[Cite as State v. Jones, 2012-Ohio-584.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96630
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CORNELL JONES
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-516398 and CR-516891
BEFORE: Cooney, J., Blackmon, A.J., and Sweeney, J.
RELEASED AND JOURNALIZED: February 16, 2012
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FOR APPELLANT
Cornell Jones
Inmate #564-306
Lake Erie Correctional Institution
P.O. Box 8000
Conneaut, OH 44030
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Mark J. Mahoney
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{¶1} Defendant-appellant, Cornell Jones (“Jones”), pro se, appeals the trial
court’s denial of his motion to withdraw his plea. Finding no merit to the appeal, we
affirm.
{¶2} In 2008, Jones was indicted in two separate cases (CR-516398 and
CR-516891) on multiple drug charges. He entered into a plea agreement, and pled
guilty to one count of drug trafficking in the first case and one count of drug trafficking in
the second case. The trial court accepted his plea and sentenced him to two eight-year
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terms, to be served concurrently. The sentencing entry states this was a mandatory
agreed sentence.
{¶3} In 2009, Jones’s direct appeal was dismissed as untimely, but a delayed
appeal was later granted. In 2010, appellate counsel for Jones moved to withdraw as
counsel and dismiss the appeal. These motions were granted.
{¶4} In 2011, Jones moved to withdraw his guilty plea. The motion was denied
by the trial court. Jones filed an untimely appeal of the denial that was dismissed by this
court. Jones moved for a delayed appeal, which was granted. Jones’s assigned counsel
filed an Anders brief and sought leave to withdraw as counsel. This court granted the
motion and gave Jones leave to file a pro se brief.
{¶5} Jones now appeals pro se, raising five assignments of error.
{¶6} In his first assignment of error, Jones argues that the trial court erred in
denying his motion to withdraw his guilty plea without inquiry into the merits of his
allegations. In his second assignment of error, Jones argues that he received ineffective
assistance of counsel. In his third assignment of error, Jones argues that his guilty plea
was the product of ineffective assistance of counsel. Jones’s arguments are intertwined
in these three assignments of error, and therefore, we shall address them together.
{¶7} Crim.R. 32.1 governs the withdrawal of guilty pleas, and provides that:
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.
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{¶8} A defendant moving for a post-sentence withdrawal of a guilty plea has the
burden of establishing the existence of manifest injustice. State v. Smith, 49 Ohio St.2d
261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. This court has stated that:
[a] manifest injustice is defined as a “clear or openly unjust act[;]” * * * “an
extraordinary and fundamental flaw in the plea proceeding.” * * *
“[M]anifest injustice” comprehends a fundamental flaw in the path of
justice so extraordinary that the defendant could not have sought redress
from the resulting prejudice through another form of application reasonably
available to him or her. State v. Sneed, 8th Dist. No. 80902,
2002-Ohio-6502, at ¶ 13.
{¶9} A motion made pursuant to Crim.R. 32.1 is addressed to the sound
discretion of the trial court, and the good faith, credibility, and weight of the movant’s
assertions in support of the motion are matters to be resolved by that court. Smith,
paragraph two of the syllabus. Consequently, an appellate court’s review of a trial
court’s denial of a post-sentence motion to withdraw a guilty plea is limited to a
determination of whether the trial court abused its discretion. State v. Blatnik, 17 Ohio
App.3d 201, 202, 478 N.E.2d 1016 (6th Dist.1984); State v. Xie, 62 Ohio St.3d 527, 584
N.E.2d 715 (1992). “The term ‘abuse of discretion’ connotes more than an error of law
or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶10} First and foremost, Jones argues that the trial court erred in denying his
motion without a hearing. However, this court has repeatedly held that if the facts, as
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alleged by the defendant, and taken as true, do not require the court to allow the defendant
to withdraw his guilty plea, the court is not required to hold a hearing on defendant’s
motion. State v. Yearby, 8th Dist. No. 79000, 2002 WL 120530 (Jan. 24, 2002), citing
State v. Legree, 61 Ohio App.3d 568, 573, 573 N.E.2d 687 (6th Dist.1988); Blatnik.
{¶11} In addition, Jones argues that his counsel had a conflict of interest due to
his own pending drug charge, alleging that his counsel’s representation was influenced by
counsel’s desire to ingratiate himself with the prosecution. Jones claims that his plea
deal was made in exchange for leniency in his counsel’s personal case, thus denying
Jones effective assistance of counsel. Jones also argues that in light of these allegations
the trial court should have held a hearing on his motion to withdraw his plea. Jones also
alleges that his counsel misrepresented the maximum sentence and frightened Jones into
agreeing to the plea deal.
{¶12} To reverse a conviction for ineffective assistance of counsel, the defendant
must prove “(1) that counsel’s performance fell below an objective standard of
reasonableness, and (2) that counsel’s deficient performance prejudiced the defendant
resulting in an unreliable or fundamentally unfair outcome of the proceeding.” State v.
Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland v.
Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶13} As to the second element of the test, the defendant must establish “that
there exists a reasonable probability that, were it not for counsel’s errors, the result of the
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trial would have been different.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373
(1989), paragraph three of the syllabus; Strickland at 686. In evaluating whether a
petitioner has been denied effective assistance of counsel, the Ohio Supreme Court held
that the test is “whether the accused, under all the circumstances, had a fair trial and
substantial justice was done.” State v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304,
paragraph four of the syllabus (1976).
{¶14} This court must presume that a licensed attorney is competent and that the
challenged action is the product of sound trial strategy and falls within the wide range of
professional assistance. Strickland at 689. Courts must generally refrain from
second-guessing trial counsel’s strategy, even where that strategy is questionable, and
appellate counsel claims that a different strategy would have been more effective. State
v. Jalowiec, 91 Ohio St.3d 220, 237, 744 N.E.2d 163 (2001).
{¶15} In the instant case, Jones fails to substantiate his claims for ineffective
assistance of counsel with any evidence from the record. There is no evidence that his
counsel’s performance fell below an objective standard of reasonableness in exchange for
a more favorable outcome for himself. Moreover, were we to assume arguendo that his
counsel’s conduct was unreasonable, Jones has failed to illustrate how he was prejudiced.
Jones was charged with multiple drug charges in two separate cases and yet entered into
a plea agreement in which he pled guilty to only two charges, the sentences for which
were ordered to run concurrently.
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{¶16} Despite Jones’s numerous allegations, there is no showing of a manifest
injustice in regard to Jones’s guilty plea, and therefore, the trial court did not abuse its
discretion in denying Jones’s motion to withdraw.
{¶17} Accordingly, the first, second, and third assignments of error are
overruled.
{¶18} In his fourth assignment of error, Jones argues that the trial court
committed reversible error in failing to comply with Crim.R. 11(C).
{¶19} Jones argues that the trial court failed to comply with Crim.R. 11(C) when
it failed to comply with the “non-citizenship requirement pursuant to R.C. 2945.031
[sic].” R.C. 2943.031 is only applicable to non-citizen defendants. Jones has not set
forth any evidence, nor alleged, that he is not a citizen. Therefore, R.C. 2943.031 does
not apply.
{¶20} Jones also argues that his plea was not knowingly and voluntarily made
because he was not aware of the potential consequence associated with his plea.
However, without the transcript of his plea hearing filed in the instant appeal, we must
presume regularity and the validity of the trial court’s acceptance of his plea. Ostrander
v. Parker-Fallis Insulation Co., 29 Ohio St.2d 72, 74, 278 N.E.2d 363 (1972).
{¶21} He also argues that his convictions should have been merged as allied
offenses. However, merger of allied offenses is not related to the trial court’s
compliance with Crim.R. 11. Any argument pertaining to the merger of allied offenses
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is barred by the doctrine of res judicata, because such a claim should have been raised on
direct appeal. State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221.
{¶22} Jones also contends that the trial court violated R.C. 2929.11 and 2929.12
in sentencing him. In addition, he contends that the grand jury that originally indicted
him was the “product of racial discrimination.” Neither of these arguments pertain to
Jones’s motion to withdraw his plea nor to the fourth assignment of error. An appellate
court may disregard an argument or assignment of error not properly and separately
argued. App.R. 16(A)(7) requires that an appellant include in his brief:
An argument containing the contentions of the appellant with respect to
each assignment of error presented for review and the reasons in support of
the contentions, with citations to the authorities, statutes, and parts of the
record on which appellant relies. The argument may be preceded by a
summary.
Therefore, we decline to review these arguments.
{¶23} Accordingly, the fourth assignment of error is overruled.
{¶24} In his fifth assignment of error, Jones argues that he was denied effective
assistance of counsel when his attorney failed to seek an independent analysis of the drug
substance at issue during his trial.
{¶25} We decline to review this assignment of error because it does not relate to
the issue on appeal — the trial court’s denial of Jones’s motion to withdraw his plea.
This court, in Chapon v. Std. Contracting, 8th Dist. No. 88959, 2007-Ohio-4306, at ¶3,
stated:
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This court has held that “bootstrapping,” that is, “the utilization of a
subsequent order to indirectly and untimely appeal a prior order (which was
never directly appealed) is procedurally anomalous and inconsistent with
the appellate rules which contemplate a direct relationship between the
order from which the appeal is taken and the error assigned as a result of
that order .” State v. Church, 8th Dist. No. 68590, 1995 WL 643794 (Nov.
2, 1995), citing App.R. 3(D), 4(A), 5, and 16(A)(3).
{¶26} Thus, we find Jones’s appeal of his counsel’s alleged failure to seek
independent analysis of the drugs to be untimely. Moreover, this argument is barred by
the doctrine of res judicata as it should have been raised on direct appeal.
{¶27} Accordingly, the fifth assignment of error is overruled.
{¶28} Judgment affirmed.
It is ordered that appellee recover of 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. 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.
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
PATRICIA ANN BLACKMON, A.J., and
JAMES J. SWEENEY, J., CONCUR