State v. Burden
2017 Ohio 4420
Ohio Ct. App.2017Background
- Curtis Burden pleaded guilty to pandering obscenity involving a minor (second-degree felony) for viewing/disseminating graphic child pornography and creating an online chat room to share it.
- The trial court sentenced Burden to six years in prison.
- Burden appealed, raising two assignments of error: (1) the six-year term is contrary to law/not supported by the record under R.C. 2929.11 and 2929.12; (2) the court denied his right to allocute under Crim.R. 32(A)(1).
- The presentence investigation report and psychosexual evaluation were not included in the appellate record.
- The sentencing transcript shows the court made remarks about imprisonment but the judge also personally addressed Burden and gave him an opportunity to speak before imposing sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the six-year prison term is contrary to law or unsupported by the record under R.C. 2929.11/2929.12 | Burden: trial court did not adequately state consideration of statutory sentencing factors; court relied on an aggravating-factor/worst-form finding without discussing mitigating factors | State: sentencing was proper; presumption the trial court used the presentence report and evaluations; appellant failed to provide those records | Affirmed. Appellate court will presume regularity because the presentence report and psychosexual evaluation were not in the record; no clear-and-convincing showing that sentence was unsupported or contrary to law. |
| Whether Burden was denied his right to allocute under Crim.R. 32(A)(1) | Burden: court indicated he would be sent to prison before asking if he wished to speak, effectively denying allocution | State: court personally addressed Burden multiple times and gave him an opportunity to speak prior to finalizing sentence; preliminary remarks about incarceration are not final | Affirmed. Court complied with Crim.R. 32(A)(1); allocution right was honored. |
Key Cases Cited
- State v. Marcum, 59 N.E.3d 1231 (Ohio 2016) (appellate standard: vacate/modify felony sentence only upon clear-and-convincing showing that record does not support trial court’s findings or sentence is contrary to law)
- State v. Green, 739 N.E.2d 120 (Ohio 2000) (Crim.R. 32 allocution requirement is more than ritual; last opportunity to speak or express remorse)
- Cross v. Ledford, 120 N.E.2d 118 (Ohio 1954) (definition of clear and convincing evidence)