2021 Ohio 1364
Ohio Ct. App.2021Background
- Defendant Jerry T. Burton Jr. pleaded guilty to: failure to comply (R.C. 2921.331(B), third-degree felony); having weapons while under disability (R.C. 2923.13(A)(2), third-degree felony, with forfeiture specification); and criminal damaging or endangering (R.C. 2909.06(A)(1), second-degree misdemeanor).
- Facts: after an argument outside the victim’s home, Burton retrieved a firearm from a vehicle he was borrowing and fired 11 shots into the back of the victim’s unoccupied car.
- During a subsequent traffic stop Burton fled; officers pursued ≈1.3 miles until his vehicle struck a utility pole. Officers recovered the firearm, ammunition, and drug paraphernalia; Burton had a prior violent felony conviction (firearm disability).
- Post-plea the court obtained a presentence report, drug/alcohol evaluation, and victim impact statement, and heard statements at sentencing.
- Sentence: 24 months for failure to comply and 36 months (maximum) for weapons under disability, imposed consecutively as required by statute; 90 days on the misdemeanor, concurrent.
- Burton appealed, arguing the trial court failed to properly consider R.C. 2929.11/2929.12 and therefore imposed unlawful sentences (maximum on the disability count and above-minimum on failure to comply).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Burton's sentence is "contrary to law" because the trial court failed to consider R.C. 2929.11 and 2929.12 and thus imposed improper (maximum/above-minimum) terms | State: the record (court's oral statement and sentencing entry) shows the court considered the statutory purposes and factors; appellate court must defer and presume consideration | Burton: trial court did not meaningfully consider R.C. 2929.11/2929.12, relied on an inaccurate hypothetical, and therefore imposed unlawful excessive sentences | Affirmed. Court presumes statutory factors were considered; R.C. 2929.11/2929.12 do not require specific factfinding and the appellate court will not reweigh factors under R.C. 2953.08(G)(2) |
Key Cases Cited
- State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006) (R.C. 2929.11 and 2929.12 do not require judicial fact-finding)
- State v. Adams, 37 Ohio St.3d 295, 525 N.E.2d 1361 (1988) (a silent record gives rise to a presumption that the trial court considered statutory sentencing factors)