State of Ohio v. Leslie Allen Burnette
Court of Appeals Nos. L-16-1272, L-16-1273
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: November 3, 2017
2017-Ohio-8424
MAYLE, J.
Trial Court Nos. CR0201602371, CR0201602417; Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee; Julie Jacek Bookmiller, for appellant.
MAYLE, J.
{¶ 1} Appellant, Leslie Burnette, appeals the November 3, 2016, and November 14, 2016 judgments of the Lucas County Court of Common Pleas sentencing him to an aggregate prison term of 17 years and 6 months. For the following reasons, we affirm.
{¶ 2} Burnette‘s consolidated appeal arises from his guilty pleas and resultant sentences in two separate cases. On July 27, 2016, Burnette was indicted in case No. CR0201602371 (“case 1“) on one count of kidnapping in violation of
{¶ 3} On October 24, 2016, Burnette pleaded guilty in case 1 to the gross sexual imposition charge and pleaded guilty in case 2 to amended charges of attempted kidnapping and attempted rape, both second-degree felonies. On October 31, 2016, the trial court sentenced Burnette to the maximum sentence for each crime and ordered that the sentences be served consecutively. The court also dismissed the kidnapping charge in case 1. The sentencing entry in case 1 was journalized on November 3, 2016, and the sentencing entry in case 2 was journalized on November 14, 2016.
{¶ 4} Burnette now appeals the trial court‘s decisions, raising two assignments of error:
- 1) The Trial Court‘s sentence was contrary to law.
- 2) The Trial Court was in error for accepting a guilty plea.
A. Plea Hearing
{¶ 5} On October 24, 2016, the trial court held a plea hearing. Burnette agreed to plead guilty in case 1 to the gross sexual imposition charge and to plead guilty in case 2 to amended charges of attempted kidnapping and attempted rape, both second-degree felonies. The convictions would require Burnette to register as a Tier I child-victim offender for the gross sexual imposition charge and a Tier III child-victim offender for the attempted rape and attempted kidnapping charges. In exchange, the state agreed to dismiss the kidnapping count in case 1.
{¶ 6} At the beginning of the plea hearing, the trial court elicited the following factual information regarding the plea agreements:
THE COURT: What‘s the evidentiary basis concerning the resolution in [case 1], please?
[PROSECUTOR]: Your Honor, in both of these cases, these are children around the ages of 15 years of age. However, they both have learning disabilities and/or more severe disabilities, cognitive disabilities. That being said, in the interest of justice for these children and what their parents’ wish is is [sic] why this case is being pled in such a manner.
THE COURT: And is that the same rationale for any resolution less than the original charges in [case 2] as well?
[PROSECUTOR]: Yes, Your Honor. That particular victim in that case is 15 years of age but, however, on the cognitive level of a six-year old.
{¶ 7} During the hearing, the court asked Burnette if he was threatened or promised anything not in the plea agreements to induce him to enter guilty pleas. Burnette replied “no” to both questions. The court also reviewed the plea agreements with Burnette and asked him if he understood what they said. Burnette said that he did.
{¶ 8} But when the court asked Burnette if he had sufficient time to consult with his attorney about the proposed pleas, Burnette responded that he was not sure and expressed some reservations about pleading guilty. The court told Burnette that his response “sets off alarm bells.” Despite Burnette‘s desire to “just go ahead and take care of it right now” and his claim that “I don‘t need any more time,” the court engaged Burnette and counsel in a discussion to ensure that Burnette was willingly offering his guilty pleas. During the discussion Burnette stated that he wanted to pursue the plea because he did not “see it getting any better” and the state planned to rescind the plea offers after that day. When Burnette told the court that he had additional questions about the plea offers, the judge stated that “I‘m not comfortable accepting this plea because I feel that Mr. Burnette has some reservations about the status of the charges, his case, the evidence, whether he really wants to tender these pleas.” At this point, the court stopped the hearing to give Burnette additional time to speak with his attorney.
{¶ 10} Next, the court reviewed the three charges to which Burnette intended to plead guilty. For each offense, the court addressed the maximum prison term and fine; the terms of postrelease control and penalties for violating postrelease control; and Burnette‘s child-victim offender status and registration requirements. The court also explained that it could run the sentences for each charge concurrently. Burnette responded “yes” each time the judge asked him if he understood a term of his guilty pleas. After explaining Burnette‘s child-victim offender registration, residential restrictions, and community notification requirements in more detail, the court asked, “And knowing that you‘re going to have these classification obligations, is it still your intent to tender these pleas of guilty in both of these two cases?“, to which Burnette replied, “Yes, Your Honor.”
{¶ 12} After going through all of the relevant information, the court again asked Burnette if he had any questions about the plea agreements for the court or his attorney. Burnette replied “no.” Burnette also stated that he did not have any questions about the plea forms he signed.
{¶ 13} When the trial court asked Burnette how he was pleading to each count, Burnette responded “guilty.” When the court asked why he was pleading guilty to gross sexual imposition, the following exchange occurred:
THE COURT: Why are you pleading guilty to that charge?
THE DEFENDANT: Because I feel it would be worse for me if I took it to trial.
THE COURT: Well, that may well be the situation. But that‘s not acceptable.
THE DEFENDANT: I‘m guilty of it.
THE COURT: I will accept that.
The judge and Burnette had a similar exchange when the judge asked why Burnette was pleading guilty to attempted kidnapping:
THE COURT: Why are you pleading guilty to that?
THE DEFENDANT: Because I feel it would be worse for me if I took it to trial.
THE COURT: That may be part of your rationale. Why else?
THE DEFENDANT: Because I‘m guilty of it.
THE COURT: I will accept that.
When the court asked Burnette why he was pleading guilty to attempted rape, he simply responded “Because I‘m guilty of it.”
{¶ 14} The court accepted Burnette‘s pleas, found him guilty of gross sexual imposition, attempted kidnapping, and attempted rape, and set the case for sentencing.
B. Sentencing Hearing
{¶ 15} On October 31, 2016, the trial court held Burnette‘s sentencing hearing. At the hearing, the trial court first reviewed with Burnette the terms of his Tier I and Tier III child-victim offender classifications, including the registration requirements, residential restrictions, and community notification requirements.
{¶ 16} Next, Burnette‘s attorney addressed the court. He stated that Burnette‘s criminal record included some misdemeanor and traffic offenses, but that Burnette had no history of sexual offenses or felonies (other than one felony conviction for failing to pay child support). Counsel also stated that Burnette accepts what he did and is sorry for his actions. Counsel expressed Burnette‘s concern for his aging mother, particularly if Burnette were sentenced to a long prison term.
{¶ 18} Finally, the state addressed the court. The state provided the court with letters from the victim in case 1 and her mother. The prosecutor read the victim‘s letter, which outlined the distress that Burnette‘s actions had caused the victim. The mother of the victim in case 2 also addressed the court. She said that her child experienced severe mental and emotional harm because of Burnette‘s actions. The mother told the court that the victim experiences panic attacks when she sees a man who looks like Burnette, spent several days at a psychiatric hospital, has nightmares, has trouble sleeping, has migraines, has experienced increased depression, has frequent flashbacks, and has become an angry and aggressive person.
{¶ 19} The state noted that Burnette had pleaded guilty to charges involving two separate victims and that the incidents underlying the two indictments occurred within two weeks of each other. The state indicated that the victims were children who were around 15 years old at the time and have cognitive disabilities. In case 2, the state told the court that Burnette deceived the victim by asking her to babysit even though Burnette does not have children. After the victim was in his car, Burnette attempted to have intercourse with the victim.
{¶ 20} After hearing from counsel, the court reviewed the record. The judge noted that Burnette‘s criminal history is “relatively benign.” The judge also noted that Burnette‘s conduct had “horrifically impacted” the victim in case 2, who has the mental
{¶ 21} The court stated on the record that it considered the principles and purposes of sentencing under
A. Burnette‘s Pleas were Entered Knowingly, Voluntarily, and Intelligently
{¶ 22} We address Burnette‘s second assignment of error first. In his second assignment of error, Burnette contends that the trial court erred by accepting his guilty plea. He argues that the trial court did not comply with Crim.R. 11 and that he did not understand the nature of the charges against him. The state counters that the trial court adhered to the requirements of Crim.R. 11(C) and that the totality of the circumstances shows that Burnette understood the charges.
{¶ 23} Under both the United States and Ohio Constitutions, a guilty plea must be made knowingly, intelligently, and voluntarily to be valid. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). Therefore, before accepting a defendant‘s guilty plea, the trial court must address the defendant personally to inform him that he waives certain constitutional rights by pleading guilty and to determine that he understands the nature of the charges against him, the maximum penalty he is facing, and the effects of his plea. State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 41; Crim.R. 11(C)(2). The underlying purpose of Crim.R. 11(C) is to ensure that the information a defendant needs to make a voluntary and intelligent decision about pleading guilty is conveyed to him. State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981).
{¶ 24} There are two levels of compliance with Crim.R. 11(C): strict and substantial. The court must strictly comply with the rule when explaining the defendant‘s
{¶ 25} For non-constitutional rights, on the other hand, substantial compliance is sufficient. Clark at ¶ 31; Rinehart at ¶ 18; and State v. Ragusa, 6th Dist. Lucas No. L-15-1244, 2016-Ohio-3373, ¶ 4, 5. “Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). The rule requires that the court determine whether the defendant entered a voluntary plea in light of an understanding of the key facts; it does not require that the court personally notify the defendant of these facts. State v. Acosta, 6th Dist. Wood No. WD-15-066, 2016-Ohio-5698, ¶ 10. Compliance with Crim.R. 11(C) generally does not require the trial court to recite each element of the charges against the defendant. State v. Gallant, 6th Dist. Erie No. E-12-033, 2013-Ohio-3953, ¶ 9, citing State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 57. Nor does Crim.R. 11(C) require that a factual basis for guilty pleas be placed on the record. State v. Blevins, 6th Dist. Ottawa No. OT-16-013, 2016-Ohio-8382, ¶ 18.
{¶ 27} The trial court also substantially complied with Crim.R. 11(C)(2)(a) and (b). Although the court did not read the elements of each offense to Burnette, it discussed each charge with him. The court ensured that Burnette knew the degree of each offense, the maximum penalty and fine for each offense, the child-victim offender classification attached to each offense, and the consequences of being classified as a child-victim offender. Additionally, Burnette signed plea papers that contain the statement “I understand the nature of these charges and the possible defenses I might have,” and he told the trial court that he understood the plea papers.
{¶ 28} Burnette alleges that his statement to the trial court that his lawyer was unable to answer one of his questions shows that he did not understand the charges against him. But nothing in the transcript indicates that any questions Burnette had about his plea deal were related to the nature of the charges against him. Rather, his statements show that he was hesitant to plead guilty. When Burnette expressed his reluctance to enter the pleas and indicated that he might still have questions, the court stopped the plea hearing and gave Burnette more time to consult with his attorney. After Burnette‘s case
{¶ 29} Burnette also contends that he told the court that he was pleading guilty to avoid a worse outcome at trial, but never acknowledged guilt. This is unsupported by the record. The trial court warned Burnette that entering guilty pleas would be his sworn admission of guilt of each offense, and Burnette told the trial court that he was “guilty of it” for each crime. Although Burnette expressed some reservations about pleading guilty, he was then given additional time to consult with his attorney and ultimately chose to proceed and admitted to the crimes. This does not show that his pleas were involuntary.
{¶ 30} In sum, the record demonstrates that the trial court complied with the requirements of Crim.R. 11(C) and that, based on the totality of the circumstances, Burnette understood the implications of his pleas and the rights he waived. We find, therefore, that Burnette‘s pleas of guilty were made voluntarily, knowingly, and intelligently. Accordingly, Burnette‘s second assignment of error is not well-taken.
B. Burnette‘s Sentence is not Contrary to Law
{¶ 31} Burnette‘s first assignment of error asserts that his sentence is contrary to law. He claims that the trial court erred by finding that none of the factors in
{¶ 32} We review sentencing challenges under (a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant; (b) That the sentence is otherwise contrary to law. {¶ 33} Burnette asserts that his sentence is clearly and convincingly contrary to law under {¶ 34} As we recognized in State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 16, we still use State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, in determining whether a sentence is clearly and convincingly contrary to law. In Kalish, the Supreme Court of Ohio held that a sentence is not clearly and convincingly contrary to law where the trial court has considered the purposes and principles of sentencing under {¶ 35} Burnette does not argue that the trial court misapplied postrelease control, imposed a sentence outside the statutory ranges for second- and fourth-degree felonies, or failed to consider the principles and purposes of sentencing. He only objects to the trial court‘s weighing of the seriousness and recidivism factors in {¶ 36} A sentencing court is “not obligated to give a detailed explanation of how it algebraically applied each seriousness and recidivism factor to the offender.” State v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, 960 N.E.2d 1042, ¶ 11 (6th Dist.). In fact, no specific recitation is required; merely stating that the court considered the statutory factors is sufficient. Id. Moreover, the trial court is not required to give any particular weight or emphasis to any factor; it is merely required to consider the statutory factors. State v. Delmanzo, 11th Dist. Lake No. 2007-L-218, 2008-Ohio-5856, ¶ 23. We also note that the trial court‘s failure to discuss a particular factor does not mean that the court did not consider that factor. State v. Moss, 11th Dist. Ashtabula No. 2016-A-0047, 2017-Ohio-1507, ¶ 54. I have considered your record. I‘ve considered the statements made here in open court. I‘ve considered the victim impact statements as well as the principles and purposes of sentencing as I‘m required to consider under 2929.11. I‘ve also balanced the seriousness and recidivism factors as I‘m obligated to do under 2929.12, and I‘ve considered all factors under 2929.13. Additionally, the sentencing entries both state that The Court has considered the record, oral statements, any victim impact statement, and general offense reports prepared, as well as the principles and purposes of sentencing under * * * The Court further finds the defendant is not amenable to community control and that prison is consistent with the purposes of {¶ 38} The trial court acknowledged Burnette‘s prior criminal record during the sentencing hearing, characterizing it as “relatively benign.” When the court specifically discussed the factors in {¶ 39} The transcript of the sentencing hearing and the judgment entries of conviction and sentence indicate that the trial court considered all of the required statutory factors before it imposed sentence on Burnette. Because the trial court complied with the statutory requirements, we find that Burnette‘s sentence is not clearly and convincingly contrary to law. Accordingly, Burnette‘s first assignment of error is not well-taken. {¶ 40} Based on the foregoing, the November 3, 2016, and November 14, 2016 judgments of the Lucas County Court of Common Pleas are affirmed. Burnette is ordered to pay the costs of this appeal pursuant to Judgments affirmed. Thomas J. Osowik, J. James D. Jensen, P.J. Christine E. Mayle, J. CONCUR.
IV. Conclusion