[Cite as State v. Schlemmer, 2016-Ohio-430.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   C.A. CASE NO. 2015-CA-46
                                                     :
 v.                                                  :   T.C. NO. 14CR595
                                                     :
 WILLIAM D. SCHLEMMER                                :   (Criminal Appeal from
                                                     :    Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

              Rendered on the ___5th___ day of _____February_____, 2016.

                                                ...........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

ANTHONY R. CICERO, Atty. Reg. No. 0065408, 500 East Fifth Street, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                               .............

FROELICH, J.

        {¶ 1} William Schlemmer pled guilty in the Clark County Court of Common Pleas

to one count of gross sexual imposition, in violation of R.C. 2907.05(A)(1), a fourth-degree

felony, and to a sexually violent predator specification. The trial court sentenced him to

an indefinite term of two years to life in prison. For the following reasons, the trial court’s
                                                                                         -2-


judgment will be reversed, and the matter will be remanded for further proceedings.

                                 I. Procedural History

      {¶ 2} In September 2014, Schlemmer was indicted on five counts of gross sexual

imposition, in violation of R.C. 2907.05(A)(1).    Each count alleged that, from about

August 1, 2014 to August 28, 2014, Schlemmer had sexual contact with another (not his

spouse) and purposefully compelled the other person to submit by force or threat of force.

Each count included a sexually violent predator specification, pursuant to R.C. 2941.148.

At the time of the offenses, Schlemmer had previously been convicted of various sex

offenses, he was on post-release control for rape, and had been designated a Tier III sex

offender.

      {¶ 3} In October 2014, the State filed a bill of particulars. According to the bill of

particulars, Counts One through Three involved sexual contact with D.D. Schlemmer

allegedly rubbed D.D.’s thighs and/or penis while both were sitting on a towel, while D.D.

was driving a car, and while at D.D.’s house. Counts Four and Five concerned sexual

contact with J.P. Schlemmer allegedly rubbed J.P.’s thighs and/or penis while both were

sitting on a garbage bag and while both were by a bridge over a river.

      {¶ 4} Schlemmer was originally represented by the Public Defender’s Office. At

the end of October, Schlemmer’s counsel went on leave for health reasons, and the case

was transferred to another attorney within the office. On January 21, 2015, Schlemmer’s

attorney moved to withdraw as counsel due to a conflict of interest. The trial court

granted the motion and appointed new counsel.

      {¶ 5} In March 2015, the State and Schlemmer reached an agreement whereby

Schlemmer would plead guilty to one count of gross sexual imposition (Count One) with
                                                                                         -3-


the sexually violent predator specification. The State agreed to dismiss all remaining

counts and specifications and that Schlemmer would not be sentenced for violating his

post-release control. The parties agreed that Schlemmer would be sentenced to an

indefinite term in prison with a minimum of two years and a maximum term of life. The

plea form further indicated that Schlemmer would be designated a Tier III sex offender

and that he would serve a mandatory five years of post-release control if he were released

from prison. The plea form indicated that, by pleading guilty, Schlemmer was waiving

various constitutional rights and that he was admitting that he committed the offense.

      {¶ 6} The trial court held a plea and sentencing hearing on March 27, 2015. The

trial court reviewed the terms of the plea, as reflected by the plea form, and the State

added that Schlemmer’s parole officer had also agreed that the Adult Parole Authority

would not pursue a violation against Schlemmer. The State then informed the court of

the facts supporting plea. After indicating the facts supporting the charge of gross sexual

imposition in Count One, the State stated:

             Mr. Schlemmer is a sexually violent predator by virtue of his previous

      convictions, the first being a conviction in Carroll County Common Pleas

      Court Case No. 3411 in 1992 when he was convicted of gross sexual

      imposition; another conviction from Carroll County Case No. CRB-9600332,

      a conviction of importuning; and a conviction from Belmont County Common

      Pleas Court Case No. 97-CR-062 from 1997 where the Defendant was

      convicted of rape.

The court then asked defense counsel how the defense wished to proceed. Counsel

stated that Schlemmer wished to follow through with the guilty plea.
                                                                                          -4-


        {¶ 7} The trial court conducted a hearing, pursuant to Crim.R. 11. Schlemmer

stated that he had discussed the case and possible defenses with his attorney and was

satisfied with his attorney’s advice. Schlemmer indicated that he had signed the plea

form and understood its contents.        The trial court reviewed with Schlemmer the

maximum penalties for gross sexual imposition and the specification; the court stated

that, although the maximum sentence for gross sexual imposition was 18 months, the

court would be required, due to the specification, to impose an indefinite term of at least

two years to a maximum term of life. The trial court also told Schlemmer that he would

be required to serve five years of post-release control if he were released from prison and

of the consequences of violating post-release control.         The trial court stated that

Schlemmer was ineligible for community control.        Schlemmer indicated that he was

already a Tier III sex offender, but the trial court reiterated those requirements. The trial

court reviewed the constitutional rights that Schlemmer was waiving as a result of his

plea.

        {¶ 8} During the plea colloquy, Schlemmer indicated that he understood that, by

pleading guilty, he admitted the truth of the facts that the prosecutor put on the record.

Schlemmer specifically stated that he admitted that he “committed the offense of gross

sexual imposition as set forth in Count One of the indictment” and “the specification that

[he was] a sexually violent predator.” Schlemmer further indicated that he understood

that the State would not be required to prove those offenses.

              THE COURT: As to the count to which you are pleading guilty, those

        elements would be that on or about August 1, to on or about August 28,

        2014, at Clark County, Ohio, you did have sexual contact with another who
                                                                                       -5-


      was not your spouse and you purposefully compelled the other person to

      submit by force or threat of force. Do you understand the elements of the

      offense?

             DEFENDANT: Yes, sir.

             THE COURT: As to the elements of the sexually violated predator

      specification – which subsection are you going by?

             PROSECUTOR: (A)(1)(a).

             THE COURT: Before you could be found guilty of the specification,

      the State would have to prove beyond a reasonable doubt to every member

      of the jury that you were charged with a violent sex offense, and the

      indictment or the count of the indictment charging you with a violent sex

      offense also includes the specification that you are a sexually violent

      predator; and to show that the specification applies, the State would have

      the burden to prove beyond a reasonable doubt those prior convictions that

      the State put on the record. Do you understand that, sir?

             DEFENDANT: Yes, sir.

      {¶ 9} At the end of the colloquy, Schlemmer entered a plea of guilty to gross sexual

imposition (Count One) and to the sexually violent predator specification. The trial court

found that Schlemmer had knowingly, voluntarily, and intelligently waived his rights, and

the court found him guilty of the offense and the specification. The trial court proceeded

to sentence Schlemmer to an indefinite prison term of two years to life in prison.

      {¶ 10} Schlemmer appeals from his conviction.

            II. Ineffective Assistance of Counsel regarding Specification
                                                                                    -6-


      {¶ 11} Schlemmer raises four assignments of error on appeal:

             I. APPELLANT’S CONVICTION AND SENTENCE ON A SEXUALLY

      VIOLENT      PREDATOR        SPECIFICATION      IS   UNLAWFUL       AND

      STRUCTURAL ERROR IN VIOLATION OF HIS RIGHT TO DUE

      PROCESS OF LAW BECAUSE NO SUBSTANTIVE CHARGE IN THE

      INDICTMENT IS A VIOLENT SEX OFFENSE.

             II. APPELLANT’S SENTENCE ON A SEXUALLY VIOLENT

      PREDATOR SPECIFICATION IS CONTRARY TO LAW, AND IN

      VIOLATION OF HIS RIGHTS UNDER THE EIGHTH AMENDMENT TO

      THE UNITED STATES CONSTITUTION.

             III. APPELLANT’S CONVICTIONS SHOULD BE REVERSED

      BECAUSE HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN

      VIOLATION OF HIS RIGHTS UNDER THE SIXTH AMENDMENT TO THE

      UNITED STATES CONSTITUTION.

             IV. CONTRARY TO APPELLANT’S RIGHTS TO DUE PROCESS

      AND THE REQUIREMENTS OF CRIM.R. 11(C)(2), APPELLANT’S PLEA

      WAS NOT KNOWINGLY, INTELLIGENT AND VOLUNTARILY ENTERED

      BECAUSE THE COURT’S COLLOQUY NEVER EXPLAINED TO HIM THE

      ELEMENTS THE STATE WOULD BE REQUIRED TO PROVE IN ORDER

      TO    BE   CONVICTED       OF    A   SEXUALLY    VIOLENT       PREDATOR

      SPECIFICATION.

      {¶ 12} Each of Schlemmer’s assignments of error challenges his conviction on the

sexually violent predator specification.   Because we find that Schlemmer’s counsel
                                                                                            -7-


rendered ineffective assistance, we will address only Schlemmer’s third assignment of

error in detail. Schlemmer’s first, second, and fourth assignments of error are overruled

as moot.

       {¶ 13} In general, we review alleged instances of ineffective assistance of trial

counsel under the two prong analysis set forth in Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in

State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases,

trial counsel is entitled to a strong presumption that his or her conduct falls within the wide

range of reasonable assistance. Strickland, 466 U.S. at 688. To reverse a conviction

based on ineffective assistance of counsel, it must be demonstrated that trial counsel’s

conduct fell below an objective standard of reasonableness and that his or her errors

were serious enough to create a reasonable probability that, but for the errors, the result

of the trial court proceeding would have been different. Id.

       {¶ 14} “A guilty plea waives the right to allege ineffective assistance of counsel,

except to the extent that the errors caused the plea to be less than knowing and

voluntary.” State v. Webb, 2d Dist. Montgomery No. 26198, 2015-Ohio-553, ¶ 15. As

stated by the United States Supreme Court in Tollett v. Henderson, 411 U.S. 258, 93

S.Ct. 1602, 36 L.Ed.2d 235 (1973):

       When a criminal defendant has solemnly admitted in open court that he is

       in fact guilty of the offense with which he is charged, he may not thereafter

       raise independent claims relating to the deprivation of constitutional rights

       that occurred prior to the entry of the guilty plea. He may only attack the

       voluntary and intelligent character of the guilty plea by showing that the
                                                                                           -8-


       advice he received from counsel was not within the standards set forth

       in McMann [v. Richardson , 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763

       (1970)].”

Tollett at 267, quoted by State v. Spates, 64 Ohio St.3d 269, 595 N.E.2d 351 (1992). “If

a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice

was not ‘within the range of competence demanded of attorneys in criminal cases.’”

Id. at 266, quoting McMann at 771.

       {¶ 15} In this present case, Schlemmer argues that his counsel’s advice to plead

guilty to the sexually violent predator specification fell below an objective standard of

reasonableness in that counsel “failed to read the indictment and the statutes applicable

to the indictment,” resulting in Schlemmer’s “receiving a life sentence that is not

authorized by law.” As a remedy, Schlemmer askS us to vacate his sentence on the

sexually violent predator specification.

       {¶ 16} Schlemmer’s argument is premised on his assertion that gross sexual

imposition, in violation of R.C. 2907.05(A)(1), does not constitute a “violent sex offense”

for purposes of the sexually violent predator specification.       As an extension of this

argument, Schlemmer asserts that he was improperly indicted on the specification, and

counsel rendered ineffective assistance in advising him to plead guilty to the specification.

       {¶ 17} R.C. Chapter 2971 addresses sexually violent predators. R.C. Chapter

2971 is inapplicable, unless one of six circumstances exists, including that “[t]he offender

is charged with a violent sex offense, and the indictment * * * charging the violent sex

offense also includes a specification that the offender is a sexually violent predator * * *.”

R.C. 2941.148(A)(1)(a).
                                                                                         -9-


       {¶ 18} “Violent sex offense” is defined as “[a] violation of section 2907.02,

2907.03, or 2907.12, or of division (A)(4) or (B) of section 2907.05 of the Revised Code.”

(Emphasis added.) R.C. 2971.01(L)(1). The sexually violent predator specification is a

specification that “charges that a person charged with a violent sex offense * * * is a

sexually violent predator.” R.C. 2971.01(I). A “sexually violent predator” is a person

who commits a “sexually violent offense” (the definition of which includes a violent sex

offense) and is likely to engage in one or more sexually violent offenses in the future.

R.C. 2971.01(H)(1).     Evidence of a person’s likelihood to engage in future sexually

violent offenses includes two or more convictions in separate criminal actions for a

sexually oriented offense. R.C. 2971.01(H)(2)(a).

       {¶ 19} R.C. 2971.03 sets forth the appropriate sentence for an individual convicted

of a violent sex offense and the sexually violent predator specification. It states:

              (A) Notwithstanding divisions (A) and (D) of section 2929.14, section

       2929.02, 2929.03, 2929.06, 2929.13, or another section of the Revised

       Code, other than divisions (B) and (C) of section 2929.14 of the Revised

       Code, that authorizes or requires a specified prison term or a mandatory

       prison term for a person who is convicted of or pleads guilty to a felony or

       that specifies the manner and place of service of a prison term or term of

       imprisonment, the court shall impose a sentence upon a person who is

       convicted of or pleads guilty to a violent sex offense and who also is

       convicted of or pleads guilty to a sexually violent predator specification that

       was included in the indictment, count in the indictment, or information

       charging that offense, * * *, as follows:
                                                                                         -10-


              ***

              (3)(a) Except as otherwise provided in division (A)(3)(b), (c), (d), or (e) or

       (A)(4) of this section, if the offense for which the sentence is being imposed is an

       offense other than aggravated murder, murder, or rape and other than an offense

       for which a term of life imprisonment may be imposed, it shall impose an indefinite

       prison term consisting of a minimum term fixed by the court from among the range

       of terms available as a definite term for the offense, but not less than two years,

       and a maximum term of life imprisonment.

       {¶ 20} Schlemmer was charged with gross sexual imposition, in violation of R.C.

2907.05(A)(1). While violations of R.C. 2907.05(A)(4) and (B) are identified as violent

sex offenses in R.C 2971.01(L)(1), a violation of R.C. 2907.05(A)(1) is not. We cannot

re-write R.C. 2971.01(L)(1) to include R.C. 2907.05(A)(1) as a violent sex offense when

the legislature has chosen not to include it.

       {¶ 21} Pursuant to the clear language of R.C. 2941.148, the application of R.C.

Chapter 2971 is precluded unless one of six circumstances exists. The State relied on

R.C. 2941.148(A)(1)(a), which provides that the offender is charged with a violent sex

offense and the indictment includes a specification that the offender is a sexually violent

predator. Schlemmer was not charged with a violent sex offense, and none of the other

circumstances applied. Accordingly, R.C. Chapter 2971 was inapplicable to him.

       {¶ 22} Despite the inapplicability of R.C. Chapter 2971, Schlemmer pled, on the

advice of counsel, to one count of gross sexual imposition with the sexually violent

predator specification. And with an underlying offense of gross sexual imposition for the

specification, the trial court was required to impose an indefinite sentence with a minimum
                                                                                           -11-


of two years and a maximum of life in prison. R.C. 2971.03(A)(3)(a).

       {¶ 23} We recognize that the record does not reflect the conversations between

Schlemmer and his attorney regarding the indicted charges and possible defenses.

However, there is no reasonable strategy in which counsel would advocate for his client

to plead guilty to a sexually violent predator specification (and its mandatory indefinite life

sentence) when that specification was not properly included in the indictment based on

the underlying offense. On its face, counsel’s advice appears to have fallen below an

objective standard of reasonableness.

       {¶ 24} The record also supports a conclusion that Schlemmer was prejudiced by

counsel’s advice.     By pleading guilty to the specification, Schlemmer received an

indefinite sentence of two years to life in prison, a sentence that was mandated by statute.

Absent the specification (i.e., had Schlemmer been charged with only five counts of gross

sexual imposition), he would have faced a maximum sentence of 18 months in prison on

each count in the indictment. If run consecutively, a sentence on all five counts would

amount to seven and one-half years in prison. Even if Schlemmer were also sentenced

on the post-release control violation, he would not have faced a term of life in prison.

       {¶ 25} On the record before us, we conclude that Schlemmer’s counsel rendered

ineffective assistance in advising Schlemmer to plead guilty to a sexually violent predator

specification, based on the underlying offense of gross sexual imposition in violation of

R.C. 2907.05(A)(1).       We further conclude that, based on counsel’s deficient

representation, Schlemmer’s plea was not entered knowingly, intelligently, and

voluntarily. Schlemmer’s third assignment of error is sustained.

       {¶ 26} Schlemmer asks that we vacate his conviction on the sexually violent
                                                                                       -12-


predator specification. However, Schlemmer’s guilty plea to the specification was part

of a larger plea arrangement, in which the State dismissed four additional counts of gross

sexual imposition with specifications and agreed not to pursue the violation of

Schlemmer’s post-release control. Counsel’s actions affected the entire plea, and it

would be unfair to vacate the conviction on the specification alone. Schlemmer’s plea is

vacated, and his conviction is reversed in its entirety.

                                      III. Conclusion

       {¶ 27} The trial court’s judgment will be reversed, and the matter will be remanded

for further proceedings consistent with this Opinion.

                                          .............

DONOVAN, P.J. and WELBAUM, J., concur.

Copies mailed to:

Ryan A. Saunders
Anthony R. Cicero
Hon. Richard J. O’Neill
