State v. Bullard

[Cite as State v. Bullard, 2013-Ohio-3322.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :
CASE NO. CA2012-09-064
Plaintiff-Appellee, :
OPINION
: 7/29/2013
- vs -
:

DANIEL W. BULLARD III, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2011 CR 0626

D. Vincent Faris, Clermont County Prosecuting Attorney, Judith A. Brant, 76 South Riverside
Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

John L. O'Shea, 250 East Fifth Street, Suite 2350, Cincinnati, Ohio 45202, for defendant-
appellant

S. POWELL, J.

{¶ 1} Defendant-appellant, Daniel W. Bullard III, appeals his conviction in the

Clermont County Court of Common Pleas on one count of grand theft. For the reasons

stated below, we affirm.

{¶ 2} Appellant was to serve as head coach of a little league baseball team for the

2011 season. Between September 2010 and April 2011, the team's players and their
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families submitted payments to play on the team and participated in various fundraising

activities. Appellant collected these monies and deposited them in bank accounts he had

opened for the team.

{¶ 3} As the season drew near, appellant hosted a team "kick-off" meeting at his

home, procured equipment and uniforms for the team, and held several practices at indoor

facilities. At the same time, he was also withdrawing cash from team accounts and using

team funds to purchase gas and tires for his personal vehicle, pay for his meals at

restaurants, and pay for a portion of his bankruptcy proceedings. In early 2011, a finance

committee was formed to help manage the team's struggling finances. By April of that same

year, appellant had resigned amidst controversy surrounding insufficient funds in the team

accounts.

{¶ 4} On July 20, 2011, the Clermont County Grand Jury returned an indictment

charging appellant with one count of grand theft in violation of R.C. 2913.02(A)(1), a fourth-

degree felony. He entered a plea of not guilty and the case was set for trial.

{¶ 5} The jury trial commenced on March 5, 2012. After the state rested, appellant

immediately moved for an acquittal under Crim.R. 29(A) on the basis that the state's

evidence was insufficient to sustain a conviction. The trial court denied the motion.

{¶ 6} Thereafter, during the presentation of appellant's defense, the state revealed

that it had received new information and would likely be investigating whether appellant was

involved in additional criminal conduct. The state offered to agree not to pursue this

investigation in exchange for a guilty plea. However, instead of accepting the plea

agreement, appellant withdrew his plea of not guilty and entered a plea of no contest. After

the prosecutor read the statement of facts, the trial court found appellant guilty as charged.

Appellant now appeals, raising six assignments of error.

{¶ 7} Yet, before addressing his assignments of error, we note that in his reply brief
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appellant argues that even if his six assignments of error are not well-taken, this court should

vacate his plea of no contest because it was not knowingly and intelligently made. In support

of his claim, appellant asserts that his plea was predicated on a shared understanding

between defense counsel, the prosecutor, and the trial court that a plea of no contest would

preserve the right of appeal of the alleged errors at trial. Appellant points to a string of cases

for the proposition that where such a shared understanding exists, and where the state later

contends that the ability to appeal has been waived because of a no contest plea, the result

is a plea which was not knowingly and intelligently made. See, e.g., State v. Engle, 74 Ohio

St.3d 525 (1996). In response, the state moves this court to strike appellant's argument on

the grounds that it alleges a plea agreement not contained in the record. Although we agree

with the state's reasoning, we deny the motion because we find that the facts of this case are

sufficient to dispose of appellant's argument.

{¶ 8} It is well-established that an appellant may not raise new issues or assignments

of error in a reply brief. State v. Renfro, 12th Dist. Butler No. CA2011-07-142, 2012-Ohio-

2848, ¶ 28, citing App.R. 16; Baker v. Meijer Stores Ltd. Partnership, 12th Dist. Warren No.

CA2008-11-136, 2009-Ohio-4681, ¶ 17 ("[a] reply brief simply provides the appellant with an

opportunity to respond to the arguments raised in the appellee's brief"). Here, appellant's

argument is ostensibly a response to the state's argument that a no contest plea constitutes

a waiver of appellant's ability to raise any errors at trial on appeal. Whether or not appellant's

argument is truly just a response is debatable, and it may be that we could dispose of this

issue on those grounds alone. But we need not do so here. Rather, even if we were to find

that appellant properly raised this issue, we nevertheless conclude that his no contest plea

was knowingly and intelligently made, and therefore that he is not entitled to have his plea

vacated as invalid.

{¶ 9} The cases appellant relies upon to suggest otherwise are distinguishable from
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the case at bar. For example, in State v. Engle the Ohio Supreme Court held that the

appellant's plea of no contest was not entered knowingly and intelligently when "appellant's

agreement to the plea bargain implies her understanding that she could appeal [other]

issues." Id., 74 Ohio St.3d at 528. Significantly, the defect in the plea in Engle was not

simply that the appellant believed she could appeal particular issues, but that the record

showed that the ability to appeal was a significant factor in the plea bargain reached with the

state. Id. The remaining cases appellant cites as authority in his reply brief also involve a

plea bargain premised on a false assumption of appellant's ability to appeal. See State v.

Brock, 3rd Dist. Hancock No. 5-06-27, 2006-Ohio-6681; State v. Lewis, 164 Ohio App.3d

318, 2005-Ohio-5921 (10th Dist.); State v. Watson, 10th Dist. Franklin No. 80AP-880, 1981

WL 3435 (Aug. 27, 1981). Such is not the case here. Instead, a review of the record in this

case reveals that there was no agreement reached between the state and the appellant, and

that appellant's plea was knowingly and intelligently made.

{¶ 10} Crim.R. 11(C) establishes the trial court's duty to conduct a plea colloquy with a

defendant entering a plea of guilty or no contest in felony cases to ensure the validity of the

plea. See State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 7, citing Engle, 74 Ohio

St.3d at 527. "[F]or a * * * plea to be entered knowingly and voluntarily, a defendant must be

informed that he is waiving critical constitutional rights." (Emphasis added.) State v. Moxley,

12th Dist. Madison No. CA2011-06-010, 2012-Ohio-2572, ¶ 10, citing State v. Bonnet, 12th

Dist. Warren No. CA96-07-059, 1997 WL 89161 (Mar. 3, 1997). These critical constitutional

rights include the right to a jury trial, the right to confront one's accusers, the right to

compulsory process to obtain witnesses, the right to require the state to prove guilt beyond a

reasonable doubt, and the privilege against compulsory self-incrimination. Veney at syllabus.

When the court fails to strictly comply with these requirements, the defendant's plea is

invalid. Id.
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{¶ 11} With respect to the other information to which a defendant is entitled under

Crim.R. 11(C), substantial compliance is sufficient for a valid plea. Id. at ¶ 14. "Under [the

substantial compliance] standard, a court's slight deviation from the text of the rule is

permissible, so long as the totality of the circumstances indicates that the defendant

subjectively understands the implications of his plea and the rights he is waiving." State v.

Dunaway, 12th Dist. Butler Nos. CA2009-05-141 and CA2009-06-164, 2010-Ohio-2304, ¶

14, citing State v. Douglass, 12th Dist. Butler App. Nos. CA2008-07-168 and CA2008-08-

199, 2009-Ohio-3826, ¶ 10. The fact that his plea waives the defendant's right to appeal

alleged errors at trial is not one of the specifically enumerated rights the trial court is required

to provide anywhere in the Crim.R. 11 colloquy. See Moxley, 2012-Ohio-2572 at ¶ 13, citing

State v. Kidd, 12th Dist. Madison No. CA2001-11-021, 2002-Ohio-6394, ¶ 29; State v. Jones,

1st Dist. Hamilton No. C-050833, 2006-Ohio-4284, ¶ 7-8.

{¶ 12} In this case, during the presentation of appellant's defense, the state notified

the trial court and appellant that it had received new information from one of appellant's

witnesses, and that the state intended to use that information in its cross-examination of that

witness. The state further indicated that the new information suggested additional criminal

conduct by the appellant, and requested that appellant be notified on the record of both his

right to remain silent and the possibility that any testimony he offers at trial could be used

against him in the state's investigation. In light of the new information, the state also offered

a plea bargain; namely, in exchange for a plea of guilty to the grand theft felony charge, the

state would agree not to pursue charges for any other alleged crimes. Later that day, instead

of entering a guilty plea, appellant entered a plea of no contest.

{¶ 13} Before entering into its Crim.R. 11 plea colloquy, the trial court sought to make

certain that appellant was aware that his plea of no contest was not consistent with the

state's proffered plea bargain. As stated by the trial court:
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THE COURT: By entering a plea of no contest, it's the Court's
understanding that it - because it's not a plea of guilty, that no
contest does give you some additional rights on appeal. And
because of that the prosecutor, I believe, has indicated * * * that
this plea of no contest will resolve this case for which we are in
trial * * *. It will not in any way hamper the State's ability if they
choose to secure criminal charges [on the other conduct brought
to light by the new information]. * * * Do you understand?

THE DEFENDANT: Yes, Sir.

The court then proceeded with the plea colloquy, during which the court duly apprised

appellant of his rights and appellant affirmed his no contest plea. This exchange

demonstrates that both parties contemplated that appellant had declined the only plea offer

on record, a plea of guilty in exchange for an agreement not to pursue additional charges.

Simply stated, it shows that appellant's no contest plea was knowingly and intelligently made.

{¶ 14} Having found that appellant's no contest plea was valid, we turn now to

appellant's six assignments of error, which allege prosecutorial misconduct and several

errors at trial that deprived appellant of a fair trial under the Ohio and United States

Constitutions' respective Due Process clauses. However, as the state correctly notes,

because a plea of no contest waives an appellant's right to appeal these alleged errors

occurring at trial, we find that these assignments of error are without merit.

{¶ 15} "The plea of no contest [under R.C. 2937.07] is not an admission of defendant's

guilt, but is an admission of the truth of the facts alleged in the indictment, information, or

complaint." Crim.R. 11(B)(2). In essence, a no contest plea relieves the prosecution of the

burden of presenting evidence, and the accused waives his right to be heard in defense.

See State ex rel. Stern v. Mascio, 75 Ohio St.3d 422, 425 (1996). Once a plea of no contest

has been entered, the trial court need only ask whether the indictment, information or

complaint contains sufficient allegations to state an offense. State v. McCartney, 12th Dist.

Clinton No. CA2003-09-023, 2004-Ohio-4781, ¶ 24, citing State v. Bird, 81 Ohio St.3d 582,

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syllabus (1998). Where the court answers in the affirmative, it must find the defendant guilty

of that offense unless the prosecutor presents a statement of facts that negates an essential

element of the charge. See Bird at 584, citing Stern at 425.

{¶ 16} In the present case, the Clermont County Grand Jury returned an indictment

charging appellant with one count of grand theft in violation of R.C. 2913.02(A)(1), which

provides that "[n]o person, with purpose to deprive the owner of property or services, shall

knowingly obtain or exert control over either the property or services * * * without the consent

of the owner or person authorized to give consent." See State v. Wells, 12th Dist. Butler No.

CA2004-10-423, 2005-Ohio-3904, ¶ 15. This offense is a fourth-degree felony if the value of

the property stolen is $7,500 or more and is less than $150,000. State v. Pellegrini, 3d Dist.

Allen No. 1-12-30, 2013-Ohio-141, citing R.C. 2913.02(B)(2). Therefore, the trial court was

obligated to find the appellant guilty if the indictment and statement of facts demonstrated

that appellant, without the victims' consent, knowingly exerted control of property valued at

$7,500 or more but less than $150,000. Bird at syllabus.

{¶ 17} The indictment and the state's statement of facts at the plea hearing recited the

necessary elements of the offense. After the statement of facts, appellant did not object to

the information as provided to the court. Hence, the trial court was obligated to find appellant

guilty as charged. State v. Cooper, 2d Dist. Montgomery No. 21344, 2006-Ohio-4004, ¶ 3

("the court must find the defendant guilty if the facts alleged in the indictment are sufficient in

law to demonstrate the offense alleged").

{¶ 18} In short, appellant's plea of no contest waived all the alleged errors at trial. See

State v. Watson, 12th Dist. Clinton No. CA2007-04-020, 2008-Ohio-629, ¶ 11, quoting State

v. Palm, 9th Dist. Summit No. 22298, 2005-Ohio-1637, ¶ 13 (finding that upon a plea of no

contest "the accused waives all nonjurisdictional defects to a felony conviction and leaves

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open for review only the sufficiency of the indictment"). Accordingly, appellant's assignments

of error are overruled.

{¶ 19} Judgment affirmed.

HENDRICKSON, P.J., and M. POWELL, J., concur.

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