State v. Burnette, 2021-CA-48

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtWELBAUM, J.
Citation2022 Ohio 3251
PartiesSTATE OF OHIO Plaintiff-Appellee v. JEFFREY RUSSELL BURNETTE Defendant-Appellant
Docket Number2021-CA-48
Decision Date16 September 2022

2022-Ohio-3251

STATE OF OHIO Plaintiff-Appellee
v.

JEFFREY RUSSELL BURNETTE Defendant-Appellant

No. 2021-CA-48

Court of Appeals of Ohio, Second District, Champaign

September 16, 2022


Criminal Appeal from Common Pleas Court Trial Court Case No. 2021-CR-200

KEVIN S. TALEBI, Atty. Reg. No. 0069198, Attorney for Plaintiff-Appellee

APRIL F. CAMPBELL, Atty. Reg. No. 0089541,Attorney for Defendant-Appellant

OPINION

WELBAUM, J.

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{¶ 1} Defendant-Appellant, Jeffrey Russell Burnette, appeals from his conviction on one count of aggravated vehicular homicide, a second-degree felony, and one count of operating a vehicle under the influence of alcohol, a first-degree misdemeanor.

{¶ 2} On May 11, 2022, Burnette's assigned counsel filed a brief under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating there were no issues with arguable merit to present on appeal. Counsel raised two potential assignments of error. The first is that the trial court erred in accepting Burnette's guilty plea under Crim.R. 11; the second is that the court erred in sentencing Burnette. However, counsel found no arguable merit in either claim.

{¶ 3} On May 12, 2022, we ordered that the record be supplemented with the presentence investigation ("PSI") report, the victim impact statements, and any other records the trial court reviewed for sentencing. We also notified Burnette that his counsel had found no meritorious claims for review and gave him until July 11, 2022, to file a pro se brief assigning any errors. Burnette did not file a pro se brief. In addition, the State did not file a brief.

{¶ 4} After reviewing the entire record, including the PSI report, and conducting our independent Anders review, we find no issues with arguable merit for Burnette to advance on appeal. Accordingly, Burnette's counsel will be permitted to withdraw, and the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

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{¶ 5} On September 16, 2021, Burnette was involved in an accident that caused the death of Charles Rutan, Jr. A complaint was initially filed in the Champaign County Municipal Court on September 17, 2021, charging Burnette with aggravated vehicular homicide and reckless homicide. On September 24, 2021, Burnette waived his right to a preliminary hearing and asked that the case be bound over to the Champaign County Common Pleas Court.

{¶ 6} On October 4, 2021, an indictment was filed charging Burnette with the following crimes: (1) aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a)/(B)(2)(a), a second-degree felony; (2) aggravated vehicular homicide in violation of R.C. 2903.06(A)(2)(a)/(B)(3), a third-degree felony; (3) operating a vehicle under the influence of alcohol, a drug of abuse, or a combination of them (OVI), in violation of R.C. 4511.19(A)(1)(a)/(G)(1)(a), a first-degree misdemeanor; and (4) operating a vehicle under the influence of alcohol, a drug of abuse, or a combination of them in violation of R.C. 4511.19(A)(1)(g)/(G)(1)(a), a first-degree misdemeanor.

{¶ 7} Counsel was appointed for Burnette, and he initially pled not guilty on October 7, 2021. Subsequently, Burnette pled guilty on November 4, 2021, pursuant to a plea agreement. Under the agreement, Burnette would plead guilty to count one of the indictment (aggravated vehicular homicide, a second-degree felony) and count three (OVI, a first-degree misdemeanor). In exchange, the State agreed to dismiss the other charges and to recommend a PSI report. If Burnette had no further criminal record other than what had been known or disclosed in the parties' respective discovery packets, the State further agreed to recommend at sentencing a minimum of six years imprisonment

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on count one. Transcript of Plea Hearing ("Tr.1"), p. 3. The parties also agreed that the State would not be bound by its recommendation if other criminal history were discovered. The State would also not be bound if Burnette committed additional offenses while on bond or after entering a plea, or if he violated a bond condition. Id.

{¶ 8} After the court informed Burnette of his rights under Crim.R. 11, Burnette pled guilty, and the court accepted his plea. Tr.1 at p. 29-52. The signed written plea agreement and entry finding Burnette guilty and dismissing counts two and four were filed on November 5, 2021. On December 3, 2021, the State filed a lengthy sentencing memorandum, which outlined the facts of the crime and discussed Burnette's history. The State recommended a six-year prison sentence for the aggravated vehicular homicide conviction.[1] On December 6, 2021, Burnette filed his own sentencing memorandum in which he requested an indefinite sentence of three years to four and a half years, which would include a concurrent sentence for the misdemeanor conviction.

{¶ 9} At the sentencing hearing, the court stated that it had reviewed the PSI report, which included four victim impact statements. Tr. 2 at p. 2. The court also said it had reviewed a DVD containing four separate camera views of the accident and had reviewed the sentencing memoranda as well. Id. The prosecutor and one of the individuals who had made a victim impact statement then spoke.

{¶ 10} The prosecutor remarked that she had learned something from the PSI report that was not necessarily readily apparent from the investigation, which was that Burnette had struggled significantly with alcohol abuse for the majority of his life. At the

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time of the collision, Burnette's blood alcohol level was over three times the legal limit, but he showed no effect, as he was able to get out of his vehicle and interact with officers. According to Burnette, his own father was an alcoholic and all his brothers had abused alcohol, which pointed to a family predilection. Burnette had two prior OVI convictions in the late 1980s, and while that had been some time ago, Burnette had not done any recommended outpatient treatment or heeded his wife's warnings about his alcohol problems. Burnett, therefore, never had treatment for alcohol abuse. Tr.2 at p. 4-6.

{¶ 11} Charles Rutan's daughter spoke next, expressing her family's grief and sorrow and discussed Rutan's life. Tr.2 at p. 7-9. At that point, Burnette's attorney addressed the court and reiterated Burnette's request for a minimum sentence of three years and a maximum of four and a half years. Tr.2 at p. 10. The attorney also stressed Burnette's life-long struggle with alcohol, which began in 1982 while he was in the Navy. Id. In addition, the attorney noted that, as reflected in the PSI report, Burnette had lost a family member to the actions of a drunk driver in 1983, and that Burnette had genuine remorse for the crime. Tr.2 at p. 11 and 26. Finally, Burnette spoke briefly, apologized, and expressed remorse. Tr.2 at p. 13.

{¶ 12} After hearing from the parties, the trial court discussed at length the factors that influenced the sentence. Tr. 2 at p. 14-30. The court noted that videos revealed that the roadway was dry, and the sun was behind Burnette, meaning that no environmental issues affected Burnette's situation. Tr.2 at p. 16-17. The court discussed the high rate of speed; the high level of alcohol in Burnette's system; the fact that Burnette's demeanor at the scene had been described as argumentative; and that

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Burnette had refused medical treatment and had refused to give a urine sample. Tr.2 at p. 17-19 and 23. Burnette also agreed with the court that his own acknowledgement of "drinking a pint of liquor a day to the PSI writer and...

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