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State v. Schneider

Court of Appeals of Ohio, Eighth District

June 20, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JOANNE SCHNEIDER DEFENDANT-APPELLANT

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

ATTORNEYS FOR APPELLANT Matthew M. Nee Nee-Bittinger, L.L.C.

ATTORNEYS FOR APPELLEE: Timothy J. McGinty Cuyahoga County Prosecutor, Nick Giegerich Assistant Prosecuting Attorney The Justice Center

BEFORE: E.T. Gallagher, J., S. Gallagher, P.J., and Keough, J.

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, JUDGE.

{¶1} Defendant-appellant Joanne Schneider ("Schneider") appeals from a judgment that sentenced her to a nine-year prison term. We find some merit to the appeal and remand this case to the trial court for the limited purpose of resentencing on Count 49.

{¶2} 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.

{¶ 3} In March 2009, pursuant to a plea agreement, Schneider pleaded guilty to 13 counts. All other charges were dismissed, and the court sentenced Schneider to a three-year prison term. The state appealed the sentence, arguing that Count 1, which charged Schneider with engaging in a pattern of corrupt activity, carried a mandatory ten-year sentence. This court reversed the trial court's judgment and remanded the case to the trial court for resentencing. State v. Schneider, 8th Dist. No. 93128, 2010-Ohio-2089.

{¶ 4} On remand, Schneider moved to withdraw her guilty plea. The trial court denied her motion and sentenced Schneider to a ten-year prison term. Schneider appealed the denial of her motion to withdraw her guilty plea, and this court again reversed the trial court's judgment and remanded the case to the trial court for trial. State v. Schneider, 8th Dist. Nos. 95824, 95855, and 95856, 201 l-Ohio-4097. This time, Schneider entered into another plea agreement in which she agreed to plead guilty to a reduced charge on Count 1 and a reduced number of counts. She also agreed to a non-mandatory nine-year prison sentence. The trial court sentenced Schneider to nine years in prison pursuant to the plea agreement and suspended her fines. Schneider now appeals, raising four assignments of error.

Increased Sentence

5} In the first assignment of error, Schneider argues the trial court erred by increasing her sentence by six years. She contends that because the court originally sentenced her to three years, the court's imposition of a nine- year sentence upon remand is presumptively vindictive and must be reversed.

{¶6} Pursuant to R.C. 2953.08(D)(1), "[a] sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge." Schneider does not argue that her nine-year sentence exceeded the maximum term prescribed by statute for her offenses.[1] She argues her sentence should be vacated because it was presumptively vindictive.

{¶7} Due process prohibits a court from imposing a harsher sentence on a defendant in retaliation for exercising her right to appeal. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Under some circumstances, a presumption of vindictiveness exists when a defendant receives a more severe sentence on remand after a successful appeal. See State v. Collins, 8th Dist. Nos. 98575 and 98595, 2013-Ohio-938, ¶ 8. Therefore, an enhanced sentence imposed out of vindictiveness may be contrary to law.

{¶ 8} However, cases subsequent to Pearce indicate that such a presumption arises only when circumstances establish a "reasonable likelihood" that an increased sentence is the product of vindictiveness. Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). "Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness." Id., citing Wasman v. United States, 468 U.S. 559, 569, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984). Here, because Schneider agreed to the enhanced ...


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