[Cite as State v. Burnett , 2014-Ohio-4246.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY STATE OF OHIO Plaintiff-Appellee

v. FATE BURNETT, II Defendant-Appellant Appellate Case No. 2013-CA-98 Trial Court Case Nos. 12-CR-807 (Criminal Appeal from ( Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 26th da y of September, 2014.

. . . . . . . . . . . RYAN A. SAUNDERS, Atty. Reg. #0091678, Clark Count y Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee JENNIFER S. GETTY, Atty. Reg. #0074317, Getty Law Office, L.L.C., 46 East Franklin Street, Centerville, Ohio 45459 Attorney for Defendant-Appellant

. . . . . . . . . . . . . FAIN, J. {¶ 1} Defendant-appellant Fate Bu rnett, II, appeals from his conviction and sentence, following a negotiated guilty plea, on one count of Operating a Vehicle While Intoxicated, in violation of R.C. 4511.19(A)(1)(a), ha ving previously been convicted of an OVI felony violation, 2

 a felony of the third degree, and two counts of Trafficking in Mariju ana, in an amount equal to or greater than 20 grams, but less than 200 grams, in violation of R.C. 2925.03(A)(1), felonies of the fifth degree. The trial court sentenced Burn ett to four years in prison for OVI, and to one year in prison for each of the trafficking in mar ijuana offenses, all to be served consecutively for a total sentence of six years. {¶ 2} As the State concedes, the trial court erred by imposing a four-year sentence for the OVI offense. As a result of 2011 Ohio La ws File 29 (Am. Sub. H.B. 86), which became effective before Burnett committed the OVI offense, the maximum sentence for that offense became three years. State v. May , 2d Dist. Montgomery No. 25359, 2014-Ohio-1542, followed. {¶ 3} The trial court’s impos ition of consecutive sentences was supported by the findings required by statute, and is not clearly and convincingly c ontrary to law, in view of Burnett’s criminal history, which includes his commission of these offenses while under community control sanctions imposed for prior offenses, and his commission of the OVI offense while under a license suspension for a previous OVI conviction. {¶ 4} Burnett’s claim that his trial counsel was ineffective for having recommended that he refuse a proffered agreement as to th e sentence is not supported in the record, which contains no reference to the alleged proposed ag reement. Likewise, the record does not support Burnett’s claim that his tria l counsel, during the sentencing hearing, prevented him from addressing the court and corr ecting a mistake in the pre-sentence investigation report. {¶ 5} The record does not support Burnett’s claim that the tr ial court relied upon incorrect information in the pre- sentence investigation report. Although the report’s references to a juvenile burglary delinquenc y adjudication are confusing, a reasonable construction thereof 3

 supports the trial cour t’s conclusion that Burnett was ad judicated delinquent for having committed an act that, if committed by an adult, would constitute burglary. {¶ 6} The four-year sentence for OVI is Revers ed, the judgment of the trial court is Affirmed in all other respects, and the cause is Remanded for re-sentencing on the OVI offense.

I. The Course of Proceedings {¶ 7} In Case No. 2012 CR 807, Burnett was charge d by indictment with two counts of Operating a Motor Vehicle While Under the Infl uence of Alcohol or Drugs, one count in violation of R.C. 4511.19(A)(1)(a), and the other in violation of R.C. 4511.19(A)(2)(b). Both counts alleged that Burnett had pr eviously been convicted of a felony OVI, making both charged offenses felonies of the third degree. {¶ 8} In Case No. 2012 CR 689, Burnett was char ged by indictment with: Count One - Trafficking in Morphine, in an amount less than bulk, in violation of R.C. 2925.03(A)(1); Count Two - Trafficking in Marihuana, in an amount equaling or exceeding 20 grams, but less than 200 grams, in violation of R.C. 2925.03(A)(1); Count Three - Trafficking in Marihuana, in an amount equaling or exceeding 20 grams, but less than 200 grams, in violation of R.C. 2925.03(A)(1); Count Four - Trafficking in Drugs (oxycodone), in an amount less than bulk, in violation of R.C. 2925.03(A)(1); and Count 5 - Trafficking in Drug s (dihydrocodinone), in an amount less than bulk, in violation of R.C. 2925.03(A)(1). {¶ 9} In a plea bargain, Burnett pled guilty to one count of OVI, a third-degree felony, and to two counts of Trafficking in Marihuana, both felonies of the fifth degree. All of the remaining counts in both cases were dismissed. The State agreed to remain silent on the issue of 4

 sentencing. (In its brief, the State contends that it only agreed to remain silent at the sentencing on the OVI offense, but at the sentencing hearing, when invited to address the court on the issue of sentencing for the trafficking offenses, the prosecutor indicated that his notes reflected that the State had agreed to remain silent on the sentencing for those offenses, as well, and had nothing to say.) {¶ 10} Burnett was sentenced to four years in pr ison for the OVI offense, and to one year in prison for each of the trafficking offenses, with all sentences to be served consecutively to one another, and also to a six-month prison term im posed for the violation (as a result of Burnett’s criminal conduct in these two cases) of community control sanctions imposed in another case. {¶ 11} From his sentence, Burnett appeals.

II. The Trial Court’s Four-Year Prison Sentence for OVI Exceeded the Maximum Prison Term Prescribed for that Offense {¶ 12} Burnett’s First Assignment of Error is as follows:
THE TRIAL COURT ERRED IN SENTENCING MR. BURNETT TO A TERM OF IMPRISONMENT THAN [sic] WAS CLEARLY AND
CONVINCINGLY CONTRARY TO LAW IN CASE NO. 12 CR 807. {¶ 13} Burnett contends that as a result of 2011 Ohio Laws File 29 (Am. Sub. H.B. 86), which became effective on September 30, 2011, be fore Burnett committed the OVI offense in 2012, the maximum sentence for that offe nse became three years. He cites State v. May , supra , in support of that proposition. The State agr ees, and concedes error in this regard. {¶ 14} We also agree that under R.C. 2929.14(A )(3)(b), as amended by Am. Sub. H.B. 5

 86, the possible prison terms for Burnett’s thir d-degree felony OVI offense are: 9, 12, 18, 24, 30, or 36 months. Therefore, the tria l court’s four-year prison sentence fo r this offense is contrary to law. {¶ 15} Burnett’s First Assignment of Error is sustained.

III. Other than the Error Noted in Part II, Above , the Sentence Imposed by the Trial Court Is Not Clearly and Convincingly Contrary to Law, and the Trial Court Did Not Fail to Comply with the Purposes and Principles of Sentencing {¶ 16} Burnett’s Second Assignment of Error is as follows:
THE TRIAL COURT’S OVERALL EXCESSIVE SENTENCE ON MR. BURNETT WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW AND FAILED TO COMPLY WITH THE PURPOSES AND PRINCIPLES OF SENTENCING. {¶ 17} The trial court made the findings required by R.C. 2929.14(C)(4) for the imposition of consecutive sentences. In support of this assignment of e rror, Burnett contends that those findings are not supported by the record. {¶ 18} The trial court made the following findings: The Defendant has a burglary adjudication as a juvenile, four prior OVI offenses as an adult, possession of cocaine as an adult, unaut horized use of property as an adult, and the trafficking in marijuana offenses in this case were committed while the Defendant was on community control for OVI, a felony of the f ourth degree, out of case number 11 CR 417. The OVI offense committed here was committed while the Defendant was on community control for 6

 OVI, a felony of the fourth degree, in 11 CR 417. And while the Defendant was on community control for possession of cocaine, a felony of the fifth degree, in case number 12 CR 147. The OVI offense here was committed wh ile the Defendant was under a dr iver’s license suspension for his previous OVI offense. The Court finds that consecutive sentences are necessary in th is case to protect the public from future crime and to punish the Defendant. And that consecutive sentences are not disproportionate to the seriousness of his conduct and to the danger he posed to the public. And that the Defendant’s history of criminal conduc t demonstrates that c onsecutive sentences are necessary to protect the public from future crimes by the Defendant. {¶ 19} The pre-sentence investigation report reflect s three prior OVI convictions, not four, but otherwise there is evidence in the record to support th ese findings. As the trial court noted, when Burnett committed the most serious offense in this case – the third-degree felony OVI offense – he not only had committed three previous OVI offenses, and was not only still on community control sanctions as a result of the latest of those offenses, but he was actually under a driver’s license suspensi on for the latest OVI offense. Yet he found himself unable to avoid once again driving a motor vehicle while under th e influence of alcohol. {¶ 20} Burnett argues that “[h]e did not cause ha rm or damage to persons or property.” That is indeed fortunate. But if Burnett conti nues to drive while under the influence of alcohol, despite the sanctions previously imposed upon him fo r doing so, sooner or later his luck in this regard, and, more importantly, the luck of the members of the public he encounters, is going to

run out. {¶ 21} Burnett also points out that he has not pr eviously been sent to prison. That may be. But the pre-sentence investig ation report indicates that Burnett has been incarcerated in jail, 7

 for periods of time of a month or more, on f our previous occasions, and community control sanctions have not worked to re habilitate Burnett, since he committe d all of the offenses involved in this appeal while he was on community control sanctions. {¶ 22} We conclude that the record suppor ts the trial court’s R.C. 2929.14(C)(4) findings. The trial court also stated that it ha d considered both the purposes and principles of sentencing set forth in R.C. 2929.11, and the serious ness and recidivism factors set forth in R.C. 2929.12. We have found nothing in the record to suggest otherwise. {¶ 23} Burnett’s Second Assignme nt of Error is overruled.

IV. The Record Does No t Support Burnett’s Claim of Ineffective Assistance of Trial Counsel {¶ 24} Burnett’s Third Assignment of Error is as follows:
FATE BURNETT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL. {¶ 25} Burnett first argues that his trial couns el was ineffective fo r having advised him to turn down an offer of an agreed sentence invol ving less than half of the prison term actually imposed. This argument finds no support in the reco rd. We find nothing in the transcript of the plea hearing, or elsewhere in the record, to suggest either that Burnett was offered a plea bargain involving an agreed sentence, or that his tr ial counsel advised him to turn down an offer involving an agreed sentence. {¶ 26} Burnett also argues that he tried to ra ise an issue concerning an error in the pre-sentence investigation report, but “his counsel did not permit him to speak.” Again, we find 8

 nothing in the transcript of the sentencing hearing to support this argument. In that connection, Burnett also argues that he “advised his attorney that his PSI, showing felony adjudications as a juvenile, were actually dismissed as the case had been transferred to be tried as an adult and pled down to a misdemeanor.” There is nothing in the record to reflect that Burnett so advised his attorney. {¶ 27} Burnett’s Third Assignme nt of Error is overruled.

V. The Record Does No t Support Burnett’s Claim that the Trial Court Relied Upon Inaccurate Information in the Pre-Sentence Investigation Report {¶ 28} Burnett’s Fourth Assignment of Error is as follows:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN RELYING ON INACCURATE INFORMATION REGARDING MR. BURNETT’S CRIMINAL HISTORY FOR PURPOSES OF SENTENCING. {¶ 29} The pre-sentence investigation report contains a two-page facsimile transmission headed: “JUVENILE PRIORS.” One item th erein refers to “O ffense” 2911.12 “BURGLARY,” filed January 4, 1999 (when Burne tt would have been 17 years old), adjudicated January 18, 1999, with a disposition date of February 17, 1999. This item concludes: “YOUTH IS COMMITTED TO DYS FOR 6 MTHS, SUSPENDED; PROBATION FOR 90 DAYS; LT $50 PLUS COURT COSTS; SIGN WAGE WITHHOLDING ORDER.” {¶ 30} The pre-sentence investigation report al so includes various items under “PRIOR RECORD: Adult: Yes.” One of these shows a date of “2/17/99,” the offense of “Burglery [sic],” and the disposition: “6 MOS confinement (s usp.), 90 days probation, $158.00 fine & Cost.” 9

 {¶ 31} At the sentencing hearing, in reciting Burnett’s criminal history, the trial court said: “The Defendant has a burglar y adjudication as a juvenile,” a nd then recited Burnett’s adult convictions, none of which was for burglary. Burnett argues that the juvenile burglary delinquency case was actually tran sferred to adult court, wher e it was bargained down to a misdemeanor. But there is nothing in this reco rd to support that argument. Burnett contends that at a sentencing hearing in another, prio r case, “[t]he juvenile case inaccuracies were addressed and acknowledged to be inaccurate,” but the transcript of that sentencing hearing is not in the record of this appeal. 1 {¶ 32} The trial court evidently concluded that Burnett had been adjudicated, in 1999, delinquent by reason of an act that, if committed by an adult, would cons titute Burglary, and was committed to the Department of Youth Services for six months, suspended for ninety days. The pre-sentence investigation report, while confusing, supports that conclusion. {¶ 33} Burnett’s Fourth Assignme nt of Error is overruled.

VI. Conclusion {¶ 34} Burnett’s First Assignment of Error having been sustained, and his other assignments of error having b een overruled, his sentence for Operating a Vehicle While Under the Influence is Reversed; the judgment of the trial court is Affirmed in all other respects; and this cause is Remanded for re-sentenc ing, in accordance with this opinion.

1 Since Burnett did not ask the trial court to take judicial notice of the record in that prior case, it wa s not before the tria l court, and would not, therefore, properly be in the record of this appeal. 10

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FROELICH, P.J., and HALL, J., concur.

Copies mailed to: Ryan A. Saunders Jennifer S. Getty Hon. Douglas M. Rastatter