State v. Burton ( 2021 )

[Cite as State v. Burton, 2021-Ohio-1364.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2020-L-112
- vs - :
JERRY T. BURTON, JR., :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2020 CR
000734.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, Ohio 44077 (For Plaintiff-Appellee).
Adam Parker, 11459 Mayfield Road, #309, Cleveland, Ohio 44106 (For Defendant-
Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Jerry T. Burton, Jr., appeals his sentence after pleading guilty to
three charges. We affirm.
{¶2} After being charged via a bill of information, Burton entered guilty pleas to
failure to comply in violation of R.C. 2921.331(B), a third-degree felony; having weapons
while under disability in violation of R.C. 2923.13(A)(2), also a third-degree felony, with
an attendant forfeiture specification; and criminal damaging or endangering in violation of
R.C. 2909.06(A)(1), a second-degree misdemeanor.
{¶3} The charges stem from an altercation that Burton had with the victim outside
her home. Following a verbal argument, Burton retrieved a firearm from one of the
victim’s vehicles that he was borrowing and fired 11 shots into the back of the victim’s
unoccupied vehicle. The victim called law enforcement, and officers located Burton and
attempted a traffic stop. Burton fled, however, and officers pursued him for approximately
1.3 miles until Burton ultimately lost control of the vehicle, striking a utility pole. Officers
located the firearm, ammunition, and drug paraphernalia with residue in the vehicle.
Burton had previously been convicted of a felony offense of violence, which had placed
him under disability with respect to the firearm.
{¶4} After Burton entered his guilty pleas, the trial court referred the matter for a
presentence report, drug and alcohol evaluation, and victim impact statement, and set
the matter for sentencing. At sentencing, the trial court stated that it had reviewed the
presentence report, drug and alcohol report, victim impact statement and the statements
of counsel and the defendant. The court sentenced Burton to 24 months in prison for
failure to comply and 36 months in prison for having weapons under disability, to run
consecutively pursuant to statute. See R.C. 2921.331(D) (if offender is sentenced to a
prison term for a third-degree felony violation of R.C. 2921.331(B), “the offender shall
serve the prison term consecutively to any other prison term * * * imposed upon the
offender”). The court sentenced Burton to 90 days confinement for criminal damaging or
endangering, to run concurrently.
{¶5} Burton’s sole assigned error states:
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{¶6} “Appellant’s sentence is contrary to law.”
{¶7} Burton argues that the trial court erred in imposing a maximum sentence for
having weapons while under disability and a sentence above the minimum for failure to
comply. Burton contends that the trial court failed to consider the purposes and principles
of felony sentencing as provided in R.C. 2929.11 and the sentencing factors contained in
R.C. 2929.12.
{¶8} R.C. 2929.11(A) provides:
* * * The overriding purposes of felony sentencing are to
protect the public from future crime by the offender and others,
to punish the offender, and to promote the effective
rehabilitation of the offender using the minimum sanctions that
the court determines accomplish those purposes without
imposing an unnecessary burden on state or local
government resources. To achieve those purposes, the
sentencing court shall consider the need for incapacitating the
offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim
of the offense, the public, or both.
{¶9} It is within the sentencing court’s discretion “to choose the most effective
way to achieve the purposes set forth in R.C. 2929.11.” State v. Stanley, 11th Dist.
Trumbull No. 2020-T-0039, 2021-Ohio-549, ¶ 8; R.C. 2929.12(A). In “exercising that
discretion,” R.C. 2929.12(A) provides:
[T]he court shall consider the factors set forth in divisions (B)
and (C) of this section relating to the seriousness of the
conduct, the factors provided in divisions (D) and (E) of this
section relating to the likelihood of the offender’s recidivism,
and the factors set forth in division (F) of this section
pertaining to the offender’s service in the armed forces of the
United States and, in addition, may consider any other factors
that are relevant to achieving those purposes and principles
of sentencing.
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{¶10} Although a sentencing court must consider the statutory factors when
imposing a felony sentence, “R.C. 2929.11 and R.C. 2929.12 do not mandate judicial fact
finding[.]” Stanley at ¶ 9, citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, ¶ 42. “[A] silent record raises the presumption that a trial court considered
the factors.” Stanley at ¶ 9, citing State v. Sheffey, 11th Dist. Ashtabula No. 2016-A-
0075, 2017-Ohio-5634, ¶ 14, quoting State v. Adams, 37 Ohio St.3d 295, 525 N.E.2d
1361 (1988), paragraph three of the syllabus.
{¶11} Burton contends that the court did not “consider” R.C. 2929.11 and 2929.12,
rendering his sentence “contrary to law” pursuant to R.C. 2953.08(G)(2). However, “the
Ohio Supreme Court recently held 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.’” Stanley at ¶ 10, quoting State v. Jones, ––– Ohio St.3d
––––, 2020-Ohio-6729, ¶ 42, ––– N.E.3d ––––. “R.C. 2953.08(G)(2)(b) therefore does
not provide a basis for an appellate court to modify or vacate a sentence based on its
view that the sentence is not supported by the record under R.C. 2929.11 and 2929.12.”
Jones at ¶ 39.
{¶12} Here, the court stated at the sentencing hearing that it “considered all
aspects of 2929.11 and 2929.12 and the record is horrible.” The sentencing entry also
sets forth that the court considered “the principles and purposes of sentencing under R.C.
2929.11, and has balanced the seriousness and recidivism factors under R.C. 2929.12.”
Because the trial court did not specify findings as to the factors, this court must presume
that the trial court properly weighed the statutory factors. See Stanley at ¶ 9.
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{¶13} Burton further argues that the trial court relied on an inaccurate hypothetical
sentencing comparison to conclude that the misdemeanor sentence did not adequately
punish his conduct, and then used that as a basis for imposing sentences above the
minimum required on the felonies.
{¶14} The trial court’s statements on this issue indicate that it believed conduct
less dangerous than shooting into the victim’s car 11 times would, in some cases, result
in more severe charges than a second-degree misdemeanor. However, Burton makes
no argument regarding his misdemeanor sentence, and, as set forth above, we presume
that the trial court appropriately considered the felony sentencing factors.
{¶15} Although Burton “is obviously unhappy with h[is] sentence and wishes the
court would have weighed the factors differently, the competing factors in R.C. 2929.11
and 2929.12 are for the sentencing court to weigh, not the court of appeals.” Stanley,
2021-Ohio-549, at ¶ 12, citing Jones, 2020-Ohio-6729, at ¶ 42. Thus, Burton’s sole
assigned error lacks merit, and the judgment is affirmed.
MARY JANE TRAPP, P.J.,
MATT LYNCH, J.,
concur.
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