[Cite as State v. Burton, 2020-Ohio-440.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                            LAKE COUNTY, OHIO


 STATE OF OHIO,                                      :      OPINION

                   Plaintiff-Appellee,               :
                                                            CASE NO. 2019-L-087
         - vs -                                      :

 XAVIER L. BURTON,                                   :

                   Defendant-Appellant.              :


 Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2018 CR
 001249.

 Judgment: Affirmed.


 Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
 Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, Ohio
 44077 (For Plaintiff-Appellee).

 Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant Public
 Defender,125 East Erie Street, Painesville, Ohio 44077 (For Defendant-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}      Appellant, Xavier L. Burton, appeals his sentence following his guilty plea

to aggravated drug trafficking. We affirm.

        {¶2}      After a five-month investigation by the Lake County Narcotics Agency,

Burton was charged with five counts in December 2018: count one, aggravated trafficking

in drugs, a second-degree felony in violation of R.C. 2925.03(A)(2) with a forfeiture

specification; count two, aggravated trafficking in drugs, a second-degree felony in
violation of R.C. 2925.03(A)(1) with a forfeiture specification; count three, aggravated

trafficking in drugs, a second-degree felony in violation of R.C. 2925.03(A)(1) with a

forfeiture specification; count four, aggravated trafficking in drugs, a third-degree felony

in violation of 2925.03(A)(2) with a forfeiture specification; and count five, possession of

criminal tools, including $4,815 in cash, digital scales, and a Draco 7.62 rifle, a fifth-degree

felony in violation of R.C. 2923.24. Counts one through four each involved the sale of

oxycodone on different dates in 2018 and totaling 325 pills.

          {¶3}   Following discovery, Burton pleaded guilty to count three, a second-degree

felony in violation of R.C. 2925.03(A)(1) that arose from his sale of 20 oxycodone pills in

the vicinity of a juvenile. The remaining charges were dismissed. Appellant faced a two-

to eight-year mandatory prison term, and the court sentenced him to a mandatory five-

year term.

          {¶4}   Burton raises one assigned error:

          {¶5}   “The trial court erred by sentencing the defendant-appellant to a five-year

prison term.”

          {¶6}   R.C. 2953.08(G)(2) governs our review of felony sentencing decisions and

states:

          {¶7}   “The court hearing an appeal under division (A), (B), or (C) of this section

shall review the record, including the findings underlying the sentence or modification

given by the sentencing court.

          {¶8}   “The appellate court may increase, reduce, or otherwise modify a sentence

that is appealed under this section or may vacate the sentence and remand the matter to

the sentencing court for resentencing. The appellate court's standard for review is not




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whether the sentencing court abused its discretion. The appellate court may take any

action authorized by this division if it clearly and convincingly finds * * * the following:

       {¶9}   “* * *

       {¶10} “(b) That the sentence is otherwise contrary to law.”

       {¶11} “A sentence is contrary to law if (1) the sentence falls outside the statutory

range for the particular degree of offense, or (2) the trial court failed to consider the

purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing

factors in R.C. 2929.12. State v. Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-

4907, ¶ 10, citing State v. Smith, 8th Dist. Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13.

When a sentence is imposed solely after consideration of the factors in R.C. 2929.11 and

2929.12, appellate courts ‘may vacate or modify any sentence that is not clearly and

convincingly contrary to law only if the appellate court finds by clear and convincing

evidence that the record does not support the sentence.’ State v. Marcum, 146 Ohio St.3d

516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.” State v. Price, 8th Dist. Cuyahoga No.

104341, 2017-Ohio-533, ¶ 14.

       {¶12} Burton’s sentence is within the statutory range of two to eight years. Yet

Burton contends his sentence is contrary to law because the court, upon fashioning his

sentence, either improperly discounted the factors making Burton’s behavior less serious

and recidivism less likely or it failed to consider these factors at all. Burton also claims

that his sentence is contrary to law because the length of his sentence is not supported

by evidence. We disagree.




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       {¶13} Pursuant to R.C. 2953.08(G)(2) and State v. Marcum, 146 Ohio St.3d 516,

we cannot vacate or modify Burton’s sentence unless we clearly and convincingly find

that the record does not support his sentence. Id. at ¶ 23-24.

       {¶14} R.C. 2929.12(A) provides that in imposing a sentence for a felony offender,

a sentencing court shall consider the R.C. 2929.12 seriousness factors, recidivism

factors, and the offender's service in the armed services, if applicable, and any other

relevant factors. Id. Yet, a court is not required to state its application of the factors to

demonstrate that it considered them. State v. Arnett, 88 Ohio St.3d 208, 215, 2000-Ohio-

302, 724 N.E.2d 793; State v. Webb, 11th Dist. Lake No. 2003-L-078, 2004-Ohio-4198,

2004 WL 1778852, ¶ 10. “A silent record raises the presumption that a trial court

considered the factors contained in R.C. 2929.12.” State v. Adams, 37 Ohio St.3d 295,

525 N.E.2d 1361, paragraph three of the syllabus (1988). And the burden is on the

defendant to present evidence to rebut the presumption that the court considered the

sentencing factors. State v. Long, 11th Dist. Lake No. 2013-L-102, 2014-Ohio-4416, 19

N.E.3d 981, ¶ 79, citing State v. Cyrus, 63 Ohio St.3d 164, 586 N.E.2d 94 (1992).

       {¶15} At sentencing, Burton’s attorney emphasizes Burton’s lack of any prior

criminal record and explains away his behavior as resulting from his environment. Burton

spoke on his own behalf, his mother spoke on his behalf, and two letters were submitted

in favor of his receiving a lower sentence. Each emphasizes that he is a good person

and a loving father.      Burton apologizes to the court and expresses regret and

disappointment in his behavior.

       {¶16} However, the prosecutor asks for a sentence on the higher end of the

sentencing range because this is a unique case since the trial court had previously seen




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multiple of Burton’s “victims” facing drug possession charges before Burton was ever

charged. The prosecution also emphasizes that the Lake County Narcotics Agency spent

countless hours on this case and that Burton “is the top man for opiate pills in Lake

County, Ohio. He was the culmination of a pipeline from Detroit where thousands of pills

would be brought in. All the other dealers were buying from him.” The prosecutor also

states that Burton supplied most of the dealers in our community and the east side of

Cleveland.

       {¶17} The court states it considered the purposes and principles of R.C. 2929.11

and the factors listed in R.C. 2929.12. In imposing sentence, the court emphasizes that

Burton had many more doses than the minimum for this charge and that Burton was

forfeiting more than 300 oxycodone pills plus digital scales and a Draco 7.62 rifle from the

other dismissed charges. The court found no factors making the offense less serious

than others normally constituting the offense.

       {¶18} The court also notes that Burton’s lack of criminal record indicates that

recidivism is less likely, but that it found recidivism was more likely based on the narcotics

agency’s familiarity with Burton and that he had engaged in a pattern of supplying drugs.

Finally, the court concludes that prison is mandatory and necessary to protect the public

from Burton’s future crime and that a minimal sentence would demean the seriousness

of his conduct.

       {¶19} According to the prosecution, Burton was the top oxycodone seller in the

county and the east side of Cleveland, and he was also Lake County’s access point from

Detroit’s drug pipeline. In light of the foregoing, we do not find by clear and convincing

evidence that the record does not support Burton’s sentence.




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      {¶20} Burton’s sole assigned error lacks merit, and the trial court’s decision is

affirmed.



TIMOTHY P. CANNON, P. J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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