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.-4-
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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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