State v. Burnette

[Cite as State v. Burnette, 2017-Ohio-8424.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio Court of Appeals Nos. L-16-1272
L-16-1273
Appellee
Trial Court Nos. CR0201602371
v. CR0201602417

Leslie Allen Burnette DECISION AND JUDGMENT

Appellant Decided: November 3, 2017

*****

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.
 I. Background

{¶ 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 R.C. 2905.01(A)(4)

and (C), a first-degree felony, and one count of gross sexual imposition in violation of

R.C. 2907.05(A)(1) and (C), a fourth-degree felony. On August 3, 2016, the grand jury

issued a second indictment in case No. CR0201602417 (“case 2”) charging Burnette with

one count of kidnapping in violation of R.C. 2905.01(A)(4) and (C), a first-degree felony,

and one count of rape in violation of R.C. 2907.02(A)(1)(c) and (B), a first-degree felony.

{¶ 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.

2.
 II. Facts

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?

3.
 [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.

4.
 {¶ 9} When the plea hearing resumed approximately 20 minutes later, Burnette

told the court that all of his questions had been answered. He also stated that he did not

need more time with his lawyer and he wanted to proceed with pleading guilty. Satisfied

that Burnette was willing to proceed, the court resumed the plea colloquy. During the

colloquy, the court explained that pleading guilty would be Burnette’s sworn admission

that he committed the crimes. The court also explained that Burnette was giving up his

right to a trial by jury, right to confront witnesses, right to compulsory process, and right

against self-incrimination. The court explained each right before asking Burnette if he

understood the rights he was giving up. Burnette replied “yes” to each question.

{¶ 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.”

5.
 {¶ 11} The court went on to explain the limits of an appeal from a guilty plea, the

restrictions on Burnette’s future ability to own firearms, and the requirement that he

provide a DNA sample. Burnette said that he understood all three statements.

{¶ 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:

6.
 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.

7.
 {¶ 17} Following his attorney’s statement, Burnette briefly addressed the court to

apologize to his victims and their families.

{¶ 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

8.
capacity of a six-year-old. The court specifically found that Burnette had committed the

worst forms of the offenses of which he was convicted. The court further stated that

Burnette’s apology to the victims seemed insincere and it specifically found that Burnette

did not express any genuine remorse. Rather, the court believed Burnette was only upset

that he might not see his aging mother again if he received a long prison term.

{¶ 21} The court stated on the record that it considered the principles and purposes

of sentencing under R.C. 2929.11, the seriousness and recidivism factors under R.C.

2929.12, and the felony sentencing guidance factors under R.C. 2929.13. Thereafter, the

court sentenced Burnette to the maximum sentence of 18 months in prison for the gross

sexual imposition conviction, the maximum sentence of 8 years for the attempted

kidnapping conviction, and the maximum sentence of 8 years for the attempted rape

conviction. The court ordered all of the sentences to be served consecutively for a total

of 17 years and 6 months in prison. Pursuant to R.C. 2929.14, the court found that

consecutive sentences are necessary to protect the public from future crime, they are not

disproportionate to the seriousness of Burnette’s conduct, the crimes were part of a

course of continuing conduct, and the harm caused was so great or unusual that no single

term of imprisonment adequately reflects the seriousness of Burnette’s conduct. Before

concluding, the court again reminded Burnette of the mandatory term of postrelease

control that he will be subject to when he is released from prison.

9.
 III. Law and Analysis

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

10.
constitutional rights or the plea is invalid under the presumption that it was not

knowingly and voluntarily entered. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748,

893 N.E.2d 462, ¶ 31; State v. Rinehart, 6th Dist. Wood No. WD-11-030, 2013-Ohio-

3372, ¶ 17. The court need not use the exact language in the rule, but must explain the

rights in a manner that is reasonably intelligible to the defendant. Rinehart at ¶ 17, citing

Ballard at paragraph two of the syllabus.

{¶ 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.

11.
 {¶ 26} The transcript of the plea hearing establishes that the trial court engaged in

a full and complete colloquy with Burnette concerning his pleas, as required by Crim.R.

11(C)(2). The trial court strictly complied with Crim.R. 11(C)(2)(c) by providing careful

explanations of each of the constitutional rights Burnette waived by entering pleas, and

Burnette unequivocally indicated that he understood each right and understood that he

was waiving those rights by pleading guilty.

{¶ 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

12.
was back on the record, Burnette told the court that his attorney had answered his

questions and that he had been given sufficient time to consult with his lawyer.

Additionally, Burnette twice told the court that he did not have any further questions for

the court or his attorney regarding the pleas. The record shows that Burnette was willing

to proceed when his case was recalled and does not support Burnette’s argument that he

did not understand the ramifications of pleading guilty.

{¶ 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 R.C.

13.
2929.12(D) showing less likelihood of recidivism applied to Burnette, despite

acknowledging Burnette’s “relatively benign” criminal record. The state contends that

the sentences are lawful because the trial court considered Burnette’s limited criminal

history and all other required statutory factors before imposing the sentences.

{¶ 32} We review sentencing challenges under R.C. 2953.08(G)(2). The statute

allows an appellate court to increase, reduce, or otherwise modify a sentence or vacate

the sentence and remand the matter for resentencing only if it clearly and convincingly

finds either of the following:

(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. R.C.

2953.08(G)(2).

{¶ 33} Burnette asserts that his sentence is clearly and convincingly contrary to

law under R.C. 2953.08(G)(2)(b) because the trial court did not consider all of the

recidivism factors in R.C. 2929.12(D) in reaching its sentencing decision. We note that

Burnette does not challenge the trial court’s compliance with the applicable statutes listed

in R.C. 2953.08(G)(2)(a).

{¶ 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,

14.
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 R.C. 2929.11 and the seriousness and recidivism factors

under R.C. 2929.12, properly applied postrelease control, and imposed a sentence within

the statutory range. Kalish at ¶ 18.

{¶ 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 R.C. 2929.12.

{¶ 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.

15.
 {¶ 37} Here, the record makes clear that the trial court considered all applicable

statutory factors. Specifically, the court stated at the sentencing hearing that

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 R.C. 2929.11, and has

balanced the seriousness, recidivism and other relevant factors under R.C.

2929.12.

***

The Court further finds the defendant is not amenable to community

control and that prison is consistent with the purposes of R.C. 2929.11.

{¶ 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 R.C. 2929.12, it stated that “I’m to consider factors under

16.
2929.12(D) that work to your benefit. But there are no such factors.” Rather than

indicating that the trial court failed to consider Burnette’s limited criminal record as a

mitigating factor, the court’s statement indicates that it chose to give Burnette’s criminal

record no mitigating weight. That is, the court did not ignore Burnette’s record; it took

Burnette’s record into account and was not persuaded that his record, when balanced

against the other facts of his crimes, demonstrated that Burnette was less likely to

reoffend.

{¶ 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.

IV. Conclusion

{¶ 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 App.R. 24.

Judgments affirmed.

17.
 State v. Burnette
C.A. Nos. L-16-1272
L-16-1273

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. _______________________________
JUDGE
James D. Jensen, P.J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE

18.