. He had a full change of plea

hearing and a hearing on the motion to withdraw the plea.          Schmidt was

represented by competent counsel at both the change of plea hearing and the plea

withdrawal hearings. He filed the motion only two days prior to the final date of



                                      -15-
Case No. 10-10-04


sentencing. The record of the plea hearing indicates that Schmidt was completely

aware of the charges and potential sentences he faced when he entered the plea.

The trial court gave careful consideration to the motion.      Although Schmidt

maintained his innocence, the record is devoid of any defenses he may have had

and the prosecutor’s overview of the case demonstrated that the State was

prepared to present compelling evidence of Schmidt’s guilt.          Furthermore,

Schmidt’s reasons for withdrawing his plea were not persuasive.

       {¶26} In his letter in support of the motion to withdraw his guilty plea,

Schmidt claimed he was under a great deal of pressure and “badgering” from his

attorneys and the prosecutor, and that he “was not aware from any source that I

was about to be given only fifteen minutes to make a decision that would affect

me for the rest of my life.”    However, the record before the trial court and

Schmidt’s own testimony strongly refutes Schmidt’s allegations.

       {¶27} At the hearing, Schmidt had the opportunity to testify at length as to

his reasons for wanting to withdraw his plea. His attorney and the prosecutor also

gave professional statements. Schmidt acknowledged that the answers he had

given to the trial court on the day of his change of plea hearing were truthful, “I

thought they were truthful from my heart, yes sir.” (Dec. 23, 2009. Hearing Tr., p.

25.)




                                       -16-
Case No. 10-10-04


       {¶28} Although Schmidt originally claimed he had only “fifteen minutes”

to make up his mind, the evidence demonstrated that plea negotiations had been

ongoing for months; that the final plea offer that was made on the day of trial was

substantially similar to an offer he had received weeks before (except that for the

fact that the plea would be an “Alford plea”); that he actually had approximately

three hours to consider the offer that day; and that his family was brought in to

discuss the matter with him.       Furthermore, when Schmidt indicated he was

reluctant to sign the plea agreement, his attorneys, the State, and the trial court

were all prepared and willing to proceed with the trial. It appears that Schmidt

claims he felt he was “badgered” when he was informed that if he did not want to

sign the plea agreement, then they would go forward with the trial in fifteen

minutes, since the jury had been waiting all morning. A trial by jury is a right; it

does not constitute a threat or a manner of “duress.” Furthermore, his attorneys’

assessment as to his likelihood of prevailing at trial does not constitute “coercion.”

       {¶29} While Schmidt was undoubtedly under stress at the time that he

entered his plea, it is certainly not unusual for a criminal defendant to be under a

great deal of stress when entering a plea to criminal charges. See Leffler, 2008-

Ohio-3057, at ¶19. Schmidt’s testimony at the plea withdrawal hearing again

confirmed that he had understood the plea agreement and the ramifications of




                                         -17-
Case No. 10-10-04


making an Alford plea. (Dec. 23, 2009 Hearing Tr. pp. 10-12.) Schmidt’s claim

that his plea was the result of duress and coercion is not supported by the record.

        {¶30} In his pro-se letter accompanying the motion to withdraw, Schmidt

also claimed that he was under the mistaken impression that he could potentially

face up to a maximum of 89 years in prison if he did not accept the plea.

However, Schmidt himself did not raise this issue at the hearing and there was no

testimony or evidence in the record that he was ever told he could be subject to 89

years in prison.3 In any case, Schmidt, age 60, gained a considerable reduction in

the maximum prison time by entering an Alford plea. Instead of a potential prison

sentence of 26-36 years (plus additional penalties for violating community

control), Schmidt’s plea reduced the maximum prison time to 18 years, and he was

actually sentenced to 13 years in prison.

        {¶31} The record does not reflect that Schmidt was subject to any undue

coercion or duress, and there is no evidence that he did not understand his plea and

the maximum potential penalties associated with accepting the plea agreement. It

is well-settled that a mere “change of heart” is insufficient grounds for allowing

the withdrawal of a guilty plea.” State v. Ramsey, 3d Dist. No. 1-06-2001, 2006-

Ohio-2795, ¶11, citing State v. Drake, 73 Ohio App.3d at 645. Therefore, we do




3
  Although Schmidt did not raise the issue, the trial court did. Schmidt’s attorneys and the prosecutor
denied ever representing to Schmidt that he could be subject to 89 years in prison.


                                                -18-
Case No. 10-10-04


not find that the trial court abused its discretion in denying Schmidt’s motion to

withdraw his guilty plea. The second assignment of error is overruled.

       {¶32} In his final assignment of error, Schmidt asserts that he was denied

effective assistance of counsel because of a conflict of interest with his attorneys

concerning the withdrawal of his guilty plea. Schmidt claimed that his attorneys

“coerced” him into accepting the State’s plea offer, thereby making it difficult for

them to represent Schmidt at the hearing on his motion to withdraw his plea.

       {¶33} Although Schmidt states that trial counsel failed to “recuse”

themselves, the record shows that they were cognizant of the potential conflict and

requested permission from the trial court to withdraw. The trial court did not

permit them to withdraw, so it would appear that Schmidt is claiming that the trial

court’s denial of their request to withdraw resulted in Schmidt being afforded

ineffective assistance of counsel.

       {¶34} Schmidt must satisfy the test set forth in Strickland v. Washington

(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, to prove ineffective

assistance of counsel. State v. Xie, 62 Ohio St.3d at 524. The Strickland test was

applied to guilty pleas in Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct. 366, 88

L.Ed.2d 203.” Id. Strickland requires a defendant to show that “(1) counsel's

performance was deficient or unreasonable under the circumstances; and (2) the

deficient performance prejudiced the defense.” State v. Brooks, 3d Dist. No. 4-08-



                                       -19-
Case No. 10-10-04


09, 2008-Ohio-6188, ¶16; State v. Kole, 92 Ohio St.3d 303, 306, 2001-Ohio-191,

750 N.E.2d 148, quoting Strickland, at 687.         To establish prejudice when

ineffective assistance of counsel relates to a guilty plea, a defendant must show

there is a reasonable probability that but for counsel's deficient or unreasonable

performance, he/she would not have pled guilty. Xie, 62 Ohio St.3d at 524, citing

Hill v. Lockhart, 474 U.S. at 59, 106 S.Ct. 366, 88 L.E.2d 203. The decision not

to remove court-appointed counsel is reviewed under an abuse of discretion

standard. State v. Murphy, 91 Ohio St.3d 516, 523, 2001-Ohio-112, 747 N.E.2d

765.

       {¶35} The facts of this case fail to show that counsel's performance fell

below an objective standard of reasonableness. In fact, the record shows that

Schmidt’s attorneys advocated diligently on his behalf. Counsel has a critical

obligation to advise a client of the advantages and disadvantages of a plea

agreement. Padilla v. Kentucky (2010), -- U.S. --, 130 S.Ct. 1473, 1485, 176

L.Ed.2d 284.    To obtain relief on a claim that an attorney provided ineffective

assistance by failing to properly advise a defendant on the consequences of a

guilty plea, a defendant must convince the court that a decision to reject the plea

bargain would have been rational under the circumstances. Id.

       {¶36} Schmidt’s attorneys believed that his best interests would be served

by accepting the plea agreement. Apparently that is not the advice that Schmidt



                                       -20-
Case No. 10-10-04


wanted to hear and he claimed that he felt pressured and coerced into accepting the

plea agreement. However, “[a] lawyer has a duty to give the accused an honest

appraisal of his case. *** Counsel has a duty to be candid; he has no duty to be

optimistic when the facts do not warrant optimism. If the rule were otherwise,

appointed counsel could be replaced for doing little more than giving their clients

honest advice.”   State v. Congrove, 5th Dist. No. 09 CAA09 0080, 2010-Ohio-

2933, ¶36 (internal quotation marks and citations omitted).         Based on the

overwhelming evidence against Schmidt and the fact that the plea agreement

represented a significant reduction in the potential sentences he was facing, we

cannot say that Schmidt’s attorneys acted unreasonably. Cf. State v. Brown, 2nd

Dist. No. 2002-CA-23, 2003-Ohio-2959, ¶7 (wherein trial court granted

defendant’s motions and allowed him to withdraw his Alford plea and replace the

appointed counsel who had advised him to accept the plea offer of concurrent

three-year sentences. New counsel was appointed, the case went to trial, and the

defendant received an aggregate sentence of life in prison.)

       {¶37} We also do not find any evidence that Schmidt suffered prejudice as

a result of counsel’s advice or as a result of the trial court’s refusal to allow

counsel to withdraw.    The record shows that Schmidt’s attorney argued strongly

in favor of granting the motion to withdraw the guilty plea and allowed Schmidt

ample opportunity to testify. In addition to asking many specific questions which



                                        -21-
Case No. 10-10-04


permitted Schmidt to set forth his rationale for wanting to withdraw the plea, his

attorney gave Schmidt an open-ended opportunity to explain his reasoning when

he concluded by asking, “Is there anything else you want to tell the court?”

       {¶38} There is no evidence that Schmidt’s attorneys’ performance was

deficient or unreasonable, or that Schmidt suffered any prejudice as a result of the

trial court’s denial of his request for new counsel. Schmidt’s third assignment of

error is overruled.

       {¶39} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

ROGERS and SHAW, J.J., concur.

/jlr




                                        -22-
