[Cite as State v. Burrows, 2020-Ohio-3646.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190277
TRIAL NO. B-1605335A
Plaintiff-Appellee, :
vs. : O P I N I O N.
CHRIS BURROWS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 8, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Roger Kirk, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} After entering guilty pleas, defendant-appellant Chris Burrows was
convicted of several offenses and sentenced to an aggregate prison term of 15 years. He
now appeals, arguing that the trial court erred by denying his presentence motion to
withdraw his pleas and by imposing multiple and excessive sentences. For the reasons
that follow, we affirm.
{¶2} The state co-indicted Burrows for offenses related to an armed robbery
and shooting involving one victim that occurred on July 8, 2016. Burrows initially
pleaded not guilty. His trial was delayed in part due the health of the victim. When the
parties appeared for trial in August 2018, Burrows offered to cooperate to some degree
with the state, which resulted in the state foregoing additional charges and offering a plea
bargain in this case. The state agreed to dismiss some counts in exchange for Burrows’s
guilty pleas to aggravated robbery and felonious assault, both with three-year firearm
specifications, and having weapons under a disability.
{¶3} On August 27, 2018, the trial court held a thorough change-of-plea hearing,
where Burrows was told that he was facing a minimum aggregate prison term of nine
years and a maximum aggregate term of 28 years. Burrows indicated that he understood
the potential penalties and that no promises had been made to him. The prosecutor then
read the statutory language of the offenses into the record. Defense counsel stated he had
“nothing on the facts” and waived any further reading of them. The trial court found
Burrows’s waiver of rights to be knowing, intelligent, and voluntary, and accepted his
guilty pleas. The court continued the case for sentencing.
{¶4} Nine months later, at the start of the sentencing hearing, Burrows, through
counsel, orally moved to withdraw his guilty pleas. At the hearing on the motion, Burrows
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OHIO FIRST DISTRICT COURT OF APPEALS
claimed he had only agreed to plead guilty because defense counsel had promised a six-
year sentence. Defense counsel, however, repeatedly told the court that he had not made
any promises to Burrows and had explained to Burrows that only the judge could
determine his sentence. The trial court recalled the plea hearing, when Burrows was told
the possible sentences but did not mention a six-year term or any promises. The trial
court then said, “at this point, I’m not going to let you vacate your plea.”
{¶5} After denying Burrows’s motion, the court proceeded to sentencing.
Defense counsel sought the “minimum” sentence, citing Burrows’s cooperation in the case
and “strong family support.” The state sought a longer term, noting both Burrows’s long
criminal history and the fact that he had already been given consideration for his help in
the case. Burrows then addressed the court, indicating he had “made some mistakes” but
was “done with everything” and “want[ed] to get back to [his] family.” The court imposed
the following prison sentences: nine years for the aggravated-robbery conviction and
three years for the firearm specification, two years for the felonious-assault conviction and
three years for the firearm specification, and three years for the weapons-under-a-
disability conviction. The court ordered the sentences for the aggravated-robbery,
felonious-assault, and weapons-under-a-disability convictions to be served concurrently
with each other, but consecutively to the sentences for the firearm specifications, for an
aggregate sentence of 15 years in prison.
Denial of the Presentence Motion to Withdraw Pleas
{¶6} In his second assignment of error, which we address first, Burrows claims
the trial court erred when it denied his presentence motion to withdraw his guilty pleas. A
presentence motion to withdraw a plea should be freely granted, but a defendant does not
have an absolute right to withdraw the plea. See Crim.R. 32.1; State v. Xie, 62 Ohio St.3d
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OHIO FIRST DISTRICT COURT OF APPEALS
521, 527, 584 N.E.2d 715 (1992). We review the trial court’s denial of Burrows’s motion
under an abuse-of-discretion standard, applying the factors outlined in State v. Fish, 104
Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995). See State v. Haywood, 1st Dist.
Hamilton No. C-130525, 2014-Ohio-2801, ¶ 5, cited in State v. Crawley, 1st Dist.
Hamilton Nos. C-150403 and C-150422, 2016-Ohio-658, ¶ 5.
{¶7} The record does not demonstrate that the trial court abused its discretion
by denying the motion. The sole basis of the motion was Burrows’s claim that he had
agreed to plead guilty because defense counsel had promised him a six-year sentence but
counsel later said he was not sure. Defense counsel, however, denied promising a six-year
sentence, and his denial was corroborated by Burrows’s responses during the
comprehensive change-of-plea hearing. Further, the motion, presented on the day of the
sentencing hearing, which was nine months after the change-of-plea hearing and almost
three years after the commission of the offenses, was not made within a reasonable time,
and the state would have been prejudiced by the granting of it. The trial court seriously
inquired into the reason for Burrows’s request to withdraw at the hearing on the motion,
but ultimately found Burrows’s claim incredible and too late. On this record, Burrows has
failed to show an abuse of discretion. See Crawley at ¶ 5; Haywood at ¶ 5. Consequently,
we overrule the first assignment of error.
Sentencing Issues
{¶8} Burrows challenges his sentences in his remaining two assignments of
error. First, he claims the trial court committed plain error because it failed to apply R.C.
2941.25, the allied-offenses statute, to merge the aggravated-robbery and felonious-
assault offenses and the two three-year firearm specifications into one conviction.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} Initially, we note that the challenged firearm specifications are penalty
enhancements, not offenses, and, therefore, the punishment imposed for that conduct is
not directly subject to R.C. 2941.25 analysis. See In re D.L., 1st Dist. Hamilton Nos. C-
170152, C-170153 and C-170154, 2018-Ohio-2161, ¶ 13. Instead, those punishments are
governed by R.C. 2929.14(B)(1). And here, both firearm-specification sentences were
mandatory under R.C. 2929.14(B)(1)(g), unless the underlying offenses merge.
{¶10} Under R.C. 2941.25, the aggravated-robbery and felonious-assault offenses
do not merge into one conviction if one of the following is true: Burrows’s conduct
constitutes offenses that were “dissimilar in import or significance,” including offenses
that involved “separate victims” or caused “separate, identifiable harm,” (2) the offenses
were committed “separately,” or (3) the offenses were committed with “separate animus
or motivation.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25,
26, and 31; see State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 12;
State v. Ruff, 1st Dist. Hamilton Nos. C-120533 and C-120534, 2015-Ohio-3367, ¶ 8, 17-19.
{¶11} Because Burrows failed to timely raise the issue of allied offenses of similar
import in the trial court, he has forfeited all but plain error. State v. Rogers, 143 Ohio
St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. To show plain error based on the trial
court’s failure to apply the merger analysis, Burrows “must demonstrate a prejudicial
effect—a ‘reasonable probability’ that ‘he has, in fact, been convicted of allied offenses of
similar import committed with the same conduct and with the same animus.’ ” State v.
Daniels, 1st Dist. Hamilton No. C-160203, 2017-Ohio-548, ¶ 14, quoting Rogers at ¶ 3 and
25; see State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 25; State
v. Ziegler, 2017-Ohio-7673, 97 N.E.3d 994, ¶ 21 (1st Dist.). Burrows cannot prevail on his
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OHIO FIRST DISTRICT COURT OF APPEALS
plain-error claim by merely arguing that the offenses would merge if additional facts are
assumed. See, e.g., Rogers; at ¶ 3 and 25; Daniels at ¶ 20-22.
{¶12} In this case, the factual basis of the offenses is not well developed. The
record includes the statutory language of the offenses, contained in the indictment and
read into the record by the prosecutor at the plea hearing, and the information contained
in the bill of particulars. The relevant subsection of aggravated robbery provides:
(A) No person, in attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code, or in fleeing immediately after the
attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender’s person or under the
offender’s control and either display the weapon, brandish it, indicate that
the offender possesses it, or use it[.]
R.C. 2911.01(A)(1).
{¶13} The relevant subsection of felonious assault provides:
(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to another's unborn[.]
R.C. 2903.11(A)(1).
{¶14} The bill of particulars specifies that on July 8, 2016, Burrows “pointed a
gun” at his victim while “demanding currency and/or personal property.” The bill further
specifies that Burrows “fired [the gun] at the victim, striking him in the arm and both
legs.”
{¶15} According to Burrows, the facts in the record show the offenses were
committed with the same conduct and with same animus—to obtain the victim’s property.
We are not persuaded.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} The bill of particulars and the facts read at the plea hearing indicate that
the aggravating element of the aggravated-robbery offense, charged under R.C.
2911.01(A)(1), was satisfied by Burrows’s conduct in displaying a deadly weapon. This
conduct was separate from his conduct of shooting the weapon, conduct that constituted
the felonious assault of the victim and resulted in serious physical harm. This
circumstance distinguishes the case from State v. Robinson, 1st Dist. Hamilton No. C-
170147, 2019-Ohio-387, in which this court found a defendant’s aggravated-robbery and
felonious-assault offenses merged. In Robinson, the conduct establishing the aggravating
element of the aggravated-robbery offense, charged under R.C. 2911.01(A)(3), was a
singular but fatal gunshot. That conduct also satisfied the serious-physical-harm element
of the felonious-assault offense, charged under R.C. 2903.11(A)(1), as it resulted in the
victim’s death. Robinson at ¶ 54 and 59.
{¶17} Further, Burrows cannot point to any facts in the record such as resistance
by the victim to support his claim that he shot the victim for the sole immediate purpose of
taking his property. See State v. Phelps, 1st Dist. Hamilton Nos. C-150204 and C-150205,
2016-Ohio-4673, ¶ 5 and 18; State v. Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-
2997, ¶ 86-87.
{¶18} Although this case involved pleas, Burrows had the opportunity in the trial
court to place in the record the relevant facts establishing the three parts of the merger
analysis, including his allegedly singular act and motive. On this record, it is reasonable for
a court to conclude that Burrows did not commit the subject offenses together and with
the same animus. Thus, Burrows cannot establish plain error based on the trial court’s
failure to apply the merger analysis. See Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38
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OHIO FIRST DISTRICT COURT OF APPEALS
N.E.3d 860, at ¶ 25-26, Daniels, 1st Dist. Hamilton No. C-160203, 2017-Ohio-548, at ¶
22-23.
{¶19} Next Burrows challenges the length of his sentences. This court reviews
felony sentences under the standard of review set forth in R.C. 2953.08(G)(2). See State v.
Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.2d 1231, ¶ 1; State v. White, 2013-
Ohio-4225, 997 N.E.3d 629, ¶ 5 (1st Dist.). We may modify or vacate a sentence only if we
clearly and convincingly find that the record does not support the trial court’s findings or
that a sentence is otherwise contrary to law. See R.C. 2953.08(G)(2).
{¶20} Here, Burrows concedes the trial court was not required to make any
findings to support his sentences and that the sentences fall within the statutory ranges for
the offenses. He claims, however, that the sentences are not reasonable considering the
underlying facts and his cooperation. Thus, he argues his sentences are contrary to law
because the record shows the court failed to consider the provisions of R.C. 2929.11 and
2929.12 when selecting his sentences.
{¶21} The trial court must consider the purposes and principles of felony
sentencing set forth in R.C. 2929.11 and the sentencing seriousness and recidivism factors
in R.C. 2929.12 before imposing sentence. Although the trial court did not specifically
state that it had considered the referenced statutes, the court is generally presumed to
have done so. See State v. Hendrix, 1st Dist. Hamilton Nos. C-150194 and C-150200,
2016-Ohio-2697, ¶ 51; Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, at ¶ 68.
Nothing in our record rebuts that presumption.
{¶22} Here, the trial court imposed the maximum prison term for the weapons
offense, but a less-than-maximum term for the aggravated robbery, and the minimum
term for the felonious assault. The court was required to impose the three-year terms for
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OHIO FIRST DISTRICT COURT OF APPEALS
the firearm specifications. The underlying facts show that Burrows had robbed the victim
at gun point and also shot him in the arm and legs. Further, Burrows had a lengthy
criminal history that included violent crimes, and he was on parole at the time of the
offenses. The trial court accurately explained that Burrows was a “dangerous man” with
an “awful record” “full of violence” and he had already received “quite a bit of
consideration” for his cooperation because the state had dismissed some charges and had
opted not to charge him with further crimes. Consequently, there is nothing in the record
to rebut the presumption that the trial court properly considered the provisions of R.C.
2929.11 and 2929.12 when sentencing Burrows. Thus, there is no basis to find that the
sentences are clearly and convincingly contrary to law.
{¶23} Accordingly, we overrule the first and third assignments of error.
Conclusion
{¶24} In summary, we hold that the trial court did not abuse its discretion by
denying Burrow’s presentence motion to withdraw his guilty pleas, and the court did not
err in sentencing Burrows. Therefore, we affirm the trial court’s judgment.
Judgment affirmed.
MOCK, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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