STATE v. SCHLEMMER

Appellate No. 2016-CA-39.

2017-Ohio-2784

STATE OF OHIO, Plaintiff-Appellee, v. WILLIAM D. SCHLEMMER, Defendant-Appellant

Court of Appeals of Ohio, Second District, Clark County.


Attorney(s) appearing for the Case

MEGAN FARLEY , Atty. Reg. No. 0088515, Clark County Prosecutor's Office, Appellate Division, Clark County Courthouse, 50 East Columbia Street, 4th Floor, Springfield, Ohio 45502, Attorney for Plaintiff-Appellee.

JEFFREY GRAMZA , Atty. Reg. No. 0053392, 101 Southmoor Circle NW, Kettering, Ohio 45429, Attorney for Defendant-Appellant.


OPINION

HALL, P.J.

{¶ 1} William D. Schlemmer appeals from his conviction and sentence following a guilty plea to two counts of fourth-degree-felony gross sexual imposition.

{¶ 2} Schlemmer's appointed appellate counsel has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of any non-frivolous issues for our review. We informed Schlemmer of the Anders filing and advised him of his right to file his own brief and the time limit for doing so. Schlemmer has not filed a pro se brief, and the time for filing has expired.

{¶ 3} Schlemmer originally pled guilty to one count of gross sexual imposition and a sexually-violent-predator specification. Four other counts of gross sexual imposition were dismissed, and the trial court imposed an indefinite prison term of two years to life. On appeal, this court concluded that the sexually-violent-predator specification did not apply, making Schlemmer's indefinite sentence of two years to life in prison erroneous. As a remedy, this court found it necessary to vacate the entire plea and to reverse his conviction in its entirety. See State v. Schlemmer, 2016-Ohio-430, 58 N.E.3d 573 (2d Dist.). On remand, Schlemmer pled guilty to two counts of gross sexual imposition. Following a presentence investigation, the trial court imposed two maximum sentences of 18 months in prison and ordered Schlemmer to serve them consecutively.

{¶ 4} In the Anders filing, appointed appellate counsel has identified three potential assignments of error: (1) whether the trial court erred in imposing consecutive sentences, (2) whether the trial court erred in explaining the potential consequences of violating post-release control, and (3) whether Schlemmer received effective assistance of counsel below. Appointed appellate counsel has concluded, however, that raising these issues would be frivolous and that no other non-frivolous issues exist. As a result, counsel requests permission to withdraw from further representation.

{¶ 5} Having reviewed the entire record, including a PSI report and the most recent plea and sentencing hearing transcripts, we agree with appointed counsel's assessment that his potential assignments of error would be frivolous. The trial court made the statutory findings needed to impose consecutive sentences, and the record contains evidence to support them. The trial court also explained the potential consequences of violating post-release control. As for appointed appellate counsel's non-specified allegation of ineffective assistance, we see nothing in the record to support such a claim.

{¶ 6} In accordance with our responsibility under Anders, we also have conducted an independent review of the record and have found no non-frivolous issues for Schlemmer to raise. The trial court conducted a thorough Crim.R. 11 plea hearing and concluded that he knowingly, voluntarily, and intelligently waived his rights and entered his pleas. Likewise, with regard to the two 18-month sentences imposed, they are within the appropriate statutory range and are not contrary to law in any way. In addition to making the findings necessary to impose consecutive sentences, the trial court correctly imposed post-release control. It also designated Schlemmer a Tier I sex offender.1

{¶ 7} We note too that the trial court correctly informed Schlemmer at sentencing that he would be required to pay court costs. The trial court then imposed court costs in its judgment entry. Despite Schlemmer's indigence, the trial court was obligated by statute to impose court costs. State v. Hawley, 2d Dist. Montgomery No. 25897, 2014-Ohio-731, ¶ 8. Although a trial court may waive the payment of costs, "an indigent defendant must move for such waiver at sentencing." Id. On the record before us, we find no non-frivolous issue as to whether Schlemmer's trial counsel provided ineffective assistance by failing to seek a waiver of court costs. Schlemmer, who was 48 years old at the time of sentencing, received an aggregate 36-month prison sentence with approximately 21 months of jail-time credit. The PSI report reflects that he had obtained a GED and that he had been employed building decks and gazebos at the time of his most recent arrest. Therefore, defense counsel reasonably could have concluded that a challenge to the imposition of court costs would fail, as Schlemmer's sentence did not include a fine and he presumably could pay the court costs after his release from prison.

{¶ 8} For the foregoing reasons, appointed appellate counsel's request to withdraw from further representation is granted, and the judgment of the Clark County Common Pleas Court is affirmed.

DONOVAN, J. and FROELICH, J., concur.

FootNotes


1. The gross sexual imposition charges to which Schlemmer pled guilty normally are Tier I sex offenses. When designating Schlemmer a Tier I sex offender in this case, the trial court noted that he previously had been classified a Tier III sex offender in another case. (Doc. # 52 at 3). The trial court stated that the preexisting Tier III classification "is not affected by this case." (Id.). Although that statement is correct, it appears that the prior Tier III classification should have resulted in Schlemmer being designated a Tier III offender in this case as well. See R.C. 2950.01(G)(1)(j) (recognizing that a Tier III sex offender includes a sex offender convicted of "[a]ny sexually oriented offense that is committed after the sex offender previously has been convicted of * * * any sexually oriented offense * * * for which the offender was classified as a tier II sex offender * * * or a tier III sex offender * * *"). The trial court's designation of Schlemmer as a Tier I sex offender in this case does not raise a non-frivolous issue for him to appeal, however, because, if anything, it worked to his advantage. Indeed, one could argue that it would be ineffective assistance for his appointed counsel to raise this issue. In any event, as a practical matter, designating Schlemmer a Tier I sex offender in this case does nothing given that his preexisting Tier III classification already includes more onerous reporting requirements that last for life.

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