State v. Buckley

2022 Ohio 1873

• Court: Ohio Court of Appeals
• Decided: June 3, 2022
• Docket: 2021-CA-9
• Status: Published

Opinion

[Cite as State v. Buckley, 2022-Ohio-1873.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2021-CA-9 : v. : Trial Court Case No. 2020-CR-168 : PATRICK W. BUCKLEY : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 3rd day of June, 2022.

R. KELLY ORMSBY, Atty. Reg. No. 0020615, Prosecuting Attorney, Darke County Prosecutor’s Office, Darke County Courthouse, 3rd Floor, 504 South Broadway Street, Greenville, Ohio 45331 Attorney for Plaintiff-Appellee

H. MICHELE THOMAS, Atty. Reg. No. 0082848, P.O. Box 695, Eaton, Ohio 45320 Attorney for Defendant-Appellant

PATRICK W. BUCKLEY, #971698, Putnamville Correctional Facility, 1746 West U.S. Highway 40, Greencastle, IN 46135

.............

DONOVAN, J. -2-

{¶ 1} Patrick W. Buckley appeals from his convictions for having weapons while

under disability, aggravated burglary, and failure to comply with an order or signal of a

police officer. Buckley’s appellate counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which she represents

that she has found no potentially meritorious issues for review. This Court granted

Buckley an opportunity to file his own pro se brief, and he has done so. On March 22,

2022, this Court issued a show cause order, ordering the State to file a brief or show

cause why this Court should not submit the matter without the State’s brief; the State has

not responded. We have performed our duty pursuant to Anders to independently review

the entire record, and we have found no potential assignments of error having arguable

merit.

{¶ 2} Buckley was indicted on October 23, 2020, on the following charges: one

count of breaking and entering, a felony of the fifth degree, in violation of R.C. 2911.13(A);

one count of grand theft (firearm) in violation of R.C. 2913.02(A)(1)/(B)(4) and one count

of grand theft (motor vehicle) in violation of R.C. 2913.02(A)(1)/(B)(5), felonies of the

fourth degree; one count of having weapons while under disability, a felony of the third

degree, in violation of R.C. 2923.13(A)(3); one count of aggravated burglary, with a

firearm specification, a felony of the first degree, in violation of R.C. 2911.11(A)(1)(2); and

one count of failure to comply with an order or signal of a police officer, a felony of the

fourth degree, in violation of R.C. 2921.331(B)/(C)(4).

{¶ 3} On August 5, 2021, Buckley entered guilty pleas to having weapons while -3-

under disability, aggravated burglary, and failure to comply with an order or signal of a

police officer. The remaining offenses and the firearm specification were dismissed.

The court advised Buckley that the “possible penalties” for the offenses to which he pled

“could be up to 15-and-a-half to 21 years and then $35,000 in fines”; Buckley

acknowledged his understanding. Buckley’s plea form also stated the maximum

sentence for each offense, with a total maximum term of 15½ to 21 years. The court

sentenced Buckley to a minimum term of six mandatory years to a maximum term of nine

years for aggravated burglary, to be served concurrently with a sentence Buckley was

then serving at the Putnamville Correctional Facility in Indiana. The court imposed court

costs on the other two counts. The plea hearing and sentencing were conducted via

video conferencing due to Buckley’s incarceration in Indiana.

{¶ 4} Counsel for Buckley asserts two potential assignments of error. The first

potential assignment of error is as follows:

THE TRIAL COURT ERRED IN IMPOSING A PRISON SENTENCE

OF SIX (6) TO [NINE] (9) YEARS WHEN THE CO-DEFENDANT,

CHARGED WITH EXACTLY THE SAME CRIMES WAS SENTENCED TO

THREE (3) AND FOUR AND A HALF (4.5) YEARS.

{¶ 5} Buckley’s pro se brief also addresses his sentence; it states that he “appeals

length of sentence.” The pro se brief also argues that the trial court “used an old out

dated” presentence investigation report (PSI) from Indiana. According to Buckley, if the

trial court had conducted its own PSI, it would have known that he had no pending

charges in in Preble County, Ohio. -4-

{¶ 6} Counsel for Buckley directs our attention State v. Mills, 2d Dist. Montgomery

No. 28799, 2021-Ohio-326, another Anders case, in which this Court determined as

follows:

Counsel's brief raises a potential assignment of error that questions

whether Mills's maximum prison sentence was unduly harsh and whether

the trial court properly considered the purposes of sentencing in R.C.

2929.11 or properly considered the seriousness of the crime or the

likelihood of recidivism in R.C. 2929.12. In regard to the maximum

sentence that was imposed, our review is limited. We have repeatedly

ruled that based upon the language of R.C. 2953.08(G)(2), when a

sentence is not contrary to law, we may only vacate or modify a felony

sentence if we find by clear and convincing evidence that the record does

not support the sentence. State v. Barnett, 2d Dist. Montgomery No.

27660, 2018-Ohio-4133, citing State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.2d 1231. Here, given Mills's prior convictions and

prison sentences, his failures at prior supervision, and his disappearance

from the courthouse, there is simply no reasonable argument that the trial

court's sentence was clearly and convincingly contrary to the record. That

potential assignment of error is frivolous.

Regarding R.C. 2929.11 and 2929.12, recently the Supreme Court

held in State v. Jones, Ohio Slip Opinion No. 2020-Ohio-6729, __ N.E.3d

__, that appellate review of a sentence “does not provide a basis for an -5-

appellate court to modify or vacate a sentence based on its view that the

sentence is not supported by the record under R.C. 2929.11 and R.C.

2929.12.” Id. at ¶ 39. Therefore, a sentence cannot be reversed “based

on the lack of support in the record for the trial court's findings under R.C.

2929.11 and R.C. 2929.12.” Id. at ¶ 29. Given the holding in Jones, the

potential assignment of error has no arguable merit insofar as it references

R.C. 2929.11 and R.C. 2929.12.

(Footnote omitted.) Id. at ¶ 5-6.

{¶ 7} Buckley’s PSI from Indiana, which was completed on March 8, 2021,

reflected that he had “at least 23 misdemeanor convictions, 8 misdemeanor counts

dismissed, 29 felony convictions, and 13 felony counts dismissed.” His lengthy criminal

history dates back to 1994.

{¶ 8} At the plea hearing on August 5, 2021, the trial court asked Buckley if he had

any other pending criminal charges anywhere, and he said no, but that he expected some

charges to be filed in Preble County. Buckley informed the court that he expected the

charges to be “a receiving stolen property and a grand theft charge along with a second

grand theft auto from the same incident.” Buckley’s attorney, who did not represent him

in the Preble County matter, did not know the exact nature of those charges. The court

then explained that sentences in any other matter could be added the sentence it imposed

and that the sentence in this case “could be consecutive to what’s being served in

Indiana.” Buckley indicated that he understood.

{¶ 9} Defense counsel represented to the court that Buckley’s co-defendant had -6-

been charged with similar offenses and had entered a plea of guilty to aggravated

burglary, a first-degree felony, earlier that year; the co-defendant was sentenced to an

indeterminate three-to-four-and-a-half year prison term. Defense counsel requested that

the court impose the same sentence on Buckley. Counsel represented that Buckley’s

expected release date in Indiana was January 6, 2023.

{¶ 10} In imposing sentence, the court noted that Buckley was not similarly

situated to his co-defendant because Buckley had, “at least by Indiana’s count, 29 felony

convictions and 13 felony counts dismissed,” plus prior prison sentences out of Preble

County. For this reason, the court indicated that it did not think Buckley should receive

the same sentence as the co-defendant, and Buckley acknowledged his understanding.

The court imposed a six-year minimum to nine-year maximum prison sentence in this

case, to be served concurrently with the sentence Buckley was then serving in Indiana,

“[s]o what that does is make a parallel of three to four years additional time that could be

served because it is concurrent.” Buckley again acknowledged his understanding.

{¶ 11} Buckley’s sentence is not contrary to law. It fell within the statutory

framework for a felony of the first degree. See R.C. 2929.14(A)(1)(a). Buckley knew

that he was potentially subject to further prosecution in Preble County, and the court was

free to consider the charges that were dismissed as part of the plea deal. We see no

error in the court’s reliance on the Indiana PSI. The court imposed a sentence that was

“parallel” or commensurate with Buckley’s co-defendant’s sentence, factoring in

Buckley’s completion of his sentence in Indiana. Both defense counsel’s first potential

assignment of error and Buckley’s pro se argument about his sentence are wholly -7-

frivolous and without merit.

{¶ 12} Appellate counsel’s second potential assignment of error is as follows:

THE TRIAL COURT ERRED IN CONDUCTING THE CHANGE OF

PLEA AND SENTENCING HEARING VIA VIDEO-CONFERENCE

RATHER THAN WITH THE DEFENDANT PHYSICALLY PRESENT.

{¶ 13} Crim.R. 43(A) provides:

(1) Except as provided in Rule 10 of these rules and division (A)(2) of this

rule, the defendant must be physically present at every stage of the criminal

proceeding and trial, including the impaneling of the jury, the return of the

verdict, and the imposition of sentence, except as otherwise provided by

these rules. In all prosecutions, the defendant's voluntary absence after

the trial has been commenced in the defendant's presence shall not prevent

continuing the trial to and including the verdict. * * *

(2) Notwithstanding the provisions of division (A)(1) of this rule, in

misdemeanor cases or in felony cases where a waiver has been obtained

in accordance with division (A)(3) of this rule, the court may permit the

presence and participation of a defendant by remote contemporaneous

video for any proceeding if all of the following apply:

(a) The court gives appropriate notice to all the parties;

(b) The video arrangements allow the defendant to hear and see the

proceeding;

(c) The video arrangements allow the defendant to speak, and to be seen -8-

and heard by the court and all parties;

(d) The court makes provision to allow for private communication between

the defendant and counsel. The court shall inform the defendant on the

record how to, at any time, communicate privately with counsel. Counsel

shall be afforded the opportunity to speak to defendant privately and in

person. Counsel shall be permitted to appear with defendant at the remote

location if requested.

(e) The proceeding may involve sworn testimony that is subject to cross

examination, if counsel is present, participates and consents.

(3) The defendant may waive, in writing or on the record, the defendant's

right to be physically present under these rules with leave of court.

{¶ 14} Buckley did not object to proceeding via video-conference, and counsel for

Buckley signed a “Consent to Audio/Video Appearance” on his behalf. Buckley stated

on the record that he was able to see and hear the proceedings, and the court could

clearly hear Buckley. The court stated to Buckley: “An audio/video connection is

supposed to be the same as being here. So if you have problems seeing or hearing or

if you have questions, you need to say so which gives me then a chance to help resolve

the problem”; Buckley acknowledged his understanding. The court also told to Buckley

that if he needed additional time to talk confidentially with his attorney, he should tell the

court and arrangements would be made for confidential discussion; Buckley agreed. We

agree with counsel that this potential assignment of error is wholly frivolous.

{¶ 15} Pursuant to our independent review of the record required by Anders, 386 -9-

U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, we find no issues with arguable merit and find

this appeal to be wholly frivolous.

{¶ 16} The judgment of the trial court is affirmed.

EPLEY, J. and LEWIS, J., concur.

Copies sent to:

R. Kelly Ormsby H. Michele Thomas Patrick W. Buckley Hon. Jonathan P. Hein