[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.




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                       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




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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).

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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



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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.

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                            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



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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.

                                                             Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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