State v. Burton

[Cite as State v. Burton, 2015-Ohio-4494.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102378
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
JASON BURTON
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-576531-B
BEFORE: Laster Mays, J., Jones, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: October 29, 2015
-i-
ATTORNEYS FOR APPELLANT
Timothy McGinty
Cuyahoga County Prosecutor
By: Daniel T. Van
Brett Hammond
Assistant County Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Susan J. Moran
55 Public Square, Suite 1616
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:
{¶1} On November 24, 2014, Jason Burton (“Burton”) entered a plea of guilty to rape, in
violation of R.C. 2907.02(A)(1)(b), a felony of the first degree. The court found Burton to be a
sexually oriented offender. Burton was sentenced to three years in prison for his rape conviction
under the provisions of H.B. 86. Plaintiff-appellant, the state of Ohio assigns one error for our
review.
I. Because Burton committed his offenses prior to July 1, 1996, the trial
court erred when it sentenced Burton under sentencing provisions effective July 1,
1996, and H.B. 86 provisions effective September 30, 2011.
{¶2} The state acknowledges this court’s precedent on this issue in State v. Jackson, 8th
Dist. Cuyahoga No. 100877, 2014-Ohio-5137, discretionary appeal not accepted, 142 Ohio St. 3d
1465, 2015-Ohio-1896, 30 N.E.3d 974. For “purposes of further appellate review or potential
intra-district conflict (should the assigned panel reach a different outcome)” the state appeals.
After review of the record, we decline to depart from precedent and affirm the trial court’s
judgment.
{¶3} The Bureau of Criminal Investigation (“BCI”) tested a 1993 sexual assault kit of
victim J.M. J.M. previously reported to the police that she was sexually assaulted behind a school
by three males on or about July 26, 1993, and then later sexually assaulted in a house by multiple
males. A sexual assault kit was completed but the case went unsolved. In 2013, BCI tested
DNA from the victim’s sexual assault kit and found several DNA matches, seven in fact, including
Burton.
{¶4} Burton was charged in Count 1 for rape in violation of R.C. 2907.02(A)(1)(b), a
felony of first degree; Count 2 for kidnaping in violation of R.C. 2905.01(A)(4); and Counts 3
through 8 for complicity to commit rape in violation of R.C. 2923.03(A)(2), a felony of the first
degree. Burton pleaded guilty to rape and the remaining charges were nolled. The trial court
sentenced Burton to three years in prison pursuant to his plea in compliance with H.B. 86.
{¶5} At the time of Burton’s offenses in 1993, the penalty for first degree felonies was an
indefinite term of a minimum of five, six, seven, eight, nine, or ten years and a maximum of 25
years. State v. Wheeler, 8th Dist. Cuyahoga No. 102375, 2015-Ohio-3768, ¶ 6 citing State v.
Bryan, 8th Dist. Cuyahoga No. 101209, 2015-Ohio-1635, ¶ 3. In 1996, S.B. 2 amended the
sentencing statutes, making the range for a first degree felony a definite term of anywhere between
three and ten years. Id. In 2011, H.B. 86 amended the range for a first degree felony again; it
is now a definite term of three to eleven years. Id.{¶6} The issue presented in this appeal is whether the trial court correctly sentenced Burton
under H.B. 86, which was in effect at the time he was sentenced, or whether it should have
sentenced him under pre-S.B. 2 law that was in effect at the time of his offense.
{¶7} As the state acknowledges, this court has already decided this issue, and has concluded
that a defendant in Burton’s position should be sentenced under H.B. 86, which was in effect at
the time of his sentencing. Jackson, 8th Dist. Cuyahoga No. 100877, 2014-Ohio-5137; see also
Bryan, 8th Dist. Cuyahoga No. 101209, 2015-Ohio-1635; Wheeler, 8th Dist. Cuyahoga No.
102375, 2015-Ohio-3768.
{¶8} Thus, in accordance with this court’s precedent, we affirm the trial court’s judgment
sentencing Burton under H.B. 86.
{¶9} The state’s sole assignment of error is overruled.
{¶10} The trial court’s decision is affirmed.
It is ordered that the appellee recover from appellant costs herein taxed.
The court finds that 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rule
of Appellate Procedure.
_______________________________________
ANITA LASTER MAYS, JUDGE
LARRY A. JONES, SR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR