[Cite as State v. Lyles, 2012-Ohio-3362.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 97524 

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

TRAVEN LYLES

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED IN PART 

AND REVERSED IN PART 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-553239 

BEFORE: E. Gallagher, J., Celebrezze, P.J., and Rocco, J. 

RELEASED AND JOURNALIZED: July 26, 2012 

 
ATTORNEY FOR APPELLANT

Erin R. Flanagan 

Erin R. Flanagan, Esq., Ltd. 

75 Public Square 

Suite 920 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Mary H. McGrath 

Assistant County Prosecutor 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
EILEEN A. GALLAGHER, J.: 

{¶1} Traven Lyles appeals from his sentence received in the Cuyahoga County 

Court of Common Pleas. Lyles argues the trial court erred in its interpretation of 

“organized criminal activity” as contained in R.C. 2929.13(B)(2)(e), and in using 

sentencing factors to increase his statutory maximum penalty. For the following 

reasons, we affirm, in part, and reverse, in part, the decision of the trial court. 

{¶2} On August 11, 2011, the Cuyahoga County Grand Jury indicted Lyles on 

two counts of drug trafficking, both felonies of the fifth degree; one count of drug 

possession, a felony of the fifth degree; one count of possession of criminal tools, a 

felony of the fifth degree; and one count of resisting arrest, a misdemeanor of the second 

degree. Each felony count contained a forfeiture specification detailing the $80 

recovered at the time of Lyles’s arrest. On August 31, 2011, Lyles pleaded guilty to 

trafficking with the forfeiture specification and resisting arrest as charged in Counts 1 

and 5 of the indictment. The trial court dismissed the remaining three charges. 

{¶3} On October 6, 2011, the court conducted Lyles’s sentencing hearing. 

During the hearing, the trial court referenced the newly enacted Ohio House Bill 86, 

which included changes to Ohio’s sentencing statutes. In particular, the court recited 

the revamped purpose of Ohio’s sentencing law as “punish[ing] the offender and 

protect[ing] the public from future crime by the offender and others, using the minimum 

sanctions that the court determines accomplishes the purposes without imposing an 
unnecessary burden on state and local government resources.” The trial court then 

considered the list of nine R.C. 2929.12(B) factors that indicate that the offender’s 

conduct is more serious than conduct normally constituting the offense. The court 

determined that R.C. 2929.12(B)(7) applied because it found that Lyles committed this 

offense as part of an organized criminal activity. 

{¶4} The court then conducted the balancing analysis required under R.C. 

2929.12(D) and (E) whereby the court looks at the factors indicating whether the 

offender is likely or not likely to commit future crimes. Under R.C. 2929.12(D), the 

court noted that two factors indicating a likelihood of recidivism existed: (D)(1) that 

Lyles committed this offense while on postrelease control and (D)(2) that Lyles had 

juvenile adjudications, prior convictions that resulted in prison sentences and violations 

of previously imposed community control sanctions. In accordance with R.C. 

2929.12(E), the trial court determined one specific factor demonstrating that Lyles was 

unlikely to reoffend: (E)(5) he admitted his involvement in the crime. Additionally, the 

court acknowledged that Lyles tested negative for drugs, that he was interested in 

acquiring his GED, that he had an employment history and that he supported his three 

children. 

{¶5} Lastly, the trial court found that the required imposition of community 

control sanctions for fifth-degree felonies as outlined in R.C. 2929.13(B)(1) did not 

apply because it found that Lyles committed the offense as part of an organized criminal 

activity. R.C. 2929.13(B)(2)(e). Nonetheless, the trial court determined that Lyles was 
eligible for Cuyahoga County’s local residential sanction pursuant to R.C. 2929.16(A)(2) 

and sentenced him to three months in the county jail on Count One. As to Count 5, the 

second-degree misdemeanor, the court sentenced Lyles to 90 days in the county jail, to 

run concurrent to the three-month sentence. 

{¶6} It is from this sentence that Lyles appeals, raising the two assigned errors 

contained in the appendix to this opinion. 

{¶7} In his first assignment of error, Lyles argues the trial court erred in finding 

that he committed a trafficking offense as part of “organized criminal activity.” In his 

second assigned error, Lyles claims the trial court erred in using a sentencing factor 

unsupported by the underlying indictment and guilty plea to increase his statutory 

maximum penalty.1

 Because these two assignments of error involve the same facts and 

standard of review, they will be addressed contemporaneously. 

{¶8} An appellate court must conduct a meaningful review of the trial court’s 

sentencing decision. State v. Hites, 3d Dist. No. 6-11-07, 2012-Ohio-1892, ¶ 7. 

Specifically, R.C. 2953.08(G)(2) provides the following regarding an appellate court’s 

review of a sentence on appeal: 

The court hearing an appeal * * * shall review the record, including the 

findings underlying the sentence or modification given by the sentencing 

court. 

The appellate court may increase, reduce, or otherwise modify a sentence 

 1

Lyles’s appeal focuses solely on his sentence for his felony offense of trafficking. Lyles 

does not raise any error with the trial court’s sentence on his misdemeanor conviction. As such, we 

shall limit our discussion on appeal to Lyles’s sentence for trafficking, a fifth-degree felony. 
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 for review is not 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: 

(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; 

(b) That the sentence is otherwise contrary to law. 

{¶9} Additionally, a sentence imposed for a felony shall be reasonably 

calculated to achieve the two overriding purposes of felony sentencing: (1) “to protect 

the public from future crime by the offender and others,” and (2) “to punish the offender 

using the minimum sanctions that the court determines accomplish those purposes.” 

R.C. 2929.11(A). The sentence imposed shall also “be commensurate with and not 

demeaning to the seriousness of the offender’s conduct and its impact upon the victim, 

and consistent with sentences imposed for similar crimes committed by similar 

offenders.” R.C. 2929.11(B). 

{¶10} As noted above, the General Assembly, through the enactment of 

Am.Sub.H.B. No. 86, recently amended Ohio’s sentencing statutes. Because 

Am.Sub.H.B. No. 86 took effect on September 30, 2011 and the trial court sentenced 

Lyles on October 6, 2011, the trial court was required to sentence Lyles under the new 

provisions. Pertinent to this appeal, the revisions under Am.Sub.H.B. No. 86 now 

instruct the trial court to sentence the offender to a community control sanction for fourth 
and fifth degree felonies if certain factors apply. See R.C. 2929.13(B)(1). However, if 

the court determines that any one of the nine factors provided under R.C. 

2929.13(B)(2)(a)-(i) apply, and after considering the factors set forth in R.C. 2929.11 

and 2929.12, the trial court finds the offender not amenable to an available community 

control sanction, the court shall impose a prison term upon the offender. The trial court 

made such a conclusion in the present case and sentenced Lyles to three months in the 

county jail. 

{¶11} Lyles argues the trial court erred in applying the term “organized criminal 

activity” to the facts of his case, and that the trial court erred in using that factor to 

increase Lyles’s statutory maximum penalty. We partially agree with Lyles’s 

arguments. 

{¶12} Primarily, in claiming the trial court erred in its interpretation of 

“organized criminal activity,” Lyles transfers a statutory definition found in R.C. 177.01 

to Title 29. However, there is no basis for the application of a definition found in the 

creation of a legislative commission to the criminal code. State v. Young, 62 Ohio St.2d 

370, 406 N.E.2d 499 (1980). 

{¶13} Additionally, while the term “organized criminal activity” is not defined 

in R.C. Chapter 2929, Ohio courts have applied a case-by-case analysis to determine 

whether an offense is part of an organized criminal activity. See State v. Fuller, 12th 

Dist. No. CA2006-11-047, 2008-Ohio-20, ¶ 20. However, in performing this 

case-by-case analysis, this court is mindful of the fact that the absence of a definition of 
“organized criminal activity” is to be construed against the State, not the defendant. 

{¶14} In Fuller, the 12th District noted that organized criminal activity is an 

inherent part of drug trafficking because “the seller must obtain the drugs from a supplier 

and is only one link in a long chain of illegal activity.” Id., quoting State v. Martinez, 

6th Dist. No. WD-01-027, 2002-Ohio-735, ¶ 59. Thus, the Fuller court held, “by virtue 

of his participation in trafficking in crack cocaine, appellant engaged in organized 

criminal activity.” Id. However, in Fuller, there was ample evidence in the record to 

support the conclusion that appellant engaged in organized criminal activity. Fuller 

admitted that he had been selling drugs for three to four months prior to his arrest; that 

he bought large quantities of cocaine at a discount price and sold drugs to support his 

own habit; and that officers discovered a considerable amount of drugs and money 

during the search of his house. Id. The Fuller court construed those facts to mean that 

the two drug deals conducted by Fuller in the case were not random or isolated instances 

and supported the trial court’s organized criminal activity conclusion. 

{¶15} We do not have ample evidence of organized criminal activity in the 

present case. During the colloquy with Lyles prior to sentencing, the court asked Lyles, 

“why were you selling drugs on this particular day?” Lyles admitted that he sold drugs 

on that day because his legitimate work had gotten slow, that he needed to pay some 

bills, and that it was a stupid mistake. It appears, at least from the facts gleaned from 

the transcript, that the trafficking offense to which Lyles pleaded guilty was isolated and 

random. Accordingly, we find that the trial court erred in concluding that Lyles 
committed this crime as part of organized criminal activity. 

{¶16} Nonetheless, we find that the court had other statutory grounds for 

imposing a prison sentence. 

{¶17} R.C. 2929.13(B)(1) does provide an offender with the presumption of a 

community control sanction for fourth- and fifth-degree felonies. However, if the court 

makes certain findings, as is the case here, the trial court may sentence the offender to 

prison. See R.C. 2929.13(B)(3)(a). Although we find the trial court’s use of the 

organized criminal activity factor to be erroneous, that is just one of nine factors that a 

court may consider to impose a prison term upon the offender. The trial court also 

determined that Lyles committed the instant offense while on postrelease control, which 

is listed as another factor that can be considered by a trial court to overcome the 

presumption of a community control sanction. See R.C. 2929.13(B)(2)(h). 

{¶18} Thus, the trial court followed the statutory mandates and made the 

required findings on the record. Additionally, in this appeal, Lyle does not find error 

with the thoroughness of the trial court’s fact finding, nor its compliance with Ohio’s 

revised sentencing statutes. Lyle erroneously argues that the court’s fact finding was 

impermissibly used to increase Lyles’s statutory maximum penalty. 

{¶19} As stated above, while R.C. 2929.13(B)(1) provides a presumption of 

community control, the statute does provide trial courts with the ability to sentence an 

offender to prison for fourth and fifth degree felonies. See R.C. 2929.13(B)(3)(a). 

R.C. 2929.14(A)(5) provides that the prison term for a fifth-degree felony, as applicable 
here, ranges from six months to one year in prison. Additionally, R.C. 2929.16(A)(2), 

which sets out local incarceration sanctions, provides the trial court with the authority to 

sentence an offender for up to six months in the local jail. 

{¶20} Here, the trial court sentenced Lyles to three months in the county jail for 

trafficking, a fifth degree felony. That sentence was well within the statutory range 

outlined in R.C. 2929.14(A)(2) and was beneath the maximum anticipated by R.C. 

2929.16(A)(2). In either case, the trial court did not sentence Lyles in excess of the 

statutory maximum penalties. As such, this argument is misplaced. 

{¶21} Based on the foregoing, we sustain, in part, and overrule, in part, Lyles’s 

first and second assignments of error. 

{¶22} Lyles’s imposed sentence is 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. 

 
 

EILEEN A. GALLAGHER, JUDGE 

FRANK D. CELEBREZZE, JR., P.J., and 

KENNETH A. ROCCO, J., CONCUR 

Appendix 

Assignments of Error: 

“I. The sentencing court erred in its definition of statutory ‘organized 

criminal activity’ to include a buy-bust operation limited to the involvement 

of a confidential informant and a single defendant. 

II. The sentencing court violated Appellant’s Sixth and Fourteenth 

Amendment rights when it found ‘organized criminal activity’ unsupported 

by either the indictment or Appellant’s guilty plea.”