[Cite as State v. Carner,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109914 v. :

PATRICK CARNER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 8, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-645307-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Carson Strang, Assistant Prosecuting Attorney, for appellee.

Patituce & Associates, L.L.C., and Joseph Patituce, for appellant. SEAN C. GALLAGHER, P.J.:

Appellant Patrick Carner appeals his convictions for tampering with

evidence and obstructing official business, along with the sentence imposed by the

trial court. Upon review, we affirm the judgment of the trial court.

Background

On November 14, 2019, appellant was indicted on one count of

tampering with evidence in violation of R.C. 2921.12(A)(1), a felony of the third

degree, and one count of obstructing official business in violation of R.C. 2921.31(A),

a felony of the fifth degree, with a furthermore clause that he created a risk of

physical harm to a person.

Appellant entered a plea of not guilty to the charges, several pretrials

were held, and the case was scheduled for trial. After several delays due to the

COVID-19 pandemic, on June 18, 2020, a change-of-plea hearing was held at which

appellant retracted his former plea of not guilty and entered a plea of guilty to the

charges. Appellant and his counsel appeared at the plea hearing via Zoom from

defense counsel’s office. The assistant prosecutor requested that a Crim.R. 43

“waiver of appearance in the courtroom” be placed on the record, and defense

counsel indicated “[defendant] consents to do this by Zoom video.” The trial court

proceeded to engage in a colloquy with appellant and complied with the

requirements of Crim.R. 11. When asked if anyone, “including your attorney, the

prosecutor, or this court” had made any promises or threats to induce him to enter

his plea, appellant responded, “No, Your Honor.” Appellant confirmed his understanding about his plea and the proceedings, responded affirmatively to his

satisfaction with defense counsel, and entered a guilty plea to both counts.

Appellant confirmed that his pleas were voluntary and “done of your own free will

and desire[.]” Defense counsel expressed his belief that the trial court had satisfied

Crim.R. 11 and that appellant’s plea was being made in a knowing, voluntary, and

intelligent fashion.

At the conclusion of the plea hearing, the assistant prosecutor wished

to address his statement from the beginning of the plea hearing that no threats or

promises had been made. He wanted to place on the record that the state “did

consider reindictment in this case * * *. Not necessarily a threat or a promise, but

we decided not to reindict. And the defendant was going to plead guilty to this

indictment.” The assistant prosecutor indicated his statement “was completely

accurate about that,” and defense counsel stated that was “[f]air.”

On July 28, 2020, a sentencing hearing was held at which appellant

appeared via video from county jail, while defense counsel and the assistant

prosecutor were present in the courtroom. The record reflects that a presentence

investigation report was prepared. Defense counsel spoke to mitigating factors,

including appellant taking responsibility for his actions and being remorseful, and

he discussed the tragedy that occurred.

The charges in this case arose in relation to an incident during which

appellant was driving his on-again-off-again romantic partner, B.A., who was

pregnant with his child, to nursing school when she exited his moving vehicle and hit the pavement. Ultimately, B.A. tragically died from her injuries. Appellant

briefly stopped, but then fled the scene with his vehicle. He called 911 to report the

incident and where B.A. was located, but he provided inaccurate information

regarding the type of vehicle he was driving. Within two hours of the incident,

appellant visited defense counsel’s office to explain what occurred. Defense counsel

did not observe any scars, scratches, or wounds suggestive of a struggle. Defense

counsel contacted the authorities, and the next day, appellant turned himself in,

provided a statement to the police, and made his car available.

Defense counsel emphasized that no charges were brought against

appellant relating to B.A.’s death, that appellant had taken responsibility for having

fled the scene and having provided false vehicle information, and that after initially

panicking, appellant took appropriate action. Defense counsel discussed additional

mitigating factors, including appellant’s need for mental-health medication

following the tragedy.

Appellant addressed the court. He expressed his anguish over the

tragedy, admitted he panicked, and accepted full responsibility for his actions.

The assistant prosecutor stressed that appellant left his pregnant

girlfriend “bleeding and dying on the side of the road as he took off,” and advised

police in the 911 call that he was coming to the police station, but then he went to

defense counsel’s office almost two hours later after having lied to the police about

the vehicle he was in. The assistant prosecutor discussed appellant’s lengthy

criminal history, which included 13 felony convictions since 2009 and a prior juvenile record. The record also reflects appellant was on postrelease control for a

prior offense when the offenses in this case were committed. Family members of

B.A. were present in the courtroom, and her sister made a statement to the court.

The trial court commented that appellant was “lucky to get a lesser

charge than what some people think * * * you should have been charged with[.]”

However, the trial court recognized that “I can only sentence you according to what

you pled guilty to and tampering with evidence, removing the item that would

maybe tell the true story of what happened, that’s the worst form of the offense.”

The trial court reiterated that the tampering with evidence was removing the vehicle

that caused the injury. The trial court also considered appellant’s extensive criminal

record.

The trial court sentenced appellant to maximum prison terms of 36

months on Count 1 and 12 months on Count 2, with the counts to run consecutive to

each other for a total prison term of four years. The trial court made the requisite

findings for imposing consecutive sentences. The trial court also advised appellant

of postrelease control. At the conclusion of the sentencing hearing, defense counsel

placed an objection to the sentence on the record.

Appellant timely filed this appeal.

Law and Analysis

Appellant raises eight assignments of error for our review. We shall

address them out of order and together where appropriate. Under his first assignment of error, appellant claims the trial court

failed to meet the requirements of Crim.R. 43 regarding waiver, which he asserts

resulted in a waiver that was not knowingly, intelligently, and voluntarily made.

Under his second assignment of error, appellant claims the trial court erred in

permitting virtual attendance by appellant at the sentencing hearing.

The Supreme Court of Ohio has recently addressed this issue and

recognized that “[a] defendant has a fundamental right to be present at all critical

stages of his criminal trial.” State v. Grate, Slip Opinion No.

,

citing Article I, Section 10, Ohio Constitution; Crim.R. 43(A). “A defendant’s

absence, however, does not necessarily result in prejudicial or constitutional error.”

“‘[T]he presence of a defendant is a condition of due process to the extent that a

fair and just hearing would be thwarted by his absence, and to that extent only.’”

quoting Snyder v. Massachusetts,

,

,

(1934).

“The constitutional guarantees which mandate the presence of the

accused, absent a waiver of his rights, at every stage of his trial are embodied in

Crim.R. 43(A).” State v. Maynard, 10th Dist. Franklin No. 11AP-697, 2012-Ohio-

2946, ¶ 41, citing State v. Homesales, Inc.,

,

,

(1st Dist.). Crim.R. 43 requires the physical presence of the

defendant “at every stage of the criminal proceeding and trial, * * * except as

otherwise provided by these rules.” Crim.R. 43(A)(1). Pursuant to Crim.R. 43(A)(2),

in felony cases where a waiver is obtained in accordance with Crim.R. 43(A)(3), the court may permit the defendant’s presence and participation by remote

contemporaneous video provided the following requirements are met:

(a) The court gives appropriate notice to all the parties;

(b) The video arrangements allow the defendant to hear and see the proceeding;

(c) The video arrangements allow the defendant to speak, and to be seen and heard by the court and all parties;

(d) The court makes provision to allow for private communication between the defendant and counsel. The court shall inform the defendant on the record how to, at any time, communicate privately with counsel. Counsel shall be afforded the opportunity to speak to defendant privately and in person. Counsel shall be permitted to appear with defendant at the remote location if requested.

(e) The proceeding may involve sworn testimony that is subject to cross examination, if counsel is present, participates and consents.

Crim.R. 43(A)(3) permits the defendant to “waive, in writing or on the record, the

defendant’s right to be physically present under these rules with leave of court.”

Appellant argues that the waiver on the record at the change-of-plea

hearing did not make clear what the defendant was waiving. He states he was never

explained his right to be physically present, nor was he advised that he was waiving

that right to appear. Appellant also argues that he never waived physical presence

at the sentencing hearing. He states he was the only speaking participant to appear

virtually at his own sentencing hearing, and he suggests that the trial court gave

more weight to the speakers who appeared in person and that he did not receive a

fair hearing. He argues that the requirements of Crim.R. 43 were not met at both

hearings. A violation of Crim.R. 43 can constitute harmless error when the

defendant suffers no prejudice. State v. Jarmon, 8th Dist. Cuyahoga No. 108248,

; State v. Steimle, 8th Dist. Cuyahoga No. 95076, 2011-Ohio-

1071, ¶ 17. Additionally, when a defendant fails to object to attending a hearing via

video conference on the record, he forfeits all but plain error. State v. Howard, 2d

Dist. Greene No. 2012-CA-10,

; Steimle at ¶ 17; State v.

Edwards, 8th Dist. Cuyahoga No. 95976,

. Pursuant to Crim.R.

52(B), “[p]lain errors or defects affecting substantial rights may be noticed although

they were not brought to the attention of the court.” An error affects substantial

rights only if it affected the outcome of the proceeding. State v. Barnes,

,

(2002).

Here, appellant and his counsel appeared at the change-of-plea

hearing via Zoom from defense counsel’s office. The record shows the assistant

prosecutor requested a Crim.R. 43 “waiver of appearance in the courtroom” be

placed on the record, and defense counsel indicated “[defendant] consents to do this

by Zoom video.” It would appear that appellant had spoken with defense counsel

prior to the plea hearing. Appellant engaged in a plea colloquy with the trial judge

and was able to understand the Crim.R. 11 advisements given. During the hearing,

appellant indicated his satisfaction with counsel’s performance, and the record

shows his plea was knowingly, intelligently, and voluntarily made.

The record also shows that appellant was able to participate in the

sentencing hearing, appellant was adequately represented by defense counsel and mitigating factors were presented, and appellant was permitted to address the court.

Although appellant indicated at one point that he could not hear that well, an

adjustment was made and he proceeded to respond to questions from the court. No

objection was raised with regard to the inability to hear any portion of the

proceeding, and our review of the record shows appellant was able to effectively

understand and participate in the proceeding. Also, contrary to appellant’s

assertion, there is no indication that the trial court gave any greater consideration

to statements of participants who appeared in person.

Our review reflects that appellant fully participated in both hearings,

and he was not prevented from having a fair and just hearing. Appellant fails to

show a prejudicial or constitutional error occurred. Because appellant has not

shown that his substantial rights were affected, no plain error exists. See State v.

Wood, 5th Dist. Knox No. 20CA000010,

. Further, to the

extent any requirements of Crim.R. 43 were not satisfied, the error was harmless

because no prejudice occurred. See Steimle, 8th Dist. Cuyahoga No. 95076, 2011-

Ohio-1071, at ¶ 17-18. Accordingly, the first and second assignments of error are

overruled.

Under his fifth assignment of error, appellant argues his plea was not

knowingly, intelligently, and voluntarily made because he claims the prosecution

threatened to reindict him on more serious charges if he exercised his constitutional

right to a jury trial. Appellant further argues that prosecutorial misconduct and vindictive prosecution occurred and alleges the assistant prosecutor acted with

animus to dissuade him from exercising his constitutional right to trial.

Our review of the record shows that the state expressed that it was

considering reindicting appellant during the negotiations. The state decided not to

reindict appellant on more serious charges because he agreed to plead guilty to the

indictment in this case. Appellant confirmed at the change-of-plea hearing that his

pleas were “voluntary” and entered of his “own free will and desire.”

As the United States Supreme Court recognized in Bordenkircher v.

Hayes,

,

,

(1978),

Plea bargaining flows from ‘the mutuality of advantage’ to defendants and prosecutors, each with his own reasons for wanting to avoid trial. [Brady v. United States,

,

,

(1970)]. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. [Id. at 758]. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. * * *.

While confronting a defendant with the risk of more severe punishment clearly may have a “discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable” — and permissible — “attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” [Chaffin v. Stynchcombe,

,

,

(1973)]. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.

. Thus, as this court has recognized: “A prosecutor is permitted to use

the possibility of reindictment on more serious charges as an inducement in the plea

bargain process,” and this is not a violation of due process. State v. Tolliver, 8th

Dist. Cuyahoga No. 108955,

, citing State v. Staten, 7th Dist.

Mahoning No. 03 MA 187,

. Therefore, the assistant

prosecutor acted properly in using the possibility of reindictment on more serious

charges to persuade appellant to accept the plea deal. Additionally, the

circumstances herein do not establish prosecutorial misconduct or vindictive

prosecution.

The record demonstrates that appellant’s pleas were knowingly,

intelligently, and voluntarily made. Accordingly, the fifth assignment of error is

overruled.

Under his third and fourth assignments of error, appellant claims he

was denied effective assistance of counsel. He argues that his trial counsel stood idle

and allowed him to plead to maximum consecutive sentences on the indictment. He

also claims counsel failed to request merger.

“[A]ppellate courts generally review ineffective assistance of counsel

claims on a de novo basis * * *.” State v. Gondor,

, 2006-Ohio-

6679,

. In order to prevail on an ineffective assistance of counsel

claim, the defendant must show that his trial counsel’s performance was deficient

and that the deficient performance prejudiced his defense so as to deprive the

defendant of a fair trial. Strickland v. Washington,

,

,

(1984); Grate, Slip Opinion No.

.

“[A] court must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.”

. To establish

prejudice, the defendant must demonstrate there is a “reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.”

.

Appellant argues that defense counsel was ineffective for failing to

take sufficient action to mitigate the outcome of the sentence. He argues that no

motions were filed outside of basic discovery, no sentencing memorandum was filed,

and defense counsel did not request a sentence less than the maximum consecutive

sentences that were imposed. He further argues defense counsel did not request the

case be moved to the mental health docket, and he failed to object to the court’s

consideration of B.A.’s death. Additionally, appellant claims defense counsel should

have requested a merger of allied offenses at sentencing.

The Supreme Court of Ohio has recognized that “‘[t]he presentation

of mitigating evidence is a matter of trial strategy[.]’” State v. McKelton,

,

,

, quoting State v. Bryan,

,

,

, ¶ 189. Here, defense counsel offered a

mitigation presentation to the trial court that included a lengthy discussion of

appellant having accepted full responsibility for his actions and appellant’s remorse.

Defense counsel discussed the tragedy that occurred, and he pointed out that after

initially panicking, appellant took appropriate action in the matter. Our review reflects that the mitigation presentation was not deficient. The record also

demonstrates that defense counsel decided on a strategy of pleading to the charge,

accepting responsibility, and showing remorse in an effort to receive a non-

maximum sentence. The fact that this strategy did not work does not require a

finding of ineffective assistance of counsel. See State v. Burch, 7th Dist. Jefferson

No. 12 JE 28,

.

Likewise, the failure to request the case be moved to the mental health

docket and the failure to object to any insinuation that appellant caused B.A.’s death

fell within the realm of trial strategy. Defense counsel informed the court of

appellant’s need for mental-health medication following the tragedy. Defense

counsel also emphasized that no charges were brought against appellant relating to

B.A.’s demise, and the trial court was well aware it could only sentence appellant for

the offenses with which he was charged. After the sentence was imposed, defense

counsel placed an objection on the record. We are unable to find counsel’s

performance was deficient in regard to mitigating the outcome of the sentence.

Next, we are unable to find counsel was ineffective for failing to

request a merger of the offenses. In State v. Ruff,

, 2015-Ohio-

995,

, the Supreme Court of Ohio held that pursuant to R.C.

2941.25(B), “a defendant whose conduct supports multiple offenses may be

convicted of all the offenses if * * * (1) the conduct constitutes offenses of dissimilar

import, (2) the conduct shows that the offenses were committed separately, or (3)

the conduct shows that the offenses were committed with separate animus.” (Emphasis added.)

at paragraph three of the syllabus. In this case, the record

reflects the offense of tampering with evidence was committed the moment

appellant removed his vehicle from the scene prior to the arrival of the police or

emergency medical personal. The trial court recognized that the tampering with

evidence charge involved “the removal of the item” that caused the injury. The

offense of obstructing official business related to appellant’s separate conduct of

misidentifying his vehicle to the 911 dispatcher and misinforming the dispatcher

that he was driving to the police station, when he instead went to meet with his

attorney. Because the conduct shows that the offenses were committed separately,

defense counsel was not ineffective for failing to request merger.

Upon our review, we find appellant has failed to demonstrate

counsel’s performance was deficient or that any deficient performance prejudiced

him. Therefore, we overrule appellant’s third and fourth assignments of error.

Under his sixth assignment of error, appellant claims the trial court

improperly considered victim impact testimony while sentencing appellant on

victimless crimes. Appellant argues that because B.A.’s death was not caused by the

conduct giving rise to the charges, that B.A. was not a victim of the offenses.

Our review reflects that no objection was raised during the sentencing

hearing. Further, because there is no indication in the record that the sentence

imposed was the result of the victim impact statement given, no reversible error

occurred. Rather, our review shows the trial court properly considered appellant’s

extensive criminal record along with the seriousness of the tampering with evidence and obstructing official business offenses with which appellant was charged. The

obstructing official business charge included a furthermore clause that appellant

created a risk of physical harm to a person.

The trial court was aware that appellant was not charged with

offenses relating to the deceased’s death and that appellant had been charged only

with tampering with evidence and obstructing official business. As pointed out by

the assistant prosecutor, appellant left his pregnant girlfriend “bleeding and dying

on the side of the road as he took off” and advised police in the 911 call that he was

coming to the police station, but then went to defense counsel almost two hours later

after having lied to the police about the vehicle he was in. The trial court did not

attribute B.A.’s death to appellant, but rather considered the impact of the tragic

incident that resulted in B.A.’s death as it related to the seriousness of the charges

at hand. As found by the trial court, removing the vehicle that caused the injury was

the worst form of the offense. We find no reversible error occurred and overrule

appellant’s sixth assignment of error.

Under his seventh and eighth assignments of error, appellant claims

his sentence is contrary to law because the trial court failed to properly weigh the

relevant statutory principles and factors and refused to consider mitigating factors.

Appellant claims the sentence imposed by the trial court is

inconsistent with the purposes of felony sentencing and argues the trial court

improperly weighted the sentencing factors. In the trial court’s sentencing entry,

the court stated it “considered all required factors of the law” and found “that prison is consistent with the purpose of R.C. 2929.11.” The Supreme Court of Ohio has

repeatedly held that “neither R.C. 2929.11 nor 2929.12 requires a trial court to make

any specific factual findings on the record.” State v. Jones, Slip Opinion No. 2020-

Ohio-6729, ¶ 20, citing State v. Wilson,

,

,

, ¶ 31; State v. Arnett,

,

,

(2000). Furthermore, “[n]othing 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.” Jones at ¶ 42.

Nevertheless, appellant again argues that the trial court improperly

considered uncharged conduct when rendering the sentencing decision. We find no

merit to this argument. Although the trial court was aware of the tragic incident that

occurred, the trial court was aware that appellant had not been charged in relation

to B.A.’s death and expressed that it was sentencing appellant on the offenses for

which he was charged. The trial court properly considered the purposes of felony

sentencing pursuant to R.C. 2929.11 and the seriousness and recidivism factors

under R.C. 2929.12, and there is nothing in the record that suggests otherwise.

Additionally, insofar as appellant challenges the maximum

consecutive sentences that were imposed, the record demonstrates that the requisite

findings for imposing consecutive terms were made pursuant to R.C. 2929.14(C) and

incorporated into the sentencing entry in accordance with State v. Bonnell,

,

,

. Appellant does not dispute that the findings were made. Further, we are unable to find that the record does not clearly

and convincingly support the findings.

Last, appellant claims that the trial court indicated it would refuse to

consider any supporting documentation that was not typed. The record shows that

this instruction was given at the change-of-plea hearing. The trial court clarified

that if letters of support were handwritten, defense counsel’s office could type them.

There is no indication in the record that the trial court refused to accept any letters

or documents submitted by the appellant or his family. Nor does the record show

the trial court refused to consider any mitigating factors. Accordingly, we overrule

the seventh and eighth assignments of error.

Finally, this court has thoroughly reviewed the record and has

considered all arguments presented in the briefs. We find no merit to any arguments

not specifically addressed herein.

Judgment affirmed.

It is ordered that appellee recover from 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

convictions 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.

_______________________________ SEAN C. GALLAGHER, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and EILEEN T. GALLAGHER, J., CONCUR