State v. Buckner , 2018 Ohio 4923 ( 2018 )

[Cite as State v. Buckner, 2018-Ohio-4923.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
VAN WERT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 15-18-07
v.
THOMAS M. BUCKNER, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Van Wert County Common Pleas Court
Trial Court No. CR-17-04-0450
Appeal Dismissed
Date of Decision: December 10, 2018
APPEARANCES:
Joseph Medici for Appellant
Kelly J. Rauch for Appellee
Case No. 15-18-07
PRESTON, J.
{¶1} Defendant-appellant, Thomas M. Buckner, Jr. (“Buckner”), appeals the
April 5, 2018 judgment of conviction and sentence of the Van Wert County Court
of Common Pleas. For the reasons that follow, we dismiss Buckner’s appeal.
{¶2} On May 4, 2017, the Van Wert County Grand Jury indicted Buckner on
six counts: Counts One and Two of illegal manufacture of drugs in violation of
R.C. 2925.04(A), (C)(3)(b), first-degree felonies; Count Three of illegal assembly
or possession of chemicals for the manufacture of drugs in violation of R.C.
2925.041(A), (C), a second-degree felony; Count Four of endangering children in
violation of 2919.22(B)(6), (E)(3)(a), a third-degree felony; Count Five of
aggravated possession of drugs in violation of R.C. 2925.11(A), (C)(1)(a), a fifth-
degree felony; and Count Six of engaging in a pattern of corrupt activity in violation
of 2923.32(A)(1), (B)(1), a first-degree felony. (Doc. No. 2). On May 10, 2017,
Buckner appeared for arraignment and entered pleas of not guilty. (Doc. No. 11).
(See May 10, 2017 Tr. at 1-11).
{¶3} On February 26, 2018, under a negotiated plea agreement, Buckner
withdrew his pleas of not guilty and entered guilty pleas to Counts One and Four of
the indictment. (Doc. No. 105). (See Doc. No. 104). (See also Feb. 26, 2018 Tr. at
139-157). In exchange, the State agreed to dismiss Counts Two, Three, Five, and
Six. (Id.); (Id.); (Id.). The trial court accepted Buckner’s guilty pleas, found him
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guilty, and ordered a presentence investigation. (Doc. No. 105). (See Feb. 26, 2018
Tr. at 139-157). On March 15, 2018, Buckner informed the trial court that he
desired to withdraw his guilty pleas. (Doc. No. 107). (See Mar. 15, 2018 Tr. at 158-
161).
{¶4} On April 3, 2018, the State filed a bill of information with a single
count, Count One, of illegal assembly or possession of chemicals for the
manufacture of drugs in violation of R.C. 2925.041(A), (C), a second-degree felony.
(Doc. No. 115). On the same date, under a second negotiated plea agreement,
Buckner entered guilty pleas to Count One of the bill of information and Counts
Three and Four of the indictment. (Doc. No. 121); (Apr. 3, 2018 Tr. at 174-192).
In exchange for his guilty pleas, the State agreed to dismiss the remaining charges
against Buckner.1 (Apr. 3, 2018 Tr. at 164). (See Doc. No. 120). The trial court
accepted Buckner’s guilty pleas and found him guilty. (Doc. No. 121); (Apr. 3,
2018 Tr. at 192).
{¶5} As the parties had a jointly recommended sentence, the trial court
proceeded directly to sentencing and sentenced Buckner to six years in prison on
Count One of the bill of information; six years in prison on Count Three of the
indictment; and 24 months in prison on Count Four of the indictment. (Doc. No.
121); (Doc. No. 122); (Apr. 3, 2018 Tr. at 197-198). In its judgment entry of
1
On April 5, 2018, the State filed a nolle prosequi as to Counts One, Two, Five, and Six of the indictment.
(Doc. No. 118).
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sentence, the trial court ordered that the sentences for Count Three of the indictment
and Count One of the bill of information be served consecutively to one another and
that the sentence for Count Four of the indictment be served concurrently to Counts
One and Three. (Doc. No. 121).
{¶6} Following the announcement of sentence, Buckner orally moved to
strike his motion to withdraw his former guilty plea. (Apr. 3, 2018 Tr. at 202). On
April 5, 2018, the trial court filed its judgment entry of conviction and sentence.
(Doc. No. 121).
{¶7} Buckner filed his notice of appeal on April 30, 2018. (Doc. No. 138).
He raises one assignment of error.
Assignment of Error
The trial court’s decision to impose consecutive sentences was not
supported by the record and was contrary to law.
{¶8} In his assignment of error, Buckner argues that the trial court erred in
imposing consecutive sentences. Specifically, Buckner argues that no stipulated
sentence existed due to “confusion prior to sentencing” and “the [trial] court’s
indication during sentencing that the sentences were to run concurrent[ly].”
(Appellant’s Brief at 3). Buckner argues that because there was not a stipulated
sentence, the trial court was required to review the consecutive-sentencing findings
during the sentencing hearing and in the judgment entry of sentence and that the
trial court failed to make the required consecutive-sentencing findings. (Id. at 3-4).
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{¶9} Notwithstanding Buckner’s arguments, we must determine whether this
court has jurisdiction to reach the merits of Buckner’s assigned error.
{¶10} R.C. 2953.08(A) provides specific grounds for a defendant to appeal
a sentence. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 10. However,
under R.C. 2953.08(D)(1), “[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.” “In discussing jointly recommended sentences,
the Ohio Supreme Court has recognized that ‘[t]he General Assembly intended a
jointly agreed-upon sentence to be protected from review precisely because the
parties agreed that the sentence is appropriate.’” State v. Morris, 3d Dist. Hardin
No. 6-12-17, 2013-Ohio-1736, ¶ 11, quoting State v. Porterfield, 106 Ohio St.3d 5,
2005-Ohio-3095, ¶ 25.
{¶11} First, the record is clear that the trial court, the State, Buckner, and
Buckner’s trial counsel came to a meeting of the minds regarding a jointly
recommended sentence for Buckner. The parties unequivocally agreed that the
mandatory time for Count One of the bill of information and Count Three of the
indictment would run consecutively to each other and that Count Four of the
indictment would run concurrently to Counts One and Three. (Apr. 3, 2018 Tr. at
164-165). Although there was some initial confusion regarding whether the
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stipulated sentence was for a total of 12, 12.5, or 13 years’ imprisonment, the
confusion was decisively resolved on the record during the following exchange:
[Trial Court]: So * * * this has to be ironed out. It either needs
to be twelve or thirteen, or it needs to be twelve.
[Defense Counsel]: * * * [A]s an officer of the Court, I will state
[that] [the former prosecutor on the case] and I *
* * reached an agreement that this was going to
be a twelve year stipulated agreement
specifically because Mr. Buckner then
understood that he would not have the right to an
appeal because it is a stipulated agreement if
your honor follows the stipulated agreement.
That’s why I believed it to be a twelve year
[stipulated sentence] and I’m sure that Mr.
Buckner, that’s what he recalls me telling him as
well, so. [sic]
***
[The State]: I will say that the agreement is a stipulated
twelve years.
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[Trial Court]: So the agreement is a stipulated sentence of
twelve years and a stipulated mandatory time of
six (6) years?
[Defense Counsel]: Yes[.]
(Id. at 166-167).
{¶12} Prior to accepting Buckner’s guilty plea, the trial court again
confirmed that Buckner understood the possible penalties and the stipulated
sentence:
[Trial Court]: Your sentences and fines could run concurrently
with each other, which is what is stipulated to, or
consecutively to one another. In the stipulation,
your [sic] stipulating to six (6) years on Count 3,
six (6) years on [Count 1 of] the Bill of
Information to be served consecutively, that will
be twelve (12) years with mandatory three (3) on
Count 3, mandatory three (3) on Count 1 of the
Bill of Information, for a mandatory six (6)
running consecutively, with a sentence of two (2)
years on the Felony of the third degree with that
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to run concurrently with the Count 3 of the
Indictment. Do you understand that?
[Buckner]: Yes sir[.]
(Id. at 187-188).
{¶13} After the trial court found Buckner guilty of Count One of the bill of
information and Counts Three and Four of the indictment, Buckner’s trial counsel
stated that “[b]ecause this is a stipulated plea, we’re prepared to proceed directly to
sentencing.” (Id. at 193).
{¶14} Therefore, we find that the record clearly demonstrates that the parties
had a stipulation regarding Buckner’s sentence. See State v. Herald, 3d Dist.
Defiance No. 4-16-09, 2016-Ohio-7733, ¶ 52. Finding that a jointly recommended
sentence existed, we next determine whether the trial court imposed the stipulated
sentence.
{¶15} At the sentencing hearing, the trial court sentenced Buckner to 6 years
in prison as to Count One of the bill of information; 6 years in prison as to Count
Three of the indictment; and 24 months in prison as to Count Four of the indictment.
(Apr. 3, 2018 Tr. at 197-198). The trial court ordered that the sentences for Count
Three of the indictment and Count One of the bill of information be served
consecutively and that the sentence for Count Four of the indictment be served
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concurrently with Count Three for an aggregate term of 12 years’ imprisonment.
(Id. at 198-199).
{¶16} Furthermore, after announcing Buckner’s sentence, the trial court
specifically asked the State and Buckner’s trial counsel, “[i]s there anything that I
have said in this sentence that you feel requires correction?” (Id. at 201). Both the
State and Buckner’s trial counsel specifically denied any need for correction. (Id.).
The judgment entry of sentence likewise reflects parties’ jointly recommended
sentence. (Doc. No. 121). (See Doc. No. 122).
{¶17} Buckner argues that the trial court deviated from the parties’
agreement because the trial court briefly referenced the stipulation as being for
concurrent sentences. (Appellant’s Brief at 4). (See Apr. 3, 2018 Tr. at 187-188).
However, Buckner’s argument is unpersuasive as the fairest reading of the trial
court’s entire statement is that the trial court simply misspoke or was referencing
the stipulated concurrent sentences regarding Count Four. Regardless, in the very
next sentence, the trial court unambiguously stated that the six-year sentences for
Count Three of the indictment and Count One of the bill of information were to be
served consecutively for a total prison term of 12 years, which was precisely the
agreement of the parties. (Apr. 3, 2018 Tr. at 187-188).
{¶18} As the sentence announced at the sentencing hearing and
memorialized in the judgment entry of sentence was consistent with the agreement
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reached between the parties, we find that the trial court imposed the stipulated
sentence. See State v. Wardlow, 12th Dist. Butler No. CA2014-01-011, 2014-Ohio-
5740, ¶ 9, 11.
{¶19} Finally, Buckner’s sentence is authorized by law. “‘[A] sentence is
“authorized by law” and is not appealable within the meaning of R.C. 2953.08(D)(1)
only if it comports with all mandatory sentencing provisions.’” State v. Sergent,
148 Ohio St.3d 94, 2016-Ohio-2696, ¶ 26, quoting Underwood, 124 Ohio St.3d 365,
2010-Ohio-1, at paragraph two of the syllabus. Buckner entered guilty pleas to two
second-degree felonies and one third-degree felony. (Doc. No. 121). R.C.
2929.14(A)(3)(b) authorizes a prison term of 9 to 36 months for a third-degree
felony. R.C. 2929.14(A)(2) authorizes a prison term between two and eight years
for a second-degree felony. Thus, the 24-month sentence and two six-year
sentences that the trial court imposed were authorized by R.C. 2929.14(A)(3)(b) and
2929.14(A)(2).
{¶20} As trial courts are permitted, but not required, under R.C.
2929.14(C)(4) to impose consecutive sentences, Buckner’s consecutive sentences
imposed under R.C. 2929.14(C)(4) are not mandatory. The Supreme Court of Ohio
has held that “in the context of a jointly recommended sentence that includes
nonmandatory consecutive sentences, a trial court is not required to make the
consecutive-sentence findings set out in R.C. 2929.14(C)(4).” Sergent at ¶ 43.
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“Accordingly, when a trial judge imposes such an agreed sentence without making
those findings, the sentence is nevertheless ‘authorized by law’ and not reviewable
on appeal pursuant to R.C. 2953.08(D)(1).” Id. “‘Once a defendant stipulates that
a particular sentence is justified, the sentencing judge no longer needs to
independently justify the sentence.’” Porterfield, 106 Ohio St.3d 5, 2005-Ohio-
3095, at ¶ 25. As we have found that Buckner’s sentence was imposed pursuant to
a joint recommendation, we need not discuss whether the trial court made
consecutive-sentence findings to find that Buckner’s consecutive sentences are
authorized by law. Accordingly, Buckner’s sentence is authorized by law.
{¶21} As the record clearly demonstrates that the parties had a jointly
recommended sentence that was authorized by law and was followed by the trial
court, we find that a review of Buckner’s sentence is barred under R.C.
2953.08(D)(1). See State v. Knisely, 3d Dist. Hancock No. 5-07-37, 2008-Ohio-
2255, ¶ 11-12 (dismissing appellant’s appeal for want of jurisdiction where the trial
court followed the sentence “agreed to and recommended by the parties”); State v.
Kryling, 3d Dist. Hancock No. 5-10-25, 2011-Ohio-166, ¶ 11 (concluding that
because “the imposed sentence was a jointly recommended sentence and was within
the applicable statutory range,” review of the appellant’s sentence was barred under
R.C. 2953.08(D)); State v. Morgan, 2d Dist. Montgomery No. 27774, 2018-Ohio-
3198, ¶ 23 (noting that appellant’s sentence is not appealable under R.C.
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2953.08(D)(1) where the trial court imposed a jointly agreed sentence authorized by
law).
{¶22} Thus, this court lacks jurisdiction to consider the merits of Buckner’s
assignment of error, and we dismiss Buckner’s appeal for want of jurisdiction.
Appeal Dismissed
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/jlr
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