2019 Ohio 4874
Ohio Ct. App.2019Background
- On Feb. 1, 2019 Michael Bucey assaulted Angela Miller during a car ride, seized her keys, smashed her phone, and drove off in her Honda CRV; the vehicle was recovered Feb. 8 and Bucey was arrested.
- A grand jury indicted Bucey for robbery (force), grand theft of a motor vehicle, and two misdemeanor counts of failure to comply with police; he pled guilty on April 30, 2019 to grand theft (fourth-degree felony) in exchange for dismissal of the other charges.
- The court ordered a PSI and sentenced Bucey to nine months’ imprisonment on May 14; at sentencing the court orally informed him of potential post-release control "up to three years."
- The written judgment entry, however, misstated post-release control as simply "three years" at the Parole Board’s discretion rather than "up to three years."
- Appellate counsel filed an Anders brief identifying possible issues: Crim.R. 11 plea compliance, whether the court articulated consideration of R.C. 2929.11/2929.12, and whether the sentence was supported by the record; the court conducted an independent review.
- The court affirmed the conviction and sentence but vacated the portion of the judgment regarding post-release control and remanded solely for a nunc pro tunc correction to reflect the proper "up to three years" post-release control language.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Bucey) | Held |
|---|---|---|---|
| 1) Did the plea comply with Crim.R. 11 and was it knowing/voluntary? | Court fully complied with Crim.R. 11; plea knowingly, intelligently, voluntarily entered. | Potential claim that plea hearing or advisements were defective (raised by appellate counsel). | Court: Crim.R. 11 satisfied; plea upheld. |
| 2) Did the trial court properly consider statutory sentencing policies (R.C. 2929.11/2929.12)? | Court reviewed PSI, plaintiff’s record, and considered purposes/principles of sentencing. | Argues trial court may not have placed statutory findings on the record. | Court: Presumed consideration on silent record; no non-frivolous claim. |
| 3) Was the nine-month sentence unsupported or contrary to law? | Sentence within statutory range and authorized given prior prison terms and criminal history. | Contended sentence might be excessive or unsupported. | Court: Sentence supported by record; affirmed. |
| 4) Was post-release control properly imposed and entered? | Court orally advised of post-release control "up to three years"; written entry misstated term but is clerical and correctable. | Claim that written entry incorrectly stated post-release control as "three years" (no "up to"); requires correction. | Court: Vacated judgment as to post-release control and remanded for nunc pro tunc entry correcting to "up to three years." |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (establishes procedure when appointed counsel seeks to withdraw and an independent appellate review is required)
- Penson v. Ohio, 488 U.S. 75 (follow-up on Anders requirement for independent review)
- State v. Clark, 893 N.E.2d 462 (Ohio) (Crim.R. 11 strict/substantial compliance framework and post-release control advisement rules)
- State v. Nero, 564 N.E.2d 474 (Ohio) (definition of substantial compliance with Crim.R. 11)
- State v. Sarkozy, 881 N.E.2d 1224 (Ohio) (complete failure to comply with Crim.R. 11 requires vacatur without prejudice analysis)
- State v. Fischer, 942 N.E.2d 332 (Ohio) (post-release control omitted or improperly imposed renders that portion of sentence void)
- State v. Qualls, 967 N.E.2d 718 (Ohio) (nunc pro tunc correction authorized when court properly notifies at sentencing but entry is wrong)
- State ex rel. Womack v. Marsh, 943 N.E.2d 1010 (Ohio) (authority on correcting clerical sentencing entry post-judgment)
- State v. Marcum, 59 N.E.3d 1231 (Ohio) (appellate standard of review under R.C. 2953.08(G)(2) for felony sentences)
- State v. Mathis, 846 N.E.2d 1 (Ohio) (trial court must consider R.C. 2929.11 and 2929.12 when sentencing)