State v. Byas

2022 Ohio 1814

• Court: Ohio Court of Appeals
• Decided: May 31, 2022
• Docket: 2021-L-064
• Status: Published

Opinion

[Cite as State v. Byas, 2022-Ohio-1814.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY

STATE OF OHIO, CASE NO. 2021-L-064

Plaintiff-Appellee, Criminal Appeal from the -v- Court of Common Pleas

DE’ONTAY BYAS, Trial Court No. 2020 CR 000013 Defendant-Appellant.

OPINION

Decided: May 31, 2022 Judgment: Affirmed

Charles E. Coulson, Lake County Prosecutor; Kristi L. Winner and Teri R. Daniel, Assistant Prosecutors, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Thomas Rein, 820 Superior Avenue, Suite 800, Cleveland, OH 44113 (For Defendant- Appellant).

MARY JANE TRAPP, J.

{¶1} Appellant, De’Ontay Byas (“Mr. Byas”), appeals from the judgment of the

Lake County Court of Common Pleas, which accepted his guilty plea to attempted failure

to comply with an order or signal of a police officer and sentenced him to serve 12 months

in prison consecutively to a sentence he was already serving.

{¶2} Mr. Byas raises two assignments of error, arguing that his counsel was

ineffective, resulting in an involuntary plea, and that the trial court failed to make

consecutive sentence findings pursuant to R.C. 2929.14(C)(4). {¶3} After a careful review of the record and pertinent law, we find Mr. Byas’

assignments of error to be without merit. Firstly, the record reveals Mr. Byas’ plea was

voluntarily made. Without more than bare allegations, he has failed to demonstrate his

counsel was deficient and that, but for his counsel’s performance, the outcome would be

different. Secondly, a review of the sentencing hearing transcript and the sentencing

judgment entry reveals the trial court made the appropriate R.C. 2929.14(C)(4) findings

when it ordered Mr. Byas to serve his sentence consecutively to the sentence he was

already serving.

{¶4} The judgment of the Lake County Court of Common Pleas is affirmed.

Substantive and Procedural History

{¶5} In January 2020, a Lake County Grand Jury charged Mr. Byas with failure

to comply with an order or signal of a police officer, a third-degree felony, in violation of

R.C. 2921.331(B).

{¶6} Mr. Byas withdrew his not guilty plea at a change of plea hearing and agreed

to plead guilty to the lesser included offense of attempted failure to comply with order or

signal of a police officer, a fourth-degree felony, in violation of R.C. 2923.02 and R.C.

2921.331(B).

{¶7} Prior to accepting Mr. Byas’ plea, the trial court engaged him in a Crim.R.

11 colloquy to ensure that he knew and understood the constitutional rights he was

waiving, the consequences of his guilty plea, the maximum penalty he could receive, and

that he was making the plea voluntarily, knowingly, and intelligently. In doing so, the trial

court informed Mr. Byas that it could impose a consecutive sentence to the prison

Case No. 2021-L-064 sentence he was currently serving and that his driver’s license could be suspended for

three years to life.

{¶8} The prosecutor stated the following factual basis for the charge for the

record: On September 7, 2019, shortly before 10:00 p.m., a Mentor Police Department

Officer was watching traffic when he observed a black Buick Regal going southbound on

Reynolds Road in Mentor, Ohio. He could see the driver was a young, black male. The

officer pulled out behind the vehicle and observed the driver fail to use his turn signal until

he was well into the intersection. The officer was about to conduct a traffic stop when he

became trapped behind some traffic. When he was able to get back behind the vehicle,

the officer turned on his lights. The vehicle did not attempt to slow or stop; rather, it sped

up as if fleeing the officer. The vehicle went through a red light, and the officer continued

to follow him. The vehicle’s speed approached 60 mph in a 25 mph zone. There was

moderate traffic. Based on safety concerns, the officer stopped any pursuit. He radioed

the direction of travel, observing the vehicle turn westbound on Rt. 2. He was able to get

the license plate number and discovered the name of the owner of the vehicle, who lived

in Heatherstone Apartments in Mentor, Ohio. As he was driving to the owner’s apartment,

he heard from dispatch that the Wickliffe Police Department had observed the vehicle

going westbound on Rt. 2 at over 100 mph. They did not pursue.

{¶9} The owner of the vehicle advised that an individual with whom he worked

had asked if a cousin could borrow the vehicle. After receiving a message from Mr. Byas

with a picture of his driver’s license, the owner let Mr. Byas borrow his vehicle. The officer

ran the picture of Mr. Byas’ license through LEADS (Law Enforcement Automated Data

System), saw Mr. Byas’ BMV photo, and recognized that he had dealt with Mr. Byas

Case No. 2021-L-064 before and that Mr. Byas was the driver of the vehicle he was following. Based on this, a

warrant was issued and, eventually, Mr. Byas was arrested.

{¶10} Mr. Byas confirmed the facts were true for the court and admitted that when

the officer attempted to stop him, he fled. He disputed how fast he was driving, however,

and told the court he was driving 30-40 mph in the city and 60 mph on the freeway.

{¶11} The court asked Mr. Byas if he operated the vehicle in such a way as to

create a substantial risk of physical harm either to persons or to property, to which Mr.

Byas affirmatively answered, “Yeah.”

{¶12} Mr. Byas pleaded guilty to the lesser included offense of attempted failure

to comply with the order or signal of a police officer, a fourth-degree felony, and signed a

written plea of guilty. The court accepted Mr. Byas’ written plea of guilty.

{¶13} Mr. Byas waived his right to a presentence report, and the case proceeded

to sentencing. Defense counsel and Mr. Byas spoke on his behalf, urging the court to

consider a six-month sentence concurrent to the sentence he was currently serving in

Cuyahoga County. The state argued that Mr. Byas should receive a harsher sentence

since he had created a danger to the public and himself; he had an extensive criminal

history; and he was on probation when he committed the offense.

{¶14} After the court considered all of the statutory factors pursuant to R.C.

2929.11, R.C. 2929.12, and R.C. 2929.13 and the fact that Mr. Byas was currently serving

a sentence, he found Mr. Byas unamenable to community control and sentenced him to

a 12-month prison sentence. The court ordered the sentence to be served consecutively

to the sentence he was already serving, stating that “consecutive sentences are

necessary to protect the public from future crime by you and to punish you and that the

Case No. 2021-L-064 consecutive sentence is not disproportionate to the seriousness of your conduct and the

danger you posed to the public. And your history of criminal conduct indicates that

consecutive sentences are necessary to protect the public.” The court also ordered a

mandatory driver’s license suspension of three years and informed Mr. Byas of post-

release control.

{¶15} Relevant to this appeal, the sentencing judgment entry states that

“[p]ursuant to R.C. 2929.14(C)(4) and R.C. 2929.19(B)(2)(b), the Court finds for the

reasons stated on the record that consecutive sentences are necessary to protect the

public from future crime or to punish the Defendant and are not disproportionate to the

Defendant’s conduct and the danger the Defendant poses to the public; and the

Defendant’s history of criminal conduct demonstrates that consecutive sentences are

necessary to protect the public from future crime by the Defendant.”

{¶16} Mr. Byas, pro se, filed a notice of appeal with an attached “brief.” We

construe from his list of “possible issues” that he is raising an ineffective assistance of

counsel claim that rendered his guilty plea involuntary. We subsequently appointed

counsel to file a supplemental brief and granted the state additional time to file a

supplemental answer brief. Thus, in addition to Mr. Byas’ pro se ineffective assistance of

counsel claim, he also assigns the following error:

{¶17} “The trial court erred by ordering Appellant to serve a consecutive sentence

without making the appropriate findings required by R.C. 2929.14 and HB 86.”

Ineffective Assistance of Counsel

{¶18} “To obtain a reversal of a conviction on the basis of ineffective assistance

of counsel, the defendant must prove (1) that counsel’s performance fell below an

Case No. 2021-L-064 objective standard of reasonableness, and (2) that counsel’s deficient performance

prejudiced 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); see

Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶19} According to the Supreme Court of the United States, “a guilty plea

represents a break in the chain of events which has preceded it in the criminal process.

When a criminal defendant has solemnly admitted in open court that he is in fact guilty of

the offense with which he is charged, he may not thereafter raise independent claims

relating to the deprivation of constitutional rights that occurred prior to the entry of the

guilty plea. He may only attack the voluntary and intelligent character of the guilty plea

by showing that the advice he received from counsel was not within the standards set

forth in McMann [v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)].”

Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); see State

v. Spates, 64 Ohio St.3d 269, 271-273, 595 N.E.2d 351 (1992) (applying this holding).

{¶20} Thus, this court has held that “[a] plea of guilty waives the right to appeal

issues of counsel’s purported ineffectiveness, unless the alleged ineffective assistance

caused the guilty plea to be involuntary.” State v. Muhammad, 11th Dist. Geauga No.

2014-G-3182, 2014-Ohio-5771, ¶ 41.

{¶21} As our review of the change of plea hearing and Mr. Byas’ written plea of

guilty reveals, the record demonstrates he voluntarily pleaded guilty. Mr. Byas

understood the charges against him, including the lesser offense to which he was

pleading guilty, and the potential sentence, which carried the possibility of a consecutive

sentence and a mandatory driver’s license suspension. He was 22 years old and not

Case No. 2021-L-064 under the influence of drugs or alcohol. When asked by the trial court whether he had

been “threatened, coerced, or tricked in any way to plead guilty,” he responded, “No, sir.”

He also affirmed he was satisfied with the representation of his counsel.

{¶22} Further, after the trial court engaged him in a Crim.R. 11 colloquy, he waived

his trial rights. In addition, he received the benefit of his bargain and was convicted of

the lesser included offense of attempted failure to comply with an order of signal of a

police officer, which is a fourth-degree felony, instead of a third-degree felony, and carries

a lesser sentence.

{¶23} Mr. Byas lists as “possible issues” under his ineffective assistance of

counsel claim that: his counsel threatened to withdraw from the case, “pressed plea to

cover up poor preparation”, failed to disclose the elements of the crime, failed to prepare

a defense, and misstated concurrent sentencing.

{¶24} Initially and most fundamentally, allegations that are not based on evidence

in the record are improperly raised in a direct appeal. State v. Johnson, 11th Dist. Geauga

No. 2016-G-0093, 2017-Ohio-2931, ¶ 9. Instead, allegations based on evidence outside

the record must be brought in a proceeding for postconviction relief. Id.

{¶25} Further, the record of Mr. Byas’ change of plea hearing undermines his

claims of ineffective assistance of counsel because the trial court ensured Mr. Byas

understood the effects of a guilty plea, explained the elements of the crime (to which Mr.

Byas admitted the underlying facts), and explained concurrent versus consecutive

sentencing. See State v. Talley, 11th Dist. Lake Nos. 2017-L-143 and 2017-L-144, 2018-

Ohio-5065, ¶ 40.

Case No. 2021-L-064 {¶26} Moreover, Mr. Byas answered affirmatively that he was satisfied with his

representation. Without more than bare allegations, he has failed to demonstrate that his

counsel was deficient and that, but for his counsel’s performance, the outcome would be

different. “‘A naked allegation by a defendant of a guilty plea inducement, is insufficient

to support a claim of ineffective assistance of counsel, and would not be upheld on appeal

unless it is supported by affidavits or other supporting materials, substantial enough to

rebut the record which shows that his plea was voluntary.’” State v. Strong, 11th Dist.

Ashtabula No. 2013-A-0003, 2013-Ohio-5189, ¶ 22, quoting State v. Malesky, 8th Dist.

Cuyahoga No. 61290, 1992 WL 209589, *2 (Aug. 27, 1992).

{¶27} Mr. Byas’ first assignment of error is without merit.

Consecutive Sentences

{¶28} In his second assignment of error, Mr. Byas contends the trial court erred

by ordering consecutive sentences without making the required findings pursuant to R.C.

2929.14.

{¶29} The standard of review for felony sentences is governed by R.C.

2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

¶ 16. That provision states:

{¶30} “The court hearing an appeal under division (A), (B), or (C) of this section

shall review the record, including the findings underlying the sentence or modification

given by the sentencing court.

{¶31} “The appellate court may increase, reduce, or otherwise modify a sentence

that is appealed under this section or may vacate the sentence and remand the matter to

the sentencing court for resentencing. The appellate court’s standard of review is not

Case No. 2021-L-064 whether the sentencing court abused its discretion. The appellate court may take any

action authorized by this division if it clearly and convincingly finds either of the following:

{¶32} “(a) That the record does not support the sentencing court’s findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or

division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

{¶33} “(b) That the sentence is otherwise contrary to law.”

{¶34} “Pursuant to R.C. 2929.14(C)(4), separate prison terms for multiple

offenses may be ordered to be served consecutively if the court finds it 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,’ and if the court also finds any of the factors

in R.C. 2929.14(C)(4)(a)-(c) are present. Those factors include the following:

{¶35} “(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.

{¶36} “(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.

Case No. 2021-L-064 {¶37} “(c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.

{¶38} “[T]o impose consecutive terms of imprisonment a trial court is required to

make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and

incorporate its findings into its sentencing entry.” (Emphasis sic). State v. Ferrell, 11th

Dist. No. 2017-P-0069, 2019-Ohio-836, ¶ 37-38, citing State v. Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, ¶ 37, citing R.C. 2929.14(C)(4).

{¶39} As our review of the sentencing hearing and sentencing judgment entry

indicates, the trial court made all of the findings required by R.C. 2929.14(C)(4). Thus,

pursuant to R.C. 2929.14(C), the trial court found that consecutive sentences were

“necessary to protect the public from future crime or to punish the defendant and are not

disproportionate to the Defendant’s conduct and the danger the Defendant poses to the

public.” R.C. 2929.14(C)(4). Lastly, the trial court found that factor R.C. 2929.14(C)(4)(c)

was present, i.e., “the Defendant’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

Defendant.”

{¶40} Mr. Byas’ second assignment of error is without merit.

{¶41} The judgment of the Lake County Court of Common Pleas is affirmed.

THOMAS R. WRIGHT, P.J.,

MATT LYNCH, J.,

concur.

Case No. 2021-L-064