State v. Burks
2021 Ohio 224
Ohio Ct. App.2021Background
- Defendant Richard E. Burks IV fired a stolen handgun during an argument with the mother of his child as she drove away; charged with discharge of a firearm on/near prohibited premises (3rd-degree) and receiving stolen property (4th-degree).
- Trial court initially placed Burks on community control with alternate prison terms (36 months and 18 months), ordered to run consecutively, but did not make the statutory consecutive-sentence findings at that time.
- After Burks admitted violations of community control, the court revoked supervision and imposed the previously announced alternate terms consecutively without the required findings; the State conceded error on appeal and this court reversed and remanded for resentencing.
- At the new sentencing hearing the trial court again imposed maximum consecutive terms (36 months + 18 months) and expressly made R.C. 2929.14(C)(4) findings justifying consecutive service.
- Burks appealed, arguing the maximum and consecutive sentences were unsupported by the record; the Second District affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether maximum sentences (36 mo; 18 mo) are unsupported under R.C. 2929.11/2929.12 | State: Court considered 2929.11/2929.12 and sentences are lawful | Burks: Record does not support imposition of maximum terms under 2929.11/2929.12 | Court: Under Supreme Court guidance, appellate courts may not vacate based solely on alleged failure to support findings under 2929.11/2929.12; trial court considered those statutes and sentences were not contrary to law, so maximums stand |
| Whether consecutive sentences are unsupported by the record | State: Trial court made the R.C. 2929.14(C)(4) findings at resentencing and record supports them | Burks: Findings and consecutive terms are not supported by the record | Court: Trial court expressly found consecutive sentences necessary to protect the public, not disproportionate, and relied on Burks’s criminal history; record does not clearly and convincingly refute those findings, so consecutive terms affirmed |
Key Cases Cited
- State v. Bonnell, 16 N.E.3d 659 (Ohio 2014) (appellate review and requirement for trial court to make R.C. 2929.14(C)(4) findings for consecutive sentences)
- State v. Withrow, 64 N.E.3d 553 (Ohio 2d Dist. 2016) (appellate reversal of consecutive sentences requires clear-and-convincing finding that record does not support trial court’s consecutive-sentence findings)
- State v. Gwynne, 141 N.E.3d 169 (Ohio 2019) (reaffirmed standards for appellate review of consecutive sentences)