State v. Burkhart

2013 Ohio 4396

• Court: Ohio Court of Appeals
• Decided: October 4, 2013
• Docket: 2013-CA-12
• Status: Published

Opinion

[Cite as State v. Burkhart, 2013-Ohio-4396.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

STATE OF OHIO

Plaintiff-Appellee

v.

ELVIN H. BURKHART, IV

Defendant-Appellant

Appellate Case No. 2013-CA-12

Trial Court Case No. 2013-CR-65

(Criminal Appeal from (Common Pleas Court) ...........

OPINION

Rendered on the 4th day of October, 2013.

...........

KEVIN TALEBI, Atty. Reg. No. 0069198, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

STEVEN H. ECKSTEIN, Atty. Reg. No. 0037253, 1208 Bramble Avenue, Washington Court House, Ohio 43160 Attorney for Defendant-Appellant

ELVIN H. BURKHART, IV, Inmate No. 678010, Lebanon Correctional Institution, P.O. Box 56, Lebanon, Ohio 45036

............. 2

WELBAUM, J.

{¶ 1} Defendant-Appellant, Elvin H. Burkhart, IV, was indicted on one count of

Domestic Violence, a felony of the fourth degree, one count of Petty Theft, a misdemeanor of the

first degree, six counts of Forgery, a felony of the fifth degree, and one count of Possession of

Heroin, a felony of the fifth degree, in Champaign County Common Pleas Court Case No. 2013

CR 065. Pursuant to a plea agreement, Burkhart pled guilty to one count of Domestic Violence,

two counts of Forgery, and one count of Possession of Heroin. The remaining counts were

dismissed by the State. Burkhart committed the offenses while under community control

sanctions for a prior conviction in Champaign County.

{¶ 2} At Burkhart’s sentencing hearing, the trial court stated that it reviewed the

presentence investigation report and the statements made by counsel and Burkhart. The trial

court’s Journal Entry of Judgment, Conviction and Sentence indicates that the court was guided

by the purposes and principles of sentencing in R.C. 2929.11, which is to protect the public from

future crime and to punish the offender. In addition, the entry indicated that the trial court

considered the factors provided in divisions (B), (C), (D), and (E) of R.C. 2929.12, which relate

to the seriousness of the offender’s conduct and recidivism. The court further indicated that it

considered other factors relevant to achieving the purposes and principles of sentencing, and also

the factors in R.C. 2929.14(C)(4), which relate to the imposition of consecutive sentences.

{¶ 3} With respect to the community control violation, the trial court revoked

Burkhart’s community control and sentenced him to 12 months in prison. As for the offenses in

Case No. 2013 CR 065, the trial court sentenced Burkhart to 18 months in prison for the 3

Domestic Violence count, eight months each for the two Forgery counts, and 10 months for the

Possession of Heroin count. The court ordered the sentences for Domestic Violence and

Forgery to run concurrently, and the sentence for Possession of Heroin to run consecutively to the

other three counts. Therefore, Burkhart’s total prison sentence in Case No. 2013 CR 065 is 28

months. The court ordered the 28-month sentence to run consecutively to the 12-month sentence

imposed for Burkhart’s community control violation. As a result, the trial court sentenced

Burkhart to a total prison term of 40 months.

{¶ 4} After sentencing, Burkhart appealed from the trial court’s sentence. His

appointed appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.E.2d 493 (1967), concluding that there are no meritorious issues for appeal, and

asserting two potential assignments of error. We notified Burkhart of the Anders appeal in

writing, and advised him that he may file a pro se brief within 60 days. Burkhart did not file a

pro se brief.

{¶ 5} In State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, we noted

the following regarding Anders appeals:

We are charged by Anders to determine whether any issues involving

potentially reversible errors that are raised by appellate counsel or by a defendant

in his pro se brief are “wholly frivolous.” If we find that any issue presented or

which an independent analysis reveals is not wholly frivolous, we must appoint

different appellate counsel to represent the defendant.

Anders equates a frivolous appeal with one that presents issues lacking in

arguable merit. An issue does not lack arguable merit merely because the 4

prosecution can be expected to present a strong argument in reply, or because it is

uncertain whether a defendant will ultimately prevail on that issue on appeal. An

issue lacks arguable merit if, on the facts and law involved, no responsible

contention can be made that it offers a basis for reversal. (Citations omitted.) Id. at

¶ 7-8.

{¶ 6} The two potential issues raised in Burkhart’s Anders appeal are: (1) whether the

record supports the imposition of consecutive sentences; and (2) whether the record supports the

imposition of a maximum sentence for the Domestic Violence offense.

{¶ 7} With respect to the imposition of consecutive sentences, we have stated that:

There is no constitutional requirement that a sentencing court make

findings of fact before ordering consecutive sentences. State v. Hodge, 128 Ohio

St.3d 1, 2010–Ohio–6320, 941 N.E.2d 768, ¶ 26. While R.C. 2929.14(C)(4)

requires a sentencing court to make specific findings before imposing consecutive

sentences, the statute does not require a sentencing court to specifically identify

the factual bases for those findings. In other words, * * * a sentencing court is not

required to explicitly identify the matters upon which it relied in imposing

consecutive sentences. State v. Wilson, 2d Dist. Montgomery No. 24979,

2012–Ohio–4756, ¶ 18.

{¶ 8} In this case, the trial court made specific findings required by R.C. 2929.14(C)(4)

before imposing consecutive sentences. Specifically, the court found: (1) consecutive sentences

were necessary to protect the public from future crime and to punish Burkhart; (2) consecutive

sentences are not disproportionate to the seriousness of Burkhart’s conduct, or to the danger he 5

poses to the public; (3) at least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by the offenses was so great or unusual that no

single prison term for any of the offenses committed as part of any of the courses of conduct

adequately reflects the seriousness of Burkhart’s conduct; and (4) Burkhart’s criminal record

demonstrates that consecutive sentences are necessary to protect the public from future crime.

These findings are sufficient to support consecutive sentences. Accordingly, Burkhart’s first

potential assignment of error lacks arguable merit and is wholly frivolous.

{¶ 9} With respect to the imposition of maximum prison sentences, we have stated

that:

The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or

give its reasons for imposing maximum, consecutive, or more than minimum

sentences. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at

paragraph 7 of the syllabus. Nevertheless, in exercising its discretion the trial

court must consider the statutory policies that apply to every felony offense,

including those set out in R.C. 2929.11 and 2929.12. State v. Mathis, 109 Ohio

St.3d 54, 846 N.E.2d 1, 2006-Ohio-855, at ¶ 3[8].

When reviewing felony sentences, an appellate court must first determine

whether the sentencing court complied with all applicable rules and statutes in

imposing the sentence, including R.C. 2929.11 and 2929.12, in order to find

whether the sentence is contrary to law. State v. Kalish, 120 Ohio St.3d 23, 896

N.E.2d 124, 2008-Ohio-4912. If the sentence is not clearly and convincingly 6

contrary to law, the trial court’s decision in imposing the term of imprisonment

must be reviewed under an abuse of discretion standard. Id. State v. Rollins, 2d

Dist. Champaign No. 08CA003, 2009-Ohio-899, ¶ 7-8.

{¶ 10} “ ‘ Abuse of discretion’ has been defined as an attitude that is unreasonable,

arbitrary or unconscionable.” AAAA Enterprises Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

{¶ 11} In this case, the trial court considered the presentence investigation report, the

statements made at sentencing, the purposes and principles of felony sentencing under R.C.

2929.11, and the seriousness and recidivism factors under 2929.12. Specifically, the court noted

that there were three victims involved in Burkhart’s offenses, and that one of the victims had

suffered physical harm. The court further noted that Burkhart’s relationship to the victim had

facilitated the offense. In addition, Burkhart committed the offenses while he was under

community control, and the court recognized that this had been his third community control

violation. The court also recognized that Burkhart had attempted to evade law enforcement prior

to his arrest. Furthermore, the court considered the fact that Burkhart had previously served

time in prison, and that he had not been rehabilitated to a satisfactory degree. Lastly, the court

reviewed Burkhart’s criminal history, which includes four prior felonies and a lengthy juvenile

record. Upon weighing these factors, the court concluded that Burkhart’s conduct was more

serious than conduct that normally constitutes his offenses, and that recidivism was likely.

{¶ 12} In addition to weighing the seriousness and recidivism factors, the court correctly

noted that R.C. 2929.13(B)(1), a statute requiring community control sanctions for fourth and

fifth degree felonies, does not apply to this case. The statute does not apply, because Burkhart 7

had been previously convicted of a felony offense.

{¶ 13} Finally, pursuant to R.C. 2929.14(A)(4), the maximum possible sentence

authorized for Burkhart’s domestic violence offense is 18 months. Burkhart was sentenced to 18

months for this offense. Therefore, his sentence is within the authorized statutory range.

{¶ 14} For the foregoing reasons, the 18-month maximum sentence for Burkhart’s

domestic violence offense was not contrary to law. The record supports the sentence, and no

abuse of discretion on the part of the trial court has been demonstrated. Accordingly, Burkhart’s

second potential assignment of error lacks arguable merit and is wholly frivolous.

{¶ 15} Pursuant to our responsibilities under Anders, we have conducted an independent

review of the entire record, and, having done so, we agree with counsel that there are no

meritorious issues to present on appeal. As a result, counsel's request to withdraw from further

representation is granted, and the judgment of the Champaign County Common Pleas Court is

affirmed.

.............

DONOVAN and HALL, JJ., concur.

Copies mailed to:

Kevin Talebi Steven H. Eckstein Elvin H. Burkhart, IV Hon. Nick A. Selvaggio