[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.

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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

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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

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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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