State v. Buford , 2018 Ohio 2977 ( 2018 )

[Cite as State v. Buford, 2018-Ohio-2977.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-17-1018
Appellee Trial Court No. CR0201502471
v.
Donald Buford DECISION AND JUDGMENT
Appellant Decided: July 27, 2018
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Claudia A. Ford, Assistant Prosecuting Attorney, for appellee.
Adam H. Houser, for appellant.
*****
SINGER, J.
{¶ 1} Appellant, Donald Buford, appeals the January 3, 2017 judgment of the
Lucas County Court of Common Pleas, where he was convicted of carrying a concealed
weapon in violation of R.C. 2923.12(A)(2) and (F), a felony of the fourth degree.
Finding no error, we affirm.
Background
{¶ 2} On May 23, 2015, appellant was sitting on the passenger side of a vehicle
parked in the middle of a one-way residential street. It was 3:00 a.m., and the vehicle
was spotted by patrol officers.
{¶ 3} The officers’ patrol car approached behind the stationary vehicle. The
officers entered the vehicle’s license plate information and initiated their signal lights.
Appellant fled from the vehicle and led the officers on a foot chase. Officer Patrick
Fischer followed and, at one point, appellant disposed of a gun. Officer Fischer heard the
gun hit the ground.
{¶ 4} After catching and apprehending appellant, the officer returned to the area
the gun was thrown and retrieved it.
{¶ 5} On September 2, 2015, appellant was indicted for carrying a concealed
weapon in violation R.C. 2923.12(A)(2) and (F), a felony of the fourth degree, and
having a weapon under disability in violation R.C. 2923.13(A)(3), a felony of the third
degree.
{¶ 6} Appellant moved to suppress the weapon based on the initial approach and
subsequent pursuit, arguing a violation of his rights occurred. A suppression hearing
took place on November 25, 2015. Officer Fischer testified to his personal observations
on the night appellant was arrested. The trial court denied the motion to suppress in open
court.
2.
{¶ 7} On November 30, 2015, appellant entered a no-contest plea to having a
weapon under disability, and the court accepted the plea and found appellant guilty.
Sentencing was set for December 7, 2015, but appellant failed to appear and a warrant
was issued for his arrest. Appellant was re-arrested, and subsequently requested the trial
court withdraw his plea. After numerous continuances, appellant’s motion to withdraw
his plea was granted on November 7, 2016.
{¶ 8} On December 28, 2016, appellant pled no-contest to carrying a concealed
weapon. Appellee dismissed the weapon-under-disability charge. The parties entered
into an agreed-on sentence, and the court accepted the plea. The court found appellant
guilty and sentenced him as the parties agreed, which was five years of community
control. Appellant was subject to a reserved prison term of 17 months, which was to be
served consecutively to another 22-month reserved term from another case, in the event
he violated community control. The entry was journalized on January 3, 2017, and it is
from this judgment appellant timely appeals.
Anders Brief
{¶ 9} On April 27, 2018, appellant’s counsel filed a request to withdraw pursuant
to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel
asserted that, after thoroughly reviewing the transcripts of the proceedings in the trial
court and the applicable case law, no meritorious assignments of error could be
presented. Counsel did submit the following three potential assignments of error:
3.
1. The trial court may have erred by failing to inform appellant that,
by entering into an agreed upon sentence, he would waive his right to
appeal.
2. The trial court may have erred by failing to grant appellant’s
motion to suppress evidence.
3. The trial court may have erred by failing to comply with Crim.R.
11 in accepting appellant’s plea.
{¶ 10} The state also filed an Anders brief, concurring with the conclusion of
appellant’s counsel that there was no arguable basis for a valid assignment of error and
urging this court to permit counsel to withdraw. Appellant did not file a pro se brief.
{¶ 11} The procedure to be followed by appointed counsel who desires to
withdraw for want of a meritorious, appealable issue is set forth in Anders, as well as
State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978).
{¶ 12} In Anders, the U.S. Supreme Court found if counsel, after a conscientious
examination of the case, determines it to be wholly frivolous, counsel should so advise
the court and request permission to withdraw. Anders at 744. This request must be
accompanied by a brief identifying anything in the record that could arguably support the
appeal. Id. In addition, counsel must furnish the client with a copy of the brief and
request to withdraw and allow the client sufficient time to raise any matters the client so
chooses. Id. Once the requirements are fulfilled, the appellate court must conduct a full
examination of the proceedings and decide if the appeal is indeed frivolous. Id. If the
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appellate court determines the argument is frivolous, it may grant counsel’s request to
withdraw and dismiss the appeal or it may proceed to a decision on the merits. Id.{¶ 13} We note that on June 29, 2018, State v. Wenner, 6th Dist. Sandusky No.
S-18-4, 2018-Ohio-2590 was released, in which this court stated that it will no longer
accept Anders briefs in criminal appeals. Nevertheless, because this case was filed pre-
Wenner, we proceed with the process and role customarily undertaken pursuant to
Anders.
{¶ 14} In this case, appellant’s counsel has satisfied the requirements of Anders,
and has set forth three potential assignments of error. Accordingly we address the
potential assignments of error put forth by counsel, and then follow with our examination
of the entire record.
Potential Assignment of Error No. 1
{¶ 15} Counsel first argues the trial court may have erred by not informing
appellant that an agreed-on sentence pursuant to R.C. 2953.08 waives his right to appeal.
{¶ 16} Crim.R. 32(B)(2) states that “[a]fter imposing sentence in a serious offense,
the court shall advise the defendant of the defendant’s right, where applicable, to appeal
or to seek leave to appeal the sentence imposed.”
{¶ 17} R.C. 2953.08(D)(1) states that “[a] sentence imposed upon a defendant is
not subject to review under this section if the sentence is authorized by law, has been
recommended jointly by the defendant and the prosecution in the case, and is imposed by
a sentencing judge.”
5.
{¶ 18} Here, appellant argues he was neither notified nor aware that he was
waiving his right to appeal the agreed-to sentence. However, the record reflects that at
the December 28, 2016 hearing, where the court accepted the plea and imposed the
agreed-to sentence, the following exchange occurred:
THE COURT: Do you understand that while you’re giving up many
rights you have the right of appeal. So you would have— actually you
don’t. I’m sorry. You’re asking me to accept an agreed upon sentence.
That agreed upon sentence is to place you on community control in the new
case. Okay. * * * Do you understand all that?
[APPELLANT]: Yes, sir.
THE COURT: You’re giving up the right of appeal by being placed
on community control through an agreed upon sentence. Do you
understand that?
[APPELLANT]: Yes.
THE COURT: That’s the quid pro quo in the bargain. You know
you don’t have to face prison in the new case. In exchange for that, you
also are waiving your right to appeal. Do you understand that?
[APPELLANT]: Can I have a second with my attorney?
THE COURT: Sure.
[APPELLANT]: Thank you, Judge.
6.
THE COURT: You have— so the question pending before you is
you understand you’re waiving your right of appeal?
[APPELLANT]: Yes.
THE COURT: That’s what you want to do?
[APPELLANT]: Yes.
{¶ 19} Based on this interaction between the court and appellant, we are satisfied
appellant was properly notified that he was waiving his right to appeal by agreeing to a
community control sanction. Accordingly, the first potential assignment of error is not
well-taken.
Potential Assignment of Error No. 2
{¶ 20} Counsel next argues the trial court may have erred by improperly denying
appellant’s motion to suppress where the arresting officer stopped and pursued appellant
without reasonable, articulable suspicion.
{¶ 21} “Appellate review of a motion to suppress presents mixed questions of law
and fact. When considering a motion to suppress, the trial court assumes the role of trier
of fact.” State v. Steed, 2016-Ohio-8088, 75 N.E.3d 816, ¶ 11 (6th Dist.), citing State v.
Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. “The appellate
court must accept the trial court’s findings of fact, as long as the facts are supported by
competent, credible evidence.” Id., citing Roberts. “The appellate court applies a de
novo standard of review to determine whether the facts satisfy the applicable legal
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standard.” Id., citing State v. Bragg, 6th Dist. Lucas No. L-07-1162, 2007-Ohio-5993,
¶ 4.
{¶ 22} “The Fourth Amendment to the United States Constitution and the Ohio
Constitution, Article I, Section 14, prohibit unreasonable searches and seizures.” Id. at
¶ 27, citing State v. Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d 787,
¶ 15. “When a police officer stops a vehicle and detains its occupants, a seizure within
the meaning of those provisions has occurred.” Id., citing Delaware v. Prouse, 440 U.S.
648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). “Accordingly, to effectuate a traffic
stop, an officer must have probable cause to believe the driver is violating a traffic or
equipment regulation or there is articulable and reasonable suspicion that the vehicle or
its occupant is subject to seizure for violating the law.” Id., citing Prouse at 661, 663.
{¶ 23} In this case, counsel seemingly challenges the stop and subsequent chase of
appellant as unconstitutional. Specifically, appellant must argue that his rights were
violated before the gun was found in his possession by the police.
{¶ 24} At the motion to suppress hearing, Officer Patrick Fischer testified about
the events as follows:
[OFFICER]: Me and my partner were driving by, my partner
spotted a car on Eastern sitting in the middle of the street with its lights on
running. We pulled around Western, came up in the alley to come behind it
on Eastern to make a traffic stop.
[APPELLEE]: Okay. And why did you initiate the traffic stop?
8.
[OFFICER]: It was late at night and the car was sitting in the middle
of the street blocking.
[APPELLEE]: And is that a traffic violation?
[OFFICER]: It is.
[APPELLEE]: And do you remember approximately? – you say it’s
late at night. Around what time?
[OFFICER]: I believe it was around three or so in the morning.
[APPELLEE]: Okay. What happened when you attempted to
initiate the traffic stop?
[OFFICER]: As I was starting to punch the plate in our computer,
my partner initiated the lights. As soon as he did, I heard him yell he’s
running. I looked up, see an individual running from the passenger side of
the vehicle.
[APPELLEE]: Okay. And when the passenger left the vehicle, what
did you do?
[OFFICER]: I immediately exited my vehicle, yelled police, told
him to stop, and gave chase.
[APPELLEE]: Were you in uniform?
[OFFICER]: I was.
[APPELLEE]: Okay. And were you able to apprehend the
passenger?
9.
[OFFICER]: Eventually I was, yes.
[APPELLEE]: Okay. And during the flight did anything occur?
[OFFICER]: Yes. Ran behind the first house off of Eastern heading
toward Western southbound. The defendant jumped over a fence. I
jumped over after him. He was clearing another fence, and as I ran up to
that fence, I noticed that the entire time that I was chasing him he had been
holding his right side, and as I popped up over the fence, I seen him toss
what appeared to be a pistol. Heard a metal hit on concrete. * * *
[APPELLEE]: Okay. And after you apprehended him, were you
able to locate what you saw him throw?
[OFFICER]: Yes, we did.
[APPELLEE]: And what was that?
[OFFICER]: A pistol. Handgun.
{¶ 25} Based on this testimony, we find there is competent, credible evidence
appellant was lawfully subject to being questioned where he sat in an idle car, in the
middle of a roadway, suspiciously at 3:00 a.m., and then decided to flee and lead officers
on a chase. Furthermore, appellant’s disposing of the weapon while being chased results
in this court finding the weapon was in plain view while officers were lawfully in pursuit
of appellant.
{¶ 26} For these reasons, we find no merit to the second potential assigned error.
10.
Potential Assignment of Error No. 3
{¶ 27} Finally, counsel argues that the trial court may have failed to comply with
Crim.R. 11 when miscalculating the total reserve time imposed on appellant.
{¶ 28} We note appellant did not object, challenge or seek to withdraw his
December 28, 2016 plea prior to being sentenced. Therefore, appellant must rely on the
plain error analysis to now challenge his sentence or plea. See, e.g., State v. Toyloy, 10th
Dist. Franklin No. 14AP-463, 2015-Ohio-1618, ¶ 19.
{¶ 29} Under 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.” To affect a
substantial right, the error must be outcome-determinative. See State v. Amos, 140 Ohio
St.3d 238, 2014-Ohio-3160, 17 N.E.3d 528, ¶ 21-23.
{¶ 30} Here, appellant specifically argues that the trial court may have erred by
failing to comply with Crim.R. 11 in accepting appellant’s plea “when the court stated
that Appellant had 38 months suspended sentence when Appellant actually had 39
months of suspended sentence remaining in violation of his community control.”
{¶ 31} The plea and sentencing hearing transcript reflects as such:
THE COURT: Well, here’s what we’re going to do. I’m going to—
the original sentence is resuspended. I’m adding an additional year. You
were originally placed on community control for four years. I’m adding a
fifth year. So now you’re going to be on community control for five years
for each case. The only additional term on that case— so all those other
11.
terms that were previously imposed remain in effect except for this. No
further violation.
[APPELLANT]: Yes, sir.
THE COURT: If you violate for any reason, reserve sentence in that
case, which is 11 months for each of the 2 counts, consecutive to each
other, will be imposed. It also triggers a violation of the new case for
which the 17 months reserve sentence is also consecutive to 2012 case.
Okay.
[APPELLANT]: Yes, sir.
THE COURT: So that means you have 22 months of reserve time
hanging over in the 2012 case, and 17 months, 38 months is the period of
time that’s hanging over your head in these two cases. You understand?
[APPELLANT]: Yes, sir.
{¶ 32} We acknowledge there was a clear miscalculation because 22 months plus
17 months equals 39 months, not 38 months. Nevertheless, we find the above exchange
between the court and appellant occurred after appellant’s plea was entered into and
accepted by the court. Therefore, the timing of this miscalculation contradicts the idea
that appellant’s intent, knowledge or judgment relating to entering into his plea
agreement was clouded by the lesser reserved time. Frankly, we find this error could not
have caused any prejudice to appellant with respect to his plea. We will review the plea.
12.
{¶ 33} A plea in a criminal case must be made knowingly, intelligently, and
voluntarily. See State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224,
¶ 7.
{¶ 34} Crim.R. 11(C) requires an oral dialogue between the trial court and
defendant which enables the court to determine fully that the defendant is understanding
his rights and the consequences of his plea of guilty or no contest. See State v. Veney,
120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 8; State v. Caudill, 48 Ohio
St.2d 342, 358 N.E.2d 601 (1976), paragraph two of syllabus.
{¶ 35} With respect to the required colloquy, Crim.R. 11(C)(2) provides:
In felony cases the court may refuse to accept a plea of guilty or a
plea of no contest, and shall not accept a plea of guilty or no contest
without first addressing the defendant personally and doing all of the
following:
(a) Determining that the defendant is making the plea voluntarily,
with understanding of the nature of the charges and of the maximum
penalty involved, and, if applicable, that the defendant is not eligible for
probation or for the imposition of community control sanctions at the
sentencing hearing.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the court,
upon acceptance of the plea, may proceed with judgment and sentence.
13.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to jury trial,
to confront witnesses against him or her, to have compulsory process for
obtaining witnesses in the defendant’s favor, and to require the state to
prove the defendant’s guilt beyond a reasonable doubt at a trial at which the
defendant cannot be compelled to testify against himself or herself.
See Crim.R. 11(C)(2)(a)-(c). Accord Veney at ¶ 8-13.
{¶ 36} “Before accepting a guilty or no-contest plea, the court must make the
determinations and give the warnings required by Crim. R. 11(C)(2)(a) and (b) and notify
the defendant of the constitutional rights listed in Crim.R. 11(C)(2)(c).” Id. at ¶ 13.
{¶ 37} The record in this case demonstrates counsel and the court advised
appellant of a potential prison term of 6 to 18 months, a potential fine, and a potential
imposition of a community control sanction. Appellant was advised of constitutional
rights, including right to jury trial, to confront witnesses, to have compulsory process, to
no self-incrimination, and to require proof of the crime beyond a reasonable doubt.
Appellant entered the plea on his own free will and choice, with guarantee of no promises
or threats.
{¶ 38} In sum, we find the trial court fully complied with Crim.R. 11, and that
appellant was not precluded from entering a knowing, intelligent, and voluntary plea.
The third and final potential assignment of error is not well-taken.
14.
Our Examination
{¶ 39} Last is our examination of the record to determine whether this appeal is
indeed frivolous. Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. Review of the
record does not reveal any errors by the trial court which would justify a reversal of the
judgment. We find this appeal to be meritless, and counsel’s request to withdraw is
granted.
Conclusion
{¶ 40} The judgment of the Lucas County Court of Common Pleas is hereby
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. The
clerk is ordered to serve all parties with notice of this decision.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
James D. Jensen, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
15.