State v. Burnette , 2022 Ohio 3251 ( 2022 )

[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.
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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
.............
WELBAUM, J.
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{¶ 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
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{¶ 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
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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.
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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
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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.
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{¶ 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
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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
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{¶ 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.
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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
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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.
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{¶ 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.
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DONOVAN, J. and LEWIS, J., concur.
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Copies sent to:
Kevin S. Talebi
April F. Campbell
Hon. Nick A. Selvaggio