[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

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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.


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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

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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

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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.



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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.
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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-

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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

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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




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