State v. CookState v. Cook
{¶1} Defendant-Appellant, Phillip Cook, appeals the judgment of the Court of Common Pleas of Union County convicting him of six counts of trafficking in heroin and one count of engaging in a pattern of corrupt activity, and sentencing him to an aggregate sixteen-year and three-month prison term. On appeal, Cook argues that the trial court erred when it failed to conduct a hearing on his request to remove his court-appointed counsel; that he received prejudicially ineffective assistance of counsel in violation of his constitutional rights; and, that the trial court erred when it imposed consecutive sentences. Based upon the following, we аffirm the judgment of the trial court.
{¶2} In October 2009, the Union County Grand Jury indicted Cook on Count One, trafficking in heroin in the vicinity of a school in violation of
{¶3} In November 2009, Cook entered a plea of not guilty to all counts in the indictment. Additionally, the trial court appointed Cook counsel.
{¶4} In December 2009, Cook filed a letter with the trial court requesting representation from the Ohio Public Defender‘s Office. In the letter, Cook contended that he believed his current court-appointed attorney was neglecting his case because he had cancelled scheduled appointments and failed to return his phonе calls. Additionally, Cook stated that he felt intimidated because his attorney and an assistant county prosecutor shared office space; that some of his family members had been prosecuted by that assistant county prosecutor; and, that, consequently, he felt he would not receive a fair trial. Thereafter, Cook
[TRIAL COURT]: * * * Mr. Cook, have you discussed the matter of your plea and the present charges fully and completely with your attorney Mr. Valentine?
[COOK]: Yes, sir.
[TRIAL COURT]: Are yоu now satisfied with the service and advice of your attorney up to the present time?
[COOK]: Yes, sir.
[TRIAL COURT]: You understand that no one can compel you to plead guilty?
[COOK]: Yes, sir.
[TRIAL COURT]: Are you changing this plea freely and voluntarily?
[COOK]: Yes, sir.
(Dec. 2009 Hearing Tr., pp. 17-18).
{¶5} In February 2010, Cook‘s trial counsel filed a sentencing memorandum averring that Cook had been addicted to heroin and that, but for his addiction, it was unlikely he would have engaged in the activity giving rise to his indictment. Trial counsel further requested an aggregate sentence not exceeding four years and eleven months so that Cook would be eligible for judicial release. To the memorandum, trial counsel attached twenty-three letters from Cook‘s friends and family attesting to his character and asking for counseling and
{¶6} Detective Don McGlenn of the Marysville Police Department testified that Cook had juvenile delinquency problems that continued into his adult life; that Cook was “very well known” at the police department (hearing tr., p. 8); that, in relation to other drug dealers in the community, he “would have to put Mr. Cook right at the top for the simple reason of [sic] Mr. Cook is very mobile” (id. at 9); that he believed Cook had been selling heroin for a longer period of time than the period during which the confidential informants purchased from him; and, that he believed many underage or high school-aged persons purchased heroin from Cook based on his surveillance of hotels Cook frequented. On cross-examination, Detective McGlenn admitted that he did not havе first-hand knowledge that Cook supplied heroin to any middle-school aged person, and that the youngest individuals he had direct knowledge that Cook sold heroin to were eighteen or nineteen years of age.
{¶7} Agent Scott Sunquest of the United States Drug Enforcement Administration testified that he worked with the Marysville Police Department on an ongoing heroin investigation; that he learned of Cook during thе course of the investigation; that he had observed Cook sell heroin to a purchaser in the Columbus area; that Cook returned to Marysville and he and the narcotics team
{¶8} Detective Tony Brooks of the Marysville Police Department testified that he participated in the drug interdiction program with Detective McGlenn; that he used three confidential informants who conducted six transactions with Cook; that he consequently considered Cook to be a heroin dealer; that he believed Cook was the number one heroin trafficker in the Marysville area; that he learned from a confidential informant that, during one traffic stop, Cook wadded up a napkin containing heroin and threw it on the ground and later retrieved it, and that, during another traffic stop, a female passenger put the heroin inside her vagina; that he monitored Cook for approximately two months and observed approximately six or seven transactions during that time frame; and, that his investigation revealed that Cook used Columbus as a conduit to bring heroin into the Marysville area. On cross-examination, Detective Brooks testified that he based his ranking of Cook as the “number one” heroin trafficker based on the amounts of transactions he observed and based on information he received from the community.
{¶9} In Mаrch 2010, the trial court sentenced Cook to a fifteen-month prison term on each of Counts One, Three, Five, Seven, and Ten; to a four-year
{¶10} It is from this judgment that Cook appeals, presenting the following assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED WHEN IT FAILED TO CONDUCT A HEARING TO INQUIRE INTO THE DEFENDANT-APPELLANT‘S REASONS FOR WANTING TO REMOVE HIS COURT-APPOINTED COUNSEL, THEREBY VIOLATING DEFENDANT‘S CONSTITUTIONAL RIGHT TO COUNSEL.
Assignment of Error No. II
DEFENDANT-APPELLANT RECEIVED PREJUDICIALLY INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS, AS WELL AS HIS RIGHTS UNDER SECTION 10, ARTICLE I, OF THE OHIO CONSTITUTION.
THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO CONSECUTIVE SENTENCES.
Assignment of Error No. I
{¶11} In his first assignment of error, Cook argues that the trial court erred when it failed to conduct a hearing on his request to remove his court-appointed counsel. Specifically, Cook contends that he demonstrated a conflict with counsel by sending a letter to the court expressing that he did not have enough contact with his attorney to adequately prepare for his case and by raising a concern about his attorney‘s office-sharing relationship with a Union County assistant prosecutor.
{¶12} The Supreme Court of Ohio has held that “‘[a]n indigent defendant has no right to have a particular attоrney represent him and therefore must demonstrate “good cause” to warrant substitution of counsel.‘” State v. Cowans (1999), 87 Ohio St.3d 68, 72, quoting United States v. Iles (C.A.6, 1990), 906 F.2d 1122, 1130. “The trial court may deny the request to substitute counsel if the complaint is unreasonable.” State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, ¶148, citing State v. Deal (1969), 17 Ohio St.2d 17, syllabus. In order to discharge a court-appointed attorney, the Supreme Court has further held that the defendant must show “‘a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant‘s right to effective assistance of counsel.‘” State v. Coleman (1988), 37 Ohio St.3d 286, 292, quoting People v. Robles (1970), 2 Cal.3d 205, 215, 466 P.2d 710, 717.
{¶13} Here, despite the averments made concerning counsel in his letter to the trial court, we find that Cook has failed to demonstrate a breakdown in the attorney-client relationship of the magnitude contemplated by the Supreme Court in Coleman. The trial court conducted a very through
{¶14} Accordingly, we overrule Cook‘s first assignment of error.
Assignment of Error No. II
{¶15} In his second assignment of error, Cook argues that he received prejudicially ineffective assistance of counsel in violation of his constitutional rights. Specifically, Coоk contends that he felt intimidated by the fact that his
{¶16} An ineffective assistance of counsel claim requires proof that trial counsel‘s performance fell below objective standards of reasonable representation and that the defendant was prejudiced as a result. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. To show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must prove that there exists a reasonable probability that, but for counsel‘s errors, the outсome at trial would have been different. Id. at paragraph three of syllabus. “Reasonable probability” is a probability sufficient to undermine confidence in the outcome of the trial. State v. Waddy (1992), 63 Ohio St.3d 424, 433, superseded by constitutional amendment on other grounds as recognized by State v. Smith, 80 Ohio St.3d 89, 103, 1997-Ohio-355.
{¶17} Additionally, the court must look to the totality of the circumstances and not isolated instances of an allegedly deficient performance. State v. Malone (1989), 2d Dist. No. 10564, 1989 WL 150798. Furthermore, attоrneys licensed by the State of Ohio are presumed to provide competent representation. State v. Pierce, 3d Dist. No. 11-09-05, 2010-Ohio-478, citing State v. Hoffman (1998), 129 Ohio App.3d 403, 407. Accordingly, we must afford a high level of deference to the performance of trial counsel. Bradley, 42 Ohio St.3d at 142.
{¶18} Further, the Supreme Court of Ohio has held that a guilty plea waives a defendant‘s right to allege ineffective assistance of counsel, except to the extent counsel‘s errors caused the guilty plea to be less than knowing and voluntary. State v. Spates (1992), 64 Ohio St.3d 269. The trial court‘s judgment will not be reversed unless the defendant can demonstrate a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty but would have insisted on continuing to trial. Hill v. Lockhart (1985), 474 U.S. 52, 52-53; State v. Xie (1992), 62 Ohio St.3d 521, 524; State v. Davis, 12th Dist. No. CA98-06-134, 2000 WL 1086723.
{¶19} First, Cook contends that he felt intimidated by the fact that his attorney shared office space with an assistant prosecutor. The Supreme Court has held that, “[i]n order to satisfy a Sixth Amendment claim of ineffective assistance of counsel, appellant must demonstrate that an actual conflict of interest adversely affected his counsel‘s performance.” (Emphasis added.) State v. Keith, 79 Ohio St.3d 514, 535, 1997-Ohio-367. Here, Cook admitted that the record did not indicate if the assistant prosecutor was involved in any part of his case or whether the office-sharing arrangement prejudiced him in any way. Consequently, Cook has failed to demonstrate an actual conflict of interest and has not averred that,
{¶20} Next, although Cook contends that his counsel was ineffective for failing to put any evidence in the sentencing memorandum, he ignores the fact that trial counsеl attached to the memorandum twenty-three letters from Cook‘s friends and family attesting to his character and asking for counseling and treatment in lieu of incarceration. Further, Cook offers no proposals as to what evidence could have been included on his behalf in the sentencing memorandum, and none is apparent from the record. State v. Bowens (1991), 11th Dist. No. 89-A-1463, 1991 WL 155228.
{¶21} Finally, Cook contends that counsel wаs ineffective for failing to object to testimony of law enforcement officers at his sentencing hearing which he alleges was outside the scope of the charges at issue. Cook does not identify what specific testimony to which he believes counsel should have objected. Assuming that Cook challenges the officers’ testimony concerning uncharged drug offenses involving minors, we cannot find that this evidence was improper.
{¶22} Accordingly, we overrule Cook‘s second assignment of error.
Assignment of Error No. III
{¶23} In his third assignment of error, Cook argues that the trial court erred when it imposed consecutive sentences. Specifically, Cook contends that the aggregate sentence exceeded the maximum permitted for the highest degree felony. The State responds that Cook was required pursuant to
{¶24} Initially, we address the State‘s argument that Cook was required to seek leave to appeal. Several Ohio Appellate Courts have determined that
{¶25} An appellate court must conduct a meaningful review of the trial court‘s sentencing decision. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-Ohio-5774, ¶8, citing State v. Carter, 11th Dist. No. 2003-P-0007, 2004-Ohio-1181. A meaningful review means “that an appellate court hearing an appeal of a felony sentence may mоdify or vacate the sentence and remand the matter to the trial court for re-sentencing if the court clearly and convincingly finds that the record does not support the sentence or that the sentence is otherwise contrary to law.”1 Daughenbaugh, 2007-Ohio-5774, at ¶8, citing Carter, 2004-Ohio-1181, at ¶44;
{¶26} The Supreme Court of Ohio, in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, declared portions of the felony sentencing statutes to be
{¶27} Furthermore, the Supreme Court of Ohio in State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, ¶18, held that “[t]he severance and excision of former
{¶28} Here, the trial court sentenced Cook to a fifteen-month prison term on each of Counts One, Three, Five, Seven, and Ten; to a four-year prison term on Count Eight; and, to a six-year prison term on Count Twelve. Under
{¶29} Accordingly, we overrule Cook‘s third assignment of error.
{¶30} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, J., concur.
/jlr
WILLAMOWSKI, P.J., Concurring Separately.
{¶31} I concur fully with the majority opinion, however write separately to еmphasize that the appropriate standard of review was applied. The standard of review for sentences was set forth in the plurality opinion of Kalish, supra. In Kalish, four panel members noted that
{¶32} In his assignments of error, Cook alleges that the trial court erred when it sentenced him to consecutive sentences. Cook‘s apрeal of his felony sentence did not raise issue with the application of the factors set forth in