[Cite as State v. Burke, 2013-Ohio-4318.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-13-09
v.
SCOTT BURKE, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court Trial Court No. 12-CR-0236
Judgment Affirmed
Date of Decision: September 30, 2013
APPEARANCES:
Alison Boggs for Appellant
David W. Phillips and Terry L. Hord for Appellee Case No. 14-13-09
SHAW, J.
{¶1} Defendant-appellant, Scott Burke (“Burke”), appeals the March 14,
2013 judgment of the Union County Court of Common Pleas convicting him of
eleven counts of theft, in violation of R.C. 2913.02(A)(1),(B)(2), all felonies of the
fifth degree, and one count of engaging in a pattern of corrupt activity, in violation
of R.C. 2923.32(A)(1),(B)(1), a felony of the second degree, after Burke pleaded
guilty to the charges. The trial court sentenced Burke to a prison term of six
months for each of the eleven theft convictions, and a four-year prison term for the
conviction for engaging in a pattern of corrupt activity. The trial court ordered the
sentences to be served consecutively, for an aggregate prison term of nine years
and six months. Burke was also ordered to pay restitution to Lowe’s in the
amount of $13,275.62.
{¶2} The charges stemmed from allegations that Burke stole copper wire
from numerous Lowe’s stores over a period of several months and then sold the
wire to metal scrappers for cash. Burke was alleged to have committed these
thefts throughout multiple counties as part of a continuing course of conduct. The
copper wire involved in these thefts by Burke was valued in excess of $13,000.
{¶3} Burke now appeals, asserting the following assignments of error.
-2- Case No. 14-13-09
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED WHEN IT ACCEPTED APPELLANT’S GUILTY PLEA TO THE CHARGE OF ENGAGING IN A PATTERN OF CORRUPT ACTIVITIES [SIC] WHEN APPELLEE FAILED TO PRESENT SUFFICIENT FACTS TO ASSERT THAT THE CRIME HAD BEEN COMMITTED, IN VIOLATION OF APPELLANT’S DUE PROCESS RIGHTS, RESULTING IN APPELLANT’S PLEA NOT BEING KNOWINGLY, VOLUNTARILY OR INTELLIGENTLY MADE.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO CONSECUTIVE SENTENCES.
First Assignment of Error
{¶4} In his first assignment of error, Burke claims that the trial court erred
when it accepted his guilty plea to the charge of engaging in a pattern of corrupt
activity because the prosecutor failed to present any facts demonstrating that an
actual “enterprise” existed through which Burke committed the separate theft
offenses. See R.C. 2923.32(A)(1) (stating “No person employed by, or associated
with, any enterprise shall conduct or participate in, directly or indirectly, the
affairs of the enterprise through a pattern of corrupt activity[.]”). Burke maintains
that without the prosecutor stating specific facts explaining the nature of the
-3- Case No. 14-13-09
alleged enterprise, he could not have knowingly, intelligently, and voluntarily
entered his guilty plea.1
{¶5} On appeal, Burke cites to no relevant legal authority in support of his
argument. In fact, the only cases cited by Burke either address situations
involving an Alford plea,2 the special circumstance in which the defendant
maintains and asserts his innocence while entering a guilty plea, or situations in
which the case has proceeded to trial and the prosecutor is required to prove each
element of the offense beyond a reasonable doubt. Here, there is no indication in
the record that Burke maintained or asserted his innocence at the plea hearing and
the record demonstrates that Burke explicitly waived his right to a trial where the
prosecutor must prove each element of the offense beyond a reasonable doubt
when he entered his guilty plea.
{¶6} While there appears to be little authority specifically addressing the
issue raised by Burke in the context of guilty pleas, there is some jurisprudence on
this matter regarding no contest pleas. The procedure for entering a guilty plea or
a no contest plea is governed by Crim.R. 11. “In a felony case, Crim.R. 11
permits a plea of no contest to a criminal charge, and does not require an
explanation of the circumstances. Instead, the rule permits the court to enter
1 Not only did Burke fail to raise any issue regarding the statement of facts at the plea hearing, he also failed to raise the issue at the sentencing hearing that took place two months later. It is only on appeal, after being sentenced, that Burke now raises this issue. 2 See North Carolina v. Alford, 400 U.S. 25 (1970).
-4- Case No. 14-13-09
judgment only based upon the facts as alleged in the indictment.” State v. Adams,
2d Dist. Montgomery No. 22493, 2009–Ohio–2056, ¶ 14. “Where an indictment,
information, or complaint contains sufficient allegations to state a felony offense
and the defendant pleads no contest, the court must find the defendant guilty of the
charged offense.” State v. Bird, 81 Ohio St.3d 582, 1998–Ohio–606.
{¶7} The key distinction between a guilty and a no contest plea is that a
guilty plea is a complete admission of the defendant’s guilt, whereas a no contest
plea is not an admission of guilt, but an admission of the truth of the facts as
alleged in the indictment, information, or complaint. See Crim.R. 11(B).
Arguably, the requirement for a sufficient factual basis set forth in the record
should be higher for a no contest plea because it is only an admission to the
truthfulness of facts and not a complete admission of guilt.
{¶8} Nevertheless, even in applying the standard set forth above for no
contest pleas, the record reflects that at the plea hearing in the instant case, the
prosecutor read the charges against Burke using the language of the indictment.
The record reflects that the language in the indictment constituting the engaging in
a pattern of corrupt activity charge tracked the precise language used by the
legislature in R.C. 2923.32 to describe the elements comprising the offense. Thus,
the trial court was permitted to find Burke guilty based on the allegations in the
-5- Case No. 14-13-09
indictment and was not required to hear an explanation of the circumstances
surrounding the offense as Burke contends.
{¶9} We also note that the transcript of the proceedings demonstrates that
the trial court complied with every requirement dictated by Crim.R. 11 in its plea
colloquy with Burke. Specifically, Burke acknowledged his understanding of the
nature of the charges listed in the indictment and that by pleading guilty he was
making a complete admission of guilt to the allegations contained in the
indictment. Burke also on the record specifically agreed with the statement of
facts read by the prosecutor at the hearing, the same set of facts that he now argues
was insufficient. Burke further expressed satisfaction with the representation of
his counsel throughout the plea proceedings.
{¶10} Moreover, notwithstanding all the evidence in the record supporting
the conclusion that Burke’s guilty plea with respect to the contested charge was
knowingly, intelligently, and voluntarily made, Burke has failed to demonstrate
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[Cite as State v. Burke, 2013-Ohio-4318.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-13-09
v.
SCOTT BURKE, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court Trial Court No. 12-CR-0236
Judgment Affirmed
Date of Decision: September 30, 2013
APPEARANCES:
Alison Boggs for Appellant
David W. Phillips and Terry L. Hord for Appellee Case No. 14-13-09
SHAW, J.
{¶1} Defendant-appellant, Scott Burke (“Burke”), appeals the March 14,
2013 judgment of the Union County Court of Common Pleas convicting him of
eleven counts of theft, in violation of R.C. 2913.02(A)(1),(B)(2), all felonies of the
fifth degree, and one count of engaging in a pattern of corrupt activity, in violation
of R.C. 2923.32(A)(1),(B)(1), a felony of the second degree, after Burke pleaded
guilty to the charges. The trial court sentenced Burke to a prison term of six
months for each of the eleven theft convictions, and a four-year prison term for the
conviction for engaging in a pattern of corrupt activity. The trial court ordered the
sentences to be served consecutively, for an aggregate prison term of nine years
and six months. Burke was also ordered to pay restitution to Lowe’s in the
amount of $13,275.62.
{¶2} The charges stemmed from allegations that Burke stole copper wire
from numerous Lowe’s stores over a period of several months and then sold the
wire to metal scrappers for cash. Burke was alleged to have committed these
thefts throughout multiple counties as part of a continuing course of conduct. The
copper wire involved in these thefts by Burke was valued in excess of $13,000.
{¶3} Burke now appeals, asserting the following assignments of error.
-2- Case No. 14-13-09
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED WHEN IT ACCEPTED APPELLANT’S GUILTY PLEA TO THE CHARGE OF ENGAGING IN A PATTERN OF CORRUPT ACTIVITIES [SIC] WHEN APPELLEE FAILED TO PRESENT SUFFICIENT FACTS TO ASSERT THAT THE CRIME HAD BEEN COMMITTED, IN VIOLATION OF APPELLANT’S DUE PROCESS RIGHTS, RESULTING IN APPELLANT’S PLEA NOT BEING KNOWINGLY, VOLUNTARILY OR INTELLIGENTLY MADE.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO CONSECUTIVE SENTENCES.
First Assignment of Error
{¶4} In his first assignment of error, Burke claims that the trial court erred
when it accepted his guilty plea to the charge of engaging in a pattern of corrupt
activity because the prosecutor failed to present any facts demonstrating that an
actual “enterprise” existed through which Burke committed the separate theft
offenses. See R.C. 2923.32(A)(1) (stating “No person employed by, or associated
with, any enterprise shall conduct or participate in, directly or indirectly, the
affairs of the enterprise through a pattern of corrupt activity[.]”). Burke maintains
that without the prosecutor stating specific facts explaining the nature of the
-3- Case No. 14-13-09
alleged enterprise, he could not have knowingly, intelligently, and voluntarily
entered his guilty plea.1
{¶5} On appeal, Burke cites to no relevant legal authority in support of his
argument. In fact, the only cases cited by Burke either address situations
involving an Alford plea,2 the special circumstance in which the defendant
maintains and asserts his innocence while entering a guilty plea, or situations in
which the case has proceeded to trial and the prosecutor is required to prove each
element of the offense beyond a reasonable doubt. Here, there is no indication in
the record that Burke maintained or asserted his innocence at the plea hearing and
the record demonstrates that Burke explicitly waived his right to a trial where the
prosecutor must prove each element of the offense beyond a reasonable doubt
when he entered his guilty plea.
{¶6} While there appears to be little authority specifically addressing the
issue raised by Burke in the context of guilty pleas, there is some jurisprudence on
this matter regarding no contest pleas. The procedure for entering a guilty plea or
a no contest plea is governed by Crim.R. 11. “In a felony case, Crim.R. 11
permits a plea of no contest to a criminal charge, and does not require an
explanation of the circumstances. Instead, the rule permits the court to enter
1 Not only did Burke fail to raise any issue regarding the statement of facts at the plea hearing, he also failed to raise the issue at the sentencing hearing that took place two months later. It is only on appeal, after being sentenced, that Burke now raises this issue. 2 See North Carolina v. Alford, 400 U.S. 25 (1970).
-4- Case No. 14-13-09
judgment only based upon the facts as alleged in the indictment.” State v. Adams,
2d Dist. Montgomery No. 22493, 2009–Ohio–2056, ¶ 14. “Where an indictment,
information, or complaint contains sufficient allegations to state a felony offense
and the defendant pleads no contest, the court must find the defendant guilty of the
charged offense.” State v. Bird, 81 Ohio St.3d 582, 1998–Ohio–606.
{¶7} The key distinction between a guilty and a no contest plea is that a
guilty plea is a complete admission of the defendant’s guilt, whereas a no contest
plea is not an admission of guilt, but an admission of the truth of the facts as
alleged in the indictment, information, or complaint. See Crim.R. 11(B).
Arguably, the requirement for a sufficient factual basis set forth in the record
should be higher for a no contest plea because it is only an admission to the
truthfulness of facts and not a complete admission of guilt.
{¶8} Nevertheless, even in applying the standard set forth above for no
contest pleas, the record reflects that at the plea hearing in the instant case, the
prosecutor read the charges against Burke using the language of the indictment.
The record reflects that the language in the indictment constituting the engaging in
a pattern of corrupt activity charge tracked the precise language used by the
legislature in R.C. 2923.32 to describe the elements comprising the offense. Thus,
the trial court was permitted to find Burke guilty based on the allegations in the
-5- Case No. 14-13-09
indictment and was not required to hear an explanation of the circumstances
surrounding the offense as Burke contends.
{¶9} We also note that the transcript of the proceedings demonstrates that
the trial court complied with every requirement dictated by Crim.R. 11 in its plea
colloquy with Burke. Specifically, Burke acknowledged his understanding of the
nature of the charges listed in the indictment and that by pleading guilty he was
making a complete admission of guilt to the allegations contained in the
indictment. Burke also on the record specifically agreed with the statement of
facts read by the prosecutor at the hearing, the same set of facts that he now argues
was insufficient. Burke further expressed satisfaction with the representation of
his counsel throughout the plea proceedings.
{¶10} Moreover, notwithstanding all the evidence in the record supporting
the conclusion that Burke’s guilty plea with respect to the contested charge was
knowingly, intelligently, and voluntarily made, Burke has failed to demonstrate
that he has suffered any prejudice to warrant the invalidation of his guilty plea,
especially given the fact that in exchange for his guilty plea, the prosecution
agreed to dismiss thirteen of the counts listed in the indictment, including a second
charge of engaging in a pattern of corrupt activity and a grand theft charge.
Accordingly, we find Burke’s arguments to be without merit and overrule his first
assignment of error.
-6- Case No. 14-13-09
Second Assignment of Error
{¶11} In his second assignment of error, Burke argues that the trial court
erred when it imposed consecutive sentences. Burke makes no specific arguments
regarding his sentence, but rather requests appellate review of his sentence under
R.C. 2953.08(C)(1). See R.C. 2953.08(C)(1) (providing grounds for appellate
review where the trial court imposed consecutive sentences and the total amount
of the sentence exceeds the maximum prison term allowed for the most serious
offense).
{¶12} At the outset, we note that the record reflects the trial court made the
appropriate findings required to impose consecutive sentences under R.C.
2929.14(C)(4) and that each sentence for the separate offenses was within the
permissible statutory range. The record also reflects that the trial court considered
the principles and purposes of felony sentencing under R.C. 2929.11 and R.C.
2929.12. The pre-sentence investigation report shows that Burke has a lengthy
criminal history involving numerous theft convictions allegedly spawned by his
chronic drug addiction. The record also demonstrates that Burke has in the past
been unsuccessfully placed on community control and has not actively participated
in addressing his addiction issues despite being given intervention in lieu of
conviction. Accordingly, we find no error in the trial court’s determination that
-7- Case No. 14-13-09
consecutive sentences are warranted in this case and we also find the sentence is
supported by the record. Burke’s second assignment of error is overruled.
{¶13} For all these reasons, the conviction and sentence of the Union
County Court of Common Pleas is affirmed.
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
-8-