[Cite as State v. Burkhart, 2013-Ohio-4396.]

 

IN THE COURT OF APPEALS OF OHIO 

 SECOND APPELLATE DISTRICT 

 CHAMPAIGN COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

ELVIN H. BURKHART, IV 

Defendant-Appellant 

Appellate Case No. 2013-CA-12 

Trial Court Case No. 2013-CR-65 

(Criminal Appeal from 

(Common Pleas Court) 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 4th day of October, 2013. 

. . . . . . . . . . . 

KEVIN TALEBI, Atty. Reg. No. 0069198, 200 North Main Street, Urbana, Ohio 43078 

Attorney for Plaintiff-Appellee 

 

STEVEN H. ECKSTEIN, Atty. Reg. No. 0037253, 1208 Bramble Avenue, Washington Court House, 

Ohio 43160 

Attorney for Defendant-Appellant 

ELVIN H. BURKHART, IV, Inmate No. 678010, Lebanon Correctional Institution, P.O. Box 56, 

Lebanon, Ohio 45036 

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

 
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WELBAUM, J. 

{¶ 1} Defendant-Appellant, Elvin H. Burkhart, IV, was indicted on one count of 

Domestic Violence, a felony of the fourth degree, one count of Petty Theft, a misdemeanor of the 

first degree, six counts of Forgery, a felony of the fifth degree, and one count of Possession of 

Heroin, a felony of the fifth degree, in Champaign County Common Pleas Court Case No. 2013 

CR 065. Pursuant to a plea agreement, Burkhart pled guilty to one count of Domestic Violence, 

two counts of Forgery, and one count of Possession of Heroin. The remaining counts were 

dismissed by the State. Burkhart committed the offenses while under community control 

sanctions for a prior conviction in Champaign County. 

{¶ 2} At Burkhart’s sentencing hearing, the trial court stated that it reviewed the 

presentence investigation report and the statements made by counsel and Burkhart. The trial 

court’s Journal Entry of Judgment, Conviction and Sentence indicates that the court was guided 

by the purposes and principles of sentencing in R.C. 2929.11, which is to protect the public from 

future crime and to punish the offender. In addition, the entry indicated that the trial court 

considered the factors provided in divisions (B), (C), (D), and (E) of R.C. 2929.12, which relate 

to the seriousness of the offender’s conduct and recidivism. The court further indicated that it 

considered other factors relevant to achieving the purposes and principles of sentencing, and also 

the factors in R.C. 2929.14(C)(4), which relate to the imposition of consecutive sentences. 

{¶ 3} With respect to the community control violation, the trial court revoked 

Burkhart’s community control and sentenced him to 12 months in prison. As for the offenses in 

Case No. 2013 CR 065, the trial court sentenced Burkhart to 18 months in prison for the 
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Domestic Violence count, eight months each for the two Forgery counts, and 10 months for the 

Possession of Heroin count. The court ordered the sentences for Domestic Violence and 

Forgery to run concurrently, and the sentence for Possession of Heroin to run consecutively to the 

other three counts. Therefore, Burkhart’s total prison sentence in Case No. 2013 CR 065 is 28 

months. The court ordered the 28-month sentence to run consecutively to the 12-month sentence 

imposed for Burkhart’s community control violation. As a result, the trial court sentenced 

Burkhart to a total prison term of 40 months. 

{¶ 4} After sentencing, Burkhart appealed from the trial court’s sentence. His 

appointed appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 

1396, 18 L.E.2d 493 (1967), concluding that there are no meritorious issues for appeal, and 

asserting two potential assignments of error. We notified Burkhart of the Anders appeal in 

writing, and advised him that he may file a pro se brief within 60 days. Burkhart did not file a 

pro se brief. 

{¶ 5} In State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, we noted 

the following regarding Anders appeals: 

We are charged by Anders to determine whether any issues involving 

potentially reversible errors that are raised by appellate counsel or by a defendant 

in his pro se brief are “wholly frivolous.” If we find that any issue presented or 

which an independent analysis reveals is not wholly frivolous, we must appoint 

different appellate counsel to represent the defendant. 

Anders equates a frivolous appeal with one that presents issues lacking in 

arguable merit. An issue does not lack arguable merit merely because the 
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prosecution can be expected to present a strong argument in reply, or because it is 

uncertain whether a defendant will ultimately prevail on that issue on appeal. An 

issue lacks arguable merit if, on the facts and law involved, no responsible 

contention can be made that it offers a basis for reversal. (Citations omitted.) Id. at 

¶ 7-8. 

{¶ 6} The two potential issues raised in Burkhart’s Anders appeal are: (1) whether the 

record supports the imposition of consecutive sentences; and (2) whether the record supports the 

imposition of a maximum sentence for the Domestic Violence offense. 

{¶ 7} With respect to the imposition of consecutive sentences, we have stated that: 

There is no constitutional requirement that a sentencing court make 

findings of fact before ordering consecutive sentences. State v. Hodge, 128 Ohio 

St.3d 1, 2010–Ohio–6320, 941 N.E.2d 768, ¶ 26. While R.C. 2929.14(C)(4) 

requires a sentencing court to make specific findings before imposing consecutive 

sentences, the statute does not require a sentencing court to specifically identify 

the factual bases for those findings. In other words, * * * a sentencing court is not 

required to explicitly identify the matters upon which it relied in imposing 

consecutive sentences. State v. Wilson, 2d Dist. Montgomery No. 24979, 

2012–Ohio–4756, ¶ 18. 

{¶ 8} In this case, the trial court made specific findings required by R.C. 2929.14(C)(4) 

before imposing consecutive sentences. Specifically, the court found: (1) consecutive sentences 

were necessary to protect the public from future crime and to punish Burkhart; (2) consecutive 

sentences are not disproportionate to the seriousness of Burkhart’s conduct, or to the danger he 
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poses to the public; (3) at least two of the multiple offenses were committed as part of one or 

more courses of conduct, and the harm caused by the offenses was so great or unusual that no 

single prison term for any of the offenses committed as part of any of the courses of conduct 

adequately reflects the seriousness of Burkhart’s conduct; and (4) Burkhart’s criminal record 

demonstrates that consecutive sentences are necessary to protect the public from future crime. 

These findings are sufficient to support consecutive sentences. Accordingly, Burkhart’s first 

potential assignment of error lacks arguable merit and is wholly frivolous. 

{¶ 9} With respect to the imposition of maximum prison sentences, we have stated 

that: 

The 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, consecutive, or more than minimum 

sentences. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at 

paragraph 7 of the syllabus. Nevertheless, in exercising its discretion the trial 

court must consider the statutory policies that apply to every felony offense, 

including those set out in R.C. 2929.11 and 2929.12. State v. Mathis, 109 Ohio 

St.3d 54, 846 N.E.2d 1, 2006-Ohio-855, at ¶ 3[8].

When reviewing felony sentences, an appellate court must first determine 

whether the sentencing court complied with all applicable rules and statutes in 

imposing the sentence, including R.C. 2929.11 and 2929.12, in order to find 

whether the sentence is contrary to law. State v. Kalish, 120 Ohio St.3d 23, 896 

N.E.2d 124, 2008-Ohio-4912. If the sentence is not clearly and convincingly 
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contrary to law, the trial court’s decision in imposing the term of imprisonment 

must be reviewed under an abuse of discretion standard. Id. State v. Rollins, 2d 

Dist. Champaign No. 08CA003, 2009-Ohio-899, ¶ 7-8.

{¶ 10} “ ‘ Abuse of discretion’ has been defined as an attitude that is unreasonable, 

arbitrary or unconscionable.” AAAA Enterprises Inc. v. River Place Community Urban 

Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). 

{¶ 11} In this case, the trial court considered the presentence investigation report, the 

statements made at sentencing, the purposes and principles of felony sentencing under R.C. 

2929.11, and the seriousness and recidivism factors under 2929.12. Specifically, the court noted 

that there were three victims involved in Burkhart’s offenses, and that one of the victims had 

suffered physical harm. The court further noted that Burkhart’s relationship to the victim had 

facilitated the offense. In addition, Burkhart committed the offenses while he was under 

community control, and the court recognized that this had been his third community control 

violation. The court also recognized that Burkhart had attempted to evade law enforcement prior 

to his arrest. Furthermore, the court considered the fact that Burkhart had previously served 

time in prison, and that he had not been rehabilitated to a satisfactory degree. Lastly, the court 

reviewed Burkhart’s criminal history, which includes four prior felonies and a lengthy juvenile 

record. Upon weighing these factors, the court concluded that Burkhart’s conduct was more 

serious than conduct that normally constitutes his offenses, and that recidivism was likely. 

{¶ 12} In addition to weighing the seriousness and recidivism factors, the court correctly 

noted that R.C. 2929.13(B)(1), a statute requiring community control sanctions for fourth and 

fifth degree felonies, does not apply to this case. The statute does not apply, because Burkhart 
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had been previously convicted of a felony offense. 

{¶ 13} Finally, pursuant to R.C. 2929.14(A)(4), the maximum possible sentence 

authorized for Burkhart’s domestic violence offense is 18 months. Burkhart was sentenced to 18 

months for this offense. Therefore, his sentence is within the authorized statutory range. 

{¶ 14} For the foregoing reasons, the 18-month maximum sentence for Burkhart’s 

domestic violence offense was not contrary to law. The record supports the sentence, and no 

abuse of discretion on the part of the trial court has been demonstrated. Accordingly, Burkhart’s 

second potential assignment of error lacks arguable merit and is wholly frivolous. 

{¶ 15} Pursuant to our responsibilities under Anders, we have conducted an independent 

review of the entire record, and, having done so, we agree with counsel that there are no 

meritorious issues to present on appeal. As a result, counsel's request to withdraw from further 

representation is granted, and the judgment of the Champaign County Common Pleas Court is 

affirmed. 

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

DONOVAN and HALL, JJ., concur. 

Copies mailed to: 

Kevin Talebi 

Steven H. Eckstein 

Elvin H. Burkhart, IV 

Hon. Nick A. Selvaggio