Court of Appeals of Ohio, Eleventh District, Ashtabula
Criminal Appeal from the Ashtabula County Court of Common
Pleas, Case No. 2018 CR 00093.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley
M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse,
25 West Jefferson Street, Jefferson, Ohio 44047-1092 (For
Gregory T. Stralka, 6509 Brecksville Road, P.O. Box 31776,
Independence, Ohio 44131 (For Defendant-Appellant).
R. WRIGHT, P.J.
Appellant, Larry Robert Buckley, appeals his rape conviction
contending he was denied effective assistance of trial
counsel for failure to file a motion to suppress. We affirm.
Buckley was charged with three counts: rape, a first-degree
felony in violation of R.C. 2907.02(A)(1)(b), gross sexual
imposition, a third-degree felony in violation of R.C.
2907.05(A)(4)(C)(2), and attempted gross sexual imposition, a
fourth- degree felony in violation of R.C.
2907.05(A)(4)(C)(2) and 2923.02(A). A jury convicted him of
rape and found him not guilty of the other two charges. He
was sentenced to a mandatory term of ten years to life in
Buckley raises one assigned error:
"Appellant's constitutional right to effective
assistance of counsel was violated when such counsel failed
to move to suppress the statement given by appellant to the
To prevail on a claim of ineffective assistance of counsel, a
criminal appellant must establish (1) deficient performance
by counsel, i.e., performance falling below an objective
standard of reasonable representation, and (2) prejudice,
i.e., a reasonable probability that but for counsel's
errors, the result of the proceeding would have been
different. State v. Short, 129 Ohio St.3d 360,
2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113, citing
Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). Failure to satisfy either
prong is fatal. State v. Bradley, 42 Ohio St.3d 136,
143, 538 N.E.2d 373 (1989).
Buckley argues that he was given bad advice from an attorney
who advised him to talk with police before he was charged.
During that discussion, Buckley made incriminating statements
that were used at trial. He now claims trial counsel was
ineffective for failing to move to suppress his statements to
police based on his other attorney's poor advice. We
Even assuming appellant was given deficient advice, Buckley
fails to demonstrate that a motion to suppress would have led
to exclusion. It is his duty to support his argument with
case law, but he does not direct us to any that supports his
argument that suppression is warranted here. S. Russell
v. Upchurch, 11th Dist. Geauga Nos. 2001-G-2395 and
2001-G-2396, 2003-Ohio-2099, ¶ 10 (holding that an
appellant bears the burden of affirmatively demonstrating
error on appeal). If an argument exists that can support an
appellant's assignment of error, "'it is not
this court's duty to root it out.'" Tally v.
Patrick, 11th Dist. Trumbull No. 2008-T-0072,
2009-Ohio-1831, ¶ 22, quoting Harris v. Nome,
9th Dist. No. 21071, 2002-Ohio-6994. We likewise know of no
case supporting this argument.
The exclusionary rule was designed to remedy unconstitutional
conduct by state actors. Michigan v. Tucker, 417
U.S. 433, 446, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), citing
Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct.
1437, 4 L.Ed.2d 1669 (1960). Even assuming Buckley's
attorney was deficient by advising him to speak with
investigating officers, suppression is not warranted since he
fails to establish a constitutional violation at the hands of
a state actor. Id.
Buckley fails to establish that his trial counsel was
deficient, and as such, ...