[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
