State v. Burnette

2022 Ohio 3251

Opinion

[Cite as State v. Burnette, 2022-Ohio-3251.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2021-CA-48 : v. : Trial Court Case No. 2021-CR-200 : JEFFREY RUSSELL BURNETTE : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 16th day of September, 2022.

KEVIN S. TALEBI, Atty. Reg. No. 0069198, Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

APRIL F. CAMPBELL, Atty. Reg. No. 0089541, 504 Metro Place South, Suite 100, Dublin, Ohio 43017 Attorney for Defendant-Appellant

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WELBAUM, J. -2-

{¶ 1} Defendant-Appellant, Jeffrey Russell Burnette, appeals from his conviction

on one count of aggravated vehicular homicide, a second-degree felony, and one count

of operating a vehicle under the influence of alcohol, a first-degree misdemeanor.

{¶ 2} On May 11, 2022, Burnette's assigned counsel filed a brief under the

authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),

indicating there were no issues with arguable merit to present on appeal. Counsel raised

two potential assignments of error. The first is that the trial court erred in accepting

Burnette’s guilty plea under Crim.R. 11; the second is that the court erred in sentencing

Burnette. However, counsel found no arguable merit in either claim.

{¶ 3} On May 12, 2022, we ordered that the record be supplemented with the

presentence investigation (“PSI”) report, the victim impact statements, and any other

records the trial court reviewed for sentencing. We also notified Burnette that his counsel

had found no meritorious claims for review and gave him until July 11, 2022, to file a pro

se brief assigning any errors. Burnette did not file a pro se brief. In addition, the State

did not file a brief.

{¶ 4} After reviewing the entire record, including the PSI report, and conducting

our independent Anders review, we find no issues with arguable merit for Burnette to

advance on appeal. Accordingly, Burnette’s counsel will be permitted to withdraw, and

the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings -3-

{¶ 5} On September 16, 2021, Burnette was involved in an accident that caused

the death of Charles Rutan, Jr. A complaint was initially filed in the Champaign County

Municipal Court on September 17, 2021, charging Burnette with aggravated vehicular

homicide and reckless homicide. On September 24, 2021, Burnette waived his right to

a preliminary hearing and asked that the case be bound over to the Champaign County

Common Pleas Court.

{¶ 6} On October 4, 2021, an indictment was filed charging Burnette with the

following crimes: (1) aggravated vehicular homicide in violation of R.C.

2903.06(A)(1)(a)/(B)(2)(a), a second-degree felony; (2) aggravated vehicular homicide in

violation of R.C. 2903.06(A)(2)(a)/(B)(3), a third-degree felony; (3) operating a vehicle

under the influence of alcohol, a drug of abuse, or a combination of them (OVI), in violation

of R.C. 4511.19(A)(1)(a)/(G)(1)(a), a first-degree misdemeanor; and (4) operating a

vehicle under the influence of alcohol, a drug of abuse, or a combination of them in

violation of R.C. 4511.19(A)(1)(g)/(G)(1)(a), a first-degree misdemeanor.

{¶ 7} Counsel was appointed for Burnette, and he initially pled not guilty on

October 7, 2021. Subsequently, Burnette pled guilty on November 4, 2021, pursuant to

a plea agreement. Under the agreement, Burnette would plead guilty to count one of the

indictment (aggravated vehicular homicide, a second-degree felony) and count three

(OVI, a first-degree misdemeanor). In exchange, the State agreed to dismiss the other

charges and to recommend a PSI report. If Burnette had no further criminal record other

than what had been known or disclosed in the parties’ respective discovery packets, the

State further agreed to recommend at sentencing a minimum of six years imprisonment -4-

on count one. Transcript of Plea Hearing (“Tr.1”), p. 3. The parties also agreed that the

State would not be bound by its recommendation if other criminal history were discovered.

The State would also not be bound if Burnette committed additional offenses while on

bond or after entering a plea, or if he violated a bond condition. Id.

{¶ 8} After the court informed Burnette of his rights under Crim.R. 11, Burnette pled

guilty, and the court accepted his plea. Tr.1 at p. 29-52. The signed written plea

agreement and entry finding Burnette guilty and dismissing counts two and four were filed

on November 5, 2021. On December 3, 2021, the State filed a lengthy sentencing

memorandum, which outlined the facts of the crime and discussed Burnette’s history.

The State recommended a six-year prison sentence for the aggravated vehicular

homicide conviction. 1 On December 6, 2021, Burnette filed his own sentencing

memorandum in which he requested an indefinite sentence of three years to four and a

half years, which would include a concurrent sentence for the misdemeanor conviction.

{¶ 9} At the sentencing hearing, the court stated that it had reviewed the PSI

report, which included four victim impact statements. Tr. 2 at p. 2. The court also said

it had reviewed a DVD containing four separate camera views of the accident and had

reviewed the sentencing memoranda as well. Id. The prosecutor and one of the

individuals who had made a victim impact statement then spoke.

{¶ 10} The prosecutor remarked that she had learned something from the PSI

report that was not necessarily readily apparent from the investigation, which was that

Burnette had struggled significantly with alcohol abuse for the majority of his life. At the

1 At the sentencing hearing, the State corrected this clerical error to a six-year minimum prison term. Transcript of Sentencing Hearing (“Tr. 2”) (Dec. 9, 2021), p. 4-5. -5-

time of the collision, Burnette’s blood alcohol level was over three times the legal limit,

but he showed no effect, as he was able to get out of his vehicle and interact with officers.

According to Burnette, his own father was an alcoholic and all his brothers had abused

alcohol, which pointed to a family predilection. Burnette had two prior OVI convictions in

the late 1980s, and while that had been some time ago, Burnette had not done any

recommended outpatient treatment or heeded his wife’s warnings about his alcohol

problems. Burnett, therefore, never had treatment for alcohol abuse. Tr.2 at p. 4-6.

{¶ 11} Charles Rutan’s daughter spoke next, expressing her family’s grief and

sorrow and discussed Rutan’s life. Tr.2 at p. 7-9. At that point, Burnette’s attorney

addressed the court and reiterated Burnette’s request for a minimum sentence of three

years and a maximum of four and a half years. Tr.2 at p. 10. The attorney also stressed

Burnette’s life-long struggle with alcohol, which began in 1982 while he was in the Navy.

Id. In addition, the attorney noted that, as reflected in the PSI report, Burnette had lost

a family member to the actions of a drunk driver in 1983, and that Burnette had genuine

remorse for the crime. Tr.2 at p. 11 and 26. Finally, Burnette spoke briefly, apologized,

and expressed remorse. Tr.2 at p. 13.

{¶ 12} After hearing from the parties, the trial court discussed at length the factors

that influenced the sentence. Tr. 2 at p. 14-30. The court noted that videos revealed

that the roadway was dry, and the sun was behind Burnette, meaning that no

environmental issues affected Burnette’s situation. Tr.2 at p. 16-17. The court

discussed the high rate of speed; the high level of alcohol in Burnette’s system; the fact

that Burnette’s demeanor at the scene had been described as argumentative; and that -6-

Burnette had refused medical treatment and had refused to give a urine sample. Tr.2 at

p. 17-19 and 23. Burnette also agreed with the court that his own acknowledgement of

“drinking a pint of liquor a day to the PSI writer and drinking a pint of vodka a day”

suggested that Burnette was “perhaps a functioning alcoholic.” Tr.2 at p. 19. (The court

later corrected this to reflect that Burnette reported to the PSI investigator that he drank

a pint of vodka every other day. Tr.2 at p. 21. However, Burnette did state to the PSI

investigator that he started drinking at noon on the day of the accident and had consumed

a pint of vodka. See PSI Report, p. 9.)

{¶ 13} In this regard, the court stressed that Burnette had been working as a driver

for U.S. Express for 10 years and that the same level of usage of alcohol over that time

indicated that Burnette’s functioning alcoholism enabled him to drink and drive. Thus,

the court attributed minimal weight to the sentencing factor that Burnette had led a law-

abiding life for a significant number of years. Tr.2 at p. 20.

{¶ 14} In addition, the court stressed the accident’s circumstances, which included

Burnette’s passing “an operational restaurant filled with patrons and staff” at 7:30 p.m.,

passing four gas pumps, and then beginning to pass a convenience store where a person

was parked in a car. Tr.2 at p. 22. Burnette then passed that occupied vehicle, hit

Rutan’s vehicle, and caused Rutan to hit a third vehicle. Burnette narrowly missed hitting

the restaurant, gas pumps, convenience store, and patrons located outside near the

parking spots. Tr.2 at p. 22-23. Rutan also did not enter Burnette’s path of travel, as

he had finished backing up at the gas pump and was proceeding forward when his car

was hit. Tr.2 at p. 23. -7-

{¶ 15} Furthermore, the court noted that, contrary to Burnette’s statement that he

was trying to avoid a deer, the video indicated no evasive maneuvering on Burnette’s

part, nor was there any skid mark denoting a decision to stop. Instead, Burnette hit

Rutan’s vehicle “head-on,” “[n]o swerving, no braking. No slowing down.” Tr.2 at p. 24-

25.

{¶ 16} After discussed some other matters, the court imposed a mandatory lifetime

driver’s license suspension, a total fine of $3,500, a minimum term of eight years up to a

maximum of 12 years in prison on count one, and the maximum sentence of six months

in the Tri-County Regional Jail on the misdemeanor conviction. The misdemeanor

conviction was to run concurrent with the sentence for count one. The court also

imposed a mandatory period of post-release control for up to three years, but no less than

18 months. Tr.2 at p. 30-37.

{¶ 17} On December 9, 2021, the court filed a lengthy judgment entry reflecting

what occurred at the sentencing hearing. See Journal Entry of Judgment, Conviction

and Sentence (“Entry”) (Dec. 9, 2021), p. 1-13. Burnette timely appealed his convictions.

II. Discussion

{¶ 18} In an Anders review, we are required to decide “after a full examination of

all the proceedings,” whether an appeal is “wholly frivolous.” Anders, 386 U.S. at 744,

87 S.Ct. 1396, 18 L.Ed.2d 493. See also Penson v. Ohio, 488 U.S. 75, 84-85, 109 S.Ct.

346, 102 L.Ed.2d 300 (1988). Issues are not frivolous simply because the State “can be

expected to present a strong argument in reply.” State v. Pullen, 2d Dist. Montgomery -8-

No. 19232, 2002-Ohio-6788, ¶ 4. Instead, an issue will lack arguable merit “if on the

facts and law involved, no responsible contention can be made that it offers a basis for

reversal.” Id.

{¶ 19} After conducting an independent review of the record pursuant to Anders,

we agree with Burnette’s appellate counsel that, based on the facts and relevant law,

there are no issues with arguable merit to present on appeal. Before reaching this

conclusion, we reviewed the entire record, including the PSI report, the hearing

transcripts, and the videos of the accident.

A. Compliance with Plea Requirements

{¶ 20} As noted, Burnette’s first potential assignment of error is that the trial court

failed to comply with Crim.R. 11. In accepting pleas, courts must comply with various

items outlined in Crim.R. 11(C), including that the defendant is making the plea

“voluntarily, with understanding of the nature of the charges and of the maximum penalty

involved, and if applicable, that the defendant is not eligible for probation or for the

imposition of community control sanctions at the sentencing hearing.” Crim.R.

11(C)(2)(a). The court also must advise defendants of the effect of the plea and that

they are waiving various constitutional rights. See Crim.R. 11(C)(2)(b) and (3).

{¶ 21} Our review reveals that the trial court fully complied with the requirements

of Crim.R. 11, and there is no arguable merit in this assignment of error.

B. Error in Sentencing -9-

{¶ 22} Counsel raised a second potential issue about sentencing but could find no

arguable merit in that alleged error. We agree.

{¶ 23} When appellate courts review felony sentences, they must apply the

standards found in R.C. 2953.08(G)(2). Under that statute, we may increase, reduce, or

modify a sentence, or vacate it altogether and remand for resentencing, if we clearly and

convincingly find that the record fails to support certain specified findings or that the

sentence is contrary to law.

{¶ 24} In State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649,

the Supreme Court of Ohio “clarified an appellate court's review of a felony sentence

under R.C. 2953.08(G)(2).” State v. Litteral, 2d Dist. Clark No. 2021-CA-10, 2022-Ohio-

1187, ¶ 21. In Jones, the court stressed that “[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 ¶ 9.

{¶ 25} Consequently, under Jones, when we review “felony sentences that are

imposed solely after considering the factors in R.C. 2929.11 and R.C. 2929.12, we shall

no longer analyze whether those sentences are unsupported by the record. We simply

must determine whether those sentences are contrary to law.” State v. Dorsey, 2d Dist.

Montgomery No. 28747, 2021-Ohio-76, ¶ 18. In this vein, we stressed in Dorsey that

“ ‘[a] sentence is contrary to law when it does not fall within the statutory range for the

offense or if the trial court fails to consider the purposes and principles of felony

sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. -10-

2929.12.’ ” Id., quoting State v. Brown, 2017-Ohio-8416, 99 N.E.3d 1135, ¶ 74 (2d Dist.).

{¶ 26} Here, the sentences were within the statutory ranges for the respective

convictions. See R.C. 2929.14(A)(2)(a) (penalties for second-degree felonies), and R.C.

4511.19(G)(1)(a) (penalties for violations of R.C. 4511.19(A)(1)(a)). A 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 or more than

minimum sentences.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.).

Furthermore, while the misdemeanor sentence was the maximum sentence, there is no

requirement for courts to make “ ‘any particular finding before imposing the authorized

maximum sentence.’ ” State v. Curtis, 2d Dist. Miami No. 2021-CA-19, 2022-Ohio-1691,

¶ 22, quoting State v. Loffing, 2d Dist. Clark No. 2021-Ohio-CA-44, 2022-Ohio-408, ¶ 9.

{¶ 27} During the sentencing hearing, the court gave many reasons for its findings

and also indicated it had considered the appropriate factors under R.C. 2929.11 and R.C.

2929.12. Tr2. at p. 30. The court repeated its analysis in the judgment entry, which

included specific references to these statutes. See Entry at p. 3-6. Thus, the court did

not fail to consider the purposes and principles of sentencing, and any suggestion

otherwise would be frivolous.

{¶ 28} Burnette’s counsel suggested that a question might arise concerning the

court’s examination of Burnette’s family history with alcohol issues and whether the court

could use that to make inferences about Burnette’s alcohol use. However, counsel

rejected that theory based on a prior decision of our court. Appellant’s Brief at p. 5, citing

State v. Lambert, 2d Dist. Champaign No. 2018-CA-28, 2019-Ohio-2837. Lambert -11-

involved a vehicular homicide caused by the defendant’s alcohol intoxication, and the trial

court similarly discussed the defendant’s alcohol use and family history. Id. at ¶ 16-20.

{¶ 29} In that situation, we commented as follows:

The trial court's inquiry into Lambert's relatives’ experiences with

alcohol-related offenses provides no basis for us to clearly and convincingly

conclude that the record does not support that court's sentencing findings.

The record contains no suggestion that the trial court was punishing

Lambert for the conduct of others; the trial court plainly articulated its

reasoning that Lambert's failure to learn from the past mistakes of others

close to him was part of a pattern reflecting a likelihood that Lambert would

reoffend. The record does not demonstrate that the court erred in that

regard.

Id. at ¶ 21.

{¶ 30} This is the same situation that occurred here. There is no indication in the

record that the trial court tried to punish Burnette for others’ conduct. The court did ask

Burnette why he failed to pursue more aggressive treatment in light of his father’s level of

alcohol consumption and abuse and his brother’s death to a drunk driver in 1983.

However, the court also stressed that it did not place a great deal of weight on the fact

that Burnette had failed to pursue treatment after having two OVIs in the late 1980s. The

court remarked that, at the time, “OVIs weren’t looked at in the same manner that they

are today.” The court therefore found those OVI violations and lack of treatment should

not be reviewed through the lens of 2021. Tr. 2 at p. 27-28. -12-

{¶ 31} Instead, the court stressed it would place more emphasis on the past ten

years, when Burnette had used alcohol significantly while having a career as a driver.

The court was concerned because this indicated that Burnette felt he was capable of

driving as a functioning alcoholic, when he was not. Tr.2 at p. 28. The court also

mentioned that it gave minimal weight to the fact that Burnette had led a law-abiding life

for many years because Burnette’s “functioning alcoholism” enabled him to drink and

drive. Tr.2 at p. 20.

{¶ 32} As in Lambert, there is no basis for clearly and convincing finding that the

record does not support the sentencing findings. Any argument to that effect is wholly

frivolous.

III. Conclusion

{¶ 33} We have reviewed the potential assignments of error raised by Burnette’s

appellate counsel and have performed our duty under Anders to conduct an independent

review of the record. After a thorough review, we have found no issues with arguable

merit for Burnette to advance on appeal. Accordingly, appellate counsel's motion to

withdraw is granted, and the judgment of the trial court is affirmed.

DONOVAN, J. and LEWIS, J., concur. -13-

Copies sent to:

Kevin S. Talebi April F. Campbell Hon. Nick A. Selvaggio