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State v. Burkhart

Court of Appeals of Ohio, Seventh District, Belmont

June 24, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
ANTHONY JAMES BURKHART, Defendant-Appellant.

          Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 18 CR 41

          Atty. Dan Fry, Belmont County Prosecuting Attorney and Scott A. Lloyd, Assistant Prosecuting Attorney, for Plaintiff-Appellee, No Brief Filed.

          Atty. Brian A. Smith, Brian A. Smith Law Firm, LLC, for Defendant-Appellant.

          BEFORE: Cheryl L. Waite, Gene Donofrio, David A. D'Apolito, Judges.

          OPINION AND JUDGMENT ENTRY

          WAITE, P.J.

         {¶1} Appellant Anthony James Burkhart appeals the March 27, 2018, decision of the Belmont County Common Pleas Court sentencing him to a maximum term of 18 months of incarceration after he entered a plea of guilty to one count of attempted failure to comply with an order or signal of a police officer. Appellant argues that the record does not support the imposition of the maximum sentence. Based on the foregoing, Appellant's argument is without merit and the judgment of the trial court is affirmed.

         Factual and Procedural History

         {¶2} On December 6, 2017 Patrolman Nicholas Jessee ("Officer Jessee") of the Martins Ferry Police Department activated his lights and sirens after noticing Appellant driving erratically in Pease Township in Belmont County. The facts of the instant matter can be found in the police report, read by the trial court at sentencing:

Burkhart failed to stop when lights and siren were activated. Burkhart crossed the double-yellow line while traveling at approximately 40 miles per hour in an aggressive attempt to swerve around cars in his behalf [sic]. He again crossed the double-yellow line to avoid cars in his path. Several vehicles in the imposing [sic] lane of travel that were endangered by Mr. Burkhart's aggressive actions. Finally ordered out of the vehicle by officers, but refused to exit or unlock the door. The [sic] Officer Ney and [Officer Jessee] were then able to unlock the doors -- driver's door and pull Mr. Burkhart from the vehicle. Mr. Burkhart was uncompliant even then, even then [sic], and was taken to the ground and placed in handcuffs.

(3/26/18 Tr., pp. 4-5.)

         {¶3} On December 7, 2017 Officer Jessee filed a complaint in the Belmont County Court, Northern Division for failure to comply with an order or signal of a police officer, a violation of R.C. 2921.331(B) a third-degree felony. Bond was set and a preliminary hearing was scheduled for December 20, 2017. Appellant filed two motions for continuance which were both granted by the trial court. On February 14, 2018, Appellant appeared with counsel and waived his preliminary hearing in writing. The matter was bound over to the Belmont County Grand Jury. A bill of information was filed with the Belmont County Common Pleas Court on March 1, 2018 pursuant to Crim.R. 7(B), charging Appellant with attempted failure to comply with an order or signal of a police officer, in violation of R.C. 2923.02(A) and R.C. 2921.331(B), (C)(5)(a)(ii), a fourth degree felony.

         {¶4} On March 12, 2018, Appellant appeared with counsel for a waiver of indictment and plea to a bill of information hearing. Appellant was served with a copy of the bill of information, waived the statutory 24-hour waiting period from service, and consented to arraignment. Appellant also waived a formal reading of the bill of information and his right to have the charges presented to the Belmont County Grand Jury. (3/12/18, Tr., p. 2.) Appellant executed a written plea of guilty to the charge of attempted failure to comply with an order or signal of a police officer as charged in the bill of information. Pursuant to the written plea agreement, the state agreed to remain silent at sentencing. The trial court conducted a plea colloquy during which Appellant verbally entered a guilty plea and affirmatively acknowledged at that hearing that the plea was made knowingly, voluntarily and intelligently. (3/12/18, Tr., pp. 3-6.)

         {¶5} On March 26, 2018 a sentencing hearing was held. As agreed, the prosecution remained silent regarding sentencing. (3/26/18 Tr., p. 2.) Defense counsel informed the court that Appellant did not have a juvenile record and, although he had committed a number of offenses as an adult, they were predominantly misdemeanors. He had only one prior felony. (3/26/18 Tr., p. 2.) Defense counsel also said that the presentence investigation rated Appellant's final risk level score as an 11, which was considered low, warranting community control sanctions over incarceration. (3/26/18 Tr., p. 2.) Appellant indicated at the sentencing hearing that he could not remember much about the evening in question. (3/26/18 Tr., p. 3.)

         {¶6} The trial court stated that it had "undertaken a complete comprehensive review of the situation" and as earlier discussed read into the record specific details from the police report. The court also recited the list of Appellant's previous convictions. (3/26/18 Tr., pp. 4-6.) Following this recitation, the judge announced:

It is this Court's specific finding that though [sic] none of the nine factors of the Revised Code may be present as applicable, mere community control sanctions are not consistent with the principles and purposes of the sentencing statutes.

(3/26/18 Tr., p. 6.)

         {¶7} However, the judge then stated he was imposing the maximum sentence because Appellant "put the whole community at risk. You put the average family driving to McDonald's at risk of getting killed." (3/26/18 Tr., p. 6.) The trial court sentenced Appellant to a maximum term of 18 months of incarceration with 16 days of credit for time served.

         {¶8} Appellant filed ...


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