[Cite as State v. Carner, 2021-Ohio-2312.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 109914 v. :
PATRICK CARNER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 8, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-645307-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Carson Strang, Assistant Prosecuting Attorney, for appellee.
Patituce & Associates, L.L.C., and Joseph Patituce, for appellant. SEAN C. GALLAGHER, P.J.:
Appellant Patrick Carner appeals his convictions for tampering with
evidence and obstructing official business, along with the sentence imposed by the
trial court. Upon review, we affirm the judgment of the trial court.
Background
On November 14, 2019, appellant was indicted on one count of
tampering with evidence in violation of R.C. 2921.12(A)(1), a felony of the third
degree, and one count of obstructing official business in violation of R.C. 2921.31(A),
a felony of the fifth degree, with a furthermore clause that he created a risk of
physical harm to a person.
Appellant entered a plea of not guilty to the charges, several pretrials
were held, and the case was scheduled for trial. After several delays due to the
COVID-19 pandemic, on June 18, 2020, a change-of-plea hearing was held at which
appellant retracted his former plea of not guilty and entered a plea of guilty to the
charges. Appellant and his counsel appeared at the plea hearing via Zoom from
defense counsel’s office. The assistant prosecutor requested that a Crim.R. 43
“waiver of appearance in the courtroom” be placed on the record, and defense
counsel indicated “[defendant] consents to do this by Zoom video.” The trial court
proceeded to engage in a colloquy with appellant and complied with the
requirements of Crim.R. 11. When asked if anyone, “including your attorney, the
prosecutor, or this court” had made any promises or threats to induce him to enter
his plea, appellant responded, “No, Your Honor.” Appellant confirmed his understanding about his plea and the proceedings, responded affirmatively to his
satisfaction with defense counsel, and entered a guilty plea to both counts.
Appellant confirmed that his pleas were voluntary and “done of your own free will
and desire[.]” Defense counsel expressed his belief that the trial court had satisfied
Crim.R. 11 and that appellant’s plea was being made in a knowing, voluntary, and
intelligent fashion.
At the conclusion of the plea hearing, the assistant prosecutor wished
to address his statement from the beginning of the plea hearing that no threats or
promises had been made. He wanted to place on the record that the state “did
consider reindictment in this case * * *. Not necessarily a threat or a promise, but
we decided not to reindict. And the defendant was going to plead guilty to this
indictment.” The assistant prosecutor indicated his statement “was completely
accurate about that,” and defense counsel stated that was “[f]air.”
On July 28, 2020, a sentencing hearing was held at which appellant
appeared via video from county jail, while defense counsel and the assistant
prosecutor were present in the courtroom. The record reflects that a presentence
investigation report was prepared. Defense counsel spoke to mitigating factors,
including appellant taking responsibility for his actions and being remorseful, and
he discussed the tragedy that occurred.
The charges in this case arose in relation to an incident during which
appellant was driving his on-again-off-again romantic partner, B.A., who was
pregnant with his child, to nursing school when she exited his moving vehicle and hit the pavement. Ultimately, B.A. tragically died from her injuries. Appellant
briefly stopped, but then fled the scene with his vehicle. He called 911 to report the
incident and where B.A. was located, but he provided inaccurate information
regarding the type of vehicle he was driving. Within two hours of the incident,
appellant visited defense counsel’s office to explain what occurred. Defense counsel
did not observe any scars, scratches, or wounds suggestive of a struggle. Defense
counsel contacted the authorities, and the next day, appellant turned himself in,
provided a statement to the police, and made his car available.
Defense counsel emphasized that no charges were brought against
appellant relating to B.A.’s death, that appellant had taken responsibility for having
fled the scene and having provided false vehicle information, and that after initially
panicking, appellant took appropriate action. Defense counsel discussed additional
mitigating factors, including appellant’s need for mental-health medication
following the tragedy.
Appellant addressed the court. He expressed his anguish over the
tragedy, admitted he panicked, and accepted full responsibility for his actions.
The assistant prosecutor stressed that appellant left his pregnant
girlfriend “bleeding and dying on the side of the road as he took off,” and advised
police in the 911 call that he was coming to the police station, but then he went to
defense counsel’s office almost two hours later after having lied to the police about
the vehicle he was in. The assistant prosecutor discussed appellant’s lengthy
criminal history, which included 13 felony convictions since 2009 and a prior juvenile record. The record also reflects appellant was on postrelease control for a
prior offense when the offenses in this case were committed. Family members of
B.A. were present in the courtroom, and her sister made a statement to the court.
The trial court commented that appellant was “lucky to get a lesser
charge than what some people think * * * you should have been charged with[.]”
However, the trial court recognized that “I can only sentence you according to what
you pled guilty to and tampering with evidence, removing the item that would
maybe tell the true story of what happened, that’s the worst form of the offense.”
The trial court reiterated that the tampering with evidence was removing the vehicle
that caused the injury. The trial court also considered appellant’s extensive criminal
record.
The trial court sentenced appellant to maximum prison terms of 36
months on Count 1 and 12 months on Count 2, with the counts to run consecutive to
each other for a total prison term of four years. The trial court made the requisite
findings for imposing consecutive sentences. The trial court also advised appellant
of postrelease control. At the conclusion of the sentencing hearing, defense counsel
placed an objection to the sentence on the record.
Appellant timely filed this appeal.
Law and Analysis
Appellant raises eight assignments of error for our review. We shall
address them out of order and together where appropriate. Under his first assignment of error, appellant claims the trial court
failed to meet the requirements of Crim.R. 43 regarding waiver, which he asserts
resulted in a waiver that was not knowingly, intelligently, and voluntarily made.
Under his second assignment of error, appellant claims the trial court erred in
permitting virtual attendance by appellant at the sentencing hearing.
The Supreme Court of Ohio has recently addressed this issue and
recognized that “[a] defendant has a fundamental right to be present at all critical
stages of his criminal trial.” State v. Grate, Slip Opinion No. 2020-Ohio-5584, ¶ 83,
citing Article I, Section 10, Ohio Constitution; Crim.R. 43(A). “A defendant’s
absence, however, does not necessarily result in prejudicial or constitutional error.”
Id. “‘[T]he presence of a defendant is a condition of due process to the extent that a
fair and just hearing would be thwarted by his absence, and to that extent only.’” Id.,
quoting Snyder v. Massachusetts, 291 U.S. 97, 107-108, 54 S.Ct. 330, 78 L.Ed. 674
(1934).
“The constitutional guarantees which mandate the presence of the
accused, absent a waiver of his rights, at every stage of his trial are embodied in
Crim.R. 43(A).” State v. Maynard, 10th Dist. Franklin No. 11AP-697, 2012-Ohio-
2946, ¶ 41, citing State v. Homesales, Inc., 190 Ohio App.3d 385, 2010-Ohio-5572,
941 N.E.2d 1271, ¶ 8 (1st Dist.). Crim.R. 43 requires the physical presence of the
defendant “at every stage of the criminal proceeding and trial, * * * except as
otherwise provided by these rules.” Crim.R. 43(A)(1). Pursuant to Crim.R. 43(A)(2),
in felony cases where a waiver is obtained in accordance with Crim.R. 43(A)(3), the court may permit the defendant’s presence and participation by remote
contemporaneous video provided the following requirements are met:
(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 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.
Crim.R. 43(A)(3) permits the defendant to “waive, in writing or on the record, the
defendant’s right to be physically present under these rules with leave of court.”
Appellant argues that the waiver on the record at the change-of-plea
hearing did not make clear what the defendant was waiving. He states he was never
explained his right to be physically present, nor was he advised that he was waiving
that right to appear. Appellant also argues that he never waived physical presence
at the sentencing hearing. He states he was the only speaking participant to appear
virtually at his own sentencing hearing, and he suggests that the trial court gave
more weight to the speakers who appeared in person and that he did not receive a
fair hearing. He argues that the requirements of Crim.R. 43 were not met at both
hearings. A violation of Crim.R. 43 can constitute harmless error when the
defendant suffers no prejudice. State v. Jarmon, 8th Dist. Cuyahoga No. 108248,
2020-Ohio-101, ¶ 9; State v. Steimle, 8th Dist. Cuyahoga No. 95076, 2011-Ohio-
1071, ¶ 17. Additionally, when a defendant fails to object to attending a hearing via
video conference on the record, he forfeits all but plain error. State v. Howard, 2d
Dist. Greene No. 2012-CA-10, 2012-Ohio-4747, ¶ 7; Steimle at ¶ 17; State v.
Edwards, 8th Dist. Cuyahoga No. 95976, 2011-Ohio-3472, ¶ 11. Pursuant to Crim.R.
52(B), “[p]lain errors or defects affecting substantial rights may be noticed although
they were not brought to the attention of the court.” An error affects substantial
rights only if it affected the outcome of the proceeding. State v. Barnes, 94 Ohio
St.3d 21, 27, 759 N.E.2d 1240 (2002).
Here, appellant and his counsel appeared at the change-of-plea
hearing via Zoom from defense counsel’s office. The record shows the assistant
prosecutor requested a Crim.R. 43 “waiver of appearance in the courtroom” be
placed on the record, and defense counsel indicated “[defendant] consents to do this
by Zoom video.” It would appear that appellant had spoken with defense counsel
prior to the plea hearing. Appellant engaged in a plea colloquy with the trial judge
and was able to understand the Crim.R. 11 advisements given. During the hearing,
appellant indicated his satisfaction with counsel’s performance, and the record
shows his plea was knowingly, intelligently, and voluntarily made.
The record also shows that appellant was able to participate in the
sentencing hearing, appellant was adequately represented by defense counsel and mitigating factors were presented, and appellant was permitted to address the court.
Although appellant indicated at one point that he could not hear that well, an
adjustment was made and he proceeded to respond to questions from the court. No
objection was raised with regard to the inability to hear any portion of the
proceeding, and our review of the record shows appellant was able to effectively
understand and participate in the proceeding. Also, contrary to appellant’s
assertion, there is no indication that the trial court gave any greater consideration
to statements of participants who appeared in person.
Our review reflects that appellant fully participated in both hearings,
and he was not prevented from having a fair and just hearing. Appellant fails to
show a prejudicial or constitutional error occurred. Because appellant has not
shown that his substantial rights were affected, no plain error exists. See State v.
Wood, 5th Dist. Knox No. 20CA000010, 2020-Ohio-4251, ¶ 25-26. Further, to the
extent any requirements of Crim.R. 43 were not satisfied, the error was harmless
because no prejudice occurred. See Steimle, 8th Dist. Cuyahoga No. 95076, 2011-
Ohio-1071, at ¶ 17-18. Accordingly, the first and second assignments of error are
overruled.
Under his fifth assignment of error, appellant argues his plea was not
knowingly, intelligently, and voluntarily made because he claims the prosecution
threatened to reindict him on more serious charges if he exercised his constitutional
right to a jury trial. Appellant further argues that prosecutorial misconduct and vindictive prosecution occurred and alleges the assistant prosecutor acted with
animus to dissuade him from exercising his constitutional right to trial.
Our review of the record shows that the state expressed that it was
considering reindicting appellant during the negotiations. The state decided not to
reindict appellant on more serious charges because he agreed to plead guilty to the
indictment in this case. Appellant confirmed at the change-of-plea hearing that his
pleas were “voluntary” and entered of his “own free will and desire.”
As the United States Supreme Court recognized in Bordenkircher v.
Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978),
Plea bargaining flows from ‘the mutuality of advantage’ to defendants and prosecutors, each with his own reasons for wanting to avoid trial. [Brady v. United States, 397 U.S. 742, 752, 758, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)]. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. [Id. at 758]. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. * * *.
While confronting a defendant with the risk of more severe punishment clearly may have a “discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable” — and permissible — “attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” [Chaffin v. Stynchcombe, 412 U.S. 17, 31, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973)]. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.
Bordenkircher at 363-364. Thus, as this court has recognized: “A prosecutor is permitted to use
the possibility of reindictment on more serious charges as an inducement in the plea
bargain process,” and this is not a violation of due process. State v. Tolliver, 8th
Dist. Cuyahoga No. 108955, 2020-Ohio-3121, ¶ 29, citing State v. Staten, 7th Dist.
Mahoning No. 03 MA 187, 2005-Ohio-1350, ¶ 47. Therefore, the assistant
prosecutor acted properly in using the possibility of reindictment on more serious
charges to persuade appellant to accept the plea deal. Additionally, the
circumstances herein do not establish prosecutorial misconduct or vindictive
prosecution.
The record demonstrates that appellant’s pleas were knowingly,
intelligently, and voluntarily made. Accordingly, the fifth assignment of error is
Under his third and fourth assignments of error, appellant claims he
was denied effective assistance of counsel. He argues that his trial counsel stood idle
and allowed him to plead to maximum consecutive sentences on the indictment. He
also claims counsel failed to request merger.
“[A]ppellate courts generally review ineffective assistance of counsel
claims on a de novo basis * * *.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-
6679, 860 N.E.2d 77, ¶ 53. In order to prevail on an ineffective assistance of counsel
claim, the defendant must show that his trial counsel’s performance was deficient
and that the deficient performance prejudiced his defense so as to deprive the
defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Grate, Slip Opinion No. 2020-Ohio-5584, at ¶ 49.
“[A] court must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland at 689. To establish
prejudice, the defendant must demonstrate there is a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
Appellant argues that defense counsel was ineffective for failing to
take sufficient action to mitigate the outcome of the sentence. He argues that no
motions were filed outside of basic discovery, no sentencing memorandum was filed,
and defense counsel did not request a sentence less than the maximum consecutive
sentences that were imposed. He further argues defense counsel did not request the
case be moved to the mental health docket, and he failed to object to the court’s
consideration of B.A.’s death. Additionally, appellant claims defense counsel should
have requested a merger of allied offenses at sentencing.
The Supreme Court of Ohio has recognized that “‘[t]he presentation
of mitigating evidence is a matter of trial strategy[.]’” State v. McKelton, 148 Ohio
St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 304, quoting State v. Bryan, 101 Ohio
St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 189. Here, defense counsel offered a
mitigation presentation to the trial court that included a lengthy discussion of
appellant having accepted full responsibility for his actions and appellant’s remorse.
Defense counsel discussed the tragedy that occurred, and he pointed out that after
initially panicking, appellant took appropriate action in the matter. Our review reflects that the mitigation presentation was not deficient. The record also
demonstrates that defense counsel decided on a strategy of pleading to the charge,
accepting responsibility, and showing remorse in an effort to receive a non-
maximum sentence. The fact that this strategy did not work does not require a
finding of ineffective assistance of counsel. See State v. Burch, 7th Dist. Jefferson
No. 12 JE 28, 2013-Ohio-4256, ¶ 46.
Likewise, the failure to request the case be moved to the mental health
docket and the failure to object to any insinuation that appellant caused B.A.’s death
fell within the realm of trial strategy. Defense counsel informed the court of
appellant’s need for mental-health medication following the tragedy. Defense
counsel also emphasized that no charges were brought against appellant relating to
B.A.’s demise, and the trial court was well aware it could only sentence appellant for
the offenses with which he was charged. After the sentence was imposed, defense
counsel placed an objection on the record. We are unable to find counsel’s
performance was deficient in regard to mitigating the outcome of the sentence.
Next, we are unable to find counsel was ineffective for failing to
request a merger of the offenses. In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-
995, 34 N.E.3d 892, the Supreme Court of Ohio held that pursuant to R.C.
2941.25(B), “a defendant whose conduct supports multiple offenses may be
convicted of all the offenses if * * * (1) the conduct constitutes offenses of dissimilar
import, (2) the conduct shows that the offenses were committed separately, or (3)
the conduct shows that the offenses were committed with separate animus.” (Emphasis added.) Id. at paragraph three of the syllabus. In this case, the record
reflects the offense of tampering with evidence was committed the moment
appellant removed his vehicle from the scene prior to the arrival of the police or
emergency medical personal. The trial court recognized that the tampering with
evidence charge involved “the removal of the item” that caused the injury. The
offense of obstructing official business related to appellant’s separate conduct of
misidentifying his vehicle to the 911 dispatcher and misinforming the dispatcher
that he was driving to the police station, when he instead went to meet with his
attorney. Because the conduct shows that the offenses were committed separately,
defense counsel was not ineffective for failing to request merger.
Upon our review, we find appellant has failed to demonstrate
counsel’s performance was deficient or that any deficient performance prejudiced
him. Therefore, we overrule appellant’s third and fourth assignments of error.
Under his sixth assignment of error, appellant claims the trial court
improperly considered victim impact testimony while sentencing appellant on
victimless crimes. Appellant argues that because B.A.’s death was not caused by the
conduct giving rise to the charges, that B.A. was not a victim of the offenses.
Our review reflects that no objection was raised during the sentencing
hearing. Further, because there is no indication in the record that the sentence
imposed was the result of the victim impact statement given, no reversible error
occurred. Rather, our review shows the trial court properly considered appellant’s
extensive criminal record along with the seriousness of the tampering with evidence and obstructing official business offenses with which appellant was charged. The
obstructing official business charge included a furthermore clause that appellant
created a risk of physical harm to a person.
The trial court was aware that appellant was not charged with
offenses relating to the deceased’s death and that appellant had been charged only
with tampering with evidence and obstructing official business. As pointed out by
the assistant prosecutor, appellant left his pregnant girlfriend “bleeding and dying
on the side of the road as he took off” and advised police in the 911 call that he was
coming to the police station, but then went to defense counsel almost two hours later
after having lied to the police about the vehicle he was in. The trial court did not
attribute B.A.’s death to appellant, but rather considered the impact of the tragic
incident that resulted in B.A.’s death as it related to the seriousness of the charges
at hand. As found by the trial court, removing the vehicle that caused the injury was
the worst form of the offense. We find no reversible error occurred and overrule
appellant’s sixth assignment of error.
Under his seventh and eighth assignments of error, appellant claims
his sentence is contrary to law because the trial court failed to properly weigh the
relevant statutory principles and factors and refused to consider mitigating factors.
Appellant claims the sentence imposed by the trial court is
inconsistent with the purposes of felony sentencing and argues the trial court
improperly weighted the sentencing factors. In the trial court’s sentencing entry,
the court stated it “considered all required factors of the law” and found “that prison is consistent with the purpose of R.C. 2929.11.” The Supreme Court of Ohio has
repeatedly held that “neither R.C. 2929.11 nor 2929.12 requires a trial court to make
any specific factual findings on the record.” State v. Jones, Slip Opinion No. 2020-
Ohio-6729, ¶ 20, citing State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951
N.E.2d 381, ¶ 31; State v. Arnett, 88 Ohio St.3d 208, 215, 2000-Ohio-302, 724
N.E.2d 793 (2000). Furthermore, “[n]othing in R.C. 2953.08(G)(2) permits an
appellate court to independently weigh the evidence in the record and substitute its
judgment for that of the trial court concerning the sentence that best reflects
compliance with R.C. 2929.11 and 2929.12.” Jones at ¶ 42.
Nevertheless, appellant again argues that the trial court improperly
considered uncharged conduct when rendering the sentencing decision. We find no
merit to this argument. Although the trial court was aware of the tragic incident that
occurred, the trial court was aware that appellant had not been charged in relation
to B.A.’s death and expressed that it was sentencing appellant on the offenses for
which he was charged. The trial court properly considered the purposes of felony
sentencing pursuant to R.C. 2929.11 and the seriousness and recidivism factors
under R.C. 2929.12, and there is nothing in the record that suggests otherwise.
Additionally, insofar as appellant challenges the maximum
consecutive sentences that were imposed, the record demonstrates that the requisite
findings for imposing consecutive terms were made pursuant to R.C. 2929.14(C) and
incorporated into the sentencing entry in accordance with State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. Appellant does not dispute that the findings were made. Further, we are unable to find that the record does not clearly
and convincingly support the findings.
Last, appellant claims that the trial court indicated it would refuse to
consider any supporting documentation that was not typed. The record shows that
this instruction was given at the change-of-plea hearing. The trial court clarified
that if letters of support were handwritten, defense counsel’s office could type them.
There is no indication in the record that the trial court refused to accept any letters
or documents submitted by the appellant or his family. Nor does the record show
the trial court refused to consider any mitigating factors. Accordingly, we overrule
the seventh and eighth assignments of error.
Finally, this court has thoroughly reviewed the record and has
considered all arguments presented in the briefs. We find no merit to any arguments
not specifically addressed herein.
Judgment 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
convictions 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.
_______________________________ SEAN C. GALLAGHER, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and EILEEN T. GALLAGHER, J., CONCUR