State v. Buckley

2019 Ohio 5309

Opinion

[Cite as State v. Buckley, 2019-Ohio-5309.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASTHABULA COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2019-A-0027 - vs - :

LARRY ROBERT BUCKLEY, :

Defendant-Appellant. :

Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2018 CR 00093.

Judgment: Affirmed.

Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, Ohio 44047-1092 (For Plaintiff-Appellee).

Gregory T. Stralka, 6509 Brecksville Road, P.O. Box 31776, Independence, Ohio 44131 (For Defendant-Appellant).

THOMAS R. WRIGHT, P.J.

{¶1} Appellant, Larry Robert Buckley, appeals his rape conviction contending he

was denied effective assistance of trial counsel for failure to file a motion to suppress.

We affirm.

{¶2} Buckley was charged with three counts: rape, a first-degree felony in

violation of R.C. 2907.02(A)(1)(b), gross sexual imposition, a third-degree felony in

violation of R.C. 2907.05(A)(4)(C)(2), and attempted gross sexual imposition, a fourth- degree felony in violation of R.C. 2907.05(A)(4)(C)(2) and 2923.02(A). A jury convicted

him of rape and found him not guilty of the other two charges. He was sentenced to a

mandatory term of ten years to life in prison.

{¶3} Buckley raises one assigned error:

{¶4} “Appellant’s constitutional right to effective assistance of counsel was

violated when such counsel failed to move to suppress the statement given by appellant

to the police.”

{¶5} To prevail on a claim of ineffective assistance of counsel, a criminal

appellant must establish (1) deficient performance by counsel, i.e., performance falling

below an objective standard of reasonable representation, and (2) prejudice, i.e., a

reasonable probability that but for counsel's errors, the result of the proceeding would

have been different. State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d

1121, ¶ 113, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). Failure to satisfy either prong is fatal. State v. Bradley, 42 Ohio

St.3d 136, 143, 538 N.E.2d 373 (1989).

{¶6} Buckley argues that he was given bad advice from an attorney who advised

him to talk with police before he was charged. During that discussion, Buckley made

incriminating statements that were used at trial. He now claims trial counsel was

ineffective for failing to move to suppress his statements to police based on his other

attorney’s poor advice. We disagree.

{¶7} Even assuming appellant was given deficient advice, Buckley fails to

demonstrate that a motion to suppress would have led to exclusion. It is his duty to

support his argument with case law, but he does not direct us to any that supports his

2 argument that suppression is warranted here. S. Russell v. Upchurch, 11th Dist. Geauga

Nos. 2001-G-2395 and 2001-G-2396, 2003-Ohio-2099, ¶ 10 (holding that an

appellant bears the burden of affirmatively demonstrating error on appeal). If an

argument exists that can support an appellant's assignment of error, “‘it is not this court's

duty to root it out.’” Tally v. Patrick, 11th Dist. Trumbull No. 2008-T-0072, 2009-Ohio-

1831, ¶ 22, quoting Harris v. Nome, 9th Dist. No. 21071, 2002-Ohio-6994. We likewise

know of no case supporting this argument.

{¶8} The exclusionary rule was designed to remedy unconstitutional conduct by

state actors. Michigan v. Tucker, 417 U.S. 433, 446, 94 S.Ct. 2357, 41 L.Ed.2d 182

(1974), citing Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669

(1960). Even assuming Buckley’s attorney was deficient by advising him to speak with

investigating officers, suppression is not warranted since he fails to establish a

constitutional violation at the hands of a state actor. Id.

{¶9} Buckley fails to establish that his trial counsel was deficient, and as such,

his sole assigned error lacks merit.

{¶10} The trial court’s decision is affirmed.

TIMOTHY P. CANNON, J.,

MATT LYNCH, J.,

concur.