State v. Buchs

[Cite as State v. Buchs, 2023-Ohio-1608.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 22CA011888
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DONALD BUCHS COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 17CR096278
DECISION AND JOURNAL ENTRY
Dated: May 15, 2023
FLAGG LANZINGER, Judge.
{¶1} Donald J. Buchs appeals from the judgment of the Lorain County Court of Common
Pleas, denying his untimely petition for post-conviction relief. For the following reasons, this
Court affirms.
I.
{¶2} On May 2, 2018, Mr. Buchs pleaded guilty to charges for aggravated vehicular
homicide, aggravated vehicular assault, vehicular assault, and driving under the influence. The
charges stemmed from a motor vehicle accident wherein Mr. Buchs’s vehicle crashed into several
vehicles while speeding through an intersection. The accident caused injuries to several people
and the death of a six-year-old girl. Subsequent toxicology reports indicated that Mr. Buchs had
THC (i.e., “the principal psychoactive constituent of the cannabis plant”) in his bloodstream at the
time of the accident. State v. Naples, 9th Dist. Lorain No. 17CA011169, 2018-Ohio-2562, ¶ 2.
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{¶3} On July 11, 2018, the trial court sentenced Mr. Buchs to an aggregate prison term
of 11 years. The trial court journalized its sentencing entry on July 16, 2018. Mr. Buchs did not
file a direct appeal.
{¶4} Almost four years later, on July 15, 2022, Mr. Buchs filed a “Petition to Vacate or
Set Aside Judgment of Conviction or Sentence & for Post-Conviction Relief[.]” In it, Mr. Buchs
argued that his convictions were constitutionally void or voidable because his plea agreement was:
(1) induced by promises and incorrect advice from his trial counsel; (2) rendered involuntary by
his trial counsel’s deteriorating mental state; and (3) compromised by his trial counsel’s failure to
properly prepare a defense. Mr. Buchs argued that this deprived him of his constitutional right to
the effective assistance of counsel, entitling him to post-conviction relief or, alternatively, to
withdraw his guilty plea.
{¶5} Regarding the alleged promises and incorrect advice, Mr. Buchs argued that his
trial counsel incorrectly advised him that he would receive no more than five years of incarceration
if he pleaded guilty. Regarding his trial counsel’s deteriorating mental state, Mr. Buchs argued that
one of his attorneys (Mr. Buchs was represented by two attorneys) had early on-set dementia. Mr.
Buchs asserted that he was unaware of his attorney’s mental state at the time of the underlying
proceedings. Regarding his trial counsel’s failure to properly prepare a defense, Mr. Buchs argued
that competent counsel would have retained an expert or been aware of studies indicating that THC
results do not correlate with impairment. Mr. Buchs concluded that, had he been represented by
competent counsel, he would not have pleaded guilty.
{¶6} In his petition, Mr. Buchs acknowledged that his petition was untimely under R.C.
2953.21(A)(2)(a). R.C. 2953.21(A)(2)(a) (“If no appeal is taken, except as otherwise provided in
section 2953.23 of the Revised Code, the petition shall be filed no later than three hundred sixty-
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five days after the expiration of the time for filing the appeal.”). Mr. Buchs argued, however, that
the trial court should consider his untimely petition because he met the requirements under R.C.
2953.23(A). More specifically, Mr. Buchs argued that he was unavoidably prevented from
discovering the facts that supported his claim for ineffective assistance and that, but for his trial
counsel’s ineffective assistance, he would not have pleaded guilty.
{¶7} The trial court summarily denied Mr. Buchs’s petition without holding an
evidentiary hearing or providing findings of fact and conclusions of law. Mr. Buchs now appeals,
raising two assignments of error for this Court’s review. For ease of consideration, this Court will
consider Mr. Buchs’s second assignment of error first.
II.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED MR.
BUCHS’[S] MOTION FOR POST CONVICTION RELIEF.
{¶8} In his second assignment of error, Mr. Buchs argues that the trial court abused its
discretion when it denied his petition for post-conviction relief. For the following reasons, this
Court disagrees.
{¶9} This Court generally reviews a trial court’s decision denying a petition for post-
conviction relief under an abuse of discretion standard. State v. Nichols, 9th Dist. Summit No.
29228, 2019-Ohio-3084, ¶ 10. “Our standard of review is de novo, however, when the trial court
denies a petition solely on the basis of an issue of law.” Id. “Whether a defendant’s post-conviction
relief petition satisfied the procedural requirements set forth in R.C. 2953.21 and R.C. 2953.23 is
an issue of law.” State v. Childs, 9th Dist. Summit No. 25448, 2011-Ohio-913, ¶ 9.
{¶10} Here, there is no dispute that Mr. Buchs did not file a timely petition under R.C.
2953.21(A)(2)(a). “A trial court does not have jurisdiction to hear an untimely petition for
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postconviction relief unless the requirements of R.C. 2953.23(A) are met.” State v. Dennard, 9th
Dist. Lorain No. 17CA011199, 2019-Ohio-2601, ¶ 6. As this Court has stated:
First, he must show either that (1) he was “unavoidably prevented” from
discovering the facts he relies on, or (2) subsequent to the 365-day deadline, “the
United States Supreme Court recognized a new federal or state right that applies
retroactively to persons in [his] situation, and the petition asserts a claim based on
that right.”
(Alterations sic.) State v. Little, 9th Dist. Lorain No. 20CA011662, 2021-Ohio-1446, ¶ 8,
quoting R.C. 2953.23(A)(1)(a). “Second, he must show ‘by clear and convincing evidence that,
but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty
of the offense of which he was convicted * * *.’” Id., quoting R.C. 2953.23(A)(1)(b). “Several
Ohio appellate courts have held that a petitioner cannot meet the requirement of R.C.
2953.23(A)(1)(b) where the defendant pled guilty and has had no trial.” State v. Liles, 3d Dist.
Allen No. 1-21-60, 2022-Ohio-1713, ¶ 12 (collecting cases); State v. Davis, 6th Dist. Lucas No.
L-22-1100, 2022-Ohio-4767, ¶ 28 (same); Dennard, 2019-Ohio-2601, at ¶ 7, citing State v.
Demyan, 9th Dist. Lorain No. 11CA010096, 2012-Ohio-3634, ¶ 4 (acknowledging same).
{¶11} Here, Mr. Buchs pleaded guilty to the charges and, therefore, failed to meet the
requirement under R.C. 2953.23(A)(1)(b) that “but for constitutional error at trial, no reasonable
factfinder would have found the petitioner guilty of the offense * * * *.” (Emphasis added.); see
Dennard at ¶ 6-7. Consequently, the trial court lacked jurisdiction to entertain Mr. Buchs’s
untimely petition. Id.{¶12} Even assuming that Mr. Buchs’s guilty plea did not preclude him from obtaining
relief, this Court concludes that the trial court did not err by denying his untimely petition. The
record reflects that Mr. Buchs was represented by two attorneys, both of whom attended the
relevant underlying proceedings. Additionally, a review of the plea colloquy indicates that the trial
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court informed Mr. Buchs of the potential penalties, including the maximum possible penalty. The
plea colloquy also indicates that Mr. Buchs confirmed that he had not been promised anything in
exchange for pleading guilty. The plea colloquy, therefore, undermined Mr. Buchs’s claim that he
pleaded guilty because his trial counsel told him that the maximum penalty the trial court could
impose was five years. Thus, even if Mr. Buchs could establish that one of his attorneys rendered
ineffective assistance as a result of his deteriorating mental state, Mr. Buchs’s petition failed to
establish that he suffered any prejudice. See State v. Meyerson, 9th Dist. Summit No. 30260, 2023-
Ohio-708, ¶ 13 (explaining ineffective assistance claims in the context of post-conviction relief);
State v. Guyton, 9th Dist. Summit No. 29913, 2021-Ohio-3725, ¶ 8 (explaining ineffective
assistance claims in the context of withdrawing a guilty plea).
{¶13} Moreover, Mr. Buchs’s petition failed to establish that he was unavoidably
prevented from discovering that his trial counsel should have retained an expert and/or been aware
of studies indicating that THC results do not correlate with impairment. Even assuming that his
trial counsel should have retained an expert and/or been aware of studies indicating that THC
results do not correlate with impairment, the materials Mr. Buchs cited in his petition to support
this argument dated as far back as 1986. Thus, despite Mr. Buchs’s argument to the contrary, he
failed to establish that he was unavoidably prevented from discovering the facts that he relied upon
in support of that claim.
{¶14} Simply put, the trial court did not err by denying Mr. Buchs’s untimely petition for
post-conviction relief without holding an evidentiary hearing because Mr. Buchs failed to meet the
requirements under R.C. 2953.23(A). Dennard, 2019-Ohio-2601, at ¶ 6; State v. Franks, 9th Dist.
Summit No. 28533, 2017-Ohio-7045, ¶ 26 (“When a party fails to satisfy the requirements for
filing an untimely petition under R.C. 2953.23(A)(1), the trial court does not err by failing to hold
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an evidentiary hearing before dismissing the petition.”). The trial court likewise did not err by
denying Mr. Buchs’s alternative request for relief, that is, that the trial court allow him to withdraw
his guilty plea based upon his trial counsel’s ineffective assistance. Even if Mr. Buchs could prove
that one of his attorneys rendered ineffective assistance as a result of his deteriorating mental state,
Mr. Buchs failed to establish any resulting prejudice. Guyton, 2021-Ohio-3725, ¶ 8 (explaining
ineffective assistance claims in the context of withdrawing a guilty plea).
{¶15} In light of the foregoing, Mr. Buchs’s second assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN DENYING MR. BUCHS’[S] MOTION FOR
POST CONVICTION RELIEF WITHOUT MAKING FINDINGS OF FACT AND
CONCLUSIONS OF LAW.
{¶16} In his first assignment of error, Mr. Buchs argues that the trial court erred by
denying his petition for post-conviction relief without making findings of fact and conclusions of
law. The trial court, however, “was not required to issue findings of facts of conclusions of law
because the petition was untimely.” State v. Porter, 9th Dist. Summit No. 26168, 2013-Ohio-89,
¶ 12, citing State ex rel. Kimbrough v. Greene, 98 Ohio St.3d 116, 2002–Ohio–7042, ¶ 6. “This
rule applies even when the defendant * * * claims, under R.C. 2953.23, that he was unavoidably
prevented from discovery of the facts to present his claim for post-conviction relief.” (Alterations
sic.) State ex rel. Ashipa v. Kubicki, 114 Ohio St.3d 459, 2007-Ohio-4563, ¶ 4, quoting State ex
rel. Hach v. Summit Cty. Court of Common Pleas, 102 Ohio St.3d 75, 2004-Ohio-1800, ¶ 9.
Accordingly, Mr. Buchs’s first assignment of error is overruled.
III.
{¶17} Mr. Buchs’s assignments of error are overruled. The judgment of the Lorain County
Court of Common Pleas is affirmed.
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Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JILL FLAGG LANZINGER
FOR THE COURT
SUTTON, P. J.
STEVENSON, J.
CONCUR.
APPEARANCES:
GIOVANNA V. BREMKE, Attorney at Law, for Appellant.
J.D. TOMLINSON, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant Prosecuting
Attorney, for Appellee.