[Cite as State v. Cook, 2011-Ohio-3526.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO, CASE NO. 14-10-37
PLAINTIFF-APPELLEE,
v.
PHILLIP COOK, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 2009-CR-0200
Judgment Affirmed
Date of Decision: July 18, 2011
APPEARANCES:
Alison Boggs for Appellant
Terry L. Hord for Appellee
Case No. 14-10-37
SHAW, J.
{¶1} Defendant-Appellant, Philip S. Cook (“Cook”), appeals the December
7, 2010 judgment of the Union County Court of Common Pleas overruling his
motion to withdraw his guilty plea and petition for post-conviction relief.
{¶2} On October 23, 2009, the Union County Grand Jury indicted Cook on
six counts of trafficking in heroin, in violation of R.C. 2925.03(A)(1),(C)(6)(b)
and R.C. 2925.03(A)(1),(C)(6)(c), felonies of the third and fourth degrees; five
counts of possession of heroin, in violation of R.C. 292511(A),(C)(6)(a), a felony
of the fifth degree; and one count of engaging in a pattern of corrupt activity, in
violation of R.C. 2923(A)(1),(B)(1), a felony of the first degree.
{¶3} On December 22, 2009, Cook pled guilty to six counts of trafficking
in heroin and to one count of engaging in a pattern of corrupt activity. On
February 11, 2010, Cook appeared for sentencing. At the sentencing hearing, the
prosecution presented the testimony of two City of Marysville Detectives and a
Federal Drug Enforcement Agent, all of whom were part of the investigation
resulting in Cook’s charges. On March 5, 2010, the trial court sentenced Cook to
serve sixteen years and three months in prison. Cook subsequently appealed his
sentence to this Court.
{¶4} On August 20, 2010, while his appeal was still pending, Cook filed a
motion to withdraw his guilty plea with the trial court. As the basis for his motion,
Cook stated that his guilty plea was “less than knowingly, intelligently, and
-2-
Case No. 14-10-37
voluntarily made” due to the alleged misinformation given to him by his trial
counsel about what his sentence would be if he pled guilty to some of the charges.
Notably, Cook raised and fully briefed this issue on appeal, claiming that he
received ineffective assistance from his trial counsel.
{¶5} On October 4, 2010, this Court issued its decision on Cook’s appeal,
affirming the sentence imposed by the trial court and overruling Cook’s
assignment of error alleging that he received ineffective assistance of counsel.
{¶6} On November 17, 2010, Cook filed a petition for post-conviction
relief, alleging a violation of his constitutional rights because his trial counsel was
deficient and prejudicial to his case.
{¶7} On November 23, 2010, the trial court heard Cook’s testimony
regarding the merits of his motion to withdraw his guilty plea and petition for
post-conviction relief.
{¶8} On December 7, 2010, the trial court overruled Cook’s motion and
petition, specifically noting that Cook failed to demonstrate a manifest injustice.
Cook subsequently appealed the trial court’s decision, asserting the following
assignment of error.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT APPLIED THE WRONG
STANDARD IN OVERRULING DEFENDANT-APPELLANT’S
MOTION TO WITHDRAW HIS PLEA. THE COURT ABUSED ITS
DISCRETION IN MAKING ITS DECISION.
-3-
Case No. 14-10-37
{¶9} On appeal, Cook argues that the trial court erred in overruling his
motion to withdraw his guilty plea and his petition for post-conviction relief when
the only evidence before the trial court was Cook’s testimony and the State
presented no evidence to refute his testimony. Specifically, Cook testified
regarding several conversations he had with his court-appointed attorney in the
course of his representation during the trial proceedings, all of which occurred
outside the record.
{¶10} At the November 23, 2010 hearing on his motion and petition,
Cook testified that in these conversations, his trial counsel had assured him that he
would receive a prison sentence of four years and eleven months if he pled guilty
to some of the charges in the indictment. Cook explained that he refused a
previous offer from the State of an eight-year sentence in exchange for his guilty
plea based on his conversations with his trial counsel. Cook also maintained that
he consequently decided to forego trial and plead guilty with no recommendation
of sentence from the prosecution because of his trial counsel’s representations to
him about his potential sentence. Indeed, Cook was adamant at the hearing that he
would not have pled guilty but for his trial counsel’s assurances that he would only
serve four years and eleven months in prison in exchange for his guilty plea.
{¶11} Cook also maintained that his trial counsel represented to him that, if
he signed the plea bargain agreement, his sentencing would transpire in front of
the judge with only his attorney and himself present, and that the prosecutor would
-4-
Case No. 14-10-37
not participate in the sentencing proceedings. Notably, the only evidence of these
conversations with his trial counsel was Cook’s own testimony.
{¶12} On cross-examination, the prosecutor presented a document signed
by Cook evidencing his change of plea. Cook admitted on the stand that he
understood at the time he changed his plea that he was subject to the maximum
potential sentence for each of the counts. Specifically, Cook acknowledged his
apprisal of the fact that his guilty plea to a first degree felony would result in at
least three years in prison up to a maximum term of ten years; that his guilty plea
to a third degree felony carried a potential sentencing range of one to five years;
and that his guilty plea to a fourth degree felony carried a potential sentence of six
to eighteen months.
{¶13} Cook further acknowledged that he and the State did not have any
agreements in place with regard to a specific sentencing term at the time he
entered his guilty plea. Cook also admitted that based on his past experience with
the criminal judicial system, he understood that the ultimate sentencing decision
would be determined by the presiding judge.
{¶14} Moreover, Cook recalled that when he appeared for sentencing on
February 11, 2010, the trial court informed him that he was not adequately advised
of post-release control at his change of plea hearing. Cook further recalled that
after properly informing him of post-release control on the record, the trial court
specifically explained to him that he had the right to withdraw his guilty plea
-5-
Case No. 14-10-37
because post-release control was not fully addressed at his change of plea hearing.
Cook also admitted that, at that time, he stated on the record that he wished to
waive any right to withdraw his plea and proceed with sentencing.
1. Petition for Post-Conviction Relief
{¶15} As the basis for his petition, Cook argues that he detrimentally relied
on the representations of his trial counsel that he would receive a sentence of four
years and eleven months if he pled guilty to some of the charges listed in the
indictment.
{¶16} At the outset, we note that Cook’s petition for post-conviction relief
is untimely because it was not filed within 180 days from the time the transcript in
his direct appeal was filed with this Court as required by R.C. 2953.21(A)(2). The
record demonstrates that the transcripts from these proceedings were filed with
this Court on April 26, 2010. Cook did not file his petition for post-conviction
relief until November 17, 2010—at which point 205 days had elapsed. Cook’s
counsel at the hearing on the petition characterizes the November 17, 2010
petition, as an “amendment” to his August 20, 2010 motion to withdraw his guilty
plea. However, we find this argument unpersuasive because there is nothing in the
August 20, 2010 motion that can be construed as a petition for post-conviction
relief, or for that matter, nothing to indicate that Cook intended to file a petition
for post-conviction relief at that time.
-6-
Case No. 14-10-37
{¶17} Cook also fails to demonstrate that he is entitled to file his petition
after the expiration of the 180 days pursuant to R.C. 2953.23(A)(1).1 Furthermore,
this Court addressed on his direct appeal the same contentions that Cook presents
as the basis of his petition and found them to be without merit. Thus, the petition
was res judicata. Accordingly, for these reasons, we cannot find that the trial court
erred in overruling Cook’s petition for post-conviction relief.
2. Motion to Withdraw Guilty Plea
{¶18} Cook argues that because he relied on the representations of his trial
counsel that he would only receive a sentence of four years and eleven months, his
guilty plea was not made knowingly, intelligently and voluntarily.2
{¶19} Our review of this assignment of error begins by noting that an
appellate court will not disturb a trial court’s denial of a motion to withdraw a
1
R.C. 2953.23(A)(1) permits the filing of a delayed petition only if both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the
facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the
period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an
earlier petition, the United States Supreme Court recognized a new federal or state right that
applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based
on that right.
(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial,
no reasonable factfinder would have found the petitioner guilty of the offense of which the
petitioner was convicted * * *.
2
We acknowledge that Crim.R. 32.1 arguably does not vest jurisdiction in the trial court to maintain and
determine a motion to withdraw a guilty plea subsequent to an appeal and an affirmance by the appellate
court. See, State v. Rose, 3rd Dist. No. 9-06-39, 2007-Ohio-1627; State v. Allen, 12th Dist. No. CA2006-
01-001, 2006-Ohio-5990, ¶¶ 14-15; State v. Craddock, 8th Dist. No. 87582, 2006-Ohio-5915, ¶ 10; State v.
Smith, 8th Dist. No. 82062, 2003-Ohio-3675, ¶¶ 8-9, appeal not allowed, 100 Ohio St.3d 1486, 2003-Ohio-
5992; State v. Kovacek, 9th Dist. No 02CA008115, 2002-Ohio-7003, ¶¶ 7-8; State v. Laster, 2nd Dist. No.
19387, 2003-Ohio-1564, ¶ 9, appeal not allowed, 94 Ohio St.3d 1434, 2002-Ohio-5651. However, in the
interests of justice we elect to proceed by addressing the assignment of error on its merits.
-7-
Case No. 14-10-37
guilty plea absent an abuse of discretion. State v. Nathan (1995), 99 Ohio App.3d
722, 725, 651 N.E.2d 1044, citing State v. Smith (1977), 49 Ohio St.2d 261, 361
N.E.2d 1324. Abuse of discretion connotes more than an error of judgment; it
implies that the court’s attitude is unreasonable, arbitrary or unconscionable.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. Indeed,
“ ‘the result must be so palpably and grossly violative of fact or logic that it
evidences not the exercise of will but the perversity of will, not the exercise of
judgment but the defiance of judgment, not the exercise of reason but instead
passion or bias.’ ” State v. Orwick, 153 Ohio App.3d 65, 2003-Ohio-2682, 790
N.E.2d 1238, quoting State v. Jenkins (1984), 15 Ohio St.3d 164, 222, 473 N.E.2d
264.
{¶20} Criminal Rule 32.1 states: “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.” A motion to withdraw a plea
filed after a defendant is sentenced will be granted only to correct a manifest
injustice with the burden of establishing the existence of a manifest injustice being
placed upon the individual seeking vacation of the plea. Crim.R. 32.1; Smith, 49
Ohio St.2d at 264, 361 N.E.2d 1324. A manifest injustice is an exceptional defect
in the plea proceedings, State v. Vogelsong, 3rd Dist. No. 5-06-60, 2007-Ohio-
4935, ¶ 12, or a “ ‘clear or openly unjust act,’ ” State v. Walling, 3rd Dist. No. 17-
-8-
Case No. 14-10-37
04-12, 2005-Ohio-428, ¶ 6, quoting State ex rel. Schneider v. Kreiner, 83 Ohio
St.3d 203, 208, 699 N.E.2d 83, 1998-Ohio-271. “Accordingly, a post-sentence
motion to withdraw a guilty plea is only granted in ‘extraordinary cases.’ ” State
v. Driskill, 3rd Dist. Nos. 10-08-10, 10-08-11, 2009-Ohio-2100, ¶ 32, quoting
Smith, supra.
{¶21} Here, Cook argues that the trial court erred in overruling his motion
to withdraw his guilty plea when the only evidence before the trial court was his
own testimony that he detrimentally relied on his trial counsel’s representations,
and this evidence was not refuted by the State. Cook further contends that the
burden was on the prosecution to present Cook’s trial counsel in court to challenge
his testimony.
{¶22} Cook appears to misconstrue his burden in an action requesting a
court to grant a post-sentence motion to withdraw a guilty plea. “A defendant who
seeks to withdraw a plea of guilty after the imposition of sentence has the burden
of establishing the existence of manifest injustice.” Smith, 49 Ohio St.2d 261, 361
N.E.2d 1324 (emphasis added). The only evidence Cook chose to present to the
court in satisfaction of this burden was his own self-serving testimony about
conversations that he had with his trial counsel outside of the record.
{¶23} It is well within the discretion of the trial court to weigh the
credibility of a witness and assess whether his or her testimony is reliable.
Moreover, given the fact that nothing in the record demonstrates his plea was not
-9-
Case No. 14-10-37
knowingly, intelligently and voluntarily made, and the fact that a post-sentence
motion to withdraw a plea is granted in only “extraordinary cases,” it was perhaps
incumbent on Cook to present more evidence than his self-serving statements in
support of his motion. See State v. Kapper (1983), 5 Ohio St.3d 36, 38, 448
N.E.2d 823 (holding a “[d]efendant’s own self-serving declarations or affidavits
alleging a coerced guilty plea are insufficient to rebut the record on review which
shows that his plea was voluntary”); see, also, State v. Mull, 11th Dist. No.2008-L-
128, 2009-Ohio-3654, at ¶ 45 (stating “[g]enerally, a self-serving affidavit or
statement is insufficient to demonstrate manifest injustice”). For example, there is
nothing in the record to suggest that Cook did not have the ability to subpoena and
call his own trial counsel to testify at the hearing.
{¶24} Accordingly, we conclude that the trial court’s decision to overrule
Cook’s post-sentence motion to withdraw his plea on the basis that he failed to
demonstrate a manifest injustice does not constitute an abuse of discretion.
{¶25} For all these reasons, Cook’s assignment of error is overruled and the
judgment of the Union County Court of Common Pleas is affirmed.
Judgment Affirmed
ROGERS, P.J. and PRESTON, J., concur.
/jnc
-10-