Criminal Appeal from Common Pleas Court Trial Court Case Nos. 2006-CR-5353/1, 2007-CR-0532/2.
MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee.
KEVIN D. BYRD, JR., pro se, Inmate #558-966, Correctional Reception Center, For Defendant-Appellant
CELEBREZZE, JR., J.
(¶1} Defendant-appellant Kevin D. Byrd, Jr. ("appellant"), appeals the decision of the Montgomery County Court of Common Pleas, Criminal Division, overruling his motion to withdraw his guilty plea. After a careful review of the record and relevant case law, we affirm the judgment of the trial court.
I. Factual and Procedural History
(¶2} Appellant was charged with multiple felony offenses in two separate indictments. He subsequently entered negotiated pleas of guilty to three of the offenses charged, and the state dismissed the remaining charges.
(¶3} In Montgomery C.P. No. 2006-CR-5353/1, appellant pled guilty to one count of aggravated robbery in violation of R.C. 2911.01(A), with a firearm specification attached to that felony charge pursuant to R.C. 2941.145. Appellant was sentenced to serve a three-year prison term for the specification offense, to run prior and consecutive to a three-year term for the aggravated robbery offense, for an aggregate term of six years.
(¶4} In Montgomery C.P. No. 2007-CR-0532/2, appellant pled guilty to two counts of aggravated robbery, two counts of kidnapping in violation of R.C. 2905.01, and the firearm specifications attached to each of those felony charges. The court merged the specifications. Appellant was sentenced to serve a three-year sentence for the specification offense, to run prior and consecutive to a four-year sentence for each aggravated robbery offense, and three years for each kidnapping offense, to run concurrently, for an aggregate term of seven years.
(¶5} The aggregate six-year term in 2006-CR-5353/1 and the aggregate seven-year term in 2007-CR-0532/2 were ordered to run consecutively, for a total prison term of 13 years.
(¶6} Appellant appealed, arguing that his plea was not knowingly, intelligently, or voluntarily made because the trial court failed to determine that he understood he was ineligible for judicial release. Appellant also asserted that the state's recommendation of maximum, consecutive sentences breached the plea agreement to not seek a "sentencing enhancement" and to "treat this as one single conviction." On October 24, 2008, this court issued an opinion and final entry affirming the judgment of the trial court. State v. Byrd, 178 Ohio App.3d 646, 2008-Ohio-5515, 899 N.E.2d 1033 (2d Dist.) ("Byrd I ").
(¶7} Several years later, on June 19, 2012, appellant filed a pro se motion to withdraw his guilty pleas pursuant to Crim.R. 32.1. On December 28, 2012, the trial court overruled appellant's motion, stating in relevant part:
Until now, the Defendant has not raised in the trial court the assertion that he was promised a sentence less than his codefendant. Defendant's sentence is significantly less than he could have received. Defendant had prior convictions at the time of sentencing and was on community control supervision.
This case does not present a violation of attorney's duties to a client with respect to a plea bargain. There is nothing in the record prior to now to demonstrate that Defendant's attorney did not advise him of a favorable plea bargain that he rejected. The record demonstrates at the time of the plea here, Defendant did accept the plea bargain. Some counts were dismissed in return for Defendant's plea to others. In fact, a substantial charge of engaging in a pattern of corrupt activity was dismissed. In his appeal, Defendant complained about the State ...