State v. Burk

[Cite as State v. Burk, 2021-Ohio-431.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 8-20-31

v.

STEPHANIE L. IRWIN, NKA,
STEPHANIE L. BURK, OPINION

DEFENDANT-APPELLANT.

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 8-20-32

v.

STEPHANIE L. IRWIN, NKA,
STEPHANIE L. BURK, OPINION

DEFENDANT-APPELLANT.

Appeals from Logan County Common Pleas Court
Trial Court Nos. CR 14 12 0262 and CR 16 12 0359

Judgments Affirmed

Date of Decision: February 16, 2021

APPEARANCES:

William T. Cramer for Appellant

Eric C. Stewart for Appellee
Case Nos. 8-20-31 and 8-20-32

SHAW, J.

{¶1} Defendant-appellant, Stephanie Burk NKA Irwin (“Burk”), brings

these appeals from the June 2, 2020 judgments of the Logan County Common Pleas

Court revoking her community control in trial court cases 14-12-0262 and 16-12-

0359 and sentencing her to an aggregate 36-month prison term. On appeal, Burk

argues that her sentence was clearly and convincingly contrary to law.

Background

{¶2} On March 5, 2015, Burk was indicted in Logan County trial court case

14-12-0262 for Possession of Heroin in violation of R.C. 2925.11(A), a felony of

the fifth degree. Burk pled guilty to the charge and she was sentenced to five years

of community control. The trial court reserved a 12-month prison term in the event

that Burk was found in violation of her community control and the trial court elected

to revoke her community control.

{¶3} Over the next several years the State filed numerous show-cause

motions, seeking to have Burk establish why she should not be found in violation

of her community control for various drug issues including, inter alia, attempting

to purchase crack cocaine and attempting to alter a drug screen at the Logan County

Jail. Burk admitted to violating her community control on August 10, 2015, and on

January 30, 2017. Both times her community control in trial court case 14-12-0262

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was continued; however, the trial court sent her to West Central Community

Correctional Facility as part of her community control sanctions.

{¶4} Meanwhile, on February 14, 2017, Burk was indicted in trial court case

16-12-0359 for three counts of Trafficking in Cocaine in violation of R.C.

2925.03(A)(1), all felonies of the fifth degree. The trafficking offenses allegedly

occurred on three separate dates: October 19, 2016, October 25, 2016, and

December 7, 2016. Pursuant to a written plea agreement, Burk pled guilty to two

of the charges and the third charge was dismissed. Burk was sentenced to five years

of community control, with 12-month prison terms reserved for each of the

trafficking convictions in the event that Burk violated her community control and

her community control was revoked.1 The trial court also notified Burk that if the

prison terms were invoked, they would be served consecutively.

{¶5} On January 24, 2020, the State filed motions to revoke Burk’s

community control in both trial court cases after she tested positive for heroin,

cocaine, suboxone, and THC. The incident wherein she tested positive for drugs

also involved Burk overdosing, having to be revived by Narcan. Burk admitted to

violating her community control; nevertheless, the trial court continued Burk’s

community control, adding conditions that she obtain a mental health assessment,

and participate in a “Vivitrol Program."

1
As part of her community control sanctions, Burk was ordered to attend 90 AA/NA in 90 days.

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Case Nos. 8-20-31 and 8-20-32

{¶6} On May 13, 2020, the State again filed motions to revoke Burk’s

community control in both trial court cases after Burk tested positive for fentanyl

and cocaine. She had also purportedly overdosed again, having to be revived by

Narcan. A hearing was held on June 2, 2020, wherein Burk admitted to violating

her community control sanctions.

{¶7} Burk’s probation officer made a statement at the hearing, providing an

extensive background of everything the trial court and the probation department had

done to try to keep Burk away from drugs.

We have provided her with medically-assisted treatment, we
provided her with West Central, we provided her with the
MonDay Program * * * on another case, we provided her with
Community Health and Wellness, we provided her with Adult
Recovery Court, and we provided her with the PIP program
which we now know as JRIG.

We provided her with Consolidated Care. We’ve provided
her with Vivitrol, and she was – she was in the 90 for 90 program.
***

Now, so since 2015, she’s – she was sentenced on one new case
and now possibly have [sic] two new indictments coming through.

***

* * * This has been a lifelong process with her. The concern
is she’s going to kill herself and/or she’s trying to kill herself, and
I don’t want it to be on my watch. I’ve – I’ve tried and done
everything I can to help her, I think the Court has. I think we’ve
reached a point of maximum benefit here. The defendant either
has a death wish or doesn’t know how to help herself.

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Case Nos. 8-20-31 and 8-20-32

She’s at the bottom of the barrel now, and I don’t know how
we help her anymore than we put her somewhere where she can
be behind bars and think about what she’s got. She can also get
mental health treatment at a correctional facility. I mean, the
State of Ohio has wonderful mental health facilities within them.
I just – that’s where I’m at, Your Honor. I don’t – there’s nothing
left we have to give her that we haven’t already tried.

(Tr. at 9-11).

{¶8} Burk then made a statement on her own behalf at the hearing that in

addition to her drug problem she also had mental health issues. She requested that

the trial court send her to a facility to get both mental health and drug treatment

rather than send her to prison.

{¶9} The trial court then stated that this was a “very sad case” and that the

probation officer had gone “above and beyond the call of duty.” (Tr. at 14). The

trial court stated it considered the statements, the record, and letters Burk had written

to the court, as well as the principles and purposes of sentencing contained in R.C.

2929.11 and R.C. 2929.12. Ultimately the trial court determined that Burk’s

community control should be revoked and that the reserved prison terms should be

imposed in both trial court cases, consecutive to each other, for an aggregate 36-

month prison term. Judgment entries memorializing Burk’s sentence were filed

June 2, 2020. Burk now brings these appeals, asserting the following assignments

of error for our review.

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Case Nos. 8-20-31 and 8-20-32

Assignment of Error No. 1
By clear and convincing evidence, the record does not support the
imposition of maximum sentences.

Assignment of Error No. 2
By clear and convincing evidence, the record does not support the
imposition of consecutive sentences.

{¶10} In her first assignment of error, Burk argues that her maximum 12-

month prison terms on each of her three convictions were clearly and convincingly

contrary to law.

Standard of Review

{¶11} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1. Clear and convincing evidence is that “ ‘which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.’ ”

Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of

the syllabus.

Relevant Authority

{¶12} “ ‘The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give

its reasons for imposing maximum or more than [a] minimum sentence[ ].’ ” State

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Case Nos. 8-20-31 and 8-20-32

v. Castle, 2d Dist. Clark No. 2016-CA-16, 2016-Ohio-4974, ¶ 26, quoting State v.

King, 2d Dist. Clark No. 2012-CA-25, 2013-Ohio-2021, ¶ 45; State v. White, 3d

Dist. Marion No. 9-19-32, 2020-Ohio-717, ¶ 8. Nevertheless, when exercising its

sentencing discretion, a trial court must consider the statutory policies that apply to

every felony offense, including those set out in R.C. 2929.11 and R.C. 2929.12.

State v. Kerns, 3d Dist. Logan No. 8-18-05, 2018-Ohio-3838, ¶ 8, citing State v.

Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38.

{¶13} Revised Code 2929.11 provides that sentences for a felony shall be

guided by the overriding purposes of felony sentencing: “to protect the public from

future crime by the offender and others, to punish the offender, and to promote the

effective rehabilitation of the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary burden on

state or local government resources.” R.C. 2929.11(A). In order to comply with

those purposes and principles, R.C. 2929.12 instructs a trial court to consider

various factors set forth in the statute relating to the seriousness of the offender’s

conduct and to the likelihood of the offender’s recidivism. R.C. 2929.12(A)-(E).

Analysis

{¶14} In this case, Burk was convicted of three fifth degree felonies. One of

the felonies arose from a case in 2015, and the other two felonies arose from a case

in 2017. Burk was originally placed on community control for all of the offenses.

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Case Nos. 8-20-31 and 8-20-32

Nevertheless, the trial court reserved 12-month prison terms to be imposed in the

event that Burk violated her community control and the trial court elected to revoke

her community control. Pursuant to R.C. 2929.14(A)(5), a prison term for a felony

of the fifth degree, if it is imposed, “shall be a definite term of six, seven, eight,

nine, ten, eleven, or twelve months.” Thus the reserved prison terms were within

the appropriate statutory range, which means the sentences are presumptively valid.

State v. Wrasman, 3d Dist. Logan No. 8-19-36, 2019-Ohio-5299, ¶ 8; State v.

Sanders, 3d Dist. Auglaize No. 2-19-13, 2020-Ohio-3506, ¶ 18, appeal not

allowed, 160 Ohio St.3d 1440, 2020-Ohio-4983, ¶ 18.

{¶15} Moreover, a trial court is required to consider the purposes and

principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors

listed in R.C. 2929.12. In this case, the trial court specifically stated that it had

considered the requisite statutes in its analysis when it revoked Burk’s community

control. A trial court’s statement that it considered the required statutory factors,

without more, is sufficient to fulfill its obligations under the sentencing statutes.

State v. Abrams, 8th Dist. Cuyahoga No. 103786, 2016-Ohio-4570, citing State v.

Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 18. In other words, a sentencing

court is not required to “state on the record that it considered the statutory criteria

or discuss them.” State v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-

5554, ¶ 32, quoting State v. Polick, 101 Ohio App.3d 428, 431 (4th Dist.1995).

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Case Nos. 8-20-31 and 8-20-32

{¶16} By all accounts in this case, the trial court considered the appropriate

statutory factors. The prison sentences were within the appropriate statutory range,

rendering it presumptively valid. Burk has not established by clear and convincing

evidence how her sentence was contrary to law. This is particularly true given the

abundant services that had been provided to Burk while she was on community

control. Despite the use of these services, Burk continued to violate her community

control until the trial court felt it had no choice but to impose the reserved prison

terms. For all of these reasons, Burk’s first assignment of error is overruled.

Second Assignment of Error

{¶17} In her second assignment of error, Burk contends that the record in

this matter does not support the imposition of consecutive sentences.

Relevant Authority2

{¶18} Pursuant to R.C. 2929.14(C)(4), in order to impose consecutive

sentences, a trial court must find on the record that consecutive sentences are

“necessary to protect the public from future crime or to punish the offender and that

consecutive sentences are not disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public.” Accord State v. Grate,

--- Ohio St.3d ---, 2020-Ohio-5584, ¶ 205. A trial court must then also find that at

2
The same standard of review from the previous assignment of error is applicable here.

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Case Nos. 8-20-31 and 8-20-32

least one or more of the aggravating factors in R.C. 2929.14(C)(4)(a) through (c)

are present.

{¶19} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 37, the

Supreme Court of Ohio held that a trial court must make the requisite statutory

findings before imposing consecutive sentences “at the sentencing hearing and

incorporate its findings into its sentencing entry, but it has no obligation to state

reasons to support its findings.”

Analysis

{¶20} After revoking Burk’s community control in both cases, the trial court

imposed the reserved prison sentences and ordered them to be served consecutively.

The trial court found

that consecutive sentences are necessary to protect the public
from future crime and to punish the defendant and that
consecutive sentences are not disproportionate to the seriousness
of the defendant’s conduct and the danger the defendant poses to
the public. The Court further finds the defendant’s history of
criminal conduct demonstrates consecutive sentences are
necessary to protect the public from future crime by the
defendant.

(Tr. at 17). The trial court’s findings were incorporated into the judgment entry in

trial court case 16-12-0359, wherein the consecutive sentences were imposed.

{¶21} The trial court thus facially complied with its responsibilities under

R.C. 2929.14(C)(4), including finding an aggravating factor, specifically (C)(4)(c).

As the Supreme Court of Ohio determined in Bonnell, supra, the trial court was not

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required to state its reasoning supporting consecutive sentences. Nevertheless, the

record reflects ongoing periods of repeated drug and criminal activity perpetrated

by Burk, which supports the trial court’s consecutive sentence findings. For all of

these reasons, Burk’s second assignment of error is overruled.

Conclusion

{¶22} For the foregoing reasons Burk’s assignments of error are overruled

and the judgments of the Logan County Common Pleas Court are affirmed.

Judgments Affirmed

WILLAMOWSKI, P.J., concurs in Judgment Only.

ZIMMERMAN, J., concurs.

/jlr

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