State v. Buckhanon

[Cite as State v. Buckhanon, 2022-Ohio-683.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 110127
v. :

RONALD BUCKHANON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 10, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-647667-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Denise J. Salerno, Assistant Prosecuting
Attorney, for appellee.

Thomas Rein, for appellant.

MARY J. BOYLE, P.J.:

Defendant-appellant, Ronald Buckhanon (“Buckhanon”), appeals his

sentence. He raises the following two assignments of error for our review:

1. The record clearly and convincingly fails to support the imposition
of a maximum sentence imposed upon [Buckhanon].
 2. The trial court erred by imposing an indefinite prison sentence upon
[Buckhanon] which is unconstitutional.

For the reasons set forth below, we affirm the trial court’s judgment.

I. Procedural History

In January 2020, Buckhanon was indicted on three counts related to

sexual abuse that occurred in December 2019. Counts 1 and 2 charged him with

first degree-felony rape and lists the victim as D.W. (d.o.b. 10/02/2006). Count 3

charged him with gross sexual imposition, a fourth-degree felony.1

In October 2020, Buckhanon pled guilty to all counts as indicted. The

trial court referred the matter to the probation department for a presentence-

investigation report (“PSI”). The matter proceeded to sentencing in November

2020. According to the police report that was included in the PSI, D.W., who was

13 years old at the time, told her grandmother and her aunt that she was raped by

her mother (D.S.) and her mother’s boyfriend (Buckhanon). D.W. told the police

that her mother called her into her bedroom and told the victim to imitate what she

did to Buckhanon. D.S. then performed oral sex on Buckhanon. D.S. instructed

D.W. to do the same, and D.W. complied. D.S. instructed D.W. to take off her

clothes. After she complied, D.W. said that Buckhanon touched her whole body,

including her breasts and vagina. D.W. further stated that Buckhanon “touched her

1 Buckhanon was indicted with codefendant, D.S., who is the victim’s mother. D.S.
was indicted on Counts 1-3 and also indicted for permitting child abuse of a mentally or
physically handicapped person and child endangering a mentally or physically
handicapped child, with a furthermore clause that the violation resulted in serious
physical harm to the child. D.S. appealed to this court, challenging the constitutionality
of her sentence in State v. D.S., 8th Dist. Cuyahoga No. 110134.
vagina with his penis.” D.S. told D.W. that she could not tell anyone because D.S.

and Buckhanon would go to jail.

Defense counsel stated that Buckhanon understood that he would be

receiving “a lengthy prison sentence in this case,” but that the court should consider

the fact that Buckhanon pled guilty and accepted responsibility. Defense counsel

said that he wanted to “highlight [that] this was one single event.” Defense counsel

told the court that Buckhanon is 45 years old and has “grandkids that he’s watched,”

and there have never been any allegations of sexual abuse. Defense counsel stated

that Buckhanon was “very sorry” for what he did to the victim. Defense counsel

explained that Buckhanon had “severe problems with PCP” in 2014, and that “years

of drug abuse have had some effect on his life.” Defense counsel further stated that

Buckhanon had not had felony convictions since 2009. Defense counsel asked for

concurrent sentences.

Buckhanon apologized to his family, the victim, the victim’s family,

and the court. He stated that he “just want[ed] to make it back so [he could] be a

father to [his] children and a grandfather to [his] grandkids and be a productive

member of society.”

The victim’s grandmother spoke to the court. She stated that

Buckhanon “took away her [granddaughter’s] innocence.” The victim’s

grandmother asked the court to give Buckhanon the maximum sentence.

The state explained that D.W. had just turned 13 years old when

Buckhanon sexually abused her. The state informed the court that D.W.’s mother
claimed that Buckhanon “indicated that, one way or another, this was going to

happen, with or without her consent.” The state told the court that regardless of

whether that was true, Buckhanon did not take responsibility in this case or show

any remorse until D.S. “stepped up” and “offered to testify in this case.” The state

indicated that because of that, it was difficult to find Buckhanon’s remorse sincere.

The state further told the court that although Buckhanon’s sexual acts against D.W.

took place in one day, D.W. told police that it “went on for quite a while.” According

to the state, “These were multiple acts, oral sex, vaginal, * * * [t]here was touching

of her entire body.” The state explained:

We’ve already seen the impact that Mr. Buckhanon’s actions had on
this family[.] * * * The co-defendant is responsible for her own
decisions, but now we have a 13-year-old child and several other
children who have a mom that’s gone for the next several years. We
have [the grandmother], who now doesn’t have her daughter for the
next several years. It’s just torn an entire family apart, and it never
should have happened.

(Tr. 30-31, Nov. 12, 2020.)

The state said it would defer to the family’s request regarding the

length of prison time that the trial court should impose.

According to the PSI, Buckhanon had a lengthy criminal history that

dated back to 1990, when he was a juvenile. As an adult, Buckhanon had over 20

convictions, including resisting arrest, domestic violence, violating a protection

order, criminal trespassing, aggravated trespassing, robbery, burglary, criminal

damaging, and many drug convictions.
 The trial court indicated that it had reviewed the PSI, letters from

Buckhanon’s family members, the principles and purposes of felony sentencing,

and all the appropriate recidivism and seriousness factors. The court noted that

Counts 1 and 2 were not allied because they were separate acts.

The trial court explained that it considered Buckhanon’s “prior

domestic violence issues” and violent criminal history, which included robbery and

assault cases as a juvenile. The court told Buckhanon that what he did to the victim

was “a violent act.” The court said that it had to “separate [Buckhanon] from society

for justice, [and] to protect our community.” The court explained that because of

the seriousness of the offenses, it was going to impose the maximum sentence on

each offense. But because the offenses occurred in “one incident,” it was going to

impose concurrent sentences.

The trial court imposed 11 years in prison for each rape conviction and

18 months for gross sexual imposition. It ordered that all counts be served

concurrent to each other, for a total of 11 years in prison. The trial court then found

that Counts 1 and 2 were qualifying offenses under the Reagan Tokes Law, and

notified Buckhanon that his minimum sentence would be 11 years in prison and his

maximum sentence would be 16.5 years in prison. The trial court informed

Buckhanon that whether he was released from prison after 11 years was up to the

Ohio Department of Rehabilitation and Correction and was “based on how [he]

behave[d] while in the institution.” Defense counsel noted his objection to the

constitutionality of the Reagan Tokes Law.
 The trial court also notified Buckhanon that he would be subject to a

mandatory period of five years of postrelease control after he was released from

prison, and of the consequences he would face for violating the terms of his

postrelease control. The court further notified Buckhanon that he was classified as

a Tier III sex offender, the requirements he had to follow based upon that

classification, and what would occur if he failed to abide by those requirements.

It is from this judgment that Buckhanon now appeals.

II. Maximum Sentence Under R.C. 2929.12

In his first assignment of error, Buckhanon contends that the “record

clearly and convincingly fails to support the imposition of a maximum sentence”

under R.C. 2929.12.

R.C. 2953.08(G)(2) states that when reviewing felony sentences, an

“appellate court’s standard for review is not whether the sentencing court abused

its discretion.” Rather, the statute states that if we “clearly and convincingly” find

that (1) “the record does not support the sentencing court’s findings under” certain

sentencing provisions not at issue in this case, or that (2) “the sentence is otherwise

contrary to law,” then we “may increase, reduce, or otherwise modify a sentence

* * * or [we] may vacate the sentence and remand the matter to the sentencing court

for resentencing.”

When sentencing a defendant, the sentencing court must consider the

purposes and principles of felony sentencing set forth in R.C. 2929.11 and the

seriousness and recidivism factors in R.C. 2929.12. State v. Hodges, 8th Dist.
Cuyahoga No. 99511, 2013-Ohio-5025, ¶ 7. A sentence is contrary to law if it falls

outside the statutory range for the offense or if the sentencing court fails to consider

the purposes and principles of sentencing set forth in R.C. 2929.11 and the

sentencing factors in R.C. 2929.12. State v. Pawlak, 8th Dist. Cuyahoga No.

103444, 2016-Ohio-5926, ¶ 58.

Under R.C. 2929.11(A), a felony sentence shall be “reasonably

calculated” to achieve the following three “overriding purposes:” (1) protect the

public from future crime by the offender and others; (2) punish the offender; and

(3) promote the effective rehabilitation of the offender using the minimum sanctions

the court determines accomplish those purposes without imposing an unnecessary

burden on state or local government resources. Additionally, the imposed sentence

must be “commensurate with and not demeaning to the seriousness of the offender’s

conduct and its impact upon the victim, and consistent with sentences imposed for

similar crimes committed by similar offenders.” R.C. 2929.11(B).

R.C. 2929.12 provides the sentencing court with the discretion to

determine the best way to comply with the purposes and principles of sentencing set

forth in R.C. 2929.11 when imposing a sentence. State v. Bridges, 8th Dist.

Cuyahoga No. 107281, 2019-Ohio-1769, ¶ 10. R.C. 2929.12 sets forth a

nonexhaustive list of factors a trial court must consider in determining the

seriousness of the offender’s conduct and the likelihood of recidivism, including: the

offender’s history of criminal convictions, whether the offender has responded

favorably to sanctions previously imposed for criminal convictions, whether the
offender has demonstrated remorse, and any other factors relevant to achieving the

purposes and principles of sentencing. R.C. 2929.12(A), (D)(2)-(3), and (D)(5).

In support of his argument that the record fails to support the

imposition of a maximum sentence under R.C. 2929.12, Buckhanon cites to this

court’s original decision in State v. Jones, 2016-Ohio-5923, 76 N.E.3d 417 (8th

Dist.). He claims that in Jones, this court recognized that the Ohio Supreme Court

in State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

“substantially expanded the scope of appellate review of non-consecutive

sentencing” and permitted appellate courts to reverse or modify a defendant’s

sentence if the record failed to support it under R.C. 2929.12.

This court’s decision in Jones, however, was reversed by the Ohio

Supreme Court in State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d

649. The Ohio Supreme Court concluded that the foregoing language in Marcum

was dicta and that an appellate court errs if it relies on Marcum and modifies or

vacates a sentence “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.” Jones at ¶ 27, 29.

With respect to our review of a trial court’s consideration of the

factors set forth in R.C. 2929.12, the Ohio Supreme Court explained in Jones:

R.C. 2953.08(G)(2)(a) permits an appellate court to modify or vacate a
sentence if it clearly and convincingly finds that ‘the record does not
support the sentencing court’s findings under’ certain specified
statutory provisions. But R.C. 2929.11 and 2929.12 are not among the
statutory provisions listed in R.C. 2953.08(G)(2)(a). Only R.C.
2929.13(B) and (D), 2929.14(B)(2)(e) and (C)(4), and 2929.20(I) are
specified.
 ***

R.C. 2953.08(G)(2)(b) therefore does not provide a basis for an
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
2929.12.

***

Nothing in R.C. 2953.08(G)(2) permits an appellate court to
independently weigh the evidence in the record and substitute its
judgment for that of the trial court concerning the sentence that best
reflects compliance with R.C. 2929.11 and 2929.12. In particular, R.C.
2953.08(G)(2) does not permit an appellate court to conduct a
freestanding inquiry like the independent sentence evaluation [the
Supreme Court] must conduct under R.C. 2929.05(A) when reviewing
a death penalty-sentence.

Id. at ¶ 28, 39, 42.

Therefore, although the trial court must “consider” the factors,

“neither R.C. 2929.11 nor 2929.12 requires a trial court to make any specific factual

findings on the record.” State v. Phillips, 8th Dist. Cuyahoga No. 110148, 2021-

Ohio-2772, ¶ 8, citing Jones at ¶ 20, citing State v. Wilson, 129 Ohio St.3d 214, 2011-

Ohio-2669, 951 N.E.2d 381, ¶ 31; State v. Arnett, 88 Ohio St.3d 208, 215, 724

N.E.2d 793 (2000). The trial court is presumed to have considered the factors

unless the defendant affirmatively demonstrates otherwise. Id., citing State v.

Wright, 2018-Ohio-965, 108 N.E.3d 1109, ¶ 16 (8th Dist.). Furthermore, “a trial

court’s statement in its sentencing journal entry that it considered the required

statutory factors is alone sufficient to fulfill its obligations under R.C. 2929.11 and

2929.12.” Id., citing Wright.
 At the sentencing hearing in the instant case, the trial court stated that

it reviewed the PSI completed on Buckhanon and read the letters from family

members. The court also stated it “considered the principles and purposes of felony

sentencing, all the appropriate recidivism and seriousness factors.” The court then

set forth its reasons for the sentence:

So at this point, based on everything, and this is — as I told [D.S.] and
as I explained to the victim in the case, [D.W.], her grandmother, I am
going to explain the same thing to you, sir, this is an absolute violent
act on your part. It was a betrayal by the mother. It’s a violent act on
your part. It’s a power act. It’s in character with your prior domestic
violence issues.

I see your prior criminal history and a couple other prior violent
felonies, robbery, looks like some assault cases as a juvenile. And this
is part of that — part of that character in you. This is violent. It’s
nothing else. It’s a power assertion. You’re asserting your power over
[D.S.] and poor [D.W.], who is a child.

And as I told [D.S] and — the only person who did the right thing in
this case was [D.W.]. She did the right thing. She reported it
immediately. She told her grandmother. Her grandmother did the
right thing to start to deal with this. It’s the only healthy way to do it.
That it was not [D.W.]’s fault in any way whatsoever that the family has
been plunged into this hell. It’s your fault, sir, and you hold that
responsibility.

(Tr. 34-35, Nov. 12, 2020.)

The court further explained:

In the meantime, though, I have to separate you from society for justice,
to protect our community, and so in this case, because it’s one incident,
I’m going to impose concurrent sentences. So, what I — and also this
is a Reagan Tokes sentence. So, the two F-1s are qualifying offenses,
which will require indefinite sentences. Therefore, there will be an
indefinite sentence imposed. It’s mandatory prison. Because they’re
sex offenses, there is no presumptive early release in this matter, and
there will be mandatory post-release control when you are released.
 Because of the seriousness of this and how — and the indication of the
violence in your past and that you got her mother to go along with this,
which is a level of manipulation and power and — that I believe a
maximum sentence is appropriate.

(Tr. 36, Nov. 12, 2020.)

When applying the standard set forth in R.C. 2953.08(G)(2) to the

instant case, we find that Buckhanon’s sentence of 11 to 16.5 years is within the

statutory range. We further find that the trial court’s sentence is supported by the

relevant sentencing statutes. Buckhanon has an extensive prior criminal history

and issues with domestic violence. His sentence protects the public and punishes

the offender, without imposing an unnecessary burden on state or local government

resources. Furthermore, the trial court’s sentencing journal entry indicates that it

“considered all required factors of the law.” The court’s statement in its journal

entry is enough to find that the court considered the purposes and principles of

felony sentencing set forth in R.C. 2929.11 and the seriousness and recidivism

factors in R.C. 2929.12. Phillips, 8th Dist. Cuyahoga No. 110148, 2021-Ohio-2772,

at ¶ 8, citing Wright, 2018-Ohio-965, 108 N.E.3d 1109 (8th Dist.).

Having failed to clearly and convincingly demonstrate that the record

does not support his sentence or that the sentence is contrary to law, Buckhanon’s

first assignment of error is overruled.

III. Constitutionality of Reagan Tokes Law

In his second assignment of error, Buckhanon contends that the

indefinite part of his sentence imposed under the Reagan Tokes Law violates the
separation-of-powers doctrine and the due process clause of the United States and

Ohio Constitutions.

However, pursuant to our recent en banc decision in State v.

Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, this court has

determined that Buckhanon’s challenges to the Reagan Tokes Act are ripe for review

and that the Act is constitutional.2

Accordingly, the second assignment of error is overruled.

Judgment is affirmed.

It is ordered that appellee recover from appellant the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.

2 As the writer of this merit panel decision, I am constrained to follow the law as
determined by the close vote in the en banc majority court in Delvallie. However, as I
expressed in my separate concurring-in-judgment-only opinion in Delvallie and in my
dissenting opinion in the original panel decision in State v. Gamble, 8th Dist. Cuyahoga
No. 109613, 2021-Ohio-1810, it is my view that challenges in a direct appeal under the
Reagan Tokes Act are not yet ripe for review.
 A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

____________________________
MARY J. BOYLE, PRESIDING JUDGE

EMANUELLA D. GROVES, J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY

N.B. Judge Emanuella D. Groves concurred with the opinions of Judge Lisa B.
Forbes (dissenting) and Judge Anita Laster Mays (concurring in part and dissenting
in part) in Delvallie and would have found the Reagan Tokes Law unconstitutional.