[Cite as State v. Sanchez, 2020-Ohio-1171.]


STATE OF OHIO                     )                     IN THE COURT OF APPEALS
                                  )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                           C.A. No.       19CA011507

        Appellee

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
MARK SANCHEZ                                            COURT OF COMMON PLEAS
                                                        COUNTY OF LORAIN, OHIO
        Appellant                                       CASE No.   16CR094749

                                 DECISION AND JOURNAL ENTRY

Dated: March 30, 2020



        HENSAL, Judge.

        {¶1}     Mark Sanchez appeals his convictions in the Lorain County Court of Common

Pleas. For the following reasons, this Court affirms.

                                                  I.

        {¶2}     The Grand Jury indicted Mr. Sanchez for aggravated murder, murder, aggravated

robbery, aggravated burglary, felonious assault, and obstruction of justice. In exchange for the

dismissal of the aggravated murder and murder charges, Mr. Sanchez agreed to plead guilty to the

remaining counts and agreed to an aggregate sentence of 14 years. The trial court accepted Mr.

Sanchez’s guilty plea and sentenced him to a total of 14 years imprisonment. Mr. Sanchez has

appealed, assigning as error that his trial counsel was ineffective.
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                                                 II.

                                   ASSIGNMENT OF ERROR

       MR. SANCHEZ’S GUILTY PLEA IS VOID AS HE RECEIVED INEFFECTIVE
       ASSISTANCE OF COUNSEL IN THE PLEA NEGOTIATION PROCESS.

       {¶3}    Mr. Sanchez argues that his trial counsel provided ineffective assistance of counsel

at the plea hearing when he mistakenly told the court that the plea agreement Mr. Sanchez had

reached with the State precluded Mr. Sanchez from being eligible for judicial release. To prevail

on a claim of ineffective assistance of counsel, Mr. Sanchez must establish (1) that his counsel’s

performance was deficient to the extent that “counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment” and (2) that “the deficient performance

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). A deficient

performance is one that falls below an objective standard of reasonable representation. State v.

Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. A court, however, “must

indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’” Strickland at

689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). To establish prejudice, Mr. Sanchez

must show that there existed a reasonable probability that, but for his counsel’s errors, the outcome

of the proceeding would have been different. State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-

8025, ¶ 138.

       {¶4}    We will begin with the prejudice prong because it is dispositive. State v. Loza, 71

Ohio St.3d 61, 83 (1994). According to Mr. Sanchez, he is subject to a longer sentence than he

ought to have been because his counsel did not clarify his eligibility for judicial release. Revised

Code Section 2929.20(C) provides that “[a]n ‘eligible offender’ may file a motion for judicial
                                                  3


release with the sentencing court” at certain prescribed times depending on the length of the

offender’s nonmandatory sentence. Mr. Sanchez does not identify anything that his counsel said

that disqualifies him from being an “eligible offender” under Section 2929.20(A). Mr. Sanchez

notes that, although his counsel agreed with the trial court at the plea hearing that “judicial release

is not considered a part of this case[,]” the judge did not ask him directly whether he agreed with

that assessment at the time he changed his plea. We note that, when the Court asked the prosecutor

whether “this [is] an agreed sentence that has to be served completely,” the prosecutor replied only

that “[i]t’s an agreed sentence.” In addition, the written plea agreement that is in the record does

not mention judicial release or indicate that Mr. Sanchez will be ineligible for judicial release. The

agreement only provides that the parties have agreed to an “aggregate sentence of 14 years.” The

trial court’s sentencing entry also does not provide that Mr. Sanchez’s entire sentence is

mandatory.

       {¶5}    Upon review of the record, we conclude that Mr. Sanchez had not established that

he has or will be prejudiced by the statement that his counsel made before he entered his guilty

plea. Accordingly, we conclude that Mr. Sanchez has failed to establish ineffective assistance of

his trial counsel. Mr. Sanchez’s assignment of error is overruled.

                                                 III.

       {¶6}    Mr. Sanchez’s assignment of error is overruled. The judgment of the Lorain County

Court of Common Pleas is affirmed.

                                                                                  Judgment affirmed.
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       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



SCHAFER, J.
CONCURS.

CARR, P. J.
CONCURRING IN JUDGMENT ONLY.

       {¶7} I concur in judgment only on the basis that this Court cannot consider

anything outside the appellate record on direct appeal. The issue raised by Sanchez is more

appropriate for post-conviction relief.
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APPEARANCES:

LEIGH S. PRUGH, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting
Attorney, for Appellee.
