State v. Cook

[Cite as State v. Cook, 

.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                  :

                 Plaintiff-Appellee,            :
                                                             No. 112742
                 v.                             :

ERIC L. COOK,                                   :

                 Defendant-Appellant.           :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: March 7, 2024


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-22-674145-A


                                          Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Rachel E. Cohen, Assistant Prosecuting
                 Attorney, for appellee.

                 Joseph V. Pagano, for appellant.


EMANUELLA D. GROVES, J.:

                   Defendant-appellant Eric L. Cook (“Cook”) appeals his convictions

and sentence for drug trafficking and weapons charges. For the reasons that

follow, we affirm.
               On September 27, 2022, a grand jury convened and indicted Cook for

ten counts, including three counts of trafficking, felonies of the second degree

(Counts 1, 3, and 5); three counts of drug possession, felonies of the third degree

(Counts 2, 4, and 6); two counts of having weapons while under disability, felonies

of the third degree (Counts 7 and 8); one count of receiving stolen property, a felony

of the fourth degree (Count 9); and one count of possession of criminal tools, a felony

of the fifth degree (Count 10). Counts 1-6, 9, and 10 included one-year firearm

specifications.1 Counts 1,3, and 5 included a juvenile specification claiming the

crimes occurred within 100 feet of or in view of a juvenile. The indictment also

included the forfeiture of money and a scale seized during arrest.

               The defense filed a motion to suppress challenging the stop that led

to his arrest. The trial court denied the motion after a hearing and the case was

ultimately set for trial on March 22, 2023. On the date of trial, after discussing the

potential penalties and the plea offer, Cook entered into a negotiated plea deal. The

state dismissed the associated one-year firearm specifications and Cook pleaded

guilty to Count 1 trafficking with the juvenile specification, an amended Count 3,

trafficking as a felony of the third degree, with the juvenile specification nolled, and

Count 7, having weapons while under disability. The state dismissed the remaining

charges. The state acknowledged that Counts 1 and 3 would merge for sentencing

and elected to proceed with Count 1.



      1 They also included three-year firearm specifications; however, the state moved to

dismiss them because they were added in error.
               At sentencing on April 18, 2023, the trial court explained that the

sentence for Count 1 consisted of a prison term in annual increments between two

and eight years, which would be referred to as the minimum sentence. (Tr. 127.)

The court explained the Reagan Tokes Act sentencing requirements and that the

sentence may be extended to the maximum term after an administrative hearing.

The court also informed Cook that the sentence on Count 1 included mandatory

prison time. The defense objected to the imposition of the Reagan Tokes Act

sentence.   They also notified the court that Cook had completed a financial

disclosure form and offered to file it with the court or the clerk of courts if the court

was inclined to waive fines. (Tr. 146-147.)

               The court imposed a sentence of four years to six years on Count 1

and 24 months on Count 7 to run consecutively, for an aggregate term of six to eight

years. The court also imposed a mandatory fine of $7,500.

               Cook appeals assigning the following errors for our review.

                            Assignment of Error No. 1

      Appellant’s Sixth Amendment rights were violated because counsel did
      not preserve the trial court’s error in denying appellant’s motion to
      suppress in violation of his constitutional rights under the Fourth,
      Sixth, and Fourteenth Amendments to the United States Constitution
      where the trial court did err in denying the motion to suppress.

                            Assignment of Error No. 2

      Appellant’s sentence is contrary to law because the record does not
      support the imposition of consecutive sentences and the indefinite
      term was not properly imposed.
                           Assignment of Error No. 3

      The trial court erred by imposing a fine where the record establishes
      that appellant was indigent and the court had discretion to waive it.

Law and Analysis

Ineffective Assistance of Counsel

              In the first assignment of error, Cook argues that he received

ineffective assistance of counsel where his trial counsel allowed him to plead guilty

effectively waiving any challenge to the denial of his motion to suppress.

              In order to establish a claim of ineffective assistance of counsel, a

party must demonstrate (1) his counsel was deficient in some aspect of his

representation, and (2) there is a reasonable probability that, were it not for

counsel’s errors, the outcome of the proceeding would have been different.

Strickland v. Washington, 

, 

, 

 (1984).

Therefore, “‘the failure to make a showing of either deficient performance or

prejudice defeats a claim of ineffective assistance of counsel.’” State v. Harris, 8th

Dist. Cuyahoga No. 109060, 

, ¶ 21, citing In re S.A., 8th Dist.

Cuyahoga No. 107707, 

, quoting State v. Davenport, 8th

Dist. Cuyahoga No. 106143, 

, citing 

.

              However, a claim of ineffective assistance of counsel is waived by a

guilty plea, unless the alleged ineffectiveness caused the defendant’s plea to be less

than knowing, intelligent, and voluntary. State v. Brusiter, 8th Dist. Cuyahoga No.

98614, 

. A guilty plea entered pursuant to a plea bargain,
“‘waives all appealable errors that may have occurred at trial, unless such errors are

shown to have precluded the defendant from entering a knowing and voluntary

plea.’” 

 quoting State v. Milczewski, 8th Dist. Cuyahoga No. 97138, 2012-Ohio-

1743, ¶ 5, citing State v. Kelley, 

, 

 (1991).

Furthermore, by entering a guilty plea, Cook waived the right to argue the substance

of the motion to suppress. State v. Smith, 8th Dist. Cuyahoga No. 83710, 2004-

Ohio-4911, ¶ 2. Cook may only challenge the voluntariness of his plea. 

 A

defendant must establish that “there is a reasonable probability that, but for

counsel’s deficient performance, he would not have pleaded guilty and would have

insisted on going to trial” in order to prevail in this situation. Brusiter at ¶ 5, citing

State v. Xie, 

, 

 (1992); Hill v. Lockhart, 

,

, 

 (1985).

               Cook cannot demonstrate that his counsel was deficient. The record

is silent regarding Cook’s intent to appeal the motion to suppress ruling. Cook

argues that he would have prevailed on appeal if trial counsel had advised him to

plead no contest rather than guilty; accordingly, the decision to plead guilty was not

strategic. Preliminarily, as we have noted, the merits of the motion to suppress are

not before this court. Furthermore, a review of the record establishes that after the

court denied the motion, Cook’s trial counsel subsequently negotiated a plea deal

that led to the dismissal of seven of the counts against him. Absent evidence that

Cook was improperly advised in the record to enter a guilty plea, this court is

required to view a trial counsel’s strategic decisions with great deference. Smith at
¶ 5. Accordingly, we cannot find that trial counsel erred by negotiating a plea deal

that included a plea of guilty. The trial court conducted a complete Crim.R. 11

colloquy with Cook and ascertained that he was entering his plea knowingly,

intelligently, and voluntarily. Cook has not pointed to any evidence in the record

that shows he received improper advice from his counsel. Given the foregoing, Cook

has not established that his trial counsel’s performance was deficient.

               Having failed to establish one prong of the test, Cook has failed to

establish he received ineffective assistance of counsel.

               Accordingly, the first assignment of error is overruled.

Sentencing Challenges

               In the second assignment of error, Cook challenges his sentence,

arguing that the record did not support the imposition of consecutive sentences and

that the indefinite term was not properly imposed.

               With respect to consecutive sentences, Cook argues that the trial

court’s findings were not supported by sufficient evidence. Preliminarily, Cook

relies heavily on State v. Gwynne, Slip Opinion No. 

 (“Gwynne

IV”)2 to support his argument that we must review the trial court’s consecutive

sentencing decision de novo to determine whether the record clearly and

convincingly does not support the imposition of consecutive sentences. However,

in a decision filed shortly after Cook filed his appellate brief, a slim majority of the


      2 Cook refers to the case as Gwynne II in his brief; however, the Supreme Court

styles the case Gwynne IV. See State v. Gwynne, Slip Opinion No. 

.
We follow the Supreme Court for ease of identification.
Ohio Supreme Court explicitly vacated the decision in Gwynne IV. State v. Gwynne,

Slip Opinion No. 

 (“Gwynne V”).

              Nevertheless, Gwynne V was a plurality decision, i.e., a decision that

was not supported by a clear majority of the court. Accordingly, a number of panels

in this district have applied the law as it existed prior to Gwynne V. See State v.

Stiver, 8th Dist. Cuyahoga No. 112540, 

; State v. Elkins, 8th Dist.

Cuyahoga No. 112582, 

; State v. Neal, 8th Dist. Cuyahoga No. 112347,

. Accordingly, we will do the same.

              Felony sentences are reviewed pursuant to R.C. 2953.08(G)(2), which

provides in relevant part:

      The appellate court may take any action authorized by this division if it
      clearly and convincingly finds either of the following:

      (a) That the record does not support the sentencing court’s findings
         under division … (C)(4) of section 2929.14 [consecutive
         sentences].

       …

      (b) That the sentence is otherwise contrary to law.

              A trial court may impose consecutive sentences on an offender

convicted of multiple offenses, if it finds that “consecutive service is necessary to

protect the public from future crime or to punish the offender and that consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and

to the danger the offender poses to the public.” R.C. 2929.14(C)(4). In addition, the

court must make one of the following findings:
      (a) The offender committed one or more of the multiple offenses while
          the offender was awaiting trial or sentencing, was under a sanction
          imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
          Revised Code, or was under post-release control for a prior offense.

      (b) At least two of the multiple offenses were committed as part of one
          or more courses of conduct, and the harm caused by two or more of
          the multiple offenses so committed was so great or unusual that no
          single prison term for any of the offenses committed as part of any
          of the courses of conduct adequately reflects the seriousness of the
          offender’s conduct.

      (c) The offender’s history of criminal conduct demonstrates that
          consecutive sentences are necessary to protect the public from
          future crime by the offender.

               A consecutive sentence must be affirmed if the court of appeals is

“unable to clearly and convincingly find that the record does not support the trial

court’s findings.” State v. Pearson, 8th Dist. Cuyahoga No. 112884, 

. Accordingly, we will review the record to determine whether it does not

support the imposition of consecutive sentences.

               Cook argues that he showed remorse and an intention to pursue

rehabilitation while incarcerated. He also alleges that he was overcharged due to

the combination of drugs in some counts. These factors, he alleges, warranted a

lesser sentence. Nevertheless, Cook pleaded guilty as charged and never challenged

the indictment.

               The state informed the trial court that Cook had a significant criminal

history dating back to 1998 up to 2018. Most of his 15-17 convictions were drug

possession and trafficking cases. Cook was serving a term of postrelease control

after a 2017 trafficking conviction at the time of the offenses in this case.
                 In imposing consecutive sentences, the court found that it was

necessary to protect the public and punish the offender. The court also found that

consecutive sentences were not disproportionate to Cook’s conduct and that his

criminal history showed that consecutive sentences were necessary to protect the

public.

                 Based on the forgoing, we must affirm the imposition of consecutive

sentences. The trial court’s findings were not clearly and convincingly unsupported

by the record.

                 Cook also argues that the trial court failed to inform Cook

appropriately of his sentence, specifically the court did not advise him of the

minimum and maximum terms. However, Cook has not cited to a statute or case

law to pinpoint exactly how the trial court’s recitation was lacking. After imposing

the sentence, the trial court noted:

      That is a total term of on the felony of the second degree four years
      minimum term, plus two years extended term. Max term of six years.
      Twenty-four months on the felony of the third degree consecutive for a
      total of an eight-year sentence.

                 At the beginning of the sentencing hearing, however, the trial court

went into a detailed discussion of the imposition of the sentence under the Reagan

Tokes Act. After explaining how the minimum and maximum terms are determined

the court noted:

      [T]here is a rebuttable presumption of release at the end of the
      minimum term by the Department of Corrections. The Department of
      Corrections is authorized to continue the incarceration to the end of the
      maximum term, which is the minimum term plus the extended term, if
      the presumption is rebutted at an administrative hearing. In other
      words, they have to get permission to impose the extended sentence.
      They cannot just do it on their own.

      The Department of Corrections sets rules and criteria for it to rebut the
      presumption of release as to a specific determination as to the
      defendant’s conduct. They have to show where you fail to live up to
      their expectations. At the end of the maximum term, the defendant
      must be released.

              Although Cook does not mention a statute, the advisements above

comport with R.C. 2929.19(B)(2)(c) regarding the minimum and maximum terms

of an indefinite sentence under the code. Given the foregoing, we overrule Cook’s

second assignment of error.

Imposition of a Mandatory Fine

              Finally, in the third assignment of error, Cook argues the trial court

erred when it imposed a mandatory $7,500 fine when he was indigent. Cook argues

that a financial disclosure form was filed; however, the record reflects that the

defense represented a form was completed, and trial counsel offered to file it. The

form is not shown on the trial court’s docket.

              Moreover, “[i]f an offender alleges in an affidavit filed with the court

prior to sentencing that the offender is indigent and unable to pay the mandatory

fine and if the court determines the offender is an indigent person and is unable to

pay the mandatory fine described in this division, the court shall not impose the

mandatory fine upon the offender.” R.C. 2929.18(B). These prerequisites are

jurisdictional and required before a trial court may waive a mandatory fine. State v.

Navarro, 8th Dist. Cuyahoga No. 107204, 

, ¶ 4; see also State v.
Gray, 8th Dist. Cuyahoga No. 104140, 

, ¶ 10, citing State v. Moore,

, 

, 

; State v. Gipson, 

, 

 (1998); State v. Eader, 9th Dist. Summit No. 26762,

.

              In the instant case, Cook did not file an affidavit of indigency nor a

financial disclosure form. Accordingly, the trial court had no authority to waive the

mandatory fine. The third assignment of error is overruled.

              Judgment affirmed.

      It is ordered that appellee recover from 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.

      The defendant’s conviction having been affirmed, any bail pending is

terminated. 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.



EMANUELLA D. GROVES, JUDGE

MARY EILEEN KILBANE, P.J., and
MICHAEL JOHN RYAN, J., CONCUR