State v. Burnette
2010 Ohio 6581
Ohio Ct. App.2010Background
- Defendant-appellant Kelly Burnette was convicted by plea (no contest) to possession of drugs in Columbiana County Common Pleas Court after a pat-down and search incident to transporting him in a police vehicle yielded cocaine residue and a cocaine-containing paper.
- The trooper stopped a vehicle driven by Randy Wilhelm; Burnette sat in the front passenger seat and appeared intoxicated.
- The officer towed the vehicle and placed Burnette in a police cruiser; before placing him inside, the officer conducted a pat-down for weapons.
- During the pat-down, the officer felt an open mint tin containing cocaine residue and removed it; a folded paper containing 0.42 grams of cocaine was later discovered.
- Burnette moved to suppress and for dismissal; he pled no contest under a plea agreement; the court sentenced him to eight months in prison with a six-month license suspension.
- Appellate counsel filed a no-merit brief under Anders/Toney, and the court appointed fresh counsel to brief a meritorious issue relating to the tin removal during the frisk.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the pat-down before placement in the cruiser justified? | Burnette | Burnette | Pat-down justified to ensure officer safety given detention for impairment |
| Was removal of the mint tin during the pat-down permissible? | State | Burnette | Issue not frivolous; potential plain-view/ Dickerson bases; new counsel appointed to brief |
| Were claims of ineffective assistance based on witnesses or videotape review properly reviewable on direct appeal? | Burnette | Burnette | Record-based limits; issues outside record not reviewable on direct appeal; new counsel appointed for tin-removal issue |
| Was the Crim.R. 11 plea advisement conduct compliant and the plea knowingly, intelligently, and voluntarily entered? | State | Burnette | Constitutional and non-constitutional advisements satisfied; plea valid and voluntary |
Key Cases Cited
- State v. Hartman, 93 Ohio St.3d 274 (Ohio Supreme Court 2001) (ineffective-assistance claims must be on record for direct appeal)
- State v. Ishmail, 54 Ohio St.2d 402 (Ohio Supreme Court 1978) (limits on reviewing out-of-record claims on direct appeal)
- State v. Veney, 120 Ohio St.3d 176 (Ohio Supreme Court 2008) (Crim.R. 11 adherence and plea advisements guidance)
- Terry v. Ohio, 392 U.S. 1 (U.S. Supreme Court 1968) (limits of Terry frisk to weapons and officer safety)