[Cite as State v. Sanchez, 2014-Ohio-2263.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100110
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAVIER O. SANCHEZ
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-559337-B
BEFORE: E.T. Gallagher, J., Celebrezze, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: May 29, 2014
ATTORNEY FOR APPELLANT
Joseph E. Feighan, III
14516 Detroit Avenue
Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Denise J. Salerno
Daniel T. Van
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Javier O. Sanchez (“Sanchez”), appeals the denial of a
motion to vacate his guilty plea. We find no merit to the appeal and affirm.
{¶2} Sanchez was charged with one count of attempted murder, five counts of
aggravated robbery, one count of felonious assault, three counts of kidnapping, one count
of having a weapon while under disability, one count of drug possession, and one count
of possession of criminal tools. The charges, that included one- and three-year firearm
specifications, arose from two separate incidents in which Sanchez and two codefendants
robbed neighborhood bakeries. During the first robbery, that occurred on December 21,
2011, Sanchez allegedly shot one of the bakery employees in the head.
{¶3} The court appointed Ed Wade as defense counsel. Sanchez and Mr. Wade
attended approximately ten pretrials and met privately on numerous occasions.
However, at a hearing on the eve of trial, Mr. Wade stated that when he informed
Sanchez that he was not likely to prevail at trial and recommended that he accept the
prosecution’s plea offer, their attorney-client relationship broke down. Although Mr.
Wade communicated with Sanchez through a Spanish interpreter, he told the court, “I’m
convinced he understands.” The court allowed Mr. Wade to withdraw and appointed
attorney Oscar Rodriguez as counsel.
{¶4} At a subsequent plea hearing, Rodriguez stated that he reviewed all the
evidence and explained it to Sanchez along with the possible defenses and penalties. The
court confirmed with Sanchez that he understood the facts the state would rely on in
presenting its case at trial and discussed the terms of the plea agreement. Sanchez
informed the court that he was not under the influence of any illegal drugs or alcohol but
stated that he was taking Lexapro for depression and because he “heard voices.” He also
told the court that he was not taking any medications prior to his incarceration and that
the Lexapro was “helping.”
{¶5} Sanchez stated that he understood the terms of the plea agreement and the
maximum penalties involved, including the forfeiture of his property and postrelease
control. The court reviewed the constitutional rights Sanchez was waiving by pleading
guilty, and Sanchez indicated that he understood those rights and the ramifications of his
plea. At times throughout the proceedings, Sanchez asserted that he did not understand
something the judge was explaining. The court carefully explained each issue as it arose,
answered all of Sanchez’s questions, and confirmed that he understood every aspect of
the proceedings before proceeding with the plea.
{¶6} Following the plea, the victims made statements describing the pain they have
suffered as a result of Sanchez’s actions. After hearing their remarks, Sanchez stated,
through an interpreter:
I ask you to forgive me with all my heart. I don’t know what kind of
sentence you are going to give me. They might throw away the key. I’m
going to ask my mother and my father, my wife, and my little baby to
forgive me. The sentencing I ask that you forgive me with the error I
made. I was under drugs.
{¶7} At the sentencing hearing, Sanchez instructed Mr. Rodriguez to hand the
judge a note. Rodriguez handed the note to the judge stating: “I have not seen the
contents of it. He would ask the court to read the contents into the record.” In the letter,
which was written in English, Sanchez stated that he was not fully aware of his plea and
that he wished to withdraw his plea. He claimed Rodriguez was dishonest and rendered
ineffective assistance of counsel.
{¶8} The court subsequently held a hearing on Sanchez’s oral motion to withdraw
his guilty plea at which Sanchez claimed, for the first time, that he has a serious mental
illness that prevented him from understanding the effect of his plea. The court referred
Sanchez to the probation department for a mitigation report and continued the hearing to a
later date. The court also removed Mr. Rodriguez from the case and assigned Libert
Pinto as Sanchez’s new counsel.
{¶9} The mitigation report indicated that Sanchez suffered from polysubstance
dependence and a non-specified psychotic disorder. Mr. Pinto represented to the court
that Sanchez was unable to talk and was therefore unable to assist in his own defense.
The court noted that Sanchez had filed numerous motions in English and warned that if
he continued to file pro se motions, the court would consider them as evidence of
competency. The court noted other contradictions that suggested Sanchez was
competent but nevertheless referred him for an evaluation at Northcoast Behavioral
Healthcare (“Northcoast Behavioral”).
{¶10} Dr. Susan Hatters-Friedman (“Dr. Hatters-Friedman”), a psychiatrist at
Northcoast Behavioral, completed an evaluation and opined that Sanchez did not have the
ability to understand the nature and objectives of the proceedings and was not presently
capable of assisting in his defense. During a hearing to determine whether Sanchez
should be sent to a maximum security facility for psychiatric treatment, Deputy Ryan
Burne (“Burne”) testified that on two occasions, Sanchez spoke to him in English and
said that he was going to take Burne’s gun and uniform and escape from jail. When
Burne later brought Sanchez to the courtroom holding cell, he observed Sanchez using an
interpreter and asked him why he was using an interpreter when he speaks English “just
fine.” Based on Burne’s testimony, the court concluded Sanchez was a security risk and
sent him to Twin Valley Behavioral Center (“Twin Valley”) to be restored to competency.
{¶11} Within two weeks, Dr. Bob Stinson (“Dr. Stinson”), a forensic psychologist
at Twin Valley, evaluated Sanchez and determined that he was restored to competency.
At the subsequent competency hearing, Dr. Stinson testified that Sanchez had a good
understanding of the nature and objective of the trial proceedings. Sanchez provided
relevant details about his case that Dr. Stinson was not aware of from the records.
Sanchez also demonstrated the ability to advocate for himself.
{¶12} Dr. Stinson further testified that it is unusual that someone could be restored
to competency within two weeks. When asked what might explain Sanchez’s rapid
restoration to competency, Dr. Stinson explained that Sanchez either embellished his
deficits during his first evaluation with Dr. Hatters-Friedman, responded remarkably well
to treatment, or a combination of these.
{¶13} When asked whether his opinion that Sanchez was competent would change
knowing that Sanchez pleaded guilty, he stated: “No, it does not change my opinion. In
fact, Mr. Sanchez at the time of my evaluation demonstrated that he understands the
ramifications of a guilty plea.” When asked if his opinion would change knowing that
Sanchez filed “dozens” of motions, against counsel’s advice, Dr. Stinson said, “No * * *
it actually impresses me as being self-promoting.”
{¶14} The court ultimately denied Sanchez’s motion to withdraw his guilty plea
and sentenced Sanchez to 20 years in prison. Sanchez now appeals and raises five
assignments of error, which we address out of order for the sake of economy.
Guilty Plea
{¶15} In the third assignment of error, Sanchez argues the trial court abused its
discretion when it denied his motion to withdraw his guilty plea after finding that he was
mentally ill and unable to assist his trial counsel. Sanchez contends that Dr.
Hatters-Friedman’s determination that he was incompetent indicates he was not
competent at the plea hearing and that he therefore did not enter his guilty pleas knowing,
intelligently, and voluntarily.
{¶16} Generally, a motion to withdraw a guilty plea made before sentencing
should be freely and liberally granted. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d
715 (1992). However, a defendant does not have an absolute right to withdraw his plea
before sentencing. Id. at paragraph one of the syllabus. The trial court is required to
“conduct a hearing to determine whether there is a reasonable and legitimate basis for the
withdrawal of the plea.” Id. Following the hearing, the trial court’s decision to grant or
deny a motion to withdraw a plea will be upheld absent an abuse of discretion. Id. at
527.
No abuse of discretion is demonstrated where (1) the accused is represented
by highly competent counsel, (2) the accused was afforded a full hearing,
pursuant to Crim.R. 11, before entering the plea, (3) after the motion to
withdraw is filed the accused is given a complete and impartial hearing on
the motion, and (4) the record reveals that the trial court gave full and fair
consideration to the plea withdrawal request.
State v. Walcot, 8th Dist. Cuyahoga No. 99477, 2013-Ohio-4041, ¶ 18, quoting State v.
Tull, 168 Ohio App.3d 54, 2006-Ohio-3365, 858 N.E.2d 828, ¶ 8 (2d Dist.).
{¶17} Sanchez does not dispute that he was represented by competent counsel at
the plea hearing or that he was afforded a full hearing pursuant to Crim.R. 11. He also
does not dispute that he received a full hearing on the motion to withdraw his guilty plea.
He contends the trial court failed to give full and fair consideration to his request to
withdraw his plea. The record, however, does not support this allegation.
{¶18} A defendant is presumed to be competent to stand trial. R.C. 2945.37(G);
State v. Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, ¶ 84. Dr.
Stinson testified that a mentally ill defendant may be capable of making an intelligent
decision at a plea hearing but when he returns to court at a later date for sentencing, he is
no longer capable of understanding the proceedings. Thus, according to Dr. Stinson,
Sanchez could have been competent at the plea hearing but was not competent at the time
Dr. Hatters-Friedman conducted her evaluation. Indeed, Dr. Stinson believed Sanchez
was competent at the plea hearing. He testified:
Q: Well, assume for purposes of this hearing that, against the advice of
counsel, he has and continues to file dozens of motions. Would that
change your opinion as to whether he understands his surroundings and the
proceedings against him and the ability to assist in his defense?
A: No. That alone would not change my opinion.
Q: Well, that taken together with the fact that he’s seeing things and hearing
things and the fact that now he’s already entered a guilty plea, would those
four things together affect your opinion?
A: I don’t have any evidence that he was seeing things. I’ve already
testified that I don’t think that hearing things affected his competency. I
think I also indicated that I’m not terribly concerned about his tendering a
guilty plea because he understands the ramifications of that. To me, it’s
not uncommon for persons diagnosed with antisocial personality disorder to
ignore the advice of their counsel. So I guess my answer to you is, it
doesn’t.
{¶19} As previously stated, Sanchez was restored to competency within two
weeks. When asked how Sanchez could have been restored so quickly, Dr. Stinson
replied:
One possibility is if he was embellishing his deficits prior to getting to Twin
Valley and decided Twin Valley wasn’t as desirous as he thought. A
second option is that he responded extremely well to the psychotropic
medication he was offered. The third option is a combination of those two;
one, motivation and, two, improvement in symptoms.
Therefore, according to Dr. Stinson, Sanchez may not have been as “incompetent” as Dr.
Hatters-Friedman found during her evaluation. Dr. Hatters-Friedman spent 75 minutes
evaluating Sanchez, while Dr. Stinson spent three and one-half hours reviewing records
and two hours and 45 minutes working with Sanchez.
{¶20} Despite Dr. Hatters-Friedman’s finding that Sanchez was not competent
after the first sentencing hearing, the court found he was competent at the plea hearing.
In making its ruling, the court recounted how Mr. Rodriguez stated at the plea hearing
that he discussed the case with Sanchez and believed he would be entering his plea
knowingly, intelligently, and voluntarily. The court confirmed with Sanchez that he
discussed the case with Mr. Rodriguez, and Sanchez indicated that he understood (1) the
facts the state would rely on to present its case against him at trial, (2) the maximum
penalties he could receive at sentencing, and (3) the terms of the plea agreement.
{¶21} The court commented that Sanchez’s “impassioned plea for mercy” at the
plea hearing, after hearing the victim’s statements, demonstrated an understanding of the
consequences of his actions including the plea and the lengthy prison term he faced. In
addition, after hearing Burne’s testimony that he observed Sanchez speak English “just
fine,” coupled with his pro se motions, and Dr. Stinson’s opinion that Sanchez may have
exaggerated his deficits, the court commented that Sanchez’s actions belied his claims of
incompetency.
{¶22} In considering whether there was “a reasonable and legitimate basis for
withdrawal of the plea,” the court stated:
[T]he record discloses no protestations of innocence at the time the Court
accepted the Defendant’s guilty plea. In fact, there aren’t any now. He
just hopes to receive a lesser sentence is what I read from [Dr. Stinson’s]
report. * * * As he said “I just don’t want to go to jail, man.”
The court also observed that, according to Dr. Stinson, Sanchez may have embellished his
deficits in an attempt to gain some advantage. If this were the case, such actions indicate
not only competency but sophistication.
{¶23} The record shows that the court considered Sanchez’s actions, whether there
was a legitimate basis for withdrawal of the plea, and the expert testimony suggesting
Sanchez may have exaggerated his deficits in an attempt to receive a better plea
agreement. Thus, the trial court gave full and fair consideration to Sanchez’s motion to
withdraw his guilty plea and there was no abuse of discretion.
{¶24} The third assignment of error is overruled.
Plain Error
{¶25} In the first assignment of error, Sanchez argues the trial court committed
plain error when it denied his presentence motion to withdraw his guilty pleas after
finding he was mentally ill and unable to assist counsel. In the second assignment of
error, he argues the trial court committed plain error when it failed to vacate his guilty
pleas.
{¶26} However, the doctrine of plain error is not applicable in this case. Crim.R.
52(B), which governs plain error, states that “[p]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.”
(Emphasis added.) Because Sanchez moved for leave to withdraw his guilty plea, he
brought the validity of the guilty plea to the court’s attention. Indeed, Sanchez’s motion
resulted in numerous hearings to address the issue. Therefore, the doctrine of plain error
does not apply to the issues presented in this appeal. In any event, because the trial court
acted within its discretion when it overruled Sanchez’s motion to withdraw his guilty
plea, there was no plain error.
{¶27} The first and second assignments of error are overruled.
Ineffective Assistance of Counsel
{¶28} In the fourth and fifth assignments of error, Sanchez argues he was denied
his Sixth Amendment right to the effective assistance of counsel. He contends his trial
counsel was ineffective for failing to move for and argue that his guilty pleas should have
been vacated because he was incompetent at the time of the plea hearing.
{¶29} To establish ineffective assistance of counsel, a defendant must show (1)
deficient performance by counsel, i.e., performance falling below an objective standard of
reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for
counsel’s errors, the proceeding’s result would have been different. Strickland v.
Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the
syllabus.
{¶30} Despite Sanchez’s statements to the contrary, his trial counsel advocated for
the withdrawal of his guilty plea. At the sentencing hearing, after having had the
opportunity to confer with Sanchez, Mr. Rodriguez made an oral motion to withdraw the
guilty pleas. At the hearing on the motion to withdraw the guilty plea, Mr. Pinto
informed the court that Sanchez was unable to speak or assist in his defense. Mr. Pinto
also argued that he was not convinced Sanchez understood what was going on at the plea
hearing. Therefore, Sanchez’s lawyers argued the merits of his motion.
{¶31} Further, Sanchez cannot demonstrate that he suffered any prejudice as a
result of his counsel’s actions. The motion to withdraw was brought to the court’s
attention, and the court held several hearings to ensure that Sanchez’s rights were
protected. Moreover, Dr. Stinson opined that Sanchez was likely competent at the time
of the plea hearing because he demonstrated a good understanding of the proceedings and
the effects of his guilty plea, was restored to competency remarkably fast, and showed
acts of self-promotion. Therefore, even if Sanchez’s trial counsel would have asserted
the merits of Sanchez’s motion more aggressively, the court’s decision to deny the motion
would not have changed.
{¶32} Therefore, the fourth and fifth assignments of error are overruled.
{¶33} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
MELODY J. STEWART, J., CONCUR