Court of Appeals of Ohio, Seventh District, Belmont
Criminal Appeal from the Court of Common Pleas of Belmont
County, Ohio Case No. 18 CR 41
Dan Fry, Belmont County Prosecuting Attorney and Scott A.
Lloyd, Assistant Prosecuting Attorney, for
Plaintiff-Appellee, No Brief Filed.
Brian A. Smith, Brian A. Smith Law Firm, LLC, for
BEFORE: Cheryl L. Waite, Gene Donofrio, David A.
OPINION AND JUDGMENT ENTRY
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
and Procedural History
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.)
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.
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.)
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.)
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
(3/26/18 Tr., p. 6.)
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.
Appellant filed ...