[Cite as State v. Byrd, 2022-Ohio-1364.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
MADISON COUNTY
STATE OF OHIO, : CASE NO. CA2021-07-011
Appellee, : OPINION 4/25/2022 : - vs - :
ANTHONY B. BYRD, :
Appellant. :
CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS Case No. CRI20210002
Nicholas A. Adkins, Madison County Prosecuting Attorney, and Rachel M. Price and Michael S. Klamo, Assistant Prosecuting Attorneys, for appellee.
Shannon M. Treynor, for appellant.
M. POWELL, P.J.
{¶ 1} Appellant, Anthony Byrd, appeals his conviction in the Madison County Court
of Common Pleas for cocaine possession and having weapons while under disability.
{¶ 2} Appellant was indicted in February 2021 on two counts of having weapons
while under disability, two counts of improperly handling a firearm in a motor vehicle, and
one count of cocaine possession. The charges stemmed from the discovery of a loaded Madison CA2021-07-011
handgun on the passenger floor of appellant's vehicle and a bag of cocaine on appellant's
person during a traffic stop. Appellant had a prior felony conviction which disqualified him
from possessing a firearm. Appellant claimed the handgun belonged to a friend who had
left it in the car; however, a search of appellant's vehicle’s trunk yielded a 50-count box of
ammunition for the handgun, less the five rounds already in the handgun.
{¶ 3} Counsel was appointed to represent appellant. During a formal pretrial
hearing on May 7, 2021, trial counsel moved to continue the matter, explaining that
appellant was unable to decide on a plea offered by the state because he had lost contact
with trial counsel and the two of them were only recently "able to begin speaking again."
The trial court declined to continue the matter. Appellant did not take the plea deal and the
plea offer remained open. The matter proceeded to a jury trial on May 18, 2021.
{¶ 4} On the morning of the trial, appellant had a change of heart regarding the plea
offer; the matter proceeded to a plea hearing. The trial court asked appellant if he had read
and discussed the written waiver and plea form with trial counsel prior to signing it.
Appellant replied affirmatively. Appellant further stated he understood the written terms of
the plea agreement and that trial counsel had answered his questions. When asked
whether he was satisfied with trial counsel's representation, appellant replied, "I can't say
that I am because we never really got a chance to communicate like we could have in
preparation for the case." In response to the trial court's probe, trial counsel explained that
I had this case at preliminary hearing across the street. * * * We actually had a fair amount of contact before I was appointed to the case up here, and right when I was appointed to the case up here, unfortunately, me and Mr. Byrd substantially lost contact with each other.
From that point till the final pretrial, since the final pretrial, we've only been able to have a couple shorter phone calls. But that's been a few in the last few days, and then we had a brief opportunity to speak more in depth this morning. We got to speak for a few minutes at the final pretrial, but we've not been
-2- Madison CA2021-07-011
able to have any kind of sit-down meeting. Certainly some of our phone calls lasted – could have lasted as long as they needed to.
I agree we may not have the same level of contact as I would like in a case, but I think we've had enough to adequately prepare for trial here today or reach the conclusion that we are reaching here today.
{¶ 5} In response to whether trial counsel's foregoing statements were an accurate
representation of appellant's communication with trial counsel, appellant talked about his
mental health records and diagnoses. After explaining trial counsel's multiple roles in
representing appellant, the trial court asked appellant whether he and trial counsel had
discussed his chances of prevailing at trial. Appellant replied, "Yes." Appellant then
informed the trial court he was satisfied with trial counsel's representation except for
concerns about his mental health history and records and whether trial counsel had
obtained the records, reviewed them, and would submit them for sentencing mitigation
purposes. The record shows the trial court engaged in a lengthy inquiry with appellant to
ensure he was making a knowing, intelligent, and voluntary plea. Following a Crim.R. 11
colloquy, appellant pled guilty to one count of having weapons while under disability and
one count of cocaine possession. The remaining counts were dismissed.
{¶ 6} On June 18, 2021, a sentencing hearing was conducted. The record indicates
that trial counsel obtained appellant's mental health records and presented them to the trial
court prior to sentencing or for inclusion in the presentence-investigative report. The trial
court sentenced appellant to an aggregate 18-month prison sentence.
{¶ 7} Appellant now appeals his conviction, raising one assignment of error:
{¶ 8} THE DEFENDANT/APPELLANT WAS DENIED EFFECTIVE ASSISTANCE
OF COUNSEL.
{¶ 9} Appellant argues he was denied the effective assistance of counsel because
-3- Madison CA2021-07-011
trial counsel lost contact with appellant prior to the May 7, 2021 formal pretrial hearing,
"thereby depriving [appellant] of a requisite level of comfort with the plea offer that was
being made."
{¶ 10} A defendant who pleads guilty waives the right to claim ineffective assistance
of counsel, except to the extent that counsel's deficient performance caused the plea to be
less than knowing and voluntary. State v. Moxley, 12th Dist. Madison No. CA2011-06-010,
2012-Ohio-2572, ¶ 18.
{¶ 11} To prevail on a claim for ineffective assistance of counsel, a defendant must
show that trial counsel's performance was deficient, that is, that the performance fell below
an objective standard of reasonableness, and that the defendant was prejudiced as a result.
Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052 (1984). In the
context of a guilty plea, the "prejudice" requirement focuses on whether counsel's
constitutionally ineffective performance affected the outcome of the plea process. Hill v.
Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366 (1985). In other words, to show prejudice, the
defendant must demonstrate there is a reasonable probability that, but for his counsel's
errors, he would not have pled guilty and would have insisted on going to trial. Moxley at ¶
20; Lee v. United States, _U.S._, 137 S.Ct. 1958, 1965 (2017). The failure to satisfy either
prong of the Strickland test is fatal to an ineffective assistance of counsel claim. State v.
Petit, 12th Dist. Madison No. CA2016-01-005, 2017-Ohio-633, ¶ 39.
{¶ 12} Appellant does not allege that had trial counsel better communicated and
conferred more with him regarding the plea offer, he would not have accepted the plea and
would have insisted on going to trial. Rather, appellant's sole complaint relates to his mental
health history and records. That is, in the conclusion section of his brief, appellant asserts
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[Cite as State v. Byrd, 2022-Ohio-1364.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
MADISON COUNTY
STATE OF OHIO, : CASE NO. CA2021-07-011
Appellee, : OPINION 4/25/2022 : - vs - :
ANTHONY B. BYRD, :
Appellant. :
CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS Case No. CRI20210002
Nicholas A. Adkins, Madison County Prosecuting Attorney, and Rachel M. Price and Michael S. Klamo, Assistant Prosecuting Attorneys, for appellee.
Shannon M. Treynor, for appellant.
M. POWELL, P.J.
{¶ 1} Appellant, Anthony Byrd, appeals his conviction in the Madison County Court
of Common Pleas for cocaine possession and having weapons while under disability.
{¶ 2} Appellant was indicted in February 2021 on two counts of having weapons
while under disability, two counts of improperly handling a firearm in a motor vehicle, and
one count of cocaine possession. The charges stemmed from the discovery of a loaded Madison CA2021-07-011
handgun on the passenger floor of appellant's vehicle and a bag of cocaine on appellant's
person during a traffic stop. Appellant had a prior felony conviction which disqualified him
from possessing a firearm. Appellant claimed the handgun belonged to a friend who had
left it in the car; however, a search of appellant's vehicle’s trunk yielded a 50-count box of
ammunition for the handgun, less the five rounds already in the handgun.
{¶ 3} Counsel was appointed to represent appellant. During a formal pretrial
hearing on May 7, 2021, trial counsel moved to continue the matter, explaining that
appellant was unable to decide on a plea offered by the state because he had lost contact
with trial counsel and the two of them were only recently "able to begin speaking again."
The trial court declined to continue the matter. Appellant did not take the plea deal and the
plea offer remained open. The matter proceeded to a jury trial on May 18, 2021.
{¶ 4} On the morning of the trial, appellant had a change of heart regarding the plea
offer; the matter proceeded to a plea hearing. The trial court asked appellant if he had read
and discussed the written waiver and plea form with trial counsel prior to signing it.
Appellant replied affirmatively. Appellant further stated he understood the written terms of
the plea agreement and that trial counsel had answered his questions. When asked
whether he was satisfied with trial counsel's representation, appellant replied, "I can't say
that I am because we never really got a chance to communicate like we could have in
preparation for the case." In response to the trial court's probe, trial counsel explained that
I had this case at preliminary hearing across the street. * * * We actually had a fair amount of contact before I was appointed to the case up here, and right when I was appointed to the case up here, unfortunately, me and Mr. Byrd substantially lost contact with each other.
From that point till the final pretrial, since the final pretrial, we've only been able to have a couple shorter phone calls. But that's been a few in the last few days, and then we had a brief opportunity to speak more in depth this morning. We got to speak for a few minutes at the final pretrial, but we've not been
-2- Madison CA2021-07-011
able to have any kind of sit-down meeting. Certainly some of our phone calls lasted – could have lasted as long as they needed to.
I agree we may not have the same level of contact as I would like in a case, but I think we've had enough to adequately prepare for trial here today or reach the conclusion that we are reaching here today.
{¶ 5} In response to whether trial counsel's foregoing statements were an accurate
representation of appellant's communication with trial counsel, appellant talked about his
mental health records and diagnoses. After explaining trial counsel's multiple roles in
representing appellant, the trial court asked appellant whether he and trial counsel had
discussed his chances of prevailing at trial. Appellant replied, "Yes." Appellant then
informed the trial court he was satisfied with trial counsel's representation except for
concerns about his mental health history and records and whether trial counsel had
obtained the records, reviewed them, and would submit them for sentencing mitigation
purposes. The record shows the trial court engaged in a lengthy inquiry with appellant to
ensure he was making a knowing, intelligent, and voluntary plea. Following a Crim.R. 11
colloquy, appellant pled guilty to one count of having weapons while under disability and
one count of cocaine possession. The remaining counts were dismissed.
{¶ 6} On June 18, 2021, a sentencing hearing was conducted. The record indicates
that trial counsel obtained appellant's mental health records and presented them to the trial
court prior to sentencing or for inclusion in the presentence-investigative report. The trial
court sentenced appellant to an aggregate 18-month prison sentence.
{¶ 7} Appellant now appeals his conviction, raising one assignment of error:
{¶ 8} THE DEFENDANT/APPELLANT WAS DENIED EFFECTIVE ASSISTANCE
OF COUNSEL.
{¶ 9} Appellant argues he was denied the effective assistance of counsel because
-3- Madison CA2021-07-011
trial counsel lost contact with appellant prior to the May 7, 2021 formal pretrial hearing,
"thereby depriving [appellant] of a requisite level of comfort with the plea offer that was
being made."
{¶ 10} A defendant who pleads guilty waives the right to claim ineffective assistance
of counsel, except to the extent that counsel's deficient performance caused the plea to be
less than knowing and voluntary. State v. Moxley, 12th Dist. Madison No. CA2011-06-010,
2012-Ohio-2572, ¶ 18.
{¶ 11} To prevail on a claim for ineffective assistance of counsel, a defendant must
show that trial counsel's performance was deficient, that is, that the performance fell below
an objective standard of reasonableness, and that the defendant was prejudiced as a result.
Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052 (1984). In the
context of a guilty plea, the "prejudice" requirement focuses on whether counsel's
constitutionally ineffective performance affected the outcome of the plea process. Hill v.
Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366 (1985). In other words, to show prejudice, the
defendant must demonstrate there is a reasonable probability that, but for his counsel's
errors, he would not have pled guilty and would have insisted on going to trial. Moxley at ¶
20; Lee v. United States, _U.S._, 137 S.Ct. 1958, 1965 (2017). The failure to satisfy either
prong of the Strickland test is fatal to an ineffective assistance of counsel claim. State v.
Petit, 12th Dist. Madison No. CA2016-01-005, 2017-Ohio-633, ¶ 39.
{¶ 12} Appellant does not allege that had trial counsel better communicated and
conferred more with him regarding the plea offer, he would not have accepted the plea and
would have insisted on going to trial. Rather, appellant's sole complaint relates to his mental
health history and records. That is, in the conclusion section of his brief, appellant asserts
he "was granted ample opportunity to gather and present mitigating evidence of his mental
defects" only after he "was forced into accepting a plea deal after a jury was called in to
-4- Madison CA2021-07-011
serve."
{¶ 13} While trial counsel lost contact with appellant prior to the May 7, 2021 formal
pretrial hearing, appellant did not take the plea on that day and the plea offer remained
open. On May 18, 2021, the day the jury trial was scheduled, appellant pled guilty to
cocaine possession and having weapons while under disability instead of going to trial on
those charges and three other charges. The record reflects that during the 11-day period
between May 7 and May 18, appellant was able to communicate with trial counsel via phone
calls. Moreover, appellant was able to speak more in depth with trial counsel on the morning
of May 18, 2021, before he pled guilty. Appellant admitted he and trial counsel had
discussed his chances of prevailing at trial. Appellant further admitted he was satisfied with
trial counsel's representation, except for concerns regarding whether counsel would submit
appellant's mental health records at sentencing for mitigation purposes. Appellant does not
argue there was a realistic likelihood he would have been acquitted had he been tried by a
jury and the record does not suggest otherwise. Though brief, the extent of appellant's
communication with trial counsel was adequate as to the two counts to which he pled guilty.
{¶ 14} The content of appellant's communications with trial counsel is not detailed in
the record. Appellant does not identify what advice trial counsel provided or failed to provide
which resulted in a guilty plea that was not made knowingly, intelligently, or voluntarily.
Appellant also fails to identify any consequences of pleading guilty of which he was unaware
which would have been critical to his decision to plead or go to trial. To the extent
appellant's claim regarding lack of communication relies on evidence outside the record,
the claim is more properly raised in a petition for postconviction relief. State v. Keister, 2d
Dist. Montgomery No. 29081, 2022-Ohio-856, ¶ 76.
{¶ 15} As stated above, appellant's sole complaint relates to his mental health history
and records. Appellant does not argue that his mental health history and records raise a
-5- Madison CA2021-07-011
defense to the offenses. Appellant's characterization of this evidence as "mitigating"
indicates it was not relevant to the guilt phase of the proceedings. Certainly, such evidence
was not relevant to the cocaine possession and having weapons while under disability
charges to which appellant pled guilty and had no bearing on whether appellant would have
been better off going to trial. Appellant does not explain how the evidence was connected
to or impacted his understanding of the consequences of pleading guilty. Rather, the
evidence was relevant to sentencing. However, appellant does not argue trial counsel was
ineffective during sentencing.
{¶ 16} In light of the foregoing, we find that appellant failed to demonstrate that trial
counsel's performance was deficient and that but for this deficiency, he would not have pled
guilty and would have insisted on going to trial.
{¶ 17} Appellant's assignment of error is overruled.
{¶ 18} Judgment affirmed.
S. POWELL and BYRNE, JJ., concur.
-6-