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State v. Burke

Court of Appeals of Ohio, Third District

September 30, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
SCOTT BURKE, DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court Trial Court No. 12-CR-0236

Alison Boggs for Appellant

David W. Phillips and Terry L. Hord for Appellee

OPINION

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.

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 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 ...


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