State v. Buckhannon

2023 Ohio 4063

• Court: Ohio Court of Appeals
• Decided: November 9, 2023
• Docket: 2023-CA-11
• Status: Published

Opinion

[Cite as State v. Buckhannon, 2023-Ohio-4063.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY

STATE OF OHIO : : Appellee : C.A. No. 2023-CA-11 : v. : Trial Court Case No. 22CR51 : JAMES L. BUCKHANNON : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on November 9, 2023

GLENDA A. SMITH, Attorney for Appellant

MATTHEW C. JOSEPH, Attorney for Appellee

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WELBAUM, P.J.

{¶ 1} James L. Buckhannon appeals from his convictions following guilty pleas to

five counts of rape and two counts of gross sexual imposition involving a child under age

ten. Buckhannon contends his aggregate sentence of 45 years to life in prison is

inconsistent with the purposes of felony sentencing in R.C. 2929.11(A). He also alleges

ineffective assistance of counsel based on his attorney allowing him to plead guilty to all -2-

seven counts in his indictment without raising an allied-offense argument.

{¶ 2} We conclude that R.C. 2929.11(A) provides no basis for us to vacate or

modify Buckhannon’s sentence even assuming, purely arguendo, that his aggregate

prison term is contrary to the purposes of felony sentencing. We also see no ineffective

assistance of counsel because the record reveals no allied-offense issue. Accordingly,

the trial court’s judgment will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} A grand jury indicted 23-year-old Buckhannon on five counts of rape and

two counts of gross sexual imposition involving an eight-year-old child. The indictment

alleged that the offenses had occurred between December 23, 2021, and December 28,

2021. Following his indictment, Buckhannon underwent evaluations to assess his sanity

at the time of the offenses and his competence to stand trial. After being declared sane

and legally competent, he pled guilty as charged without any concessions from the State.

The case proceeded to sentencing on May 1, 2023. The trial court reviewed a

presentence-investigation report and a sentencing memorandum from Buckhannon. It

also heard oral statements from Buckhannon, defense counsel, and the prosecutor. The

trial court then imposed sentences of 15 years to life in prison on each count of rape. It

imposed a three-year prison term on each count of gross sexual imposition. The trial court

ordered three of the rape sentences to be served consecutively and all other sentences

to be served concurrently. The result was an aggregate sentence of 45 years to life in

prison. Buckhannon timely appealed, advancing two assignments of error.

II. Sentencing Challenge -3-

{¶ 4} Buckhannon’s first assignment of error states:

THE TRIAL COURT ERRED IN NOT COMPLYING WITH THE PURPOSES

OF FELONY SENTENCING.

{¶ 5} Buckhannon challenges the trial court’s analysis of the statutory purposes of

felony sentencing found in R.C. 2929.11(A), which provides:

A court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing. The overriding purposes of felony

sentencing are to protect the public from future crime by the offender and

others, to punish the offender, and to promote the effective rehabilitation of

the offender using the minimum sanctions that the court determines

accomplish those purposes without imposing an unnecessary burden on

state or local government resources. To achieve those purposes, the

sentencing court shall consider the need for incapacitating the offender,

deterring the offender and others from future crime, rehabilitating the

offender, and making restitution to the victim of the offense, the public, or

both.

{¶ 6} Buckhannon asserts that the foregoing purposes are not served by requiring

him to serve a minimum of 45 years in prison. The information before the trial court at

sentencing reflected that he has an IQ of 61. He began receiving social-security disability

income at age seven. He lacked a family structure and was sexually abused by an uncle

as a child. He had self-medicated for mental-health issues. Prior to the offenses at issue,

Buckhannon was homeless. The victim’s father had invited him to reside with the father’s -4-

family for a few days over the 2021 Christmas holiday. While there, Buckhannon

repeatedly entered the victim’s bedroom and engaged in sexual activity with the child over

several days. Buckhannon previously had been charged with engaging in sexual activity

with another child as a juvenile. He also had a prior adult conviction for gross sexual

imposition involving a 12-year-old victim, and he was on post-release control for that

crime at the time of his current offenses. Buckhannon notes, however, that he previously

had received only limited sex-offender treatment while incarcerated. At sentencing, the

trial court also questioned whether he was able to appreciate or truly understand the

significance of his misconduct.

{¶ 7} Buckhannon contends the trial court should have imposed a shorter prison

term that included appointment of a guardian ad litem and sex-offender treatment with a

focus on rehabilitation. He claims the trial court’s lengthy sentence is unsupported by the

record or is otherwise contrary to law because it is inconsistent with the purposes of felony

sentencing found in R.C. 2929.11(A).

{¶ 8} We review Buckhannon’s sentence under R.C. 2953.08(G)(2), which permits

us to modify or vacate a sentence if the record clearly and convincingly does not support

certain specified findings by a trial court or if the sentence is otherwise contrary to law.

Notably, R.C. 2929.11 does not require a trial court to make any findings, and the statute

is not among those identified in R.C. 2953.08(G)(2). As a result, we may not vacate or

modify a sentence based on a belief that the record fails to demonstrate consistency with

the purposes of felony sentencing found in R.C. 2929.11(A). State v. Jones, 163 Ohio

St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 30-31. An appellate court’s determination -5-

that a sentence is inconsistent with the purposes of felony sentencing also does not

render the sentence contrary to law. Id. at ¶ 32. Therefore, R.C. 2953.08(G)(2) does not

authorize vacating or modifying Buckhannon’s sentence based on our own evaluation of

R.C. 2929.11(A).

{¶ 9} We note that Buckhannon could have challenged his aggregate minimum 45-

year prison term by arguing that the trial court failed to make the requisite findings under

R.C. 2929.14(C)(4) for consecutive sentences. He also could have challenged his

sentence by arguing that the record clearly and convincingly failed to support

consecutive-sentence findings under R.C. 2929.14(C)(4).

{¶ 10} In the present appeal, however, Buckhannon unambiguously has limited his

argument to an evaluation of the purposes of felony sentencing in R.C. 2929.11(A). His

brief does not mention consecutive-sentencing case law. Nor does Buckhannon

reference R.C. 2929.14(C)(4) or the findings required to impose consecutive sentences.

He does not argue that the trial court failed to make the necessary consecutive-sentence

findings, and he does not assert that the record clearly and convincingly failed to support

consecutive-sentence findings to impose an aggregate minimum 45-year prison term.

Absent any challenge by Buckhannon to the trial court’s imposition of three consecutive

prison terms, we have no occasion to review that aspect of its judgment. If Buckhannon

desires to raise the issue, he will need to file an App.R. 26 application for reopening his

direct appeal.

{¶ 11} Having found no merit in Buckhannon’s argument predicated on R.C.

2929.11(A), we overrule his first assignment of error. -6-

III. Ineffective Assistance of Counsel

{¶ 12} Buckhannon’s second assignment of error states:

INEFFECTIVE ASSISTANCE OF COUNSEL FOR ALLOWING A PLEA TO

ENTIRE INDICTMENT AND NOT RAISING THE ISSUE OF ALLIED

OFFENSES.

{¶ 13} Buckhannon alleges ineffective assistance of counsel in the proceedings

below. His substantive argument is as follows:

The offenses of rape and gross sexual imposition should be

challenged on the theory of allied offenses when looking at the statute and

applying them to the facts. There are no specific dates of when these acts

occurred which makes the charges more readily challenged. Instead,

counsel allows a person, much less a mentally disabled person [to] plead

to all seven (7) counts. Buckhannon did not have effective assistance of

counsel as required by the Sixth Amendment to the United States

Constitution and Article I Section 10 of the State of Ohio Constitution. The

plea and sentence should be vacated, and the case remanded for

ineffective assistance of counsel.

Appellant’s Brief at 11.

{¶ 14} We review alleged instances of ineffective assistance of trial counsel under

the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), which the Ohio Supreme Court adopted in State v. Bradley,

42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To prevail on an ineffective-assistance claim,

a defendant must show that trial counsel rendered deficient performance and that -7-

counsel’s deficient performance prejudiced him. Strickland at paragraph two of the

syllabus; Bradley at paragraph two of the syllabus.

{¶ 15} To establish deficient performance, a defendant must show that his trial

counsel’s performance fell below an objective standard of reasonable representation. Id.

at 688. In evaluating counsel’s performance, a reviewing court “must indulge in a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. at 689. “The adequacy of counsel’s performance must be viewed in light

of all of the circumstances surrounding the trial court proceedings.” State v. Jackson, 2d

Dist. Champaign No. 2004-CA-24, 2005-Ohio-6143, ¶ 29. To establish prejudice, a

defendant must show that there is “a reasonable probability that, but for counsel’s errors,

the proceeding’s result would have been different.” State v. Hale, 119 Ohio St.3d 118,

2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at 687-688 and Bradley at

paragraph two of the syllabus. “ ‘A reasonable probability is a probability sufficient to

undermine confidence in the outcome.’ ” Bradley at 142, quoting Strickland at 694.

{¶ 16} Upon review, we see no ineffective assistance of Buckhannon’s trial

counsel. As for pleading guilty to the indictment, the record reflects that Buckhannon was

legally competent to make that decision. Given that the incidents of sexual abuse were

recorded on a security camera, he and his attorney reasonably may have believed the

best strategy was to admit guilt and seek leniency at sentencing. Pleading guilty as

charged also did not impair Buckhannon’s ability to raise an allied-offense argument. “[I]n

determining whether convictions are for allied offenses of similar import, finding factual

guilt of each offense is a prerequisite to merger, and thus, an allied offenses claim is -8-

consistent with an admission of guilt and therefore is not waived by pleading guilty to

offenses that might be allied offenses of similar import.” State v. Rogers, 143 Ohio St.3d

385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 19.

{¶ 17} Finally, on the record before us we see no reasonable probability that the

trial court would have found allied offenses if defense counsel had raised the issue. The

presentence-investigation report reflects that Buckhannon’s offenses occurred on

multiple occasions over several days in December 2021. On appeal, he argues that gross

sexual imposition and rape should have merged for sentencing. But nothing in the record

indicates that the “touching” underlying the charges of gross sexual imposition was part

of the same act constituting the “sexual conduct” underlying one or more of the rape

offenses. The presentence-investigation report references at least two incidents that

appeared to involve sexual touching short of actual “sexual conduct.” Absent any

indication that the gross sexual imposition and rape offenses were not committed

separately, Buckhannon has not established a reasonable probability that he was

prejudiced by counsel’s failure to argue allied offenses. Accordingly, the second

assignment of error is overruled.

IV. Conclusion

{¶ 18} The judgment of the Miami County Common Pleas Court is affirmed.

TUCKER, J. and LEWIS, J., concur.