Case Information
*1
[Cite as
State v. Cook
,
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-10-05
v. PHILLIP COOK, O P I N I O N DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 2009-CR-0200 Judgment Affirmed
Date of Decision: October 4, 2010 APPEARANCES:
Alison Boggs for Appellant
Terry L. Hord for Appellee
ROGERS, J. 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 affirm the judgment of the trial court. 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 R.C. 2925.03(A)(1),(C)(6)(b), a fеlony of the fourth degree; Count Two, possession of heroin in violation of R.C. 2925.11(A),(C)(6)(a), a felony of the fifth degree; Count Three, trafficking in heroin in the vicinity of a school in violation of R.C. 2925.03(A)(1),(C)(6)(b), a felony of the fourth degree; Count Four, possession of heroin in violation of R.C. 2925.11(A),(C)(6)(a), a felony of the fifth degree; Count Five, trafficking in heroin in the vicinity of a school in violation of R.C. 2925.03(A)(1),(C)(6)(b), a felony of the fourth degree; Count Six, possession of heroin in violation of R.C. 2925.11(A),(C)(6)(a), a felony of the fifth degree; Count Seven, trafficking in heroin in the vicinity of a school in violation of R.C. 2925.03(A)(1),(C)(6)(b), a felony of the fourth degree; Count Eight, trafficking in heroin in the vicinity of a school in violation of R.C. 2925.03(A)(1),(C)(6)(c), a felony of the third degree; Count Nine, possession of heroin in violation of R.C. 2925.11(A),(C)(6)(b), a felony of the fourth degree; Count Ten, trafficking in heroin in violation of R.C. 2925.03(A)(1),(C)(6)(b), a felony of the fourth degreе; Count Eleven, possession of heroin committed within the vicinity of a school in violation of R.C. 2925.11(A),(C)(6)(a), a felony of the fifth degree; and, Count Twelve, engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1),(B)(1), a felony of the first degree. In November 2009, Cook entered a plea of not guilty to all counts in
the indictment. Additionally, the trial court appointed Cook counsel. 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 phone calls. Additionally, Cook stated that he felt intimidated because his attorney and an assistant county prosеcutor 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 withdrew his pleas of not guilty and, pursuant to a plea agreement, entered a plea of guilty to Counts One, Three, Five, Seven, Eight, Ten, and Twelve. The trial court dismissed Counts Two, Four, Six, Nine, and Eleven at the behest of the State. At the change of plea hearing, the following dialogue took place, in pertinent part:
[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 you 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 comрel 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). 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 treatment in lieu of incarceration. Additionally, the trial court held a sentencing hearing at which the following testimony was heard. Detective Don McGlenn of the Marysville Police Department
testified that Cook hаd 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 have 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 hеroin to were eighteen or nineteen years of age. 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 the 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 narсotics team followed the purchaser and recovered sixty-five unit doses of heroin from that individual; that Columbus was the main distribution point for heroin in Ohio. On cross-examination, Agent Sunquest stated that nothing was recovered from Cook upon a stop of his vehicle following the transaction. 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. In March 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 prison term on Count Eight; and, to a six-year prison term on Count Twelve. Thе trial court ordered all terms to be served consecutively for an aggregate sixteen- year and three-month prison term, and also ordered Cook to pay a $6,000 fine. In the judgment entry, the trial court specifically stated that it had “considered the presentence investigation, information presented at the hearing and the record; and the Court further having considered the factors pertaining to the seriousness of the offense and pertaining to recidivism, and further having considered the factors contained in R.C. 2929.13(B), the Court finds the offender is not amendable to community control, and that prison is consistent with the purposes and principles of sentencing set forth in R.C. 2929.11.” (Mar. 2010 Judgment Entry, p. 2). 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.
Assignment of Error No. III
THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO CONSECUTIVE SENTENCES.
Assignment of Error No. I In his first assignment of error, Cook arguеs 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.
The Supreme Court of Ohio has held that “‘[a]n indigent defendant
has no right to have a particular attorney represent him and therefore must
demonstrate “good cause” to warrant substitution of counsel.’”
State v. Cowans
(1999),
{¶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 Crim.R. 11 colloquy at the sentencing hearing, and specifically inquired whether Cook had fully and completely discussed the matters of his plea and the charges with his attorney, whether he was satisfied with the service and advicе of his attorney, whether he understood no one could compel him to plead guilty, and whether he was freely and voluntarily changing his plea to guilty. Cook answered all of these inquiries in the affirmative. Consequently, we do not find that the trial court abused its discretion in declining to hold a hearing concerning Cook’s letter discussing removal of his counsel. Accordingly, we overrule Cook’s first assignment of error.
Assignment of Error No. II In his second assignment of error, Cook argues that he received
prejudicially ineffective assistance of counsel in violation of his constitutional rights. Specifically, Cook contends that he felt intimidated by the fact that his attorney shared office space with an assistant prosecutor, and, that his attorney was ineffective by failing to put any evidence in his sentencing memorandum and by failing to object tо certain testimony by police officers that was outside the scope of the charges at issue. 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 outcome 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
constitutiоnal amendment on other grounds as recognized by
State v. Smith
, 80
Ohio St.3d 89, 103,
and not isolated instances of an allegedly deficient performance.
State v. Malone
(1989), 2d Dist. No. 10564,
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),
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,
failing to put any evidence in the sentencing memorandum, he ignores the fact that trial counsel 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 proposаls 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. Finally, Cook contends that counsel was 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
speсific 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. Evid.R. 101(C)
provides that the rules of evidence do not apply to certain criminal proceedings,
and specifically enumerates “sentencing” as an excluded proceeding. Courts have
recognized that “[t]he evidence the court may consider [at sentencing] is not
confined to the evidence that strictly relates to the conviction offense because the
court is no longer concerned * * * with the narrow issue of guilt.”
State v.
Bowser
, 2d Dist. No. 08-CR-1203,
{¶22} Accordingly, we overrule Cook’s second assignment of error.
Assignment of Error No. III 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 R.C.
2953.08(C)(1) to seek leave to appeal his consecutive sentences, which he did not.
Initially, we address the State’s argument that Cook was required to
seek leave to appeal. Several Ohio Appellate Courts have determined that App.R.
5(D) supersedes the prior leave requirement of R.C. 2953.08(C) and merges the
motion for leave into the error(s) assigned in the appeal as of right.
State v.
Furrow
, 2d Dist. No. Civ.A. 03CA19,
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 modify 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 оr that the sentence is otherwise contrary to
law.”
[1]
Daughenbaugh
,
St.3d 174,
{¶29} Accordingly, we overrule Cook’s third assignment of error. 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. I concur fully with the majority opinion, however write separately to
emphasizе 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 R.C. 2953.08(G) requires that appellate courts require appellants to meet a clearly and convincingly contrary to law standard of review when reviewing a sentence. [2] For example, if the sentencing court imposed consecutive sentences, as in this case, the standard of review would be clearly and convincingly contrary to law. However, if the appeal is based upon the proper application of the factors in R.C. 2929.12, four panel members in Kalish would require review using an abuse of discretion standard as specifically set forth in R.C 2929.12. [3] In his assignments of error, Cook alleges that the trial court erred
whеn it sentenced him to consecutive sentences. Cook’s appeal of his felony sentence did not raise issue with the application of the factors set forth in R.C. 2929.12, which would require an abuse of discretion standard. Thus, the clearly and convincingly standard used to review this case, as set forth in R.C. 2953.08(G)(2) is the proper standard of review herein.
Notes
[1] We note that the Supreme Court of Ohio’s plurality opinion in
State v. Kalish
,
[2] Justices Pfeifer, Lundberg Stratton, Lanzinger, and Judge Willamowski, sitting by assignment, all reached this conclusion.
[3] Justices O’Connor, Moyer, O’Donnell, and Judge Willamowski, sitting by assignment, concurred in this position, although the first three would use both standards of review in all cases.