State v. Buckney

[Cite as State v. Buckney, 2020-Ohio-4927.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 2019-CA-75
                                                    :
 v.                                                 :   Trial Court Case No. 2004-CR-820
                                                    :
 TODD W. BUCKNEY                                    :   (Criminal Appeal from
                                                    :   Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                           Rendered on the 16th day of October, 2020.

                                               ...........

JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

MARK J. BAMBERGER, Atty. Reg. No. 0082053, P.O. Box 189, Spring Valley, Ohio
45370
      Attorney for Defendant-Appellant

                                              .............

DONOVAN, J.
                                                                                         -2-


       ¶ 1 Following a jury trial, defendant-appellant Todd W. Buckney was found guilty

in March 2005 of three counts of aggravated robbery, one count of aggravated burglary,

three counts of kidnapping, three counts of abduction, and one count of disrupting public

service.   The abduction charges were merged with the kidnapping charges at

sentencing. On April 14, 2005, Buckney was sentenced to five years on the first

aggravated robbery charge. The trial court sentenced Buckney to ten years each on the

aggravated burglary charge and the remaining aggravated robbery charges, finding that

Buckney committed the worst form of those offenses. The trial court also sentenced

Buckney to three years each on the kidnapping charges. The trial court sentenced

Buckney to 18 months on the charge of disrupting public service, finding that Buckney

committed the worst form of that offense. Because of Buckney's lengthy criminal history,

all sentences were ordered to be served consecutively, with the exception of the

kidnapping sentences, which were to be served concurrently with each other but

consecutively to all the others. Finally, since Buckney was on post-release control at the

time of these offenses, the trial court ordered that he serve an additional year for a post-

release control violation consecutively to the above stated terms. Buckney's total

sentence was 40½ years.

       ¶ 2 In May 2005, Buckney filed his direct appeal, arguing that based upon the

Ohio Supreme Court’s decision in State v. Foster, 

109 Ohio St. 3d 1

, 2006-Ohio-856, 

845 N.E.2d 470

, the sentence imposed by the trial court was contrary to law and should

therefore be reversed. We agreed with Buckney, holding that pursuant to Foster, his

sentence was contrary to law. State v. Buckney, 2d Dist. Clark No. 2005-CA-56, 2006-

Ohio-4148, ¶ 5 (“Buckney I”). Because Foster instructed that all cases pending on direct
                                                                                       -3-


review in which the unconstitutional sentencing provisions were utilized must be

remanded for resentencing, we reversed Buckney’s sentence and remanded for

resentencing.

Id. ¶ 3 The

record establishes that Buckney was not resentenced until September

27, 2019, after he filed a mandamus action in April 2019. At the resentencing hearing,

Buckney, represented by counsel, advanced the following arguments: 1) that the 13-year

delay in resentencing was unreasonable pursuant to the factors set forth in Barker v.

Wingo, 

407 U.S. 514

, 

92 S. Ct. 2182

, 

33 L. Ed. 2d 101

(1972); 2) that more of his offenses

should have been merged; 3) that his sentence was too harsh; and 4) that the trial court

should have imposed a lesser sentence based upon his good institutional record.

      ¶ 4 After hearing the parties’ respective arguments, the trial court again merged

the three convictions for abduction into the three kidnapping convictions and sentenced

Buckney as follows: Count I, aggravated robbery, four years in prison; Count II,

aggravated burglary, seven years; Count IV, aggravated robbery, seven years; Count V,

aggravated robbery, seven years; Count VI, kidnapping, three years; Count VII,

kidnapping, three years; Count VIII, kidnapping, three years; and Count XII, disrupting

public services, 18 months in prison.1 The trial court ordered that the sentences imposed

for Counts I, II, IV, and V be served consecutively to one another but concurrently with

the remaining counts. The trial court also ordered that Counts VI, VII, VIII, and XII be

served concurrently to one another. Finally, the trial court ordered Buckney to serve one

year in prison for committing a felony offense while on post-release control, to be served



1 Counts IX, X, XI constituted the abduction counts which were merged with the
kidnapping counts.
                                                                                         -4-


consecutively to the other sentences imposed, for an aggregate sentence of 26 years in

prison. It is from this judgment that Buckney now appeals.

      ¶ 5 Because they are interrelated, we will discuss Buckney’s first and second

assignments of error together as follows:

             THE TRIAL COURT DEFENSE COUNSEL WAS INEFFECTIVE IN

      NOT VIGOROUSLY REPRESENTING THE DEFENDANT-APPELLANT’S

      BEST INTERESTS IN VIOLATION OF THE SIXTH AND FOURTEENTH

      AMENDMENTS.

             THE TRIAL COURT FAILED TO DEFEND ITS RATIONALE PRIOR

      TO DENYING SENTENCE MODIFICATION.

      ¶ 6 In his first assignment, Buckney contends that he received ineffective

assistance from his defense counsel at the resentencing hearing because counsel failed

to represent him “vigorously” enough. In his second assignment, Buckney argues that

the trial court erred because, pursuant to Barker v. Wingo, 

407 U.S. 514

, 

92 S. Ct. 2182

,

33 L. Ed. 2d 101

, he was prejudiced by the 13-year delay between our August 2006

remand in Buckney I and the resentencing hearing in September 2019. We will analyze

Buckney’s first and second assignments out of order for the sake of clarity.

      ¶ 7 Initially, we note that Buckney includes case law regarding judicial bias in his

second assignment of error but provides no argument or evidence to support the inclusion

of that issue. We also note that Buckney states in his first assignment that he has

“forfeited” any argument regarding the constitutionality of R.C. 2929.02(B)(1). However,

R.C. 2929.02(B)(1) relates to penalties for murder and is not at issue in this case since

Buckney was not convicted of murder. Thus, we need not address these issues.
                                                                                          -5-


                                    Right to a Speedy Trial

      ¶ 8 Buckney argues that his right to a speedy trial was violated by the delayed

resentencing. As noted by the Supreme Court of Ohio:

             The Sixth and Fourteenth Amendments to the United States

      Constitution guarantee a criminal defendant the right to a speedy trial by the

      state. Klopfer v. North Carolina (1967), 

386 U.S. 213

, 222-223, 

87 S. Ct. 988

, 

18 L. Ed. 2d 1

. Section 10, Article I of the Ohio Constitution also

      provides an accused “a speedy public trial.” State v. Ladd (1978), 56 Ohio

      St.2d 197, 200, * * * 

383 N.E.2d 579

. Provisions setting forth time limits for

      bringing an accused to trial are found in R.C. 2945.71 and 2945.73.

             Speedy trial provisions are mandatory, and pursuant to R.C.

      2945.73(B), a person not brought to trial within the relevant time constraints

      “shall be discharged,” and further criminal proceedings based on the same

      conduct are barred. R.C. 2945.72(D). A person charged with a felony shall

      be brought to trial within 270 days of the date of arrest. R.C. 2945.71(C)(2).

      If that person is held in jail in lieu of bail, then each day of custody is to be

      counted as three days. R.C. 2945.71(E). * * *

             * * * Upon review of a speedy-trial issue, a court is required to count

      the days of delay chargeable to either side and determine whether the case

      was tried within applicable time limits. The rationale supporting speedy-trial

      legislation is to prevent inexcusable delays caused by indolence within the

      judicial system. * * *

State v. Sanchez, 

110 Ohio St. 3d 274

, 2006-Ohio-4478, 

853 N.E.2d 283

, ¶ 6-8. In State
                                                                                          -6-


v. Simons, 2d Dist. Champaign No. 2003-CA-29, 2004-Ohio-6061, ¶ 41, this Court stated

the following:

       * * * Simons claims the trial court violated his right to a speedy re-sentencing

       under the Sixth Amendment to the U.S. Constitution. In support, he relies

       on Barker v. Wingo (1972), 

407 U.S. 514

, 

92 S. Ct. 2182

, 

33 L. Ed. 2d 101

.

       There the U.S. Supreme Court identified four factors to consider to

       determine whether a defendant's constitutional right to a speedy trial has

       been violated: (1) the length of the delay; (2) the reason for the delay; (3)

       the defendant's assertion of his right; and (4) whether the delay prejudiced

       the defendant. Although Barker involved a speedy trial issue, most courts

       have presumed the existence of an analogous constitutional right to a

       speedy re-sentencing and have applied the foregoing factors when

       reviewing alleged violations of that right. See, e.g. State v. Corrigan,

       Cuyahoga App. No. 83088, 2004-Ohio-4346; United States v. Thomas (6th

       Cir. 1999), 

167 F.3d 299

, 303-305.

       ¶ 9 In Buckney’s case, the delay in resentencing was extremely lengthy, and the

record provides no explanation for the delay. State v. Creech, 4th Dist. Scioto No.

16CA3730, 2017-Ohio-6951, in which the 4th District found no prejudice in a five-year

delay in resentencing, stated:

                 Appellate courts have generally held that when the defendant has

       been incarcerated during the length of the delay, and would not have been

       eligible for release during that time, no prejudice exists. In State v. Huber,

       8th Dist. Cuyahoga No. 85082, 2005-Ohio-2625, the court held that
                                                                               -7-


because Huber was incarcerated for a sentence longer than the delay

between remand and resentencing, no prejudice existed when a nearly one-

year delay occurred between remand and resentencing. Huber at ¶ 10.

Further, in State v. Bolton, 8th Dist. Cuyahoga No. 103628, 2016-Ohio-

5706, the court did not find prejudice when a 27-month delay between

remand and resentencing occurred. Moreover, in State v. Nia, 2014-Ohio-

2527, 

15 N.E.3d 892

(8th Dist.), the court held that when [there was] no

allegation or finding that the government purposely delayed the defendant's

sentencing or acted in bad faith, and the record did not support a finding

that the defendant delayed the hearing in any[ ]way, the court viewed the

delay as a “serious administrative lapse.” However, the court concluded

that the 68-month delay, despite being lengthy, did not prejudice the

defendant as he could not have been released during the delay. Nia at ¶ 33-

34.

       Finally, in a case with a far longer lapse between remand and

resentencing than the case sub judice, in State v. Holly, 8th Dist. Cuyahoga

No. 102764, 2015-Ohio-4771, the court did not find prejudice when a 15-

year delay occurred in resentencing. “There is no doubt that the 15-year

delay in resentencing was a serious failure by the criminal justice system.

However, Holly had remained lawfully incarcerated during the delay, due to

the length of his sentence * * *.       Therefore, although the delay in

resentencing here was extraordinary, we do not find that Holly was actually

prejudiced.” Holly at ¶ 9.
                                                                                       -8-


Creech at ¶ 17-18. See also State v. Martinez, 3d Dist. Seneca Nos. 13-11-32 and 13-

11-21, 2012-Ohio-3750, ¶ 25 (finding a five-year delay between remand and resentencing

to be a “serious administrative lapse” but not prejudicial, since defendant could not have

been released during the five-year delay); State v. Jones, 2d Dist. Clark No. 2018-CA-17,

2019-Ohio-238, ¶ 27 (finding that a four-year delay between the court’s remand and

defendant’s resentencing, although a serious administrative lapse, did not prejudice the

defendant, since he could not have been released during the delay; therefore ineffective

assistance of counsel appointed for resentencing was not demonstrated).

       ¶ 10 While we similarly conclude that the delay in this case was a “serious

administrative lapse” and inexcusable, we further conclude that Buckney was not

prejudiced thereby, since he remained lawfully incarcerated during the delay due to the

length of his sentence. Furthermore, we have held that Crim.R. 32(A)'s requirement that

a sentence be imposed without unnecessary delay does not apply to resentencing

hearings. State v. Morgan, 2d Dist. Montgomery No. 27774, 2018-Ohio-3198, ¶ 36. In

his brief, Buckney concedes that he could not have been released during the delay due

to the length of his sentence.2 Accordingly, since Buckney remained incarcerated during

the 13-year delay and would not have been eligible for release during that time, no

prejudice exists.

                              Ineffective Assistance of Counsel

       ¶ 11 “We review the alleged instances of ineffective assistance of trial counsel

under the two prong analysis set forth in Strickland v. Washington, 

466 U.S. 668

, 104



2“It is true enough that the Defendant-Appellant would have served the 15-odd years one
way or another.” Appellant’s Brief at 22.
                                                                                          -9-


S.Ct. 2052, 

80 L. Ed. 2d 674

(1984), and adopted by the Supreme Court of Ohio in State

v. Bradley (1989), 

42 Ohio St. 3d 136

, 

538 N.E.2d 373

. Pursuant to those cases, trial

counsel is entitled to a strong presumption that his or her conduct falls within the wide

range of reasonable assistance. 

Strickland, 466 U.S. at 688

. To reverse a conviction

based on ineffective assistance of counsel, it must be demonstrated that trial counsel's

conduct fell below an objective standard of reasonableness and that his errors were

serious enough to create a reasonable probability that, but for the errors, the result of the

trial would have been different.

Id. Hindsight is not

permitted to distort the assessment

of what was reasonable in light of counsel's perspective at the time, and a debatable

decision concerning trial strategy cannot form the basis of a finding of ineffective

assistance of counsel.” (Internal citation omitted). State v. Mitchell, 2d Dist. Montgomery

No. 21957, 2008-Ohio-493, ¶ 31.

       ¶ 12 An appellant is not deprived of effective assistance of counsel when counsel

chooses, for strategic reasons, not to pursue every possible tactic. State v. Brown, 

38 Ohio St. 3d 305

, 319, 

528 N.E.2d 523

(1988).           The test for a claim of ineffective

assistance of counsel is not whether counsel pursued every possible defense; the test is

whether the defense chosen was objectively reasonable. Strickland at 688. A reviewing

court may not second-guess decisions of counsel which can be considered matters of

strategy. State v. Smith, 

17 Ohio St. 3d 98

, 

477 N.E.2d 1128

(1985). Debatable strategic

and tactical decisions may not form the basis of a claim for ineffective assistance of

counsel, even if, in hindsight, it looks as if a better strategy had been available. State v.

Cook, 

65 Ohio St. 3d 516

, 524, 

605 N.E.2d 70

(1992).

       ¶ 13 In Buckney’s case, the record establishes that he did not receive ineffective
                                                                                         -10-


assistance from his attorney at the resentencing hearing. We note that Buckney does

not argue that his counsel failed to make the proper arguments at the resentencing

hearing. Rather, he argues that his counsel failed to make the arguments “vigorously”

enough. Buckney’s claim that counsel failed to represent him “vigorously” enough is

insufficient to satisfy the deficient performance prong of the Strickland test, let alone to

establish that he suffered any prejudice as a result of his counsel’s performance. Rather,

the record establishes that defense counsel spent a great deal of time at the resentencing

hearing arguing on Buckney’s behalf. The issues raised by defense counsel during his

argument before the trial court included the following: 1) the four Barker v. Wingo factors

and how Buckney was prejudiced by the 13-year delay between our remand in Buckney

I and his resentencing in 2019; 2) that Buckney’s original sentence was disproportionate

to other similarly-situated offenders; 3) that more of Buckney’s offenses should have been

merged; and 4) that Buckney had been a model inmate during his incarceration without

any infractions or instances of bad behavior.

       ¶ 14 Buckney also argues that defense counsel was ineffective for failing to

present evidence regarding his “record in prison and his clear life modifications.”

Significantly, the Ohio Supreme Court has held that the Eighth Amendment does not

require a resentencing judge to accept and consider new mitigation evidence at a limited

resentencing hearing. State v. Jackson, 

149 Ohio St. 3d 55

, 2016-Ohio-5488, 

73 N.E.3d 414

, ¶ 73. Even if this were not the case, the record establishes that defense counsel

spoke at length on the topic of Buckney’s status as a model inmate and his rehabilitation

during his incarceration. Defense counsel stated:

       [Buckney] has participated in every program that’s been offered to him in
                                                                                         -11-


      prison, and he’s been a model prisoner. He has no tickets whatsoever

      since he’s been in prison. He’s a completely changed person.

      ***

      The only other thing Mr. Buckney wanted me to point out was his

      institutional record, and I think his institutional record is included as an

      attachment to the sentencing memorandum that I filed back on July 17,

      2019. The sentencing – or the institutional record, I think, supports the

      things that I’ve just said about Mr. Buckney, that he’s been a model prisoner,

      he’s had no tickets; and that’s, I think, pretty incredible, I guess, or unusual

      for a person who’s been in prison for 15 years to have no tickets the entire

      time that they’re there.

Resentencing Tr. 11-12.

      ¶ 15 In light of the foregoing, the record establishes that defense counsel’s

performance at the resentencing hearing was not deficient, and Buckney did not receive

ineffective assistance of counsel.

      ¶ 16 Buckney’s first and second assignments of error are overruled.

      ¶ 17 Buckney’s third assignment of error is as follows:

             THE TRIAL COURT IMPROPERLY CONSIDER[ED] MERGER OF

      ALLIED OFFENSES.

      ¶ 18 In his third assignment, Buckney argues that the trial court erred when it

failed to properly consider the merger of Buckney’s various offenses at the resentencing

hearing.

      ¶ 19 Buckney’s merger argument is barred by res judicata because he failed to
                                                                                        -12-


raise the argument in his direct appeal from his 2005 convictions. State v. Byrd, 2d Dist.

Montgomery No. 26700, 2015-Ohio-5293, ¶ 10 (“The failure to merge allied offenses does

not render a judgment void, but voidable. * * * Consequently, challenges to the trial

court's failure to merge allied offenses are barred by the doctrine of res judicata if they

could have been, but were not, raised on direct appeal.”); see also State v. Haynes, 2d

Dist. Clark No. 2013-CA-90, 2014-Ohio-2675, ¶ 14 (“[T]he issues raised in Haynes's

assignments of error could have been raised on direct appeal, and are barred by res

judicata, regardless of whether they might be characterized as plain error.”). Because

Buckney could have raised the merger issue in his direct appeal, he is barred by res

judicata from doing so in his appeal from his limited resentencing.

       ¶ 20 Buckney’s third assignment of error is overruled.

       ¶ 21 All of Buckney’s assignments of error having been overruled, the judgment

of the trial court is affirmed.

                                     .............



FROELICH, J. and WELBAUM, J., concur.



Copies sent to:

John M. Lintz
Mark J. Bamberger
Hon. Richard J. O’Neill

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