State v. Cox

[Cite as State v. Cox, 2021-Ohio-3290.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2021-L-056
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
MALCOLM A. COX,
Trial Court No. 2014 CR 000563
Defendant-Appellant.
OPINION
Decided: September 20, 2021
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Malcolm A. Cox, pro se, PID# A664-599, Madison Correctional Institution, 1851 State
Route 56, P.O. Box 740, London, OH 43140 (Defendant-Appellant).
MARY JANE TRAPP, P.J.
{¶1} Appellant, Malcom A. Cox (“Mr. Cox”), appeals from the trial court’s denial
of his “Motion to Withdraw Guilty Plea Crim.R. 32.1,” in which he contended the trial court
failed to advise him of his right to appeal his sentence and his right to appellate counsel
when it sentenced him in 2015.
{¶2} Mr. Cox raises two assignments of error for review, arguing that the trial
court erred in reclassifying his motion to vacate sentence into a postsentence motion to
withdraw guilty plea pursuant to Crim.R. 32.1 and in denying his motion to vacate
sentence because the trial court failed to notify him of his appellate rights pursuant to
Crim.R. 32(B).
{¶3} A review of the record and pertinent case law reveals Mr. Cox’s
assignments of error are without merit. A plain reading of Mr. Cox’s motion demonstrates
there is no question that he filed a “Motion to Withdraw Guilty Plea Crim.R. 32.1” and
contended his guilty plea should be withdrawn because of the trial court’s failure to notify
him of his appellate rights at sentencing. And, while there is no doubt the trial court erred
in failing to notify Mr. Cox of his appellate rights pursuant to Crim.R. 32(B) at sentencing,
a trial court’s duty to advise a defendant of his or her right to appeal does not arise until
sentencing and, therefore, has no effect upon whether the defendant’s guilty plea was
entered knowingly, voluntarily, and intelligently. A postsentence Crim.R. 32.1 motion
cannot be used to challenge the validity of a conviction or sentence but rather targets the
withdrawal of a plea. Mr. Cox did not raise any arguments challenging the validity of his
plea; thus, the trial court did not abuse its discretion in overruling his motion.
{¶4} The judgment of the Lake County Court of Common Pleas is affirmed.
Substantive and Procedural History
{¶5} In late 2014, the Lake County Grand Jury indicted Mr. Cox on 9 counts: two
counts of attempted murder, first-degree felonies, in violation of R.C. 2923.02, with
firearm specifications pursuant to R.C. 2941.145; two counts of felonious assault, second-
degree felonies, in violation of R.C. 2903.11(A)(2), with firearm specifications pursuant to
R.C. 2941.145; three counts of having weapons while under disability, third-degree
felonies, in violation of R.C. 2923.13(A)(2); and two counts of carrying concealed
weapons, fourth-degree felonies, in violation of R.C. 2923.12(A)(2).
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{¶6} Mr. Cox agreed to the state’s proposal that if he pleaded guilty to felonious
assault with a firearm (count 2) and three counts of having weapons while under disability
(counts 3, 7 and 9), the state would dismiss the remaining counts and specifications.
{¶7} At the plea hearing, the trial court explained the nature and potential
sentence of the charges against Mr. Cox and engaged him in a Crim.R. 11(C)(2) colloquy
before accepting his plea. Relevant to this appeal, the court inquired whether Mr. Cox
understood that if he went to trial and was found guilty, he could appeal those findings
and that by pleading guilty he was giving up the right to appeal or challenge any guilty
finding the court made.
{¶8} The written plea and judgment entry on the change of plea, which Mr. Cox
signed, further delineated the rights he was waiving and stated:
{¶9} “My attorney has explained my right to appeal a maximum sentence, my
other limited appellate rights, and that any appeal must be filed within 30 days of the
Court’s entry of the judgement of my sentence.”
{¶10} A review of the sentencing hearing transcript and sentencing entry reveals
the trial court failed to notify Mr. Cox of his rights to appeal pursuant to Crim.R. 32(B).
{¶11} Mr. Cox was sentenced to a 15-year total term of imprisonment. More
specifically, the trial court sentenced Mr. Cox to seven years in prison on the count of
felonious assault (Count 2) and 30 months in prison on the three counts of having
weapons while under disability (Counts 3, 7, 9). The sentence imposed in Count 3 was
ordered to be served concurrent to the sentence imposed in Count 2, and the sentences
imposed in Counts 7 and 9 were ordered to be served consecutive to each other and to
the sentence imposed in Count 2. In addition, Mr. Cox was also ordered to serve an
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additional mandatory prison term of three years for the firearm specification to be served
consecutive to the preceding prison terms.
{¶12} In November 2019, Mr. Cox filed a “Motion to Withdraw Guilty Plea, Crim.R.
32.1” along with an affidavit in which he attested that the trial court failed to advise him of
his right to appeal his sentence, the procedures and time limit for doing so, and the right
to have counsel appointed. The state filed a brief in opposition, arguing that Mr. Cox
failed to establish a manifest injustice because he was advised of his appellate rights at
the time he pleaded guilty. The fact that Mr. Cox was not informed of his appellate rights
at sentencing was inconsequential since it did not affect the knowing, voluntary, and
intelligent nature of his guilty plea. Further, the lengthy delay in filing the motion adversely
affected his credibility and weighed against granting the motion.
{¶13} The trial court denied the motion, finding that Mr. Cox did not demonstrate
a manifest injustice from his guilty plea or from the trial court’s failure to advise him of his
appellate rights at the time of sentencing. The trial court further found that Mr. Cox was
informed of his right to appeal his sentence at the time he entered his guilty plea, the trial
court complied with Crim.R. 11(C) at the time of the guilty plea, and the guilty plea was
knowingly, intelligently, and voluntarily made. The court noted that Mr. Cox waited over
four years to file the motion, which was unreasonable and affected his credibility. Thus,
the undue delay eliminated any manifest injustice.
{¶14} Mr. Cox appeals, raising two assignments of error:
{¶15} “[1.] The trial court erred in re-classifying the appellants [sic] motion to
vacate Sentence into a post sentence motion to withdraw guilty plea under Crim.R. 32.1.
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{¶16} “[2.] The trial court erred when it denied the appellant’s motion to vacate
Sentence.”
PostSentence Motion to Withdraw Guilty Plea Standard of Review
{¶17} Crim. R. 32.1 states that “[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.”
{¶18} “‘A post-sentence motion to withdraw a guilty plea will be granted only to
correct manifest injustice.'” State v. Gibson, 11th Dist. Portage No. 2007-P-0021, 2007-
Ohio-6926, ¶ 20, quoting State v. Casas, 2d Dist. Montgomery No. 19049, 2003-Ohio-
3237, ¶ 6, citing Crim.R. 32.1 and State v. Stumpf, 32 Ohio St.3d 95, 104, 512 N.E.2d
598 (1987). “‘A manifest injustice standard is an extremely high standard, which permits
withdrawal of a plea only in extraordinary cases.’” Id., quoting State v. Allen, 8th Dist.
Cuyahoga No. 86684, 2006-Ohio-3164, ¶ 10. “The manifest injustice standard
‘“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 or her.”’” Id., quoting State v. Thomson,
6th Dist. Lucas No. L-05-1213, 2006-Ohio-1224, ¶ 48, quoting State v. Woods, 8th Dist.
Cuyahoga No. 82120, 2003-Ohio-2475, ¶ 16.
{¶19} “‘The burden is on the defendant to establish the existence of such injustice.
* * * “The logic behind this precept is to discourage a defendant from pleading guilty to
test the weight of potential reprisal, and later withdraw the plea if the sentence was
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unexpectedly severe.”’” Id. at ¶ 21, quoting Thomson at ¶ 49, quoting State v. Caraballo,
17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985).
{¶20} “‘“The motion [to withdraw a guilty plea] is addressed to the sound discretion
of the trial court, and the good faith, credibility and weight of the movant’s assertions in
support of the motion are matters to be resolved by that court.”’” Id. at ¶ 22, quoting State
v. Gegia, 11th Dist. Portage No. 2003-P-0026, 2004-Ohio-1441, ¶ 20, quoting State v.
Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). “The phrase ‘abuse of discretion’
is one of art, connoting judgment exercised by a court, which does not comport with
reason or the record.” State v. Petway, 11th Dist. Lake No. 2016-L-084, 2017-Ohio-7954,
¶ 7, citing State v. Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-2089, ¶ 30,
citing State v. Ferranto, 112 Ohio St. 667, 676-678, 148 N.E. 362 (1925).
Postconviction Petition v. Motion to Withdraw Guilty Plea
{¶21} In his first assignment of error, Mr. Cox contends the trial court erred in
treating his motion to vacate sentence as a motion to withdraw guilty plea under Crim.R.
32.1. He contends that he filed a motion “styled ‘Motion to vacate sentence’, on the
grounds that the trial court failed to comply with Crim.R. 32(B) and advise him of his
appellate rights.”
{¶22} A review Mr. Cox’s motion, however, belies his argument. The motion is
captioned, “Motion to Withdraw Guilty Plea Crim.R. 32.1.” While the caption of a motion
is not dispositive, in the body of his motion Mr. Cox requested that the trial court “allow
him to withdraw his plea of guilty made on February 2, 2015 and vacate said sentence
imposed. Defendant further represents that a sentence of 15 years was imposed on his
plea of guilty. The motion to withdraw guilty plea is to prevent a manifest injustice.
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Moreover, the defendant attaches his affidavit in support of his Motion to withdraw guilty
plea, and asks for a hearing on this matter so that he may more fully establish his cause.”
In his affidavit, Mr. Cox attested that during his sentencing he was not informed of his
right to appeal, the procedures and time limit involved, and his right to assistance of
counsel.
{¶23} Under these circumstances, we cannot construe Mr. Cox’s motion to
withdraw a guilty plea pursuant to Crim.R. 32.1 as a motion to vacate his sentence. A
postsentence Crim.R. 32.1 motion is filed in the underlying criminal case and targets the
withdrawal of a plea; thus it is not a “collateral challenge to the validity of a conviction or
sentence.” (Emphasis sic.) State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773
N.E.2d 522. ¶ 13.
{¶24} In Bush, the Supreme Court of Ohio explained that its “precedent
distinguishes postsentence Crim.R. 32.1 motions from postconviction petitions.” Id. at ¶
11. Most fundamentally, R.C. 2953.21 and R.C. 2953.23 do not govern a Crim.R. 32.1
postsentence motion to withdraw a guilty plea, and they exist independently. Id. at ¶ 14.
{¶25} “R.C. 2953.21(K), part of the postconviction relief statutory scheme,
provides that ‘the remedy set forth in this section is the exclusive remedy by which a
person may bring a collateral challenge to the validity of a conviction or sentence in a
criminal case * * *.’” Id. at ¶ 13; see State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d
905 (1999) (“[A] postconviction proceeding is * * * a collateral civil attack on the
judgment”); Black’s Law Dictionary 255 (7th Ed.Rev.1999) (defining “collateral attack” as
“[a]n attack on a judgment entered in a different proceeding”).
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{¶26} A trial court’s duty to advise a defendant of his or her right to appeal does
not arise until sentencing and, therefore, has no effect upon whether the defendant’s
guilty plea was entered knowingly, voluntarily, and intelligently. State v. Allen, 9th Dist.
Summit Nos. 27494 & 28213, 2017-Ohio-2831, ¶ 15. “[T]he failure to inform a defendant
that a guilty plea waives certain rights on appeal is not one of the specifically enumerated
rights the trial court is required to discuss during the Crim.R. 11 colloquy.” State v.
Reynolds, 12th Dist. Madison No. CA2018-02-005, 2018-Ohio-4942, ¶ 12, citing State v.
Moxley, 12th Dist. Madison No. CA2011-06-010, 2012-Ohio-2572, ¶ 13.
{¶27} Thus, it is clear that a motion made pursuant to Crim.R. 32.1, regardless of
whether it raises a constitutional issue, is separate and distinct from a petition filed
pursuant to R.C. 2953.21. Only when a defendant files a “no name” postconviction
motion, which is not filed pursuant to a specific criminal procedure, should a trial court
construe the motion as a “petition for postconviction relief.” State v. Gegia, 9th Dist.
Summit No. 21438, 2003-Ohio-3313, ¶ 7.
{¶28} Based on Mr. Cox’s motion, we cannot say the trial court abused its
discretion in treating Mr. Cox’s motion as a motion to withdraw guilty plea pursuant to
Crim.R. 32.1.
{¶29} Mr. Cox’s first assignment of error is without merit.
Motion to Vacate Sentence
{¶30} In his second assignment of error, Mr. Cox contends the trial court erred in
denying his motion to vacate his sentence.
{¶31} As the foregoing demonstrates, however, the trial court could not have erred
in denying Mr. Cox’s motion to vacate his sentence because he filed a Crim.R. 32.1
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motion to withdraw his guilty plea. Mr. Cox has not raised any arguments challenging the
validity of his plea, but instead contends the trial court should have withdrawn his plea
because it did not notify him of his appellate rights at sentencing pursuant to Crim.R. 32.
A Crim.R. 32.1 motion, however, only focuses on the plea and cannot be used as a
collateral challenge to the validity of a conviction or sentence. State v. Eckley, 2019-
Ohio-6, 128 N.E.3d 832, ¶ 22 (5th Dist.).
{¶32} Mr. Cox cites to State v. Hunter, 8th Dist. Cuyahoga No. 92626, 2010-Ohio-
657, which held that “[i]n order to be properly informed under Crim.R. 32, a defendant
must be told of his right to appeal, apprised of procedures and time limits involved in
proceeding with that appeal, and the right to have assistance of appointed counsel for
that appeal.” Id. at ¶ 20. The Eighth District reversed, vacated the appellant’s sentence,
and remanded for resentencing because the trial court failed to inform the appellant of his
appellate rights under Crim.R. 32 at his resentencing hearing. Id. at ¶ 21-23.
{¶33} This case, however, is more akin to State v. Future, 8th Dist. Cuyahoga No.
96997, 2012-Ohio-2300, in which the Eighth District found that the trial court lacked
jurisdiction to vacate a final order of sentence without a postconviction petition. Id. at ¶
7. The court distinguished Hunter based on its procedural posture because at the time
Hunter’s appeal was decided, his sentence was considered void for lack of proper
imposition of postrelease control. Id. at ¶ 6, citing Hunter at ¶ 9, 16. The trial court had
jurisdiction to modify the appellant’s sentence. Id. In Future, however, as in this case,
the trial court had no jurisdictional basis for modifying the appellant’s sentence without a
postconviction relief petition. Id. at ¶ 6.
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{¶34} There is no doubt that the trial court failed to notify Mr. Cox of his right to
appeal at sentencing, pursuant to Crim.R. 32(B), which states:
{¶35} “(B) Notification of Right to Appeal.
{¶36} “(1) After imposing sentence in a serious offense that has gone to trial, the
court shall advise the defendant that the defendant has a right to appeal the conviction.
{¶37} “(2) After imposing sentence in a serious offense, the court shall advise the
defendant of the defendant’s right, where applicable, to appeal or to seek leave to appeal
the sentence imposed.
{¶38} “(3) If a right to appeal or a right to seek leave to appeal applies under
division (B)(1) or (B)(2) of this rule, the court also shall advise the defendant of all of the
following:
{¶39} “(a) That if the defendant is unable to pay the cost of an appeal, the
defendant has the right to appeal without payment;
{¶40} “(b) That if the defendant is unable to obtain counsel for an appeal, counsel
will be appointed without cost;
{¶41} “(c) That if the defendant is unable to pay the costs of documents necessary
to an appeal, the documents will be provided without cost;
{¶42} “(d) That the defendant has a right to have a notice of appeal timely filed on
his or her behalf.
{¶43} Upon defendant’s request, the court shall forthwith appoint counsel for
appeal.”
{¶44} The appropriate avenue for relief, however, is to seek leave to file a delayed
appeal with this court and, if unsuccessful, to then file a motion for postconviction relief
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through R.C. 2953.21 with the trial court. Future at ¶ 5; State v. Gover, 71 Ohio St.3d
577, 580, 645 N.E.2d 1246 (1995).
{¶45} Lastly, we note that a review of Mr. Cox’s written plea of guilty reflects he
was advised of his right to have counsel, his right to appeal a maximum sentence, and
that he had 30 days to appeal. His Crim.R. 32.1 motion to withdraw guilty plea was filed
over four years later. As we remarked in State v. Learn, 11th Dist. Geauga No. 2015-G-
0023, 2015-Ohio-2817, “even if appellant was not advised of his appellate rights when he
should have been, he was still obligated to take the proper steps to protect his rights
within a reasonable time.” Id. at ¶ 10 (overruling appellant’s motion for leave to file a
delayed appeal because he did not set forth a legitimate explanation for the four-month
delay pursuant to App.R. 5(A)).
{¶46} Mr. Cox’s second assignment of error is without merit.
{¶47} The judgment of the Lake County Court of Common Pleas is affirmed.
JOHN J. EKLUND, J., concurs,
THOMAS R. WRIGHT, J., concurs in judgment only.
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