State v. Sanchez ( 2017 )

[Cite as State v. Sanchez, 2017-Ohio-7442.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
STATE OF OHIO,
CASE NO. 4-17-10
PLAINTIFF-APPELLEE,
v.
JESSE SANCHEZ, OPINION
DEFENDANT-APPELLANT.
Appeal from Defiance County Common Pleas Court
Trial Court No. 15-CR-12341
Judgment Affirmed
Date of Decision: September 5, 2017
APPEARANCES:
Jesse Sanchez, Appellant
Russell R. Herman for Appellee
Case No. 4-17-10
WILLAMOWKSI, J.
{¶1} Although originally placed on our accelerated calendar, we have elected
pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a summary judgment entry.
Defendant-appellant Jesse Sanchez (“Sanchez”) brings this appeal from the
judgment of the Court of Common Pleas of Defiance County denying his motion to
withdraw his guilty plea. For the reasons set forth below, the judgment is affirmed.
{¶2} On August 13, 2015, Sanchez was indicted on six counts: 1)
Trafficking in Cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(e), a felony of the
second degree; 2) Permitting Drug Abuse in violation of R.C. 2925.13(A), a felony
of the fifth degree; 3) Trafficking in Cocaine in violation of R.C. 2925.03(A)(1),
(C)(4)(f), a felony of the first degree; 4) Trafficking in Cocaine in violation of R.C.
2925.03(A)(1), (C)(4)(f), a felony of the first degree; 5) Trafficking in Cocaine in
violation of R.C. 2925.03(A)(1), (C)(4)(g), a felony of the first degree; and 6)
Engaging in a Pattern of Corrupt Activity in violation of R.C. 2923.32(A)(1), (B)(1),
a felony of the first degree. Doc. 1. On August 9, 2016, a pre-trial hearing was held
in which Sanchez withdrew his not guilty pleas as to counts one, three, four, five,
and six. Doc. 36. Sanchez then entered pleas of guilty to those offenses. Id. Count
two of the indictment and the major drug offender specification set forth in count
five were dismissed. Id. The trial court then sentenced Sanchez to an aggregate
prison term of 14 years. Id. The judgment entry regarding this ruling was filed on
September 6, 2016. Id.-2-
Case No. 4-17-10
{¶3} On October 31, 2016, Sanchez filed a notice of appeal from the
judgment entry of conviction filed on September 19, 2016.1 An attorney was
subsequently appointed for the purpose of appeal and a second notice of appeal was
filed on November 17, 2016. Doc. 48. The appeal was dismissed and counsel was
permitted to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967).
{¶4} On April 4, 2017, Sanchez filed a motion to withdraw his guilty plea.
Doc. 52. The motion was based upon Sanchez’s claim that he could not have been
sentenced on first degree felonies of cocaine because the lab report did not provide
the exact amount of cocaine, only the mixture. Id. On May 3, 2017, the trial court
denied the motion. Doc. 53. Sanchez filed his notice of appeal on June 8, 2017.
Doc. 56. On appeal, Sanchez raises two assignments of error.
First Assignment of Error
The trial court violated [Sanchez’s] United States Fourteenth
Amendment rights of Due Process of Law when it erred in
denying his motion to withdraw [his] guilty plea.
Second Assignment of Error
[Sanchez’s] United States Fourteenth Amendment rights were
violated when he was sentenced for first and second degree
felonies but the evidence only supports a conviction and sentence
of fifth degree felonies.
1
No entry or any other document was filed on September 19, 2016. We presume that he meant the entry
filed on September 6, 2016
-3-
Case No. 4-17-10
{¶5} In both of the assignments of error, Sanchez argues that the trial court
erred in denying his motion to withdraw his guilty plea. “A motion to withdraw a
plea of guilty or no contest 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. Crim.R. 32.1.
When a trial court reviews a motion to withdraw a guilty plea, it
decides, based upon the allegations in appellant's motion, whether
to hold an evidentiary hearing on the motion. Generally, a
hearing on a postsentence motion to withdraw a plea “is required
if the facts alleged by the defendant and accepted as true would
require the court to permit that plea to be withdrawn.” State v.
Hamed (1989), 63 Ohio App.3d 5, 7, 577 N.E.2d 1111, 1112; see,
also, State v. Blatnik (1984), 17 Ohio App.3d 201, 17 OBR 391, 478
N.E.2d 1016.
State v. Nathan, 99 Ohio App.3d 722, 725, 651 N.E.2d 1044 (3d Dist. 1995).
{¶6} In this case, the motion filed by Sanchez was based upon the holding of
the Supreme Court of Ohio in State v Gonzales, ___ Ohio St.3d ___, 2016-Ohio-
8319, ___ N.E.2d ___. In that case, the Court determined that the amount of cocaine
without filler must meet the statutory minimums to support convictions higher than
a fifth degree felony. This conclusion was then expanded to include those charged
with trafficking in cocaine as charged under R.C. 2925.03. State v. Sanchez, ___
Ohio St.3d ___, 2016-Ohio-8470, ___ N.E.3d ___. However, the Court vacated the
initial judgment in Gonzales when it reconsidered the opinion. State v. Gonzales,
____ Ohio St.3d ____, 2017-Ohio-777, ____ N.E.3d ____. The Court then
concluded that the applicable offense level for the amount of cocaine was
-4-
Case No. 4-17-10
“determined by the total weight of the drug involved, including any fillers that are
part of the usable drug.” Id. at ¶ 18. Given the current law as set forth in Gonzales,
as reconsidered, the filler may be considered when determining the applicable
offense level. This level determines what the sentence ranges are. As there was no
arguable merit raised by Sanchez in his postconviction motion to withdraw his
guilty plea, the trial court was not required to hold a hearing, and the trial court did
not err in denying the motion upon its face. The assignments of error are thus
overruled.
{¶7} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Court of Common Pleas of Defiance
County is affirmed.
Judgment Affirmed
PRESTON, P.J., concurs in judgment only.
ZIMMERMAN, J., concurs.
/hls
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