[Cite as State v. Burke, 2016-Ohio-8185.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :  C.A. CASE NO. 26812
                                                  :
 v.                                               :  T.C. NO. 13CR2989
                                                  :
 TRAVIS A. BURKE                                  :  (Criminal appeal from
                                                  :   Common Pleas Court)
         Defendant-Appellant                      :
                                                  :
                                             ...........

                                            OPINION

             Rendered on the ___16th___ day of _____December_____, 2016.

                                             ...........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, 371 West First Street, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                            .............

DONOVAN, P.J.

        {¶ 1} Defendant-appellant Travis Burke appeals his conviction and sentence for

three counts of aggravated murder, in violation of R.C. 2903.01(B), all unclassified

felonies; two counts of aggravated burglary, in violation R.C. 2911.11(A)(1) and (2), both

felonies of the first degree; two counts of aggravated robbery, in violation of R.C.
                                                                                         -2-


2911.01(A)(1) and (3), both felonies of the first degree; one count of trespass in a

habitation when a person is present or likely to be present, in violation of 2911.12(B), a

felony of the fourth degree; and one count of tampering with evidence, in violation of R.C.

2921.12(A)(1), a felony of the third degree. Burke filed a timely notice of appeal with this

Court on August 24, 2015.

       {¶ 2} The incident which forms the basis for the instant appeal occurred on the

afternoon of April 8, 2013, when Burke broke into the home of the victim, eighty-two year

old Edith King, and stabbed her to death at her residence in West Carrollton, Ohio.    After

murdering King, Burke dragged her body into the bathroom and placed it next to the toilet.

Burke then poured house-cleaning products all over King’s body, as well as the areas of

the house where blood had gotten. Burke stole gold jewelry from King’s house which he

later had a friend sell at a local pawn shop. Burke also stole King’s motor vehicle, a 2005

Hyundai Elantra. The vehicle was later found abandoned at an apartment complex

located at 3601 Limestone Avenue, an area known for illegal drug use. Burke’s blood

was found in the vehicle. Police also discovered a bloody thumbprint on the kitchen

faucet in King’s house. The blood was found to contain a mixture of Burke and King’s

DNA. When Burke was initially interviewed by the West Carrollton police, he was found

to have a fresh crescent-shaped cut on his left index and ring fingers.

       {¶ 3} Thereafter, on February 21, 2014, Burke was indicted for three counts of

aggravated murder, two counts of aggravated burglary, two counts of aggravated robbery,

one count of trespass in a habitation when a person is present or likely to be present, and

one count of tampering with evidence. At his arraignment on March 6, 2014, Burke stood

mute, and the trial court entered pleas of not guilty on his behalf.
                                                                                          -3-


       {¶ 4} On April 7, 2014, Burke filed a motion to suppress statements he made to

the police. A hearing was held on said motion on July 3, 2014 and August 8, 2014. On

October 23, 2014, the trial court issued a decision sustaining in part and overruling in part

Burke’s motion to suppress.

       {¶ 5} A jury trial was scheduled for March 10, 2015. On that date, however, Burke

entered guilty pleas to all counts in the indictment pursuant to North Carolina

v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). At the plea hearing, the trial

court considered all of the State’s evidence against Burke and acknowledged his reasons

for pleading guilty. After engaging in a full Crim.R. 11 colloquy, the trial court accepted

Burke's pleas, found him guilty, ordered a pre-sentence investigation (PSI), and set the

matter for a sentencing hearing.

       {¶ 6} On April 10, 2015, the trial court conducted an evidentiary hearing wherein

the State presented the testimony of King’s daughter, who found her mother’s body, the

Deputy Coroner Robert Shott, who performed the autopsy on King, and Detective Mark

Allison, who investigated the murder.      The trial court then provided the parties the

opportunity to file sentencing memoranda. At final disposition on April 19, 2015, the trial

court merged the counts of aggravated murder, aggravated burglary, and trespass in a

habitation into one count of aggravated murder. The trial court also merged the two

counts of aggravated robbery. Thereafter, the trial court sentenced Burke to life in prison

without the possibility of parole for aggravated murder, eleven years imprisonment for

aggravated robbery, and three years for tampering with evidence. The trial court ordered

the sentences to be served consecutively for an aggregate term of life in prison without

the possibility of parole plus fourteen years.
                                                                                         -4-


       {¶ 7} It is from this judgment that Burke now appeals.

       {¶ 8} Burke’s sole assignment of error is as follows:

       {¶ 9} “THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING, AND

REVIEW THEREOF SHOULD BE PERMISSIBLE BECAUSE R.C. 2953.08(D) IS

UNCONSTITUTIONAL.”

       {¶ 10} In his sole assignment of error, Burke contends that R.C. 2953.08(D)

violates the Equal Protection Clause and is therefore unconstitutional because the statute

precludes review of his sentence for aggravated murder. Additionally, Burke argues that

if we find R.C. 2953.08(D) to be unconstitutional, then the facts in the instant case

establish that he should not have been sentenced to life without the possibility of parole

for his aggravated murder conviction.

       {¶ 11} Burke was convicted of aggravated murder, in violation of R.C. 2903.01(B),

which states as follows:

       (B) No person shall purposely cause the death of another or the unlawful

       termination of another's pregnancy while committing or attempting to

       commit, or while fleeing immediately after committing or attempting to

       commit, kidnapping, rape, aggravated arson, arson, aggravated robbery,

       robbery, aggravated burglary, burglary, trespass in a habitation when a

       person is present or likely to be present, terrorism, or escape.

       {¶ 12} Thereafter,   the   trial   court   sentenced    Burke   pursuant   to   R.C.

2929.03(A)(1)(a), which states in pertinent part:

       (A) If the indictment or count in the indictment charging aggravated murder

       does not contain one or more specifications of aggravating circumstances
                                                                                         -5-


      listed in division (A) of section 2929.04 of the Revised Code, then, following

      a verdict of guilty of the charge of aggravated murder, the trial court shall

      impose sentence on the offender as follows:

      (1) Except as provided in division (A)(2) of this section, the trial court shall

      impose one of the following sentences on the offender:

      (a) Life imprisonment without parole;

      (b) Subject to division (A)(1)(e) of this section, life imprisonment with parole

      eligibility after serving twenty years of imprisonment;

      (c) Subject to division (A)(1)(e) of this section, life imprisonment with parole

      eligibility after serving twenty-five full years of imprisonment;

      (d) Subject to division (A)(1)(e) of this section, life imprisonment with parole

      eligibility after serving thirty full years of imprisonment ***.

      {¶ 13} As previously stated, Burke was sentenced to life in prison without the

possibility of parole for the aggravated murder of Edith King. R.C. 2953.08(D) governs

review of felony sentencing and precludes appellate review of sentences for aggravated

murder.       Specifically, R.C. 2953.08(D)(3) provides, “[a] sentence imposed for

aggravated murder or murder pursuant to sections 2929.02 to 2929.06 of the Revised

Code is not subject to review under this section.” The Ohio Supreme Court has held that

this is unambiguous: a sentence for aggravated murder imposed pursuant to R.C.

2929.02 to 2929.06 cannot be reviewed. State v. Porterfield, 106 Ohio St.3d 5, 2005–

Ohio–3095, 829 N.E.2d 690; State v. Jones, 2d Dist. Clark No. 2012 CA 61, 2013-Ohio-

4820, ¶ 26.

      {¶ 14} The State argues that the plain unambiguous language in R.C.
                                                                                             -6-

2953.08(D)(3), as well as Porterfield and our decision in Jones, prevent review of Burke’s

life sentence without the possibility of parole for his conviction for aggravated murder.

While acknowledging the existence of Porterfield and Jones, Burke argues that R.C.

2953.08(D)(3) is unconstitutional under the Equal Protection Clause because “the effect

[of the statute] (and in all likelihood the purpose) is to flatly treat those who receive

sentences for aggravated murder differently than virtually the entirety of all other criminal

offenders,” namely those who can seek appellate review of their sentences.

       {¶ 15} Initially, we note the State argues that Burke failed to raise his Equal

Protection argument before the trial court at disposition when he was sentenced to life

imprisonment without parole for aggravated murder.               Generally, a constitutional

argument that is not raised in the trial court is “waived and cannot be raised for the first

time on appeal.” State v. Brewer, 2d Dist. Montgomery No. 26153, 2015-Ohio-693, ¶ 36.

We do retain the ability, however, “to consider constitutional challenges to the application

of statutes in specific cases of plain error or where the rights and interests involved may

warrant it.” Id., citing In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus. In

the instant case, the statute at issue, R.C. 2953.08(D)(3), only narrowly applies to the

preclusion of appellate review of a sentence for aggravated murder imposed pursuant

to sections 2929.02 to 2929.06 of the Revised Code. Therefore, Burke was not required

to raise his constitutional challenge at sentencing because the trial court did not have any

authority to rule on an argument that must only be determined by a court with appellate

jurisdiction after his sentence for aggravated murder was imposed.

       {¶ 16} The equal protection clause of the Fourteenth Amendment to the United

States Constitution provides, “[n]o State shall * * * deny to any person within its jurisdiction
                                                                                              -7-


the equal protection of the laws.” Ohio's equal protection clause, Article I, Section 2 of

the   Ohio   Constitution,    provides,    “[a]ll   political   power   is   inherent   in   the

people. Government is instituted for their equal protection and benefit * * *.” Because

these two provisions are functionally equivalent, they require the same analysis. State v.

Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, 930 N.E.2d 770, ¶ 38, citing Eppley v. Tri–

Valley Local School Dist. Bd. of Edn., 122 Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d

401, ¶ 11.

       {¶ 17} “Equal protection analysis     begins     with    the rebuttable presumption that

statutes are constitutional.” State v. Peoples, 102 Ohio St.3d 460, 2004-Ohio-3923, 812

N.E.2d 963, ¶ 5, citing Adamsky v. Buckeye Local School Dist., 73 Ohio St.3d 360, 361,

653 N.E.2d 212 (1995). Consequently, the burden is on the party asserting that the

statute is unconstitutional to prove that the statute is unconstitutional beyond a

reasonable doubt. State v. Brownfield, 12th Dist. Butler No. CA2012–03–065, 2013-Ohio-

1947, ¶ 8. At the same time, “courts have a duty to liberally construe statutes in order to

save them from constitutional infirmities.” Eppley at ¶ 12, citing Desenco, Inc. v. Akron, 84

Ohio St.3d 535, 538, 706 N.E.2d 323 (1999).

       {¶ 18} Because of the presumption of constitutionality, the extent of the appellate

court's review is determined by the nature of the appellant's challenge to the

statute. Eppley at ¶ 13. A party may challenge a statute as either unconstitutional on its

face, or as applied to a particular set of facts. Harrold v. Collier, 107 Ohio St.3d 44, 2005-

Ohio-5334, 836 N.E.2d 1165, ¶ 37. A facial challenge is the most difficult to bring

successfully because the challenger must establish that there are no circumstances

under which the statute would be valid. Id. Where statutes are challenged as applied to
                                                                                          -8-


a particular set of facts, the challenger bears the burden of presenting clear and

convincing evidence of a presently existing set of facts that make the statutes

unconstitutional and void when applied to those facts. Id. at ¶ 38. In the case at bar, it is

apparent that Burke is not merely challenging R.C. 2953.08(D)(3) as it applies specifically

to him, but rather as it applies to the preclusion of appellate review of a sentence for

aggravated    murder    imposed    upon    defendants    generally   pursuant    to sections

2929.02 to 2929.06 of the Revised Code.

       {¶ 19} Next, we must discern the appropriate level of scrutiny. Eppley at ¶ 13. In

considering whether a statute violates equal protection guarantees, courts apply different

levels of scrutiny to different types of classifications. State v. Thompson, 95 Ohio St.3d

264, 2002-Ohio-2124, 767 N.E.2d 251, ¶ 13, citing Clark v. Jeter, 486 U.S. 456, 461, 108

S.Ct. 1910, 100 L.Ed.2d 465 (1988). Statutes that make classifications based upon a

suspect class are subject to strict scrutiny, as are statutes involving fundamental

constitutional rights. Thompson at ¶ 13. Additionally, a statute that makes a classification

based on sex or illegitimacy is subject to heightened or intermediate scrutiny. Id.

Statutes that are not subject to either strict or heightened scrutiny are subject to rational

basis review. Eppley at ¶ 15, citing Menefee v. Queen City Metro, 49 Ohio St.3d 27, 29,

550 N.E.2d 181 (1990).

       {¶ 20} R.C. 2953.08(D)(3) is not subject to strict scrutiny. Aggravated murder

defendants who receive a life sentence without parole upon conviction are not members

of a suspect class. “[A] suspect class is one ‘saddled with such disabilities, or subjected

to such a history of purposeful unequal treatment, or relegated to such a position of

political powerlessness as to command extraordinary protection from the majoritarian
                                                                                          -9-

political process.’ ” Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313, 96

S.Ct. 2562, 49 L.Ed.2d 520 (1976), quoting San Antonio Indep. School Dist. v. Rodriguez,

411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).

       {¶ 21} Nor does R.C. 2953.08(D)(3) implicate a fundamental constitutional right.

Some rights which have been recognized as fundamental include the right to vote, the

right of interstate travel, rights guaranteed by the First Amendment to the United States

Constitution, and the right to procreate. Murgia, at 312, fn. 3. See also Albright v. Oliver,

510 U.S. 266, 272, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). Here, Burke argues that he

has been deprived of his fundamental right of liberty. “Every person has a fundamental

right to liberty in the sense that the Government may not punish him unless and until it

proves his guilt beyond a reasonable doubt at a criminal trial conducted in accordance

with the relevant constitutional guarantees. [Citation omitted.]            But a person

who has been so convicted is eligible for, and the court may impose, whatever

punishment is authorized by statute for his offense, so long as that penalty is not cruel

and unusual, [citations omitted], and so long as the penalty is not based on an arbitrary

distinction that would violate the Due Process Clause of the Fifth Amendment.” Chapman

v. U.S., 500 U.S. 453, 465, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991).

       {¶ 22} Moreover, R.C. 2953.08(D)(3) does not govern conviction or imprisonment.

Rather, R.C. 2953.08(D)(3) acts to limit the jurisdiction of an appellate court to review

sentences for aggravated murder or murder. All that R.C. 2953.08(D)(3) does is bar a

right of appeal conferred by R.C. 2953.08(A) when the requirements of R.C.

2953.08(D)(3) are satisfied. State v. Lentz, 2d Dist. Miami No.01CA31, 2003-Ohio-911,

¶ 16. The rights conferred by R.C. 2953.08(A) are not constitutional, but statutory. Id.
                                                                                        -10-


Thus, Burke's equal protection challenge to R.C. 2953.08(D)(3) is properly analyzed

under the rational basis standard.

       {¶ 23} Burke's argument presents the question whether the procedures governing

appellate review set forth in R.C. 2953.08(D)(3) unconstitutionally distinguish between

individuals convicted of aggravated murder or murder pursuant to sections 2929.02 to

2929.06 of the Revised Code and individuals convicted of other crimes whose sentences

are, in fact, subject to appeal under R.C. 2953.08. Upon review, we conclude that

Burke’s argument is without merit.

       {¶ 24} “The rational-basis test involves a two-step analysis. We must first identify

a valid state interest. Second, we must determine whether the method or means by which

the state has chosen to advance that interest is rational.” McCrone v. Bank One

Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 9, citing Buchman v. Wayne

Trace Local School Dist. Bd. of Edn., 73 Ohio St.3d 260, 267, 652 N.E.2d 952 (1995).

Pursuant to a rational-basis review, the state “ ‘has no obligation to produce evidence to

sustain the rationality of a statutory classification.’ ”   Pickaway Cty. Skilled Gaming,

L.L.C. v. Cordray, 127 Ohio St.3d 104, 2010-Ohio-4908, 936 N.E.2d 944, ¶ 20, quoting

Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d

400, at ¶ 91. The party challenging the constitutionality of a law “ ‘bears the burden to

negate every conceivable basis that might support the legislation.’ ” Id.

       {¶ 25} Ohio courts grant substantial deference to the legislature when conducting

an equal-protection rational-basis review. State v. Williams, 88 Ohio St.3d 513, 531, 728

N.E.2d 342 (2000). Classifications will be invalidated only if they “ ‘bear no relation to

the state's goals and no ground can be conceived to justify them.’ ” State v. Peoples, 102
                                                                                          -11-

Ohio St.3d 460, 2004-Ohio-3923, 812 N.E.2d 963, ¶ 7, quoting State v. Thompkins, 75

Ohio St.3d 558, 561, 664 N.E.2d 926 (1996).

              “The    General    Assembly's    practice    of   treating    sentencing

       for aggravated murder and murder convictions        differently     from   other

       felonies is longstanding. Before the 1996 Senate Bill 2 felony sentencing

       amendments, the courts likewise held that the general felony sentencing

       requirements did not apply in aggravated murder cases. * * * Defendant has

       shown nothing to indicate that the General Assembly intended to change

       this   well-established   sentencing   practice    and   the      comprehensive

       sentencing scheme in aggravated murder and murder cases.”

Jones at ¶ 25, quoting State v. Hollingsworth, 143 Ohio App.3d 562, 569, 758 N.E.2d 713

(8th Dist.2001).

       {¶ 26} Sentencing for murder and aggravated murder falls under a special,

comprehensive statutory scheme different from that applied to other felonies.

Hollingsworth, 143 Ohio App.3d 562, 566, 758 N.E.2d 713. The prison sentences are

mandatory.     “The Senate Bill 2 general felony sentencing statutes apply to lesser

offenses classified as first through fifth degree felonies. See R.C. 2929.14(A).” Id., fn. 3.

The general felony sentencing statutes exclude aggravated murder under R.C.

2929.12(A), 2929.13(F), and 2929.14(A) as to the term of imprisonment to be imposed.

Courts have determined that, even before Senate Bill 2, “the general felony sentencing

requirements did not apply in aggravated murder cases.” Hollingsworth at 569. Simply

put, through the enactment of a separate statutory scheme regarding sentencing for

aggravated murder, the legislature clearly intended said offenses to be treated differently
                                                                                            -12-


because of their severity.

       {¶ 27} Ohio's General Assembly certainly may differentiate between criminal

offenders on the basis of the perceived seriousness of their crimes. State v. Skapik, 2015-

Ohio-4404, 42 N.E.3d 790, ¶ 24 (2d Dist.). Additionally, we find nothing irrational or

arbitrary in the legislature's decision to view aggravated murder or murder as a more

serious offense such that it warrants a separate statutory scheme from classified felonies.

A statute withstands rational-basis scrutiny if it is neither irrational nor arbitrary under any

set of facts that reasonably might be conceived to justify it. See, e.g., Phipps v.

Dayton, 57 Ohio App.3d 11, 566 N.E.2d 181 (2d Dist.1988) (“A legislative enactment will

pass the rational basis test when there exists any set of facts under which the

classification at issue rationally furthers a legitimate legislative objective.”). Therefore,

in light of the foregoing, we conclude that Burke has not demonstrated a lack of

any rational basis for R.C. 2953.08(D)(3).      Accordingly, R.C. 2953.08(D)(3) does not

violate the Equal Protection Clause.

       {¶ 28} Pursuant to R.C. 2953.08(D)(3) and case law interpreting this statute, this

Court is without statutory authority to review Burke's sentence of life imprisonment without

parole for aggravated murder on an evidentiary basis. Additionally, there is no authority

upon which we may address Burke’s abuse of discretion argument. See State v. Marcum,

146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10 (appellate courts may not

apply the abuse-of-discretion standard in sentencing-term challenges).

       {¶ 29} Burke’s sole assignment of error is overruled.

       {¶ 30} Burke’s sole assignment of error having been overruled, the judgment of

the trial court is affirmed.
                                                  -13-


                                     ..........

FAIN, J. and FROELICH, J., concur.

Copies mailed to:

Andrew T. French
Brock A. Schoenlein
Hon. Michael W. Krumholtz
