[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