State v. Burton

2025 Ohio 650

• Court: Ohio Court of Appeals
• Decided: February 27, 2025
• Docket: 114052
• Status: Published

Opinion

[Cite as State v. Burton, 2025-Ohio-650.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 114052 v. :

SHON BURTON, JR., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED AND REMANDED RELEASED AND JOURNALIZED: February 27, 2025

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-24-688093-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Maalaea Newell, Assistant Prosecuting Attorney, for appellee.

Brian A. Smith Law Firm, LLC and Brian A. Smith, for appellant.

LISA B. FORBES, P.J.:

Shon Burton, Jr. (“Burton”) appeals the trial court’s journal entry

sentencing him to six years in prison. After reviewing the facts of the case and pertinent law, we affirm the trial court’s decision and remand to the trial court for

the issuance of a nunc pro tunc entry.

I. Facts and Procedural History

On January 4, 2024, Burton was involved in a physical altercation

with victim, Tykeisha Upshaw, at his home. Later, while Upshaw was sitting in a

vehicle, Burton shot a firearm multiple times in the direction of the vehicle.

Resulting from these events, on May 15, 2024, Burton pled guilty to

an amended Count 1 of the indictment, attempted felonious assault, a third-degree

felony and violation of R.C. 2923.02 and 2903.11(A)(2), Count 4, discharge of

firearm on or near prohibited premises, a third-degree felony and violation of

R.C. 2923.162(A)(3), an amended Count 5, attempted having weapons while under

disability, a fourth-degree felony and violation of R.C. 2923.02 and 2923.13(A)(2),

and Count 6, domestic violence, a first-degree misdemeanor and violation of

R.C. 2919.25(A).

On May 22, 2024, the trial court sentenced Burton to three years in

prison for Count 1, two years in prison for Count 4, and 18 months in prison for

Count 5. Count 6 merged with Count 1 for purposes of sentencing. The State elected

to sentence Burton on Count 1. The court also sentenced Burton to a mandatory one

year in prison for the firearm specification on Count 4, to be served consecutively to

the sentence on that count. The court ordered the sentences on Counts 1 and 4 to

run consecutively to one another, and concurrently to Count 5, for a total sentence

of six years in prison. Burton appeals, raising the following assignments of error:

1. The trial court’s imposition of consecutive sentences upon Appellant was not supported by the record.

2. The portion of the trial court’s sentence, imposing a mandatory minimum of one year and up to three years of postrelease control on Count Five, was contrary to law.

II. Law and Analysis

A. First Assignment of Error — Consecutive Sentencing

Ohio’s sentencing statutes presume that a defendant’s multiple

prison sentences will be served concurrently unless the trial court makes the

required findings to support consecutive sentences under R.C. 2929.14(C)(4).

R.C. 2929.41(A); State v. Jones, 2024-Ohio-1083, ¶ 11; State v. Reindl, 2021-Ohio-

2586, ¶ 14 (8th Dist.); State v. Gohagan, 2019-Ohio-4070, ¶ 28 (8th Dist.). “[T]o

impose consecutive terms of imprisonment, a trial court is required to make the

findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate

its findings into its sentencing entry . . . .” State v. Bonnell, 2014-Ohio-3177, ¶ 37.

Pursuant to R.C. 2929.14(C)(4), the court must find that consecutive sentences are

“necessary to protect the public from future crime or to punish the offender”; “not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public”; and at least one of the following three factors:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction . . ., or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed 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 the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

Here, Burton asserts that the trial court erred in imposing consecutive

sentences because its findings were not supported by the record. Specifically,

Burton argues the record did not support the court’s finding that consecutive

sentences were necessary to protect the public from future crime or to punish him.

We disagree.

This court “may increase, reduce, or otherwise modify a sentence . . .

or may vacate the sentence and remand the matter to the sentencing court for

resentencing” if “it clearly and convincingly finds . . . that the record does not

support the sentencing court’s findings under . . . (C)(4) of section 2929.14.”

(Emphasis in original.) State v. Gwynne, 2023-Ohio-3851, ¶ 12.

R.C. 2953.08(G)(2) provides that an appellate court may increase, reduce, or otherwise modify consecutive sentences only if the record does not “clearly and convincingly” support the trial court’s R.C. 2929.14(C)(4) consecutive-sentence findings. The clear-and- convincing standard for appellate review in R.C. 2953.08(G)(2) is written in the negative.

Id. at ¶ 13.

The record supported the imposition of consecutive sentences. At the

sentencing hearing, the trial court had before it a presentence-investigation report,

which detailed Burton’s extensive criminal history, and heard from Burton.

Burton’s criminal history included convictions for similar crimes. In 2018, Burton pled guilty to offenses including aggravated menacing. In 2019, Burton pled guilty

to several more offenses, including attempted felonious assault, carrying concealed

weapons, and aggravated menacing.

Burton told the court that, while serving his prior prison sentence, he

obtained a culinary-arts degree. He stated that he found a job as a chef after being

released from prison. Burton also admitted that he was on postrelease control for

prior offenses when he committed the crimes now at issue. Burton expressed

remorse for his crimes, stating, “I just want to say I’m apologetic. I changed truly

and I really found God where I sit at right now.” Counsel for Burton represented to

the court that Burton had been cooperative with law enforcement and had family

support, particularly from his father.

At the sentencing hearing, the trial court made the initial findings

required by R.C. 2929.14(C)(4). The court stated, “[A] consecutive sentence

becomes necessary in the Court’s judgment to protect the public from future crime

by you, and also to punish you. These consecutive sentences are not

disproportionate to the seriousness of your conduct or the danger that you pose to

the public.”

The trial court also made findings under R.C. 2929.14(C)(4)(a), (b),

and (c) before imposing consecutive sentences. Regarding R.C. 2929.14(C)(4)(a),

the court stated, “[Y]ou committed these crimes while you were under Post-Release

Control for another offense.” The court then found, under R.C. 2929.14(C)(4)(b),

that “at least two of these multiple offenses were committed as part of a course of conduct by you that day, and the harm caused was great enough and unusual enough

that no single prison term for any of the offenses committed as part of the course of

conduct adequately reflect the seriousness of your conduct.” Lastly, under

R.C. 2929.14(C)(4)(c), the court found that “your history of criminal conduct

demonstrates that consecutive sentences are necessary to protect the public from

future crimes by you.”

In assessing whether the record supports the trial court’s findings,

R.C. 2953.08(F) requires this court to review the entire trial court record, including

any oral or written statements made to or by the trial court at the sentencing hearing,

and any presentence, psychiatric, or other investigative report that was submitted

to the court in writing before the sentence was imposed. R.C. 2953.08(F)(1) through

(4); Jones, 2024-Ohio-1083, at ¶ 12; see also State v. Keith, 2024-Ohio-1591, ¶ 10

(8th Dist.) (applying Jones) (“We review the entire record and consider whether it

does not clearly and convincingly support the trial court’s consecutive-sentence

findings.”).

We find that the record here, reviewed in its entirety, supports

imposing consecutive sentences. Burton committed the crimes currently at issue

while he was still under postrelease control for a prior offense. Burton has a history

of crimes involving firearms and violence. In 2018, Burton pled guilty to attempted

obstructing official business, criminal damaging, and aggravated menacing. In

2019, Burton pled guilty to failure to comply with an order or signal of a police

officer, attempted felonious assault, receiving stolen property, carrying concealed weapons, and aggravated menacing. This information supports the trial court’s

findings under R.C. 2929.14(C)(4)(a) and (c). Because R.C. 2929.14(C)(4) permits

consecutive sentences where the record supports any one of these findings, we

decline to address whether the record also supported the court’s

R.C. 2929.14(C)(4)(b) findings. Burton fails to demonstrate that his consecutive

sentence is clearly and convincingly not supported by the record.

Based on the foregoing, Burton’s first assignment of error is

overruled.

B. Second Assignment of Error — Postrelease Control

In his second assignment of error, Burton asserts that the trial court

unlawfully imposed mandatory minimum one year, up to three years of postrelease

control on Count 5. Burton argues, for this offense, the journal entry should have

specified a discretionary postrelease-control period of up to two years. We disagree.

In cases involving multiple offenses, trial courts impose only the

longest applicable period of postrelease control. “This court has previously rejected

the argument that a trial court is required to impose separate terms of postrelease

control for each individual offense.” State v. Thompson, 2020-Ohio-671, ¶ 29 (8th

Dist.), citing State v. Davis, 2018-Ohio-1147, ¶ 69-70 (8th Dist.); State v. Makin,

2017-Ohio-8569, ¶ 6-8 (8th Dist.); State v. Byrd, 2012-Ohio-5728, ¶ 3-33 (8th

Dist.); State v. Orr, 2011-Ohio-6269, ¶ 46-50 (8th Dist.); State v. Morris, 2012-

Ohio-2498, ¶ 16-18 (8th Dist.); see also State v. Reed, 2012-Ohio-5983, ¶ 12 (6th

Dist.). (“[T]he [sentencing] court only has the duty in multiple offense cases to notify the defendant of and impose the longest term of postrelease control applicable

under R.C. 2967.28(B). [T]he trial court need not announce at the sentencing

hearing nor include in the sentencing judgment the applicable postrelease control

sanction for each individual offense . . . .”). This court has explained that

R.C. 2967.28(F)(4)(c) “precludes the court or parole board from imposing more

than one period of postrelease control in cases that involve multiple convictions.”

Thompson at ¶ 29; see also R.C. 2967.28(F)(4)(c) (“If an offender is subject to more

than one period of postrelease control, the period of postrelease control for all of the

sentences shall be the period of postrelease control that expires last, as determined

by the parole board or court. Periods of postrelease control shall be served

concurrently and shall not be imposed consecutively to each other.”).

At Burton’s sentencing hearing, the trial court properly imposed a

mandatory term of one year, up to three years of postrelease control.

R.C. 2967.28(B) provides for postrelease control of “up to three years, but not less

than one year” for third-degree felonies of violence that are not sex offenses. Burton

pled guilty to attempted felonious assault, a third-degree felony under R.C. 2903.11.

Attempted felonious assault is an offense of violence under R.C. 2901.01(A)(9)(d).

Therefore, the trial court was required to sentence Burton to a mandatory term of

one year, up to three years of postrelease control. The court did so at the hearing,

stating, “[B]e reminded that when you leave prison you will be supervised by the

Parole Board on Post-Release Control, and that Post-Release Control will be a

mandatory period of one year but it can last all the way up to three years.” At the hearing, in line with Thompson, the court did not designate a postrelease-control

period for each separate offense.

However, the journal entry states that postrelease control was

imposed on each of the offenses. This does not comport with the court’s notification

of postrelease control at Burton’s sentencing hearing, during which the court did not

designate a period of postrelease control for each count. Nonetheless, the court did

impose at the hearing and in the journal entry a term of one year, up to three years

of postrelease control on Burton’s attempted felonious-assault conviction. As

discussed above, this was the proper sentence.

Accordingly, we remand this case to the trial court to correct the

journal entry. “When the notification of postrelease control was properly given at

the sentencing hearing, the essential purpose of notice has been fulfilled and there

is no need for a new sentencing hearing to remedy the flaw.” State v. Qualls, 131

Ohio St.3d 499, 505 (2012). “The original sentencing entry can be corrected to

reflect what actually took place at the sentencing hearing, through a nunc pro tunc

entry.” Id. The court properly notified Burton at sentencing of his mandatory term

of one year, up to three years of postrelease control. As such, to correct the error

in the journal entry, the trial court shall issue a nunc pro tunc entry that comports

with its statements at the sentencing hearing. The nunc pro tunc entry shall

impose a single “one year, up to three years” period of postrelease control for

Burton’s attempted felonious-assault conviction. No postrelease control should be

reflected in Burton’s sentences for his other offenses. Based on the foregoing, Burton’s second assignment of error is

sustained. Case remanded to the trial court to issue a nunc pro tunc entry.

Judgment affirmed. The case is remanded to the trial court for

issuance of a nunc pro tunc entry.

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 issuance of a nunc pro tunc entry and for execution

of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

LISA B. FORBES, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and DEENA R. CALABRESE, J., CONCUR