State v. Bullock

2016 Ohio 4591

Opinion

[Cite as State v. Bullock, 2016-Ohio-4591.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, : CASE NO. CA2015-12-097 Plaintiff-Appellee, : OPINION : 6/27/2016 - vs - :

BUDDY DEE BULLOCK, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2014CR00695

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

Denise S. Barone, 385 North Street, Batavia, Ohio 45103, for defendant-appellant

S. POWELL, P.J.

{¶ 1} Defendant-appellant, Buddy Dee Bullock, appeals from the ten-month prison

sentence he received in the Clermont County Court of Common Pleas after he entered a no

contest plea to one count of aggravated possession of methamphetamine. For the reasons

outlined below, we affirm.

{¶ 2} On December 4, 2014, the Clermont County Grand Jury returned an indictment

charging Bullock with one count of aggravated possession of methamphetamine in violation Clermont CA2015-12-097

of R.C. 2925.11(A), a fifth-degree felony. According to the bill of particulars, the charge

arose after an officer from the Clermont County Sheriff's Office witnessed Bullock place a

"plastic container with bluish white powder in it under a blanket" on June 28, 2014 while

officers were attempting to serve a warrant on a juvenile at the home located at 235 Mulberry

Street, Lot 22, Felicity, Clermont County, Ohio. Test results later confirmed that the bluish

white powder found in the plastic container was methamphetamine.

{¶ 3} Bullock failed to appear for his arraignment and was subsequently arrested on

June 24, 2015. Following his arrest, Bullock entered a not guilty plea. Thereafter, on

October 5, 2015, Bullock withdrew his not guilty plea and entered a plea of no contest to the

single fifth-degree felony charge of aggravated possession of methamphetamine. After

engaging Bullock in the necessary plea colloquy, the trial court accepted Bullock's no contest

plea and found him guilty as charged. The trial court then held a sentencing hearing and

sentenced Bullock to serve ten months in prison. Bullock now appeals from the trial court's

decision, raising a single assignment of error for review.

{¶ 4} THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO A

STATED PRISON TERM OF TEN MONTHS.

{¶ 5} In his single assignment of error, Bullock claims the trial court erred by

sentencing him to serve ten months in prison. We disagree.

{¶ 6} Initially, Bullock claims the trial court's decision to sentence him to ten months

in prison was excessive and constitutes an abuse of discretion. However, as recently noted

by the Ohio Supreme Court, "appellate courts may not apply the abuse-of-discretion standard

in sentencing-term challenges." State v. Marcum, Slip Opinion No. 2016-Ohio-1002, ¶ 10.

Moreover, as this court has stated previously, a sentence that falls within the permissible

statutory range is generally "not excessive and does not violate the constitutional prohibition

against cruel and unusual punishment." State v. Bosman, 12th Dist. Butler No. CA2001-05- -2- Clermont CA2015-12-097

101, 2002 WL 42887, *1 (Jan. 14, 2002). Such is clearly the case here for Bullock's ten-

month prison sentence falls well within the permissible statutory range for a fifth-degree

felony charge of aggravated possession of methamphetamine. See R.C. 2929.14(A)(5)

("[f]or a felony of the fifth degree, the prison term shall be six, seven, eight, nine, ten, eleven,

or twelve months"). There is also nothing about this sentence that would render it so

disproportionate to the offense that it would shock the moral sense of the community. State

v. Accorinti, 12th Dist. Butler Nos. CA2012-10-205 and CA2012-11-221, 2013-Ohio-4429, ¶

21. Therefore, Bullock's first argument is without merit.

{¶ 7} Next, Bullock argues he received ineffective assistance of counsel since his trial

counsel failed to present "better mitigation at the sentencing hearing." However, as the

record plainly reveals, Bullock's trial counsel offered wide-ranging evidence in mitigation at

Bullock's sentencing hearing. For instance, after requesting the trial court to consider merely

sentencing Bullock to community control, Bullock's trial counsel noted that Bullock had been

"very good" in terms of his reporting to the probation department while this case was

pending, that Bullock had been "clean and sober" while out on bond, that Bullock had always

followed up with him, and that Bullock had generally been punctual. Bullock's trial counsel

also noted that Bullock fully admitted to "having this vial of stuff and putting it" under the

blanket, but that he was now "trying to work his way back to society" and "trying to stay on

the straight and narrow here."

{¶ 8} Bullock has not provided this court with any argument regarding the existence

of other "better mitigation" evidence, nor has Bullock offered any suggestion as to how his

trial counsel should have performed differently. Bullock has also not offered any evidence

that his sentence would have been any different but for his trial counsel's performance in this

matter. In so holding, we note that the record indicates Bullock committed this crime

approximately one month after being released from parole. The record also indicates Bullock -3- Clermont CA2015-12-097

has an extensive criminal history that includes convictions for trafficking in marijuana,

possession of drug paraphernalia, illegal manufacturing of methamphetamine, aggravated

possession of methamphetamine, assault, aggravated menacing, resisting arrest, domestic

violence, and abduction, among others.1 Therefore, because Bullock has failed to

demonstrate that his trial counsel provided him with ineffective assistance, Bullock's second

argument is likewise without merit.

{¶ 9} Although not raised as part of Bullock's single assignment of error, the state

wishes to dispel any concern that this court may have as to whether there was sufficient

evidence to support the trial court's guilt finding since Bullock denied knowing that the plastic

container he was seen placing under the blanket contained methamphetamine. However,

pursuant to Crim.R. 11(B)(2), it is well-established that a no-contest plea "is an admission of

the truth of the facts alleged in the indictment, information, or complaint[.]" In turn, "[s]o long

as the facts alleged in the indictment or bill of particulars would, if proven, support a

conviction of the offense charged, the trial court's acceptance of a no-contest plea to the

charged offense requires a finding of guilty." State v. Harrison, 2d Dist. Montgomery No.

23431, 2010-Ohio-2135, ¶ 21. After reviewing the indictment, bill of particulars, and facts

elicited at the sentencing hearing, we have no such concern as the record fully supports the

trial court's guilt finding. Therefore, Bullock's single assignment of error is overruled.

{¶ 10} Judgment affirmed.

RINGLAND and HENDRICKSON, JJ., concur.

1. This court affirmed Bullock's prior convictions for illegal manufacture of methamphetamine and aggravated possession of methamphetamine in State v. Bullock, 12th Dist. Clermont No. CA2005-04-031, 2006-Ohio-598. -4-