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Published: Monday, 8/29/2011 - Updated: 2 years ago

Burns asks to withdraw plea deal

Ex-TPS official convicted of theft claims ineffective trial counsel

BY ERICA BLAKE
BLADE STAFF WRITER
Burns Burns
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More than eight months after he was found guilty of stealing hundreds of thousands of dollars from Toledo Public Schools, Dan Burns has asked that his plea be thrown out.

The former business administrator filed a petition for post-conviction relief in Lucas County Common Pleas Court. Claiming ineffective assistance of trial counsel during the plea proceeding, the petition seeks to void Burns’ guilty conviction and subsequent sentence to time in prison and payment of restitution.

In particular, the petition said that Burns was not adequately advised and so did not know at the time of his January sentencing how much restitution he would be required to pay.

As part of his sentence, Burns was ordered to pay $658,428 in restitution, to be divided among the two insurance companies that reimbursed the school district, and the district itself.

The district’s share was $52,429 for the money it had not been able to recoup.

The petition was heard by Judge Ruth Ann Franks.

“By direct consequence and cause of the plea form statements, and his trial counsel’s advice that restitution was undetermined, [Burns] believed that his plea was conditioned on his ability to later argue that the amount of restitution would be approximately $52,000, the amount of ‘actual loss’ incurred by Toledo City School District,” the petition stated.

Burns, serving his sentence at the Marion Correctional Institution, entered an Alford plea Dec. 13 to one count each of engaging in a pattern of corrupt activity, theft in office, and tampering with records.

He was convicted for his role in a scheme that defrauded the school district between 2002 and 2006.

Attorney Karin Coble, who filed the petition, said that she has the “greatest respect” for Burns’ trial counsel, Stephen Hartman. She added that, nonetheless, Burns “has every right to challenge” the plea.

“He’s challenging his plea as being involuntary, unknowing, and unwilling,” Ms. Coble said.

Assistant County Prosecutor Kevin Pittuch said he intends to file a memorandum opposing the petition. Mr. Pittuch noted that at his plea, Burns was questioned extensively by the judge to ensure he was aware of all of his constitutional rights. The judge made clear to him the nature of the offense to which he was pleading and the possible penalties, including restitution, Mr. Pittuch added.

“I thought Judge Franks was incredibly thorough, both at the plea and at the sentencing, in making sure that he made this plea voluntarily and knowingly,” Mr. Pittuch said. “I think that anyone reading the transcript would see that it was.”

Burns and co-conspirator John Briggle were convicted of orchestrating a scheme in which Briggle’s printing company, Superior Offset Supplies, billed the school district for thousands of dollars worth of supplies and services that were not delivered.

The men continued the scheme in Cleveland, where both have been convicted and sentenced to prison.

In Lucas County, Burns entered a plea to three counts. An additional 22 counts were dismissed under the negotiated plea.

In addition to the petition in common pleas court, Ms. Coble filed a notice of appeal in the 6th District Court of Appeals regarding Judge Franks’ July order granting the TPS request that the restitution owed be withheld from Burns’ monthly pension payout, approximately $5,500.

Also filed in the appellate court was a request by Burns’ attorney to file a delayed appeal regarding his plea and sentence.

Because it has been more than 30 days since Burns’ sentencing, the court of appeals must grant permission for him to file an appeal.

The request stated that Burns was “unaware of the appellate issues regarding the ineffectiveness of trial counsel and imposition of sentence, until after the trial court issued a judgment entry of [July 28] regarding execution of restitution.”

The prosecutor’s office has filed a memorandum opposing the request.

Contact Erica Blake at: eblake@theblade.com or 419-213-2134.



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