[Cite as State v. Burns, 2012-Ohio-491.]




                Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97068


                                       STATE OF OHIO

                                                    PLAINTIFF-APPELLEE

                                              vs.

                                     JEBREEZE BURNS
                                                          DEFENDANT-APPELLANT



                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-535433

        BEFORE: Jones, J., Sweeney, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                   February 9, 2012
ATTORNEY FOR APPELLANT

Laura Kramer Rubadue
701 City Club Building
850 Euclid Avenue
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Kristin Karkutt
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, J.:

       {¶ 1} Defendant-appellant, Jabreeze Burns, appeals his conviction for robbery.

We affirm.

       {¶ 2} In 2010, Burns was charged with two counts of burglary and aggravated

robbery with one- and three-year firearm specifications.      Burns pled guilty to robbery

with a one-year firearm specification.    The trial court sentenced Burns to six years for

robbery, consecutive to one year for the firearm specification, for a total of seven years in

prison. It is from this conviction that Burns appeals, raising the following assignments

of error for our review:

       I. Defendant-appellant was denied due process of law where his guilty
       plea was not made knowingly, intelligently, and voluntarily when the trial
       court informed him he could anticipate a three year sentence when
       accepting defendant-appellant’s plea.

       II. The trial court erred when it used unassociated offenses or acts as a
       reference for sentencing.

       III. The trial court erred when it sentenced the defendant-appellant to
       seven years imprisonment, where the minimum sentence available was three
       years imprisonment and defendant-appellant had no prior felony
       convictions.

                                             Plea

       {¶ 3} Crim.R. 11(C)(2) provides that in felony cases the court may refuse to

accept and shall not accept a plea of guilty without first addressing the defendant

personally and doing all of the following:

       (a) Determining that the defendant is making the plea voluntarily, with
       understanding of the nature of the charges and of the maximum penalty
       involved, and if applicable, that the defendant is not eligible for probation
       or for the imposition of community control sanctions at the sentencing
       hearing[;] (b) Informing the defendant of and determining that the
       defendant understands the effect of the plea of guilty or no contest, and that
       the court, upon acceptance of the plea, may proceed with judgment and
       sentence; and

       (c) Informing the defendant and determining that the defendant understands
       that by the plea the defendant is waiving the rights to a jury trial, to confront
       witnesses against him or her, to have compulsory process for obtaining
       witnesses in the defendant’s favor, and to require the state to prove the
       defendant’s guilt beyond a reasonable doubt at a trial at which the defendant
       cannot be compelled to testify against himself or herself.

       {¶ 4} The underlying purpose of Crim.R. 11(C) is to convey certain information

to a defendant so that he or she can make a voluntary and intelligent decision regarding

whether to plead guilty.   State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115

(1981).   Although we review a trial court’s decision to deny a motion to withdraw a

guilty plea for an abuse of discretion, the standard for reviewing whether the trial court

accepted a plea in compliance with Crim.R. 11(C) is a de novo standard of review. State

v. Cardwell, Cuyahoga App. No. 92796, 2009-Ohio-6827, 2009 WL 4986105, ¶ 26, citing

State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).

       {¶ 5} A trial court must strictly comply with the Crim.R. 11(C)(2)(c)

requirements that relate to the waiver of constitutional rights. State v. Veney, 120 Ohio

St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18. Under the more stringent standard

for constitutionally protected rights, a trial court’s acceptance of a guilty plea will be

affirmed only if the trial court engaged in meaningful dialogue with the defendant which,

in substance, explained the pertinent constitutional rights “in a manner reasonably

intelligible to that defendant.” Ballard, paragraph two of the syllabus.
       {¶ 6} With respect to the nonconstitutional requirements of Crim.R. 11, set forth

in Crim.R. 11(C)(2)(a) and (b), reviewing courts consider whether there was substantial

compliance with the rule. Veney at ¶ 14-17.       “Substantial compliance means that under

the totality of the circumstances the defendant subjectively understands the implications

of his plea and the rights he is waiving.”      State v. Nero, 56 Ohio St.3d 106, 108, 564

N.E.2d 474 (1990).     “[I]f it appears from the record that the defendant appreciated the

effect of his plea and his waiver of rights in spite of the trial court’s error, there is still

substantial compliance.” State v. Caplinger, 105 Ohio App.3d 567, 572, 664 N.E.2d

959 (4th Dist.1995).

       {¶ 7} Further, a defendant must show prejudice before a plea will be vacated for a

trial court’s error involving Crim.R. 11(C) procedure when nonconstitutional aspects of

the colloquy are at issue. Veney, at ¶ 17.

       {¶ 8} In the case at bar, our review of the record shows that the trial court adhered

to the requirements of Crim.R. 11.          During the plea colloquy, Burns affirmatively

expressed that he understood his rights, and that he understood he was giving up those

rights by entering a guilty plea.

       {¶ 9} The trial court explained each count to Burns and informed him of the

maximum time he could receive on each count, the effect of pleading guilty to a gun

specification, and explained mandatory, discretionary, consecutive, and concurrent time

to him.   Burns now claims that the trial court promised him a sentence of three years in

prison, but the record belies that claim.
       {¶ 10} Burns argues that the trial court was promising him he would receive only

three years in prison when the court stated, “he has got mandatory time of at least a year.

You will get a basic two, so you will probably, will end with two plus one, that would be

a minimum.” But the trial court was merely explaining the minimum sentence that

Burns could receive.    In at least four other instances during the plea colloquy, the trial

court informed Burns that he could receive two to eight years in prison for robbery plus

an additional mandatory one year for the firearm specification.    Burns told the trial court

he understood his rights and the possible penalties associated with his plea.

       {¶ 11} Based on the record, we find no fault with the plea colloquy or that Burns

did not understand the rights that he waived or that his plea was not knowingly and

intelligently made.

       {¶ 12} The first assignment of error is overruled.




                                         Sentencing

       {¶ 13} In the second and third assignments of error, Burns challenges his sentence

of seven years in prison.

       {¶ 14} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the

Ohio Supreme Court addressed the standard for reviewing felony sentencing. See also

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Appellate courts must

apply the following two-step approach:

       First, they must examine the sentencing court’s compliance with all
       applicable rules and statutes in imposing the sentence to determine whether
      the sentence is clearly and convincingly contrary to law. If this first prong
      is satisfied, the trial court’s decision in imposing the term of imprisonment
      is reviewed under the abuse-of-discretion standard. Kalish at ¶ 26.

      {¶ 15} Thus, in the first step of our analysis, we review whether the sentence is

contrary to law as required by R.C. 2953.08(G). As the Kalish court noted, post- Foster,

“trial courts have full discretion to impose a prison sentence within the statutory range

and are no longer required to make findings and give reasons for imposing maximum,

consecutive or more than the minimum sentence.” Id. at ¶ 11; Foster, paragraph seven of

the syllabus.   The Kalish court declared that although Foster eliminated mandatory

judicial fact-finding, it left R.C. 2929.11 and 2929.12 intact. Kalish at ¶ 13.       As a

result, the trial court must still consider these statutes when imposing a sentence. Id.,

citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, at ¶ 38.

      {¶ 16} R.C. 2929.11(A) provides that

      a court that sentences an offender for a felony shall be guided by the
      overriding purposes of felony sentencing[,] * * * to protect the public from
      future crime by the offender and others and to punish the offender. To
      achieve those purposes, the sentencing court shall consider the need for
      incapacitating the offender, deterring the offender and others from future
      crime, rehabilitating the offender, and making restitution to the victim of
      the offense, the public, or both.

R.C. 2929.12 provides a nonexhaustive list of factors a trial court must consider when

determining the seriousness of the offense and the likelihood that the offender will

commit future offenses.

      {¶ 17} The Kalish court noted that R.C. 2929.11 and 2929.12 are not fact-finding

statutes; rather, they “serve as an overarching guide for trial judges to consider in
fashioning an appropriate sentence.” Id. Thus, “[i]n considering these statutes in light

of Foster, the trial court has full discretion to determine whether the sentence satisfies the

overriding purposes of Ohio’s sentencing structure.”     Id.

       {¶ 18} Burns was sentenced to six years in prison for robbery, a felony of the

second degree.    R.C. 2911.02(A)(1) and (B).        As such, the crime carries with it a

possible penalty of two- to eight-years in prison. R.C. 2929.14. He was sentenced to

an additional mandatory consecutive one year in prison for the firearm specification.

R.C. 2941.141.

       {¶ 19} Burns argues that because he had not previously served a prison term, R.C.

2929.14(B) required the trial court to make findings and provide reasons before imposing

a sentence that was more than the minimum term of incarceration.         But Burns supports

his argument with authority that predates Foster; post-Foster, the trial court need not

make findings when imposing more than the minimum sentence. See State v. Wilson,

8th Dist. No. 95553, 2011-Ohio-3463, 2011 WL 2731664. In light of the above, we

conclude that Burns’s sentence was not contrary to law.

       {¶ 20} Next, we consider whether the trial court abused its discretion in imposing

sentence.   Burns argues that his sentence was based on facts not entered into evidence.

Specifically, Burns claims the trial court improperly considered allegations that the

victim’s father made in his statement to the court during sentencing.

       {¶ 21} R.C. 2930.14(B) provides that a trial court shall consider a victim’s

statement along with other mandated factors during sentencing but
       [i]f the statement includes new material facts, the court shall not rely on the
       new material facts unless it continues the sentencing * * * or takes other
       appropriate action to allow the defendant * * * an adequate opportunity to
       respond to the new material facts.

       {¶ 22} Here, the victim’s father, who was present during part of the robbery,

explained to the court how he and his family had been harassed and targeted by Burns and

his family since Burns was indicted.      He started to tell the court about a “rape case”

Burns was involved in, but defense counsel objected and the trial court sustained the

objection.   The court then inquired about the continued harassment the victim had

suffered since the charges were brought.     Defense counsel asked if he should bring the

defendant’s grandmother in to rebut the victim’s allegations of harassment. The trial

court indicated that defense counsel could “present anybody you want” and the court

would “be more than happy to hear from” the grandmother.         Defense counsel then chose

not to present any witnesses.

       {¶ 23} Burns has failed to prove that the trial court improperly considered facts not

entered into evidence during his sentencing hearing. Although the state does not dispute

that the trial court considered Burns’s continued harassment of the victim, the trial court

gave Burns an adequate opportunity to respond pursuant to R.C. 2930.14(B). The trial

court noted that guns were involved, that the harassment continued, and that Burns

committed a random act of violence against the victim and his family.         Therefore, the

trial court did not abuse its discretion in sentencing Burns to seven years in prison.

       {¶ 24} The second and third assignments of error are overruled.

       Accordingly, judgment affirmed.
      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.




LARRY A. JONES, JUDGE

JAMES J. SWEENEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
