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State v. Burton

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 11, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JACQUELINE D. BURTON DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-15-600498-B, CR-15-601351-B

          ATTORNEY FOR APPELLANT Kevin H. Cronin

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Glen Ramdhan Assistant Prosecuting Attorney

          BEFORE Celebrezze, J., Keough, P.J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., JUDGE.

         {¶1} Appellant, Jacqueline D. Burton, appeals from her convictions and sentences related to drug trafficking conducted from her house, primarily by Demetrius Simpson. She claims that the trial court erred by imposing consecutive sentences for two gun specifications, and by failing to consider her due process rights in the court's forfeiture decision. After a thorough review of the record and law, this court affirms.

         I. Factual and Procedural History

         {¶2} Following up on neighbor complaints and observations of heavy traffic in and out of a house, Cleveland police officers conducted a series of controlled purchases of marijuana from a house occupied by appellant and Simpson. The confidential informants always purchased marijuana from Simpson. Twice, the police served search warrants on the address and both times found marijuana, cash, guns, and other items indicative of drug trafficking.

         {¶3} Appellant was arrested and charged in two criminal cases with various crimes related to drug trafficking. Simpson was also arrested and charged, but absconded during the pretrial phase, so appellant was tried alone.

         {¶4} A jury trial commenced in early February 2017. The forfeiture specifications, however, were tried to the bench. After several days, the jury trial closed, and the jury returned its verdicts on February 7, 2017. In CR-15-600498-B, the jury found appellant guilty of drug trafficking, a fourth-degree felony violation of R.C. 2925.03(A)(2); possession of criminal tools, a fifth-degree felony violation of R.C. 2923.24(A); permitting drug abuse, a fifth-degree felony violation of R.C. 2925.13(B); and six counts of endangering children, first-degree misdemeanor violations of R.C. 2919.22(A). The drug trafficking count and the permitting drug abuse count included one-year firearm specifications. The drug trafficking count also included a juvenile specification. The jury found appellant not guilty of one count of drug trafficking and one count of drug possession.

         {¶5} In CR-15-601351-B, appellant was found guilty of drug trafficking, a fourth-degree felony violation of R.C. 2925.03(A)(2); possession of criminal tools, a fifth-degree felony violation of R.C. 2923.24(A); six counts of endangering children, first-degree misdemeanor violations of R.C. 2919.22(A). She was found not guilty of a charge of prohibition of conveyance of certain items under R.C. 2921.36(A)(2). She was also found guilty of one-year firearm and juvenile specifications that accompanied the drug trafficking charge.

         {¶6} Following the verdicts, the court conducted a bench trial on the forfeiture specifications that accompanied all charges except child endangerment. At issue was approximately $3, 000 in currency, [1] three handguns, a rifle, a laptop computer, a cell phone, a backpack, a scale, a grinder, and ammunition. The court ordered the forfeiture of all the items except the laptop and cell phone.

         {¶7} The court then sentenced appellant to a 30-month prison sentence in CR-15-600498-B. This consisted of an 18-month sentence on the drug trafficking count, to be served consecutive to the one-year firearm specification. Appellant also received a 30-month sentence in CR-15-601351-B, which again consisted of an 18-month sentence for drug trafficking served consecutive to the one-year firearm specification.[2] The court ordered that the firearm specifications in the two cases be served prior to and consecutive to each other. Therefore, the court imposed a total 42-month prison sentence.

         {¶8} Appellant then filed the instant appeal assigning two errors for review:

1. The trial court erred, committing an abuse of discretion, in insisting it held no authority to consider defendant's trial court argument that the mandatory one year sentences for the two firearm specifications could run concurrently, rather than consecutively, with each other.
2. The trial court erred in failing to provide some framework for consideration of due process in the seizure of money and material from [her].

         II. ...


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