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State v. Cohen

Court of Appeals of Ohio, Second District

July 3, 2013

STATE OF OHIO Plaintiff-Appellee
DEVON J. COHEN Defendant-Appellant

(Criminal Appeal from (Common Pleas Court) Trial Court Case No. 2012-CR-1144

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee

J. ALLEN WILMES, Atty. Reg. #0012093, Attorney for Defendant-Appellant



{¶1} Defendant-appellant Devon J. Cohen appeals his conviction in the Montgomery County Common Pleas Court for felonious assault (deadly weapon) following his guilty plea. He argues that the trial court erred in denying his motion to withdraw his guilty plea.

{¶2} On May 17, 2012, a Montgomery County grand jury indicted Cohen for felonious assault (deadly weapon) in violation of R.C. 2903.11(A)(2), a second-degree felony. Cohen either pleaded not guilty or had a plea of not guilty entered on his behalf by the trial court. The trial court appointed Attorney Shawn P. Hooks to represent Cohen and the case proceeded to discovery and other pretrial matters.

{¶3} Cohen appeared in court before Judge Mary K. Huffman on June 26, 2012 for scheduling. Prior to the hearing, Atty. Hooks told Cohen that he had spoken with the judge concerning his case. (Tr. 26.) Atty. Hooks advised Cohen that, although it was not guaranteed, the court would likely sentence him to probation, meaning that he would be released from custody immediately following sentencing. (Tr. 26-27.) Atty. Hooks advised the court that Cohen was going to plead guilty as charged in the indictment and that there was no agreement with the state as to sentence. The court conducted the Crim.R. 11 plea colloquy and accepted Cohen's guilty plea. The court then ordered a pre-sentence investigation and set the case for sentencing on July 17. Judge Huffman advised Cohen that she would be the person to make the sentencing decision, but that Judge Barbara P. Gorman would be the judge that would impose the sentence at the sentencing hearing set for July 17.

{¶4} The case proceeded to a sentencing hearing on July 17, 2012. Prior to sentencing, Judge Gorman indicated to Atty. Hooks that Cohen's sentence was going to be a two-year term of imprisonment. (Tr. 32.) Atty. Hooks told Cohen about the two-year sentence. (Tr. 32.) Cohen was unhappy and Atty. Hooks told him he would move for a one-week continuance so that he could talk with Judge Huffman about the reasons for the two-year sentence. (Tr. 32.) The court granted the continuance and reset sentencing for July 24.

{¶5} Due to a scheduling conflict, Atty. Hooks was unable to be with Cohen at the July 24, 2012 sentencing hearing, instead having his law partner stand in for him. (Tr. 33.) Cohen did not want to proceed without Atty. Hooks, so sentencing was reset for the following day. (Tr. 33.) m The next day, Atty. Hooks learned from Judge Huffman that the sentence was still going to be two years in prison and that the reason for the sentence was based primarily on Cohen's conduct in the pre-sentence investigation. (Tr. 34.) According to Atty. Hooks, the court was willing, however, to consider Cohen for judicial release if he stayed out of trouble in prison and took reasonable steps to improve himself (Tr. 34.) Atty. Hooks relayed this information to Cohen and Cohen responded that he wanted to withdraw his guilty plea. (Tr. 34-35.) Atty. Hooks informed the court of Cohen's intention and asked the court to appoint new counsel. (Tr. 35.) The court appointed Attorney Christopher Thompson to represent Cohen and set a hearing on Cohen's motion to withdraw his guilty plea for August 29.

{¶7} The trial court held a hearing on Cohen's motion to withdraw his guilty plea on August 29, 2012. Atty. Hooks and Cohen testified. Cohen testified that he only pleaded guilty because Atty. Hooks told him he would be sentenced to probation and would be out of jail in two weeks. (Tr. 52, 59.) Cohen testified that he indicated to Atty. Hooks a willingness to take the case to trial, but that Atty. Hooks still advised him to plead guilty and that he would be out of jail. (Tr. 52.) Atty. Hooks testified that he did not tell Cohen he would be out of jail in two weeks if he pleaded guilty. (Tr. 42-43.) He testified that he told Cohen that it was likely he would be sentenced to probation, but cautioned him that was not guaranteed. (Tr. 42.) The court made the video of the plea colloquy and the pre-sentence investigation a part of the record. (Tr. 67.)

{¶8} On September 6, 2012, the trial court issued a 10-page written decision overruling Cohen's motion to withdraw his guilty plea. The court did not find Cohen's testimony credible and found that his motion was based on nothing more than a change of heart after learning of the two-year sentence.

{¶9} On September 11, 2012, the trial court sentenced Cohen to a two-year term of imprisonment. This appeal followed.

{¶10} Cohen raises two assignments of error on appeal. Because they are substantially interrelated and concern the trial court's decision overruling his motion to withdraw to his guilty plea, they will be addressed together. They state, respectively:


{¶11} The decision whether to grant or deny a defendant's motion to withdraw a guilty plea is within the trial court's discretion. State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992). Abuse of discretion connotes more than an error of law or judgment; it implies that the trial court's attitude is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

{¶12} Crim.R. 32.1 provides: "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."

{¶13} "The rule distinguishes motions to withdraw based on timing-those filed before sentence and those filed after sentence. This is so principally for policy reasons. 'This distinction rests upon practical considerations important to the proper administration of justice. Before sentencing, the inconvenience to court and prosecution resulting from a change of plea is ordinarily slight as compared with the public interest in protecting the right of the accused to trial by jury. But if a plea of guilty could be retracted with ease after sentence, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe.' Kadwell v. U.S. (C.A.9, 1963), 315 F.2d 667, 670; ...

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