State v. Bastawros

2024 Ohio 2809, 248 N.E.3d 906

• Court: Ohio Court of Appeals
• Decided: July 25, 2024
• Docket: 113348
• Status: Published

Opinion

[Cite as State v. Bastawros, 2024-Ohio-2809.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 113348 v. :

MARCUS BASTAWROS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 25, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-23-679653-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Andrea Isabella, Assistant Prosecuting Attorney, for appellee.

Mary Catherine Corrigan, for appellant.

SEAN C. GALLAGHER, J.:

Marcus Bastawros appeals his guilty plea to attempted drug

possession, a fourth-degree felony offense, and the resulting one-year term of

community-control sanctions. He claims that the trial court demonstrated bias

against him during the pretrial proceeding and imposed an illegal condition of the community-control sanctions imposed on his offense by ordering the sale of real

property he owned. For the following reasons, we affirm.

Around midnight on March 2, 2022, a search warrant was executed

at 11218 Fortune Avenue, located in Cleveland, Ohio. Bastawros owned the

property, which he received through an inheritance eight years earlier. The house is

in a severe state of disrepair and was littered with debris, syringes, and excrement

to the extent that police officers deemed it too dangerous to permit the use of canines

during the search. There were no utilities in service. Despite this, several “tenants”

were living in the attic. Bastawros claimed to have executed a lease agreement with

them. Bastawros was unable to present a lease agreement to substantiate his claim.

A search of the residence revealed an unknown quantity of various

controlled substances. Fifteen people present at the time of the search were

detained, and six of them were arrested, including Bastawros who was at the house

at the time. The search was the culmination of a four-month-long investigation that

stemmed from the discovery of a stolen vehicle parked at the house in November

2021. That vehicle left the house and was stopped by police officers, who detained

Angela Sears. In January 2022, Sears was found dead in the Fortune Avenue house.

Her death was attributed to an overdose. The investigation intensified. The day

before the search warrant was executed, additional evidence of the ongoing illegal

activity was discovered, prompting the search warrant. Bastawros was charged with

one count of third-degree felony trafficking, two counts of fifth-degree felony drug possession, and one count of fifth-degree felony possession of criminal tools

(various items typically used for drug trafficking).

After arraignment, Bastawros was released on a personal bond with

the condition that he be placed under court-supervised release. He failed to comply

with the terms of that release.1 At a scheduled bond hearing on the violation,

Bastawros initially told the court that although he had a history of drug abuse, he

had been sober since 2018 and could be tested that day. Following a short break

during which the court intended to have Bastawros screened, Bastawros returned

with his counsel and admitted to recent drug use. He indicated that he would likely

test positive for marijuana and methamphetamine. Citing his untruthfulness, the

trial court revoked the bond, ordered the bond forfeited, and remanded Bastawros

to the county jail for the duration of the pretrial proceedings. During that hearing,

after being led to believe that Bastawros had recently obtained a Masters in Business

Administration that turned out to have been earned in 2002, the trial court was told

that Bastawros was a licensed certified public accountant set to start work at a firm

a couple of months after the bond hearing. Upon receiving that information, the

court questioned Bastawros’s choice of apparel. He appeared at the hearing wearing

a “Hollister t-shirt.” Bastawros, in response, indicated that he was unaware that the

1 This is a reoccurring theme. Bastawros has failed to comply with the terms of his

community-control sanctions at the time of this appeal. We note that the trial court has issued a capias based on Bastawros’s failure to report to the probation department, which occurred roughly two weeks after the current appeal was filed. court appearance was for the violation hearing. He anticipated just meeting with his

counsel.

A motion to suppress the evidence obtained through the execution of

the search warrant was filed in which Bastawros claimed that the warrant was not

signed and, in the alternative, that the affidavit in support of the warrant was stale

because the investigation took four months, despite culminating with evidence of

illegal activity occurring in the house the day before the warrant was executed.

Shortly before the hearing, Bastawros retracted the argument regarding the

unsigned warrant. The warrant was indeed signed before the search was executed.

At the beginning of the hearing, the court asked for clarification as to

the basis of the motion to suppress, questioning whether Bastawros wanted to

proceed on the sole remaining argument in light of the State’s plea offer dismissing

all but one count amended to a fifth-degree felony, which would have resulted in

Bastawros’s immediate release from pretrial confinement. Tr. 19:1-3. After

conferring with counsel, Bastawros, claimed that the motion to suppress should be

heard on the remaining issue because the affidavit contained some information that

was stale, although it was conceded that there was relevant, recent information

throughout the remainder of the averments. According to Bastawros, the warrant

was invalid because it contained information describing the activity that initially

prompted the police investigation over the four-month span. But see State v.

Morales, 2018-Ohio-3687, ¶ 21 (10th Dist.) (“An affidavit supporting a search

warrant which, viewed in its totality, indicates investigation into an ongoing criminal operation, such as drug trafficking, may support the issuance of a search

warrant even where the information provided in the affidavit is not recent.”), citing

United States v. Ortiz, 143 F.3d 728, 733 (2d Cir. 1998), and United States v.

Martino, 664 F.2d 860, 867 (2d Cir. 1981); United States v. Tucker, 638 F.2d 1292,

1299 (5th Cir. 1981) (“primary consideration in evaluating the staleness issue is

whether the affidavit describes a single transaction or a continuing pattern of

criminal conduct”). The trial court expressly asked whether there was any authority

supporting the proposition that the search warrant was invalid even if it were

presumed to have contained some arguably stale information. Bastawros, through

counsel, responded that there was but did not offer any specific cases.

After reviewing the information contained in the four corners of the

affidavit, including the information regarding the averments pertaining to activity

discovered the day before the search warrant was executed, the court denied the

motion to suppress. Although not expressly referencing it, the trial court’s decision

was supported by the weight of authority throughout Ohio. See, e.g., State v. Young,

37 Ohio St.3d 249, 257 (1988) (three-month-old information was not considered

stale for the purposes of validating the search warranted issued); State v. Milancuk,

2020-Ohio-1607, ¶ 21 (8th Dist.) (concluding that the defendant’s staleness

argument was contrary to established precedent from around the country

establishing that ongoing criminal activity justifies probable-cause determinations even if some of the information in the affidavit is several months old).2 After the

trial court denied the motion to suppress, Bastawros’s counsel asked to be heard on

two additional matters. The trial court denied the request citing the court’s busy

schedule and noting that “you have wasted enough of [the court’s] time this

morning.” Tr. 26:10-12.

On the morning of trial, the State offered another plea deal in which

it agreed to dismiss all but Count 1, then amended to attempted drug possession as

a fourth-degree felony. Bastawros pleaded guilty following a thorough colloquy. At

the sentencing hearing, Bastawros attempted to downplay his involvement in the

drug activity, claiming that he was only present during the midnight search because

he was there to clean up the property, which lacked power at the time, to remedy the

five different housing-code violations issued against him in separate proceedings.

Tr. 38:17-25. In response to Bastawros’s allocution, the court stated that “you

continue to be a Defendant that I don’t trust or particularly like.” Tr. 40:3-8. The

trial court sentenced Bastawros to serve a one-year term of community-control

2 See also State v. Jones, 2020-Ohio-6667, ¶ 23 (3d Dist.) (concluding that even if

the history of the years-long investigation, which was included in the affidavit supporting the warrant, could be deemed stale, a review of the entire affidavit demonstrates a continuing course of drug-trafficking activity justifying the issuance of the warrant); State v. Taylor, 2023 Ohio App. LEXIS 4007 (5th Dist. Nov. 17, 2023) (14-month investigation into drug activity did not render warrant invalid in consideration of the totality of the investigation, which culminated with a drug buy the day before executing the warrant); State v. Shary, 2021-Ohio-3604, ¶ 33 (8th Dist.) (even if the affidavit in support of the warrant contains improper information, the warrant is nonetheless valid if the remainder of the averments establish the requisite probable cause); State v. Prater, 2002-Ohio- 4487, ¶ 10-14 (12th Dist.) (six months transpiring between last drug transactions and the execution of the warrant not deemed to be stale information). sanctions, which included a condition to sell the Fortune Avenue house after

Bastawros indicated he would do so if he was released from jail.

In this appeal, Bastawros advanced two assignments of error. He first

claims that the “trial court was neither neutral nor impartial” and the proceeding

was “riddled with horrific bias and prejudice.” That alleged partiality or bias,

according to Bastawros, led to the illegal condition of requiring the sale of

Bastawros’s house as a condition of the one-year term of community-control

sanctions. In the second assignment of error, Bastawros claims that the condition

included in the community-control sanctions to sell the property is contrary to law

because, according to Bastawros, the sale of the home is not reasonably related to

rehabilitation because his arrest in the house, which contained illegal drugs and was

in such a severe state of dilapidation that several housing code violations had been

assessed, occurred 18 months before the sentencing and, therefore, was too

attenuated to remain an ongoing concern. He further argues that because he

pleaded guilty to attempted drug possession, there is no evidence of illegal activity

occurring inside the building. Those arguments will be addressed in reverse order.

When reviewing specific conditions of community-control sanctions,

courts generally consider “whether the condition (1) is reasonably related to

rehabilitating the offender, (2) has some relationship to the crime of which the

offender was convicted, and (3) relates to the conduct which is criminal or

reasonably related to future criminality and serves the statutory ends of probation”

in determining whether the imposed sanction is permitted. State v. Mahon, 2018- Ohio-295, ¶ 8 (8th Dist.), quoting State v. Talty, 2004-Ohio-4888, ¶ 12, and State

v. Jones, 49 Ohio St.3d 51, 53 (1990). The question in this appeal is whether the trial

court abused its discretion by including the sale of the home as a condition of the

one-year community-control sanction. Id. at ¶ 6, citing State v. Cooper, 2016-Ohio-

8048, ¶ 31 (8th Dist.), and Talty.

During sentencing, Bastawros indicated that his arrest occurred when

he was present at the house and had access to the seized contraband discovered

within the building. Tr. 36:10-14. In addition, he acknowledged that the multiple

housing-court violations he had received on the dilapidated property were “a drain

on the community” and himself and that, “should he be released” from the pretrial

confinement, he intended to sell the property to relieve himself of the burden. Id.

The trial court, in imposing the one year of community-control sanctions, credited

Bastawros for the time served in pretrial confinement and ordered his release from

jail under the community-control supervision with the additional condition that he

sell the dilapidated property prone to being used for illegal purposes.

Bastawros claims that the sale of the home as a condition of the

community-control sanctions is contrary to law because that “cannot possibly relate

to the goals of community control” because (1) the search of the home occurred 18

months before the sentencing and was too attenuated in time to have a reasonable

relationship to the sentencing; (2) his crime was only for attempted drug possession

based on the plea deal; and (3) the sanction is not related to future criminality. Bastawros’s reliance on Mahon, 2018-Ohio-295 (8th Dist.), to

demonstrate reversible error, the only authority cited in support of his argument, is

misplaced. Mahon involved a defendant convicted of unlawful use of a

telecommunications device. That defendant, who was then employed by the

Cleveland Clerk of Court, used his position in the Clerk’s office to surreptitiously

remove court costs imposed on a traffic offense for which he had been convicted. Id.

at ¶ 2. As part of the community-control sanctions imposed as the final sentence,

the defendant was placed on house arrest, monitored through GPS, and was

precluded from consuming alcohol and drugs or attending any place or function

where alcohol or drugs were sold, used, or served. Id. at ¶ 11. Upon review, Mahon

concluded that those conditions of the community-control sanctions imposed were

invalid because they did not bear any relationship to the nonviolent offense nor were

there any allegations that the defendant had a history of alcohol or drug abuse. Id.

Mahon has no bearing on the facts of this case.

The dilapidated property ordered to be sold was at the heart of the

charges brought against Bastawros and was not vague or overbroad. See, e.g.,

Cooper, 2016-Ohio-8048, at ¶ 35 (8th Dist.) (community-control condition of

defendant paying to maintain and clean up hazardous material pending the sale of

the property was related to the criminal conduct). His criminal conduct was enabled

by his continued ownership of the house and because of his permitting drug

trafficking to occur within it by what he claimed were his tenants. We cannot

conclude that the sale of the property in this case was wholly unrelated to past and future criminal conduct or efforts for rehabilitation. See, e.g., State v. Adams, 2013-

Ohio-1603, ¶ 69 (11th Dist.) (forfeiture of the defendant’s real property was justified

in light of the ongoing drug activity that occurred on the property). In light of the

undisputed connection between the property and Bastawros’s continued use of

illegal drugs during the pretrial proceedings, the unmitigated drug-trafficking

activity that took place inside the house for an extended period of time, and

Bastawros’s suggestion that he would sell the property if released from confinement

with time-served, it cannot be concluded that the trial court abused its discretion by

imposing the sale of the property as a condition of the community-control sanctions

regardless of the passage of time between his arrest and the sentencing.

The second assignment of error is overruled.3 Ordering the sale of

Bastawros’s dilapidated drug house as a condition of the community-control

sanctions has not been demonstrated to be an abuse of discretion.

In the first assignment of error, Bastawros claims the trial judge was

biased against him, and therefore, the conviction should be vacated.

“[W]hen a defendant wishes to raise a challenge to a trial judge’s

objectivity, he must utilize the procedure for filing an affidavit of disqualification set

forth in R.C. 2701.03.” State v. Frazier, 2017-Ohio-8307, ¶ 16 (8th Dist.), citing

State v. Casada, 2016-Ohio-2633, ¶ 25 (8th Dist.), and State ex rel. Pratt v.

3 Bastawros included a statement in his second assignment of error that he also

“believes that this sanction was violative of the Fifth Amendment takings clause [sic].” No analysis or authority was provided to support that claim. See App.R. 16(A)(7). We must refrain from providing arguments on behalf of a party. See State v. Quarterman, 2014-Ohio-4034, ¶ 19. Accordingly, that argument is overruled. Weygandt, 164 Ohio St. 463 (1956), paragraph three of the syllabus. In general,

appellate courts have “‘no authority to determine a claim that a trial judge is biased

or prejudiced against a defendant and no authority to void a trial court’s judgment

based on a claim that the trial judge is biased or prejudiced.’” Id., quoting State v.

Williamson, 2016-Ohio-7053, ¶ 27 (8th Dist.).

In State v. Dean, 2015-Ohio-4347, ¶ 223, for example, the defendant

appealed his sentence claiming the trial judge impermissibly predetermined that the

sentence of death would be imposed and that bias required a new sentencing

hearing. Id. at ¶ 222. According to the Ohio Supreme Court, however, the failure to

timely and properly raise allegations of bias within the R.C. 2701.03 framework

precludes the defendant from bringing the complaints for the first time in a direct

appeal. Id., citing State v. Osie, 2014-Ohio-2966, ¶ 65, and State v. Moore, 93 Ohio

St.3d 649, 650 (2001). Thus, it generally stands that “an appellant who fail[s] to file

an affidavit of disqualification [can] not complain on appeal that the judges on the

court below were biased.” Osie at ¶ 64; but see State v. Hunt (In re Thomakos),

2020-Ohio-6874, ¶ 4 (“[a]lleged due-process violations, however, may be addressed

on appeal” when the due-process claims arise from the allegations of judicial bias),

citing State v. Jackson, 2016-Ohio-5488, ¶ 43, and State v. Dean, 2010-Ohio-5070,

¶ 2.

Notwithstanding, the Ohio Supreme Court has also concluded that

some allegations of bias can be reviewed by appellate courts. As the court has

observed, “‘a criminal trial before a biased judge is fundamentally unfair and denies a defendant due process of law.’” Dean, 2010-Ohio-5070, at ¶ 48, quoting State v.

LaMar, 2002-Ohio-2128, ¶ 34, and Rose v. Clark, 478 U.S. 570 (1986). The

defendant’s burden presenting this argument is steep. “‘[O]pinions formed by the

judge on the basis of facts introduced or events occurring in the course of the current

proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality

motion unless they display a deep-seated favoritism or antagonism that would make

fair judgment impossible.’” Id. at ¶ 49, quoting Liteky v. United States, 510 U.S. 540

(1994). Importantly, “‘judicial remarks during the course of a trial that are critical

or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily

do not support a bias or partiality challenge.’” Id., quoting Liteky. Typically, an

offender must demonstrate the bias through linking the impermissible commentary

to the decisions rendered at trial. Id. at ¶ 52. If the offender demonstrates that “the

trial was infected with judicial bias, the remedy is a new trial.” State v. Hough, 2013-

Ohio-1543, ¶ 10 (8th Dist.), citing Dean, 2010-Ohio-5070, at ¶ 2; but see Fisher v.

Fisher, 2011-Ohio-5251, ¶ 43 (8th Dist.), citing Baker v. Ohio Dept. of Rehab. &

Corr., 2001-Ohio-2553 (4th Dist.), and Beer v. Griffith, 54 Ohio St.2d 440, 441-442

(1978) (“Since only the Chief Justice or [their] designee may hear disqualification

matters, [courts of appeals are] without authority to pass upon disqualification or to

void the judgment of the trial court upon that basis.”).

Bastawros identifies three separate comments supporting his claims

of the alleged bias: (1) the trial court commented on Bastawros’s unprofessional

attire when attending a hearing after being told of Bastawros’s alleged profession; (2) the trial court’s characterization of the motion to suppress being a “waste of time”

after conducting a hearing on a limited argument that was not supported with

relevant authority; and (3) the court’s statement at sentencing that Bastawros is “a

Defendant that I don’t trust or particularly like” before imposing the one-year term

of community-control sanctions. Despite two of those instances occurring during

the pretrial proceeding, a time that Bastawros could have invoked R.C. 2701.03 by

filing an affidavit of disqualification with the Ohio Supreme Court, no such filing

occurred.

This panel lacks authority to pass judgment on the questions of

judicial ethics or to conclude that the proceedings are invalid based on the

allegations of bias. Osie, 2014-Ohio-2966, at ¶ 64; see also In re Estate of Wearn,

2023-Ohio-3152, ¶ 15 (8th Dist.) (appellate courts lack jurisdiction to reverse a trial

court’s adjudication based on allegations of bias or violations of the Code of Judicial

Conduct); but see State v. Harris, 2024-Ohio-246, ¶ 27 (8th Dist.) (concluding that

the trial judge’s comments were “harsh, sanctimonious, and at times misguided,”

but the defendant failed to demonstrate prejudice). And, more important,

Bastawros has not demonstrated, let alone argued, that Dean, 2010-Ohio-5070, at

¶ 8, is applicable to his claims. See Wearn at ¶ 20-22 (appellate courts are not

permitted to advocate on behalf of parties when considering arguments that were

not supported by citations to authority and analysis). Bastawros failed to file an

affidavit of disqualification under R.C. 2701.03, and therefore, he cannot complain

that the trial judge was biased as a basis to invalidate his conviction. Osie at ¶ 64. Beyond that, although the trial judge voiced his conclusion with

respect to Bastawros’s credibility in allocution after Bastawros blatantly attempted

to downplay his responsibility for being present when the search warrant was

executed, there is no indication that the court’s statements impacted Bastawros’s

due process rights, much less is it outside the purview of the trial judge to render

credibility determinations with respect to sentencing. The record amply

demonstrates that the trial court intended to give Bastawros a lenient sentence

notwithstanding his demonstrated propensity for untruthfulness and unwillingness

to take responsibility for his criminal behavior. Even if we disregarded the

procedural defect of Bastawros’s failing to invoke R.C. 2701.03, it cannot be

concluded that the identified, but isolated comments deprived him of a fair

proceeding in which he pleaded guilty to a minimal charge and received an

extremely deferential sentence — the one-year term of community-control

sanctions. The first assignment of error is overruled.

Bastawros’s conviction and final sentence are 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 appeal 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.

______________________ SEAN C. GALLAGHER, JUDGE

MARY EILEEN KILBANE, P.J., and ANITA LASTER MAYS, J., CONCUR