[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 Offic e, 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 Ma y 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 assignment s of error . The first is that the trial court erred in accepting Burnett e ’s guilty plea under Crim.R. 11; t he second is that the court erred in sentencing Burnette. However, coun sel 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 vic tim impact statement s , and any other records the trial court reviewed for sentencing. We also notified Burnette that his counsel had found no meritorious claim s for review and gave him until July 11, 2022, to file a pro se brief assigning any errors. Bur nette 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 a ppeal. 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 preliminar y hearing and asked that the case be bound over to the Champaign County Common Pleas Court. {¶ 6} O n 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 ab use, 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 (aggravat ed 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 tha n wh at had been known or disclosed in the parties’ respective discovery packets, the State further agreed to recommend at sentencing a minimum of six y ears imprisonment- 4

-

on count one. Transcript of P lea Hearing (“ Tr.1 ” ), p. 3

. The parties also agreed that the State would not be bound by its recommendation i f 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} Afte r 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 dis cussed Burnette’s history. The State recommended a six

- year prison sentence for the aggravate d vehicular homicide conviction. 1 On December 6, 2021, Burnette file d 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 individual s who had made a victim impact statement then spoke

. {¶ 10} The prosecutor rem arked 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, B urnette’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 ha d abused alcoho l, which point ed to a family predilection. Burnette had two prior O VI convictions in the late 1980 s, and while that had been some time ago, Burnette had not do ne any

r ecommended outpatient treatment or heed ed 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 addresse d 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 t he Navy

. Id . In addition, the attorney noted that, as reflected in the PSI report, Burnette had lost a family member t o 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 b riefly, 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. 1 6

- 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 samp l e

. Tr.2 at
p. 17

- 19 and 23. Burnette also agreed with the court that his own acknowl edgement 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 functio ning alcoholic. ” Tr.2 at p. 19. (The court later corrected this to reflect that Bu rnette 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 r egard, the court stressed that Burnett e had been working as a drive r 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 caus ed 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 Bur nette’s part , nor was there any skid mark denoting a decision to stop. Instead, Burnette h it 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 lif etime 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 misdemea nor 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 length y judgment entry reflecting what occurred at the sentencing hearing. See Journal Entry of Judgment, Conviction and Sentence (“Entry”) (Dec. 9, 20 21), p. 1

- 13 . Burnette timely appealed his convictions.

II. Discussion {¶ 18} In an Anders review, we are requir ed 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 pres ent a strong argument in reply.” State v. Pullen , 2d Dist. Montgomery- 8

-

No. 19232, 2002

- Ohio

- 6788, ¶ 4. Instead, an issu e 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 coun sel that, based on the facts and relevant law, there are no issues with arguable merit to present on appeal. Before reaching this conclusion, w e 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

“ volunt arily, 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). T he court also must advise defendant s 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, a nd there is no arguable merit in th is assignment of error.

B. Error in Sentencing- 9

- {¶ 22} C ounsel raise d a second p otential issue about sentencing but could find no arguable merit in that alleged error. We agree. {¶ 23} When appellate courts review felony sente nces, 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 su pport 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 th at 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. Montgome ry 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 sentencin g 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, t he 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 se ntence was the maximum sentence, t here 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 hea ring, 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. Tr 2 . at p. 30. The court repeated its analysis in the judgment entry, which included s pecific references to the se 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 con cerning the

c ourt’s examination of Burnette’s f amily history with alcohol issues and whether the court could use that to make inferences about B urnette’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

. La mbert- 11

-

involved a vehicular homicide caused by the defendant’s alcohol intoxication , and the trial

cour t 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 t o 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 si tuation 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 con sumption 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 violation s and lack of treatment should not be reviewed through the lens of 2021. Tr. 2 at p. 27

- 28.- 12

- {¶ 31} Instead, t he court stressed it would place more emphasis on the past ten
years , when Burnette had used alcohol significantly while having a career as a drive r. The court w as concerned because this indicated that Burnett e felt he was capable of driving as a functio ning 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 , th e re is no basis for clearly and convincing find ing 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 assignment s 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