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State v. Bullard

Court of Appeals of Ohio, Twelfth District

July 29, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
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, for plaintiff-appellee.

John L. O'Shea for defendant-appellant.

OPINION

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 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 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 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 ...


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