State v. Dansby-East ( 2019 )

[Cite as State v. Dansby-East, 2019-Ohio-2218.]
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107418
v. :
CHRISTOPHER R. DANSBY-EAST, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 6, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-17-623203-A and CR-18-626086-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kristen Hatcher, Assistant Prosecuting
Attorney, for appellee.
Jordan & Sidoti, L.L.P., and Mary Catherine Corrigan, for
appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, Christopher Dansby-East, appeals from the
trial court’s judgments finding him guilty of having weapons while under disability,
drug trafficking, drug possession, and vandalism, and sentencing him to five years
in prison. Finding no merit to the appeal, we affirm.
I. Background
In December 2017, Dansby-East was indicted in Cuyahoga C.P. No.
CR-17-623203 with one count of having weapons while under disability, one count
of carrying a concealed weapon, and one count of improperly handling a firearm in
a motor vehicle, all with a gun forfeiture specification. Dansby-East was indicted
after a city of Euclid police officer pulled him over for a window tint violation. Upon
approaching the vehicle, the officer smelled a strong odor of marijuana, and Dansby-
East admitted to the officer that there was a loaded weapon under the driver’s seat
of the car. The police also found marijuana in the console.
Two months later, in February 2018, Dansby-East was indicted in
Cuyahoga C.P. No. CR-18-626086 with two counts of drug trafficking with forfeiture
specifications; one count of drug possession with forfeiture specifications; two
counts of failure to comply with the order or signal of a police officer; and three
counts of vandalism. This indictment arose after a confidential reliable informant
made a controlled drug buy from Dansby-East in a CVS parking lot. When the police
approached his vehicle, Dansby-East tried to elude them by driving away. In the
process, he crashed into two police cruisers and the side of the CVS store.
Dansby-East subsequently entered into a plea agreement with the
state. In Cuyahoga C.P. No. CR-17-623203, he pleaded guilty to having weapons
while under disability with a forfeiture specification; the remaining counts were
nolled. In Cuyahoga C.P. No. CR-18-626086, Dansby-East pleaded guilty to two
counts of drug trafficking with forfeiture specifications; one count of drug
possession with forfeiture specifications; and three counts of vandalism. The
remaining charges were nolled.
At sentencing, the trial court sentenced Dansby-East to three years
incarceration in Cuyahoga C.P. No. CR-17-623203. In Cuyahoga C.P. No. CR-18-
626086, the court sentenced Dansby-East to 12 months incarceration on each of the
drug trafficking counts and six months incarceration on the drug possession
conviction, to be served concurrently; and to 12 months each on the vandalism
convictions, to be served concurrently. The court ordered that the 12-month
sentence on the drug-related offenses be served consecutive to the 12-month
sentence on the vandalism offenses, for a total of two years incarceration. The trial
court also ordered that the two-year sentence in Cuyahoga C.P. No. CR-18-626086
be served consecutive to the three-year sentence in Cuyahoga C.P. No. CR-17-
623203, for an aggregate sentence of five years incarceration. This appeal followed.
II. Law and Analysis
A. Ineffective Assistance of Counsel
In his first assignment of error, Dansby-East contends that he was
denied his constitutional right to effective assistance of counsel.
The defendant has the burden of proving that counsel was ineffective.
State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). “To substantiate a
claim of ineffective assistance of counsel, a defendant must demonstrate that
defense counsel’s performance was seriously flawed and deficient, and that the
result of the trial would have been different had proper representation been
afforded.” State v. Foster, 8th Dist. Cuyahoga No. 93391, 2010-Ohio-3186, ¶ 22,
citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).
A claim for ineffective assistance of counsel is waived by a guilty plea,
however, unless the ineffective assistance caused the guilty plea to be involuntary.
State v. Hudson, 8th Dist. Cuyahoga No. 96435, 2011-Ohio-6272, ¶ 24. To prove a
claim of ineffective assistance of counsel after having pleaded guilty, a defendant
must demonstrate there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial. State v.
Szakacs, 8th Dist. Cuyahoga No. 92230, 2009-Ohio-5480, ¶ 15.
Dansby-East contends that counsel should have advised him that the
evidence against him in Cuyahoga C.P. No. CR-17-623203 (marijuana and a loaded
gun recovered from his car) should have been suppressed. He asserts that if he had
been so advised, he would have insisted on a suppression hearing, at which the
evidence would have been suppressed, thereby eliminating the evidence necessary
for the state’s successful prosecution of its case against him at trial. Accordingly, he
contends that his counsel was ineffective and, as a result, his guilty plea was not
knowingly, voluntarily, and intelligently made.
Dansby-East’s argument is without merit because there is nothing
whatsoever in the record demonstrating that the trial court would have granted a
motion to suppress.
As a general rule, the decision to stop an automobile is reasonable
where the police have probable cause to believe that a traffic violation has occurred.
State v. Bowie, 8th Dist. Cuyahoga No. 88857, 2007-Ohio-4297, ¶ 8, citing Whren
v. United States, 517 U.S. 806, 116 S.Ct. 1769, 136 L.Ed.2d 89 (1996). This court has
repeatedly held that window tint violations provide probable cause for a traffic stop.
See, e.g., State v. Bowie, 8th Dist. Cuyahoga No. 88857, 2007-Ohio-4297, ¶ 9 (police
had probable cause for traffic stop to determine whether car windows were illegally
tinted); State v. Knox, 8th Dist. Cuyahoga Nos. 98713 and 98805, 2013-Ohio-1662(same); Richmond Hts. v. Williams, 8th Dist. Cuyahoga No. 73500, 1998 Ohio App.
LEXIS 5572, *6 (Nov. 15, 1998) (police had probable cause for traffic stop based on
reasonable suspicion of excessive window tinting); Cleveland v. Davis, 8th Dist.
Cuyahoga No. 106780, 2018-Ohio-4706, ¶ 5 (traffic stop for window tint violation
was valid); In re Coleman, 8th Dist. Cuyahoga No. 65459, 1993 Ohio App. LEXIS
6311, *6 (Dec. 30, 1993) (lawful traffic stop for violation of municipal ordinance
prohibiting tinted windows).
At the sentencing hearing in this case, the prosecutor summarized the
facts of the case, explaining that “[t]he defendant was pulled over due to a dark tint
on his windows that the officers suspected might have been outside the bounds
allowed by the law.” (Tr. 24.) There is nothing in the record that contradicts this
statement. Accordingly, it is apparent the police had probable cause to initiate the
traffic stop.
There is also nothing in the record to support Dansby-East’s assertion
that the reason for the stop was pretextual because the police did not ticket him for
the tint violation. In fact, the record does not indicate whether Dansby-East was
cited for the tint violation. Furthermore, the Ohio Supreme Court has made it clear
that a traffic stop will not be deemed pretextual if the officer had specific and
articulable reasons to believe the driver was violating the law. As the Supreme Court
stated in Dayton v. Erickson, 76 Ohio St.3d 3, 11-12, 665 N.E.2d 1091 (1996):
Where an officer has an articulable reasonable suspicion or probable
cause to stop a motorist for any criminal violation, including a minor
traffic violation, the stop is constitutionally valid regardless of the
officer’s underlying subjective intent or motive for stopping the vehicle
in question.
The record in this case demonstrates that the police stopped Dansby-
East for a window tint violation, which is a valid basis upon which to initiate a traffic
stop. Failure to file a motion to suppress is ineffective assistance of counsel only if,
based on the record, the motion would have been granted. State v. Kirk, 8th Dist.
Cuyahoga Nos. 95260 and 95261, 2011-Ohio-1687, ¶ 46. Because the record
demonstrates the police had probable cause to initiate the traffic stop, filing a
motion to suppress would have been an exercise in futility, and counsel was
therefore not ineffective for not filing such a motion.
The first assignment of error is overruled.
B. Consecutive Sentences
In his second assignment of error, Dansby-East contends that the trial
court erred by imposing consecutive sentences. He asserts that the trial court did
not make the required findings under R.C. 2929.14(C)(4) to impose consecutive
sentences, and that, in any event, the record does not support consecutive sentences.
Consecutive sentences may be imposed only if the trial court makes
the required findings pursuant to R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-22. Under the statute, consecutive
sentences may be imposed if the trial court finds that (1) consecutive sentences are
necessary to protect the public from future crime or to punish the offender, and (2)
consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public. In addition, the court
must find that any one of the following applies:
(1) The offender committed one or more of the multiple offenses while
awaiting trial or sentencing, while under a sanction, or while under
postrelease control for a prior offense;
(2) At least two of the multiple offenses were committed as part of one
or more courses of the conduct, and the harm caused by two or more
of the offenses 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; or
(3) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
In order to impose consecutive terms of imprisonment, a trial court
must both make the statutory findings mandated for consecutive sentences under
R.C. 2929.14(C)(4) at the sentencing hearing and incorporate those findings into its
sentencing entry. Bonnell at the syllabus.
Here, in imposing consecutive sentences, the trial court stated:
I think consecutive sentences are necessary to protect the public from
future crime and/or to punish Mr. Dansby-East for his conduct in these
cases. And the consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger imposed or
posed to the public.
* * * Both of these [cases] occurred while on probation to me in a prior
case that I’ve just terminated, and that is a basis for consecutive
sentences. And a good argument could be made that the multiple
offenses are part of more serious and frequent conduct, courses of
conduct, and that the two or more multiple offenses were committed
and was [sic] so great or unusual that a single-sentence prison term for
these offenses as part of the continuing course of conduct does not
adequately reflect the seriousness of his conduct if they were run
concurrent to each other and that they need to be consecutive because
of the seriousness of the conduct.
(Tr. 44-45.)
As reflected by the record, the trial court made the findings required
by R.C. 2929.14(C)(4) to impose consecutive sentences. The court specifically found
that consecutive sentences were necessary to protect the public and punish Dansby-
East, and that consecutive sentences were not disproportionate to the seriousness
of his conduct and the danger he poses to the public. In addition, the trial court
found that Dansby-East had a criminal history and had committed the offenses
while he was on probation. Accordingly, the trial court made the requisite findings.
Dansby-East contends that the trial court’s findings were inadequate,
however, because they applied only to the imposition of consecutive sentences on
the two cases, and not to the consecutive sentences imposed on the separate counts
in Cuyahoga C.P. No. CR-18-626086. However, before addressing the requirements
of R.C. 2929.14(C)(4), the trial court specifically stated that “the same analysis
applies in addition to the different conduct in different cases in [sic] different counts
within the case.” (Tr. 44.) Accordingly, the trial court made clear that its findings
applied to both the consecutive sentences imposed in Cuyahoga C.P. No. CR-18-
626086 and to the consecutive sentences imposed on both cases.
Dansby-East also contends that the trial court’s imposition of
consecutive sentences was deficient because the court did not engage in any
“substantial analysis” when making its findings, and merely repeated the statutory
language of R.C. 2929.14(C)(4). Dansby-East asserts that this court’s decision in
State v. Peak, 8th Dist. Cuyahoga No. 102850, 2015-Ohio-4702, sets forth a
“heightened standard” that requires a trial court to do more than merely make the
findings required by R.C. 2929.14(C)(4) in imposing consecutive sentences; it must
also set forth facts supporting the findings.
Peak does not stand for this proposition. In Peak, this court affirmed
the trial court’s imposition of consecutive sentences, finding that the trial court
made the necessary statutory findings under R.C. 2929.14(C)(4), and that it
supported its findings with specific examples of the defendant’s conduct. Peak did
not hold, however, that trial courts must make findings other than those required by
R.C. 2929.14(C)(4) to impose consecutive sentencing; it simply considered the
statute and concluded that the trial court had made the necessary findings. It did
not create any new or “heightened standard” for a trial court to impose consecutive
sentences.
Last, Dansby-East contends that the trial court erred in imposing
consecutive sentences because the record does not support them. We disagree. The
record reflects that Dansby-East had a criminal record involving drug offenses, and
that probation in those cases had not been effective. In fact, as the trial court found,
Dansby-East committed the offenses in Cuyahoga C.P. No. CR-18-626086 while he
was in intensive outpatient drug treatment provided by the probation department
on another case. Further, as demonstrated by the loaded firearm found in his car,
Dansby-East’s criminal behavior was escalating from minor drug offenses to
weapons offenses. In light of these facts, the trial court’s findings that consecutive
sentences were (1) necessary to protect the public and punish Dansby-East, (2) not
disproportionate to the seriousness of his offenses and the danger he poses to the
public, and (3) committed while he was under a sanction are more than supported
by the record.
Because the trial court did not err in imposing consecutive sentences,
the second assignment of error is overruled.
Judgment 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 of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending 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.
KATHLEEN ANN KEOUGH, JUDGE
PATRICIA ANN BLACKMON, P.J., and
LARRY A. JONES, SR., J., CONCUR