[Cite as State v. Burton, 2015-Ohio-4494.]




                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 102378



                                             STATE OF OHIO

                                                         PLAINTIFF-APPELLANT

                                                   vs.

                                             JASON BURTON


                                                                DEFENDANT-APPELLEE




                                              JUDGMENT:
                                               AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-13-576531-B

        BEFORE:         Laster Mays, J., Jones, P.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                    October 29, 2015
                                                   -i-
ATTORNEYS FOR APPELLANT

Timothy McGinty
Cuyahoga County Prosecutor

By: Daniel T. Van
Brett Hammond
Assistant County Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Susan J. Moran
55 Public Square, Suite 1616
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

          {¶1} On November 24, 2014, Jason Burton (“Burton”) entered a plea of guilty to rape, in

violation of R.C. 2907.02(A)(1)(b), a felony of the first degree. The court found Burton to be a

sexually oriented offender. Burton was sentenced to three years in prison for his rape conviction

under the provisions of H.B. 86. Plaintiff-appellant, the state of Ohio assigns one error for our

review.

                  I.   Because Burton committed his offenses prior to July 1, 1996, the trial
          court erred when it sentenced Burton under sentencing provisions effective July 1,
          1996, and H.B. 86 provisions effective September 30, 2011.

          {¶2} The state acknowledges this court’s precedent on this issue in State v. Jackson, 8th

Dist. Cuyahoga No. 100877, 2014-Ohio-5137, discretionary appeal not accepted, 142 Ohio St. 3d

1465, 2015-Ohio-1896, 30 N.E.3d 974. For “purposes of further appellate review or potential

intra-district conflict (should the assigned panel reach a different outcome)” the state appeals.

After review of the record, we decline to depart from precedent and affirm the trial court’s

judgment.

          {¶3} The Bureau of Criminal Investigation (“BCI”) tested a 1993 sexual assault kit of

victim J.M. J.M. previously reported to the police that she was sexually assaulted behind a school

by three males on or about July 26, 1993, and then later sexually assaulted in a house by multiple

males. A sexual assault kit was completed but the case went unsolved.           In 2013, BCI tested

DNA from the victim’s sexual assault kit and found several DNA matches, seven in fact, including

Burton.

          {¶4} Burton was charged in Count 1 for rape in violation of R.C. 2907.02(A)(1)(b), a

felony of first degree; Count 2 for kidnaping in violation of R.C. 2905.01(A)(4); and Counts 3

through 8 for complicity to commit rape in violation of R.C. 2923.03(A)(2), a felony of the first
degree.     Burton pleaded guilty to rape and the remaining charges were nolled.       The trial court

sentenced Burton to three years in prison pursuant to his plea in compliance with H.B. 86.

          {¶5} At the time of Burton’s offenses in 1993, the penalty for first degree felonies was an

indefinite term of a minimum of five, six, seven, eight, nine, or ten years and a maximum of 25

years. State v. Wheeler, 8th Dist. Cuyahoga No. 102375, 2015-Ohio-3768, ¶ 6 citing State v.

Bryan, 8th Dist. Cuyahoga No. 101209, 2015-Ohio-1635, ¶ 3.              In 1996, S.B. 2 amended the

sentencing statutes, making the range for a first degree felony a definite term of anywhere between

three and ten years. Id.      In 2011, H.B. 86 amended the range for a first degree felony again; it

is now a definite term of three to eleven years.    Id.

          {¶6} The issue presented in this appeal is whether the trial court correctly sentenced Burton

under H.B. 86, which was in effect at the time he was sentenced, or whether it should have

sentenced him under pre-S.B. 2 law that was in effect at the time of his offense.

          {¶7} As the state acknowledges, this court has already decided this issue, and has concluded

that a defendant in Burton’s position should be sentenced under H.B. 86, which was in effect at

the time of his sentencing. Jackson, 8th Dist. Cuyahoga No. 100877, 2014-Ohio-5137; see also

Bryan, 8th Dist. Cuyahoga No. 101209, 2015-Ohio-1635; Wheeler, 8th Dist. Cuyahoga No.

102375, 2015-Ohio-3768.

          {¶8} Thus, in accordance with this court’s precedent, we affirm the trial court’s judgment

sentencing Burton under H.B. 86.

          {¶9} The state’s sole assignment of error is overruled.

          {¶10} The trial court’s decision is affirmed.

          It is ordered that the appellee recover from appellant costs herein taxed.

          The court finds that there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the common pleas court

to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rule

of Appellate Procedure.



_______________________________________
ANITA LASTER MAYS, JUDGE

LARRY A. JONES, SR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR
