STATE OF OHIO v. CORNELL JONES
No. 96630
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
February 16, 2012
2012-Ohio-584
BEFORE: Cooney, J., Blackmon, A.J., and Sweeney, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case Nos. CR-516398 and CR-516891. JUDGMENT: AFFIRMED.
Cornell Jones
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 tо 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 onе 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
{3} In 2009, Jones‘s direct appeal was dismissed as untimely, but a delayed appeal was later granted. In 2010, appellate cоunsel 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 mоtion 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 pleа 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}
A motion to withdraw a plеa 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 thе defendant to withdraw his or her plea.
[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 оr her. State v. Sneed, 8th Dist. No. 80902, 2002-Ohio-6502, at ¶ 13.
{9} A motion made pursuant to
{10} First and foremost, Jonеs argues that the trial court erred in denying his motion without a hearing. However, this court has repeatedly held that if the facts, as
{11} In addition, Jones argues that his counsel had a conflict of interest due to his own pending drug charge, alleging thаt 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 pеrsonal 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. Jonеs 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 prejudicеd 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 probаbility that, were it not for counsel‘s errors, the result of the
{14} This court must presume that a licensed attorney is competent and that the challenged action is the produсt 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 outcomе 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.
{17} Accordingly, the first, second, and third assignmеnts 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
{19} Jones argues that the trial court failed to comply with
{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 mеrged as allied offenses. However, merger of allied offenses is not related to the trial court‘s compliance with
{22} Jones also contends that the trial court violated
An argument containing the сontentions 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 nоt 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:
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 relаtionship 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 , and16(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 orderеd 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 issuе 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