State v. Buckley

[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 :
:
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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.
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{¶ 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
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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.
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{¶ 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
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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
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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
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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
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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
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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.
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EPLEY, J. and LEWIS, J., concur.
Copies sent to:
R. Kelly Ormsby
H. Michele Thomas
Patrick W. Buckley
Hon. Jonathan P. Hein