State v. Burke

[Cite as State v. Burke, 2021-Ohio-452.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28680
:
v. : Trial Court Case Nos. 2019-CR-1144,
: 2019-CR-675, 2019-CR-920
DON VERNON BURKE, III :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:

...........

OPINION

Rendered on the 19th day of February, 2021.

...........

MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

REGINA ROSEMARY RICHARDS, Atty. Reg. No. 0079457, 202 Scioto Street, Urbana,
Ohio 43078
Attorney for Defendant-Appellant

.............

TUCKER, P.J.
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{¶ 1} Appellant, Don Vernon Burke, III, asserts that his guilty pleas were not

knowing, intelligent, and voluntary, and that the trial court’s consecutive service findings

were not supported by the record. Finding no merit with either argument, the trial court’s

judgment will be affirmed.

Facts and Procedural History

{¶ 2} Burke was indicted on a number of counts under three case numbers, with

one of the cases including a “B” indictment. In Montgomery C.P. No. 2019-CR-920,

Burke pleaded guilty to aggravated arson, a second-degree felony, burglary, a third-

degree felony, and receiving stolen property (motor vehicle), a fourth-degree felony. In

Montgomery C.P. No. 2019-CR-675, Burke pleaded guilty to breaking and entering, a

fifth-degree felony. Finally, in Montgomery C.P. No. 2019-CR-1144, Burke pleaded

guilty to aggravated possession of drugs, a fifth-degree felony. Based upon the parties’

agreement, the remaining counts were dismissed. The parties also agreed that any

prison sentences imposed in Case Nos. 2019-CR-675 and 2019-CR-1144 would be

served concurrently to any prison terms in Case No. 2019-CR-920. Thus, Burke faced

a maximum prison sentence of 12 years and 6 months.

{¶ 3} In Case No. 2019-CR-920, the trial court imposed an eight-year prison term

for aggravated arson, a 36-month prison term for burglary, and a 12-month prison term

for receiving stolen property. The trial court ordered the sentences to be served

consecutively, resulting in a 12-year prison term. The trial court imposed a 12-month

prison term for breaking and entering in Case No. 2019-CR-675 and a 12-month prison

term for aggravated possession of drugs in Case No. 2019-CR-1144. These terms were

ordered to be served concurrently to each other and, consistent with the plea agreement,
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concurrently to the 12-year prison term in Case No. 2019-CR-920. This appeal followed.

Analysis

{¶ 4} Burke’s first assignment of error is as follows:

Under R.C. 2953.08(G)(2), Appellant submits that consecutive

sentences are not supported by the record where it lacks clear and

convincing evidence that the sentencing court considered the purposes and

principles of felony sentencing under R.C. 2929.11 and R.C. 2929.12 before

imposing a sentence on each count, which rendered the subsequent

imposition of consecutive sentences as required by R.C. 2929.14(C)(4)

contrary to law.

{¶ 5} In response, the State asserts that Burke’s sentence is not subject to

appellate review under R.C. 2953.08(D). We agree.

{¶ 6} R.C. 2953.08(D)(1) provides, in relevant part, that a sentence “is not subject

to [appellate] review * * * if the sentence is authorized by law, has been recommended

jointly by the defendant and the prosecution * * *, and is imposed by [the] sentencing

judge.” We have held that an agreed-upon sentencing range qualifies as a jointly-

recommended sentence. State v. Arnold, 2d Dist. Montgomery No. 27218, 2017-Ohio-

1384, ¶ 4. And, “[a]n agreement to ‘cap’ a sentence is analogous to an agreement to

impose a sentence within an agreed range for purposes of R.C. 2953.08.” Id.

{¶ 7} The parties’ sentencing agreement was discussed at the plea hearing as

follows:

THE COURT: So I just want to make sure that we can put the offer and the

plea on the record for me.
 -4-

[PROSECUTOR] MR. MYERS: Yes, Your Honor.

THE COURT: Yeah, go ahead.

MR. MYERS: The State has agreed in Case Number - - beginning with Case

Number 2019-CR-920 that if Mr. Burke were to enter a plea to Count I,

aggravated arson, a felony of the second degree; a lesser included offense

of Count II, that being burglary, a felony of the third degree; and Count III,

grand theft of a motor vehicle, a felony of the fourth degree, the State would

dismiss the remaining counts which would be receiving stolen property, a

felony of the third degree, and the “B” indictment, an aggravated possession

of drugs, a felony of the third degree.

In addition, if Mr. Burke were to plead guilty as charged in Case

Numbers 19-CR-675, being breaking and entering, F-5 and 19-CR-1144,

an aggravated possession of drugs, F-5, the State would agree that any

prison time imposed in those two cases run concurrent to prison time

imposed in 2019-CR-920.

THE COURT: Okay. And you’ve explained that to Mr. Burke, Mr.

Cavinder?

[DEFENSE COUNSEL] MR. CAVINDER: Yes, Your Honor. It’s essentially

- - given the amendments to Case Number 19-920, that leads to a maximum

possible consecutive sentence of 12½ years.

THE COURT: Right.

MR. CAVINDER: And Mr. Burke is of the understanding that essentially that

amounts to a cap. He cannot be sentenced to more if he were to agree to
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this plea agreement. As to the other case numbers, any sentences in

those would run concurrent. So it’s essentially an open plea.

THE COURT: However, there is a cap at 12½.

MR. CAVINDER: Yeah.

THE COURT: Open plea, cap at 12½.

Do you understand that Mr. Burke?

THE DEFENDANT: Absolutely.

As reflected by the above discussion, the parties agreed to a sentence cap of 12½ years.

And, as discussed, an agreed-upon cap qualifies as a jointly-recommended sentence.

{¶ 8} Thus, the parties entered into a jointly-recommended sentencing agreement,

and the trial court imposed a sentence in accordance with the agreement. “The

‘authorized by law’ condition is a bit more nuanced, with a sentence being so authorized

‘only if it comports with all mandatory sentencing provisions.’ ” State v. Smith, 2d Dist.

Montgomery Nos. 28209, 28210, 28211, 2020-Ohio-2854, ¶ 8, quoting State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 16. “Such mandatory provisions

include the proper imposition of postrelease control (PRC), making, when applicable, the

findings necessary for the imposition of consecutive sentences, and ordering the merger

of allied offenses of similar import,” Id., citing Underwood at ¶ 20, ¶ 33.

{¶ 9} The record supports the conclusion that Burke’s sentence was authorized by

law. The trial court correctly informed Burke of the mandatory and potential PRC

implications, and the judgment entries accurately reflected this discussion. The trial

court made the necessary R.C. 2929.14(C) consecutive sentence findings, and these

findings were part of the judgment entry in Case No. 2019-CR-920. Finally, this case did
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not present any merger issues, and Burke does not suggest otherwise. In short, Burke’s

sentence was authorized by law.

{¶ 10} Based upon these conclusions, Burke’s sentence is not subject to appellate

review. As such, Burke’s first assignment of error is overruled.

{¶ 11} Burke’s second assignment of error is as follows:

Burke’s plea was not entered knowingly, intelligently, and/or voluntary and

violates both Constitutions of the United States and the State of Ohio where

his original agreement to an open plea changed during the colloquy to

include a mandatory sentence for which the court imposed the maximum

term of eight (8) years consecutively to another maximum sentence in

addition to other sentences rendering Appellant ineligible for community

control sanctions and judicial release.

{¶ 12} Burke makes two arguments in support of this assignment of error: first, that

the plea agreement was modified during the sentencing hearing, and second, that the

trial court incorrectly informed Burke that he would “be eligible for community control

sanctions (“CCS”) on his ‘other cases’ after sixty months.” From this, Burke argues that

his plea was not knowing, intelligent, and voluntary. We disagree.

{¶ 13} Burke’s plea modification argument is based upon the following exchange

at the plea hearing:

***

THE COURT: All right. Have you previously been convicted of a felony

particularly a F-1 or F-2, sir?

THE DEFENDANT: Before? Yeah, I had the F-2 burglary on the last case.
 -7-

THE COURT: On the last case?

THE DEFENDANT: Yeah. It was - - it’s been about three years. Three

years. I served time for that.

THE COURT: Okay.

THE DEFENDANT: It was on my own house.

THE COURT: All right.

THE DEFENDANT: Yes.

THE COURT: So there is a mandatory - -

THE DEFENDANT: Yes, sir.

THE COURT: A mandatory sentence on this one.

MR. CAVINDER: I guess whatever would be would be mandatory, wouldn’t

it?

MR. MYERS: On the F-2, Your Honor.

Let me see the plea form

THE COURT: I just want to make sure - -

THE DEFENDANT: I’m just being honest.

THE COURT: No. I need you to be because that kind of has an effect - -

THE DEFENDANT: Gotcha.

***

MR. CAVINDER: (Indiscernible)

THE DEFENDANT: Yeah, it is. It was a F-2 and then I had a weapons

under disability. No, a F-2. It was a F-2 and then (indiscernible –

simultaneous speech).
 -8-

MR. MYERS: Your Honor, it’s * * * my understanding that due to the

previous F-1 or F-2 conviction, the prison sentence on the F-2 only, the

aggravated arson, would be mandatory prison time.

THE COURT: Absolutely. Do you understand that Mr. Cavinder?

MR. CAVINDER: Yes, Your Honor, I do, * * *.

And just so Mr. Burke, you understand?

THE DEFENDANT: I understand that. I should’ve and it boils - - be a nice

guy, I’m only going to be honest.

THE COURT: No. I - -

THE DEFENDANT: That’s (indiscernible – simultaneous speech)

THE COURT: That’s why I ask these questions.

THE DEFENDANT: That’s what - -

THE COURT: Because of that prior F-2, you understand that this sentence

is mandatory and cannot be reduced by earned credit, judicial release, or

furlough.

THE DEFENDANT: I do now.

THE COURT: You do understand that.

THE DEFENDANT: Yes.

THE COURT: Okay. Thank you, sir.

MR CAVINDER: And that is just the amount that’s imposed on Count I.

THE COURT: The agg arson.

MR. MYERS: Correct.

THE COURT: That is correct.
 -9-

You understand that.

THE DEFENDANT: Yes, sir.

***

As a result of this exchange, Burke was correctly informed that the aggravated arson

count required imposition of a mandatory prison term. Upon being so advised, Burke

indicated he understood a prison term for this offense was mandatory, and, further, he

did not indicate that this information affected his plea decision. And, contrary to Burke’s

suggestion, this information did not modify the agreed sentence cap of 12½ years.

{¶ 14} Due process requires that a plea be knowing, intelligent, and voluntary.

State v. Jones, 2d Dist. Greene No. 2020-CA-12, 2020-Ohio-4767, ¶ 9; see also Boykin

v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). A trial court’s

compliance with Crim.R. 11 insures that a defendant’s plea comports with due process.

State v. Russell, 2d Dist. Clark No. 2010-CA-54, 2011-Ohio-1738, ¶ 6.

{¶ 15} Burke seems to assert that the discussion regarding the aggravated arson

sentence violated the Crim.R. 11(C)(2)(a) requirement that he be informed he was not

eligible to be sentenced to community control sanctions. But, to the contrary, the

discussion correctly informed Burke that as a consequence of his plea to aggravated

arson, a prison term was required. Since Burke was accurately informed that the

aggravated arson count required imposition of a prison term, with this information not

altering the agreed-upon sentence cap, the assertion that the mandatory prison

discussion affected the intelligent, knowing and voluntary nature of the plea is without

merit.

{¶ 16} Finally, Burke argues that, during the sentencing hearing, he was incorrectly
 -10-

informed that he would be eligible for community control sanctions after 60 months. This

argument is based upon the following exchange at the plea hearing:

***

THE COURT: * * *

In regards to aggravated arson, the Felony 2, you are not eligible for

community control sanctions. You understand that, sir?

THE DEFENDANT: (Nodding head)

THE COURT: You are eligible for community control sanctions - -

MR. MYERS: In the other cases.

THE COURT: - - in the other cases. So I just want to make sure that you - -

THE DEFENDANT: (Indiscernible – simultaneous speech)

THE COURT: That’s okay. Okay?

If you were to receive community control sanctions on the other case

numbers - - one second.

You could be required to serve a prison term of up to I’m just going to say

68 months is what I have here if you’re granted community control for

whatever reason on the other charge that you could get community control

for. Okay?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Does that make sense?

MR. CAVINDER: Yeah.

THE DEFENDANT: Uh-huh.

THE COURT: That would be - -
 -11-

MR. CAVINDER: Sixty-six? I need my calculator.

THE COURT: That would be 36 for the - -

THE DEFENDANT: (Indiscernible) five and a half.

THE COURT: Yeah. That would be the - - you know what I’m going to do?

I’m going to make it 60.

THE DEFENDANT: Thank you, You Honor.

THE COURT: All right.

MR. CAVINDER: Okay.

THE COURT: I don’t think that’s going to happen, but. All right?

Now has anyone, including your attorney, promised that you would receive

community control sanctions and would not receive a prison sentence by

pleading guilty at this time?

THE DEFENDANT: No, Your Honor.

***

{¶ 17} This discussion is admittedly confusing. But Burke does not suggest, and

we cannot discern, how the discussion affected the intelligent, knowing, and voluntary

nature of the plea. Further, Burke does not suggest that if this discussion had been more

precise, his plea decision would have been different. See State v. Dangler, Ohio Slip

Opinion No. 2020-Ohio-2765, __ NE.3d __, ¶ 24. Thus, this exchange does not provide

a basis upon which to reverse the trial court’s judgment.

{¶ 18} Having rejected both arguments, Burke’s second assignment of error is

overruled.

Conclusion
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{¶ 19} Having overruled Burke’s two assignments of error, the judgment of the

Montgomery County Common Pleas Court is affirmed.

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DONOVAN, J. and WELBAUM, J., concur.

Copies sent to:

Mathias H. Heck, Jr.
Jamie J. Rizzo
Regina Rosemary Richards
Hon. Gerald Parker