[Cite as State v. Buchanan,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104500

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

TOMMY J. BUCHANAN DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-588303-A

BEFORE: McCormack, J., E.A. Gallagher, P.J., and Celebrezze, J.

RELEASED AND JOURNALIZED: April 13, 2017 ATTORNEY FOR APPELLANT

Ronald A. Skingle 6505 Rockside Road, Suite 320 Independence, OH 44131

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor

By: Denise J. Salerno Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:

{¶1} Defendant-appellant Tommy Buchanan appeals from a judgment of the

Cuyahoga County Court of Common Pleas that convicted him of rape following a jury

trial. Buchanan was accused of forcing a 14-year-old girl, L.F., into his vehicle while

she was on her way to school, driving her several blocks to a parking lot, and raping

her. The incident occurred in 1994 but the crime remained unsolved until 2013, when

Buchanan’s DNA was matched to the rape kit collected from the 14-year-old on the day

of the incident. After a careful review of the record and applicable law, we affirm

Buchanan’s conviction.

Substantive Facts and Procedural History

{¶2} After the DNA match, on August 14, 2014, Buchanan was indicted of rape

and kidnapping, both counts accompanied with a three-year firearm specification. At

the time of his indictment, he was serving a lengthy prison term for a prior rape

conviction. Because of his mental health conditions, a trial initially scheduled for May

4, 2015, was cancelled and he was referred to the Court Psychiatric Clinic for a

competency and sanity evaluation. After Buchanan was evaluated, a trial was

subsequently scheduled nearly one year later for May 2, 2016.

{¶3} On the very day of his trial, Buchanan’s counsel informed the court for the

first time that Buchanan wanted to proceed pro se. After a thorough, extensive colloquy

with Buchanan, the trial court denied his request for self-representation. {¶4} Before the trial, the state moved to amend the date of the offense from

August 22, 1994, to December 23, 1994. The state explained that the rape kit was

collected on the day of the incident, December 23, 1994, but the indictment inadvertently

listed August 22, 1994, as the date of the offense. The court granted the amendment on

the ground that the defendant was claiming consensual sex instead of asserting an alibi

defense. The defense objected to the amendment but did not ask for a continuance of

trial.

{¶5} The testimony by the state’s witnesses, including L.F. herself, reflects that

in the early morning of December 23, 1994, L.F. took an RTA bus to enable her to then

catch her school bus. After she got off the RTA bus, as she was walking to the school

bus stop, a car drove by and then turned around. The driver forced her inside the car.

The driver, whom she had never seen before, locked the car door and told her he had a

gun. He drove several blocks and parked the car in the back of a parking lot of an

apartment building on Kenmore Avenue. He then punched her in the face and forced

her to engage in intercourse with him. After he finished the assault, he told her to get

out of the car and drove off. L.F. walked across the parking lot and saw a woman who

appeared to be leaving for work. L.F. approached her and asked for help. The woman,

Vanessa Hurt, also testified at trial.

{¶6} Hurt corroborated L.F.’s testimony. On that morning, as she was leaving

for work, a young girl, who was crying and appeared upset, told her she had been raped

by a man who took her from a bus stop. Hurt brought L.F. inside her apartment and called the police. An ambulance took L.F. to the hospital. The nurse who treated her

at the hospital testified at trial as well. She recalled that L.F.’s mother and a school

board member came to the hospital and a rape kit was collected.

{¶7} The police however were unable to identify the man until 2013, when a test

of the rape kit linked Buchanan to the incident. When presented with a photo array 20

years later, L.F. was only able to identify Buchanan with a 50% certainty.

{¶8} Buchanan testified on his own behalf. His testimony was rambling and

disjointed. Initially when interviewed by the police, he denied knowing L.F. He

testified that he knew L.F. around December 1994. He implied L.F. was a prostitute at

the time; he first met her when she was “walking back and forth on the sidewalk like she

was flagging down cars.” She told him she was 20. He testified that he had sex with

her on four occasions. On the day she accused him of raping her, they had sex behind a

dumpster in a parking lot on Kenmore Avenue. He asserted that she went to the police

afterward because on that day she told him she was pregnant by him and he denied being

the father.

{¶9} The jury found Buchanan guilty of rape, but not guilty of kidnapping or the

firearm specification. The trial court sentenced him to 11 years in prison, to be served

consecutively to the prison term he was serving for his prior conviction of a sex offense.

{¶10} On appeal, Buchanan raises two assignments of error for our review. They

state: 1. The trial court violated appellant, Tommy Buchanan’s constitutional right to self representation by denying him the ability to defend himself at trial without the assistance of counsel.

2. The trial court erred by granting the state’s motion to amend the date of the offense in the indictment of the date of trial.

Self-representation

{¶11} Under the first assignment of error, Buchanan claims the trial court violated

his constitutional right of self-representation. We review this claim for an abuse of

discretion. State v. Vrabel,

,

,

.

{¶12} The Sixth Amendment of the United States Constitution guarantees a

criminal defendant a right to self-representation. State v. Gibson,

,

(1976), paragraph one of the syllabus, citing Faretta v. California,

,

,

(1975). However, the right of

self-representation is not absolute. Indiana v. Edwards,

,

,

(2008). A defendant “may proceed to defend himself without counsel

when he voluntarily, and knowingly and intelligently elects to do so.” Gibson at

paragraph one of the syllabus, citing Faretta.

{¶13} The courts, however, are to indulge in every reasonable presumption against

the waiver of a fundamental constitutional right such as the right to be represented by

counsel. State v. Dyer,

,

(2d Dist. 1996). A

criminal defendant must “unequivocally and explicitly invoke” his right to

self-representation. State v. Cassano,

,

,

, ¶ 38. In addition, the right of self-representation must be timely invoked.

In Cassano, the court held that the defendant’s request for self-representation three days

before the trial was untimely. Id. at ¶ 40, citing United States v. Mackovich,

(10th Cir. 2000) (requests made six to ten days before trial was untimely), and

United States v. George,

(9th Cir. 1995) (request made on the eve of

trial was untimely). When a request for self-representation is not unequivocally and

timely made, the trial court may, in its discretion, deny the request. State v. Halder, 8th

Dist. Cuyahoga No. 87974,

.

{¶14} Moreover, when a defendant invokes a right to self-representation, the trial

court must ensure that the defendant knowingly and intelligently waived his right to

counsel. Gibson. The defendant need not have the skill and experience of a lawyer but

he should be “made aware of the dangers and disadvantages of self-representation” so

that the record shows that his choice was made “with eyes open.” State v. Martin,

,

,

. In addition, to be a knowing

and intelligent waiver,

such waiver must be made with an apprehension of the nature of the

charges, the statutory offenses included within them, the range of allowable

punishments thereunder, possible defenses to the charges and circumstances

in mitigation thereof, and all other facts essential to a broad understanding

of the whole matter.

. {¶15} There is no prescribed colloquy to establish an effective waiver; the

information a defendant must possess to make an intelligent election “‘depend[s] on a

range of case-specific factors, including the defendant’s education or sophistication, the

complex or easily grasped nature of the charge, and the stage of the proceeding.’” State

v. Johnson,

,

,

, quoting Iowa

v. Tovar,

,

,

(2004).

{¶16} Here, Buchanan made a verbal request for self-representation for the first

time on the day of trial. He was represented by the same counsel during the two years

this criminal matter was pending, yet he did not seek self-representation until the morning

of trial. Buchanan told the trial court he wanted to represent himself because he knew

the accuser and he could tell his side of the story better than anyone else. The trial court

determined that his last-minute verbal request does not reflect a timely or unequivocal

request for self-representation. We agree.

{¶17} Most significantly, the record reflects that the trial court engaged Buchanan

in an extensive and thorough inquiry to ascertain if Buchanan knew the nature of and the

dangers and risks of self-representation and was relinquishing his right to counsel

knowingly and intelligently. The trial court made comprehensive inquiries into his

understanding of the case, the nature of the charges pending against him, his defenses, the

range of punishments, in addition to his knowledge of rules of criminal procedure and

evidence. After this lengthy colloquy, the trial court was not convinced that Buchanan

was fully aware of the hazards of representing himself or that his waiver of counsel was knowing and intelligent. Having the benefit of observing Buchanan’s demeanor and

listening to his often muddled and confused answers, the trial court was in the best

position to determine whether his waiver of counsel was knowing and intelligent. See

Halder; see also United States v. Frazier-El,

(4th Cir. 2000). The trial

court was not required to surrender the courtroom to a defendant who wished to represent

himself but failed to demonstrate that he waived the right to counsel knowingly and

intelligently.

{¶18} Buchanan’s day-of-trial verbal request for self-representation was not

unequivocal or timely. The record does not reflect that his waiver of counsel was

knowing or intelligent. The trial court utilized its discretion. It did not abuse its

discretion in denying his request. The first assignment of error is without merit.

Amendment of Indictment

{¶19} Before the commencement of the trial, the state moved, pursuant to Crim.R.

7(D), to amend the date of the offense from August 22, 1994, to December 23, 1994.

The state explained that the rape kit was dated December 23, 1994, and the date on the

indictment was an inadvertent clerical error.

{¶20} Under the second assignment of error, Buchanan argues that the trial court

erred in allowing the state to amend the date of the offense shortly before the trial. He

claims on appeal that he was prejudiced by the last-minute amendment because he was

not provided with adequate time to recollect the events of his life on the new date. {¶21} Crim.R. 7(D) provides that a trial court “may at any time before, during, or

after a trial amend the indictment, information, complaint, or bill of particulars, in respect

to * * * any variance with the evidence, provided no change is made in the name or

identity of the crime charged.” Under the rule, the state is permitted to amend an

indictment to conform to the evidence, provided that there is no change in the name or

identity of the offense charged. This court reviews the trial court’s decision to permit the

amendment of an indictment for an abuse of discretion, and, to show a reversible error

has occurred, Buchanan must show not only that the trial court abused its discretion, but

that the amendment prejudiced his defense. State v. Beach,

,

,

(1st Dist.).

{¶22} A change in the name or identity of a crime charged occurs when the

offense alleged in the indictment and the offense alleged in the amended indictment

contain different elements that require independent proof. State v. Mullins,

,

(12th Dist. 1997). The date and time of a rape is not

an essential element of the offense. State v. Collinsworth, 12th Dist. Brown No.

CA2003-10-012,

. Where the amendment does not change the name or

identity of the offense, as here, we will not disturb the trial court’s decision to permit the

amendment absent an abuse of discretion and a showing of prejudice. State v. Moore,

8th Dist. Cuyahoga No. 103123,

.

{¶23} Buchanan claims he was prejudiced by the amendment, yet he has not

demonstrated how or why his defense was hampered by the amendment of the offense date, because his defense at trial was not alibi. See, e.g., State v. Smith, 4th Dist. Scioto

No. 09CA3321,

(the defendant failed to show that he suffered

prejudice as a result of an amendment of the date of offense on the day of trial because he

did not present an alibi offense). Although on appeal Buchanan claims the last-minute

amendment of the date prevented him from recalling the events on the new date, he

testified at trial that he knew L.F. around the time of the incident and admitted that he

engaged in sexual conduct with L.F. in the parking lot on Kenmore Avenue behind a

dumpster. The only issue in this rape case was whether L.F. consented to the sexual

conduct. Although the state’s last-minute change in the offense date shows a lack of

workmanship, Buchanan fails to show he was prejudiced by the amendment.

{¶24} The trial court did not abuse its discretion in permitting the state to amend

the date of the offense to conform to the evidence and Buchanan fails to demonstrate

prejudice. The second assignment of error is without merit.

{¶25} Judgment affirmed.

It is ordered that appellee recover of appellant 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 appeal is terminated. Case remanded to the trial court

for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

____________________________________ TIM McCORMACK, JUDGE

FRANK D. CELEBREZZE, JR., J., CONCURS; EILEEN A. GALLAGHER, P.J., DISSENTS (WITH SEPARATE OPINION ATTACHED)

EILEEN A. GALLAGHER, P.J., DISSENTING:

{¶26} I respectfully dissent. I would sustain Buchanan’s first assignment of error

and find that the trial court abused its discretion in refusing to allow Buchanan to

represent himself at trial.

{¶27} The Sixth Amendment right to counsel includes a corollary right “‘to

dispense with a lawyer’s help.’” State v. Martin,

,

,

, quoting Adams v. United States ex rel. McCann,

,

,

(1942). The Sixth Amendment “guarantees that a defendant

in a state criminal trial has an independent constitutional right of self-representation and

that he may proceed to defend himself without counsel when he voluntarily, and

knowingly and intelligently elects to do so.” State v. Gibson,

,

(1976), paragraph one of the syllabus. “This right is thwarted when counsel

is forced upon an unwilling defendant, who alone bears the risks of a potential

conviction.” State v. Obermiller,

,

,

, ¶ 26, citing Faretta v. California,

,

,

(1975). If a trial court denies the right to self-representation when that right is properly

invoked, the denial is, per se, reversible error. Obermiller at ¶ 28, citing State v. Reed,

,

(1996).

{¶28} In this case, I believe the record shows that Buchanan both “unequivocally

and explicitly invoke[d]” his right to self-representation, State v. Cassano,

,

,

, ¶ 38, and that he voluntarily, knowingly and

intelligently elected to do so, Gibson at paragraph one of the syllabus, i.e., that he knew

what he was doing and made his choice with his “‘eyes open.’”

, quoting

. The trial court, therefore, abused its discretion in denying him that right.

{¶29} The trial court denied Buchanan’s request to proceed pro se at trial as

follows:

THE COURT: Okay. Pro se question is a difficult one. The court is required to go through an analysis set out by Faretta versus California. The court is required to inquire as to the defendant’s understanding of the rules of civil procedure, criminal procedure and evidence. Mr. Buchanan indicated that he’s aware of those rules. We talked about — a lot about due process here, but was unable to give the court an example of a criminal rule of procedure. Additionally, the court inquired as to Mr. Buchanan’s knowledge of hearsay, one the most common objections, and Mr. Buchanan had no accurate explanation as to what hearsay was.

He has also demonstrated that he’s ill-suited for the jury selection process. He does not know what a peremptory challenge is or challenge for cause, nor the number of peremptory challenges that he would enjoy during the jury selection process.

He has no knowledge at all of forensic science that the court anticipates will be introduced during this trial by the state. The case is a 21 or two year old CODIS hit rape case. While Mr. Buchanan does remember how his DNA was selected by the Ohio Department of Rehabilitation and Correction, he did not demonstrate any understanding how his DNA would have been part of this trial in a rape kit.

So given the — also the fact that he has unspecified bipolar disorder. And

he has demonstrated that, the rapid speech and the rambling train of

thought, as demonstrated with the court psychiatric clinic, he demonstrated

again here in court today.

This court does not feel confident that Mr. Buchanan has the ability to

represent himself in even a rudimentary fashion and is concerned that he

would severely prejudice his himself were he allowed to do so.

This is the morning of trial. * * * The court is not in a position

to give Mr. Buchanan a break to further his

education on these legal matters.

Additionally, Mr. Buchanan hasn’t made himself aware of who the state

even intends to call in the case against him. So if he doesn’t know who

they’re calling, he is obviously not in a position to be prepared to

cross-examine any of those witnesses.

So the court is going to decline the request for Mr. Buchanan to go pro se

and represent himself at this point.

{¶30} Contrary to the trial court’s assertion, Buchanan’s failure to give specific

examples criminal procedure rules, his inability to explain the concept of hearsay and his

lack of familiarity with the jury-selection process and certain forensic-science issues are not proper grounds for denying his request for self-representation. A defendant “need

not himself have the skill and experience of a lawyer” in order to choose

self-representation. Faretta,

,

,

. As the

United States Supreme Court stated in Faretta:

We need make no assessment of how well or poorly [the defendant] had

mastered the intricacies of the hearsay rule and the California code

provisions that govern challenges of potential jurors on voir dire. For his

technical legal knowledge, as such, was not relevant to an assessment of his

knowing exercise of the right to defend himself.

.

{¶31} In this case, Buchanan clearly and unequivocally declared to the trial court

that he wanted to represent himself. The record shows that Buchanan was deemed

competent to stand trial, that he is literate and that he understood the nature and

seriousness of the offenses with which he was charged. The record further shows that,

following a thorough colloquy by the trial court, Buchanan knew and understood the

significant risks and disadvantages of proceeding pro se and that, notwithstanding those

risks and disadvantages, nevertheless wished of his informed free will to proceed pro se at

trial.

{¶32} Although the majority describes Buchanan’s responses to the trial court’s

inquiries as “often muddled or confused,” it is not surprising that a lay person might have

some difficulty providing clear, concise answers to questions asking him to explain broad legal concepts such as “[w]hat is hearsay” or to state “the extent of your knowledge”

regarding “DNA forensic evidence.” The record reflects that when asked specific,

nonlegal questions, Buchanan had little difficulty providing direct, reasoned responses.

The record further reflects that Buchanan had a basic understanding of many of the legal

rules and concepts relevant to his defense, including the state’s burden of proof, the use

and importance of objections, potential defenses to the charges against him and his rights

with respect to his decision whether or not to testify in the case.

{¶33} The majority also makes much of the fact that Buchanan waited until the day

of trial to request self-representation. Buchanan, however, did not request a continuance

of the trial date and there is no indication in the record that Buchanan was not prepared to

proceed to trial on that date. Appointed defense counsel indicated that Buchanan had

showed him his notes and that Buchanan “appear[ed] to have done a fair amount of

preparation” for trial, including reviewing discovery and preparing questions for

witnesses. In addition, Buchanan’s responses to the trial court’s questions reflect that he

was familiar with much of the state’s evidence against him and that he had given thought

to and had a plan for his defense:

THE DEFENDANT: All she has is making allegation and complaints. I

plan to reveal to the jury they are negative allegation[s], complaints, and

there is no evidence beyond a reasonable doubt to support nothing that she’s

saying. Because DNA hit don’t mean nobody is raped. I can prove that

was a consensual relationship and the rape never took place. * * * The only witness I got is myself to prove that there’s no evidence beyond a

reasonable doubt, to say I committed a rape crime. * * *

{¶34} Appointed defense also indicated that he would be willing to serve as

standby counsel to serve as a resource should Buchanan require assistance with any legal

issues that might come up during trial, to which Buchanan raised no objection.

{¶35} Following a thorough review of the record, I find no indication that

Buchanan was not knowingly, intelligently and voluntarily waiving his right to counsel.

In my view, this is not a case of “surrendering the courtroom to a defendant,” as the

majority suggests. This is about preserving the right of “the accused personally * * * to

make his own defense”:

The Sixth Amendment does not provide merely that a defense shall be made

for the accused; it grants to the accused personally the right to make his

defense. It is the accused, not counsel, who must be “informed of the

nature and cause of the accusation,” who must be “confronted with the

witnesses against him,” and who must be accorded “compulsory process for

obtaining witnesses in his favor.” * * * The right to defend is given

directly to the accused; for it is he who suffers the consequences if the

defense fails.

Faretta,

,

,

.

{¶36} Buchanan was adamant that he wanted to represent himself at trial. He

repeatedly told the trial judge that he understood the ramifications of his decision and, notwithstanding the potential risks and disadvantages of proceeding pro se, he wanted to

represent himself because he believed that “nobody [can] tell the * * * story the way I can

tell it.”

{¶37} The right to represent oneself pro se has long been recognized in this

country and is sacrosanct. Although the right is certainly not absolute, it may not be

dispensed with easily. A defendant who chooses to proceed pro se is often making an

unwise decision. However, on the record before us, I believe that was Buchanan’s

decision to make.

{¶38} In forcing Buchanan, under these circumstances, to be defended by counsel,

I believe the trial court abused its discretion and deprived him of his constitutional right

to conduct his own defense. Accordingly, I would sustain Buchanan’s first assignment

of error, vacate his conviction and remand the case for a new trial.