[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 44113ANITA 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 th e 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 polic e that she was sexually assaulted behind a school by three males on or about July 26, 1993, and then la ter 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 violat ion of R.C. 2923.03(A)(2), a felony of the firstdegree. Burton pleaded guilty to rape and the remaining charges were nolled. The trial court sentenced Burton to three years in prison pursua nt 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, seve n, 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 alre ady decided this issu e, and has concluded that a defendant in Burton’s position should be se ntenced 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 assignme nt of error is overruled. {¶10} The trial court’s decision is affirmed. It is ordered that the appellee recove r from appellant costs herein taxed.

The court finds that there were r easonable 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