Defendant’s Reply to the Government’s Sentencing Memorandum — United States v. Schaefer (Dkt. 138, S.D. Ohio)

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Defendant Lorie A. Schaefer's reply to the government's sentencing memorandum, filed June 11, 2025 in United States of America v. Lorie A. Schaefer, Case No. 2:24-cr-029 (1), in the U.S. District Court for the Southern District of Ohio (Doc #: 138). The reply answers the government's argument (Doc #: 137) that it is no longer bound by the sentencing recommendations in the plea agreement because of Schaefer's October 10, 2024 letter (Doc. #: 61) asking to withdraw her guilty plea while she was represented by court-appointed counsel. It argues that the letter was not preceded by a clear assertion of the right to proceed pro se and was not considered by the Court, so it cannot relieve the government of the plea agreement. It is signed by attorney Michael J. Hunter.

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Case: 2:24-cr-00029-EAS Doc #: 138 Filed: 06/11/25 Page: 1 of 4 PAGEID #: 884




                       IN THE UNITED STATES DISTRICT COURT
                        FOR THE SOUTHERN DISTRICT OF OHIO
                                 EASTERN DIVISION

UNITED STATES OF AMERICA,
                                                      Case No. 2:24-cr-029 (1)
                Plaintiff,
                                                      Judge Edmund A. Sargus, Jr.
        v.

LORIE A. SCHAEFER,

                Defendant.


DEFENDANT’S REPLY TO THE GOVERNMENT’S SENTENCING MEMORANDUM


       Defendant Lorie Schaefer responds, briefly, to the Government’s argument that the United

States is no longer bound by its sentencing recommendations in the Plea Agreement between the

parties as a result of Lorie’s October 10, 2024, letter—while represented by court-appointed

counsel—asking the Court to allow her to withdraw her guilty plea and plea agreement. (See Gov’t

Sentencing Memo, Doc #: 137; Letter, Doc. #: 61). Because the letter was not proceeded by a clear

and unequivocal assertion of her right to proceed pro se and was not considered by the Court, the

letter does not serve as a basis for the Government to be relieved from the Plea Agreement and to

make recommendations inconsistent with the terms of the Plea Agreement.

                                          ARGUMENT

       It is well established that a criminal defendant accused of a felony has a constitutional right

under the Sixth Amendment to be represented by counsel and to have counsel appointed for him

if he cannot afford one, or, alternatively, to represent himself in such proceedings. See Faretta v.

California, 422 U.S. 806, 818 (1975). However, a criminal defendant does not have the right to

   Case: 2:24-cr-00029-EAS Doc #: 138 Filed: 06/11/25 Page: 2 of 4 PAGEID #: 885




hybrid representation. See United States v. Mosley, 810 F.2d 93, 97 (6th Cir. 1987). When

addressing the issue of hybrid representation, the Sixth Circuit has stated:

       The right to defend pro se and the right to counsel have been aptly described as
       “two faces of the same coin,” in that waiver of one right constitutes a correlative
       assertion of the other. While it may be within the discretion of a District Court to
       permit both a criminal defendant and his attorney to conduct different phases of the
       defense in a criminal trial, for purposes of determining whether there has been a
       deprivation of constitutional rights a criminal defendant cannot logically waive or
       assert both rights.

Id. (quoting United States v. Conder, 423 F.2d 904, 908 (6th Cir. 1970)). It is thus clear that, a

defendant “represented by counsel must rely upon that counsel.” United States v. Darwich, No.

09-cr-20280, 2010 WL 4822891 at *1 (E.D. Mich. Nov. 22, 2010). Courts in the Sixth Circuit

have applied the reasoning from Mosely in exercising their discretion to deny without

consideration pro se motions filed by represented defendants. See e.g. United States v. Al-Hisnawi,

Case No. 20-cr-20058, 2020 WL 2315878 at *2 (E.D. Mich. May 11, 2020).

       Here, Lorie’s letter was denied by the Court without consideration and without a Faretta

hearing and thus, cannot be considered as a basis for determining that she had waived her right to

counsel and was proceeding pro se when she wrote it. In United States v. Cromer, the Court of

Appeals addressed that “Faretta procedures are only required when a defendant has clearly and

unequivocally asserted his right to proceed pro se[.]” 389 F.3d 662, 682 (6th Cir. 2004). It stated

that “the wisest course is to require a clear and unequivocal assertion of a defendant's right to self-

representation before his right to counsel may be deemed waived.” Id. at 683. “A defendant who

seeks merely to supplement his counsel's representation, . . . has failed to avail himself of his right

to self-representation and thus failed to waive his right to the assistance of counsel.” Id.

       The defense position is that absent a Faretta hearing and a clear and unequivocal assertion

of a defendant's right to self-representation, a letter by a defendant—who cannot be expected to




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   Case: 2:24-cr-00029-EAS Doc #: 138 Filed: 06/11/25 Page: 3 of 4 PAGEID #: 886




understand the legal import of either hybrid or pro se representation—has no legal affect and

cannot serve as a basis for the Court to find a violation of a plea agreement.

                                         CONCLUSION

       For the reasons set forth in this Reply, the defense position is Lorie’s letter to the Court

while represented by court-appointed counsel cannot serve as a basis for the Government to be

relieved of its agreed recommendations and obligations under the agreement.

                                              Respectfully submitted,

                                              /s/Michael J. Hunter
                                              Michael J. Hunter (0076815)
                                              Matthew L. Jalandoni (0087074)
                                              Flannery | Georgalis, LLC
                                              175 S. Third Street, Suite 1060
                                              Columbus, OH 43215
                                              (614) 324-4139
                                              mhunter@flannerygeorgalis.com
                                              mjalandoni@flannerygeorgalis.com

                                              Attorneys for Defendant Lorie A. Schaefer




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   Case: 2:24-cr-00029-EAS Doc #: 138 Filed: 06/11/25 Page: 4 of 4 PAGEID #: 887




                                CERTIFICATE OF SERVICE

       I hereby certify that on June 11, 2025, a copy of the foregoing was filed electronically using

the Court’s CM/ECF system. Notice of this filing will be sent to all parties via the Court’s CM/ECF

electronic filing system.


                                              /s/Michael J. Hunter
                                              Michael J. Hunter (0076815)

                                              Attorney for Defendant Lorie A. Schaefer




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