[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

v.

JEFFREY RUSSELL BURNETTE

Defendant-Appellant 

:

:

:

:

:

:

:

:

:

:

Appellate Case No. 2021-CA-48

Trial Court Case No. 2021-CR-200

(Criminal Appeal from

Common Pleas Court)

. . . . . . . . . . .

O P I N I O N

Rendered on the 16th day of September, 2022. 

. . . . . . . . . . . 

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.
-2-

{¶ 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
-3-

{¶ 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 
-4-

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.
-5-

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 
-6-

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 lawabiding 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. 
-7-

{¶ 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 
-8-

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 
-9-

{¶ 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-Ohio1187, ¶ 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. 
-10-

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
-11-

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. 
-12-

{¶ 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.

. . . . . . . . . . . . .

DONOVAN, J. and LEWIS, J., concur. 
-13

-

Copies sent to: 

Kevin S. Talebi

April F. Campbell

Hon. Nick A. Selvaggio