[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
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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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