[Cite as State v. Wilhelm,
2024-Ohio-5606.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Andrew J. King, J.
-vsCase No. 24CA000004
RANDY A. WILHELM
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Knox County Court of
Common Pleas, Case No. 20CR11-0282
JUDGMENT: Affirmed in part and Reversed in part
DATE OF JUDGMENT ENTRY: November 26, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHARLES T. McCONVILLE J.C. RATLIFF
Knox County Prosecutor ROCKY RATLIFF
117 E. High Street, Suite 234 KYLE PHILLIPS
Mount Vernon, Ohio 43050 MICHAEL BROWN
Ratliff Law Office
200 W. Center Street
Marion, Ohio 43302
Knox County, Case No. 24CA000004 2
Hoffman, J.
{¶1} Appellant Larry Nibert appeals the January 16, 2024 Decision and Entry
after Forfeiture Hearing pursuant to R.C. 2937.36 and 2927.39, entered by the Knox
County Court of Common Pleas, which ordered $88,921.07, of the $100,000.00 bond he
deposited be forfeited. Appellant also appeals the trial court’s Decision and Entry on
Disqualification of Counsel, filed the same day. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On November 16, 2020, Randy Wilhelm was charged in a five-count
indictment with one count of domestic violence, a misdemeanor of the first degree; one
count of felonious assault, a felony of the second degree; one count of bribery, a felony
of the third degree; one count of menacing by stalking, a felony of the fourth degree; and
one count of intimidation of an attorney in a criminal case, a felony of the third. A warrant
was issued for Wilhelm’s arrest, which was executed on the same day. Wilhelm appeared
before the trial court for arraignment on November 18, 2020, and entered a plea of not
guilty to the charges contained in the Indictment. The trial court ordered Wilhelm held
without bond pending the completion of a mental evaluation pursuant to R.C. 2937.23(B).
{¶3} On December 9, 2020, Wilhelm filed a motion for surety bond and mental
evaluation. Wilhelm filed a motion for bond hearing on December 17, 2020. The trial
court received the mental health evaluation report prepared by District V Forensic
Diagnostic Center on December 21, 2020. The trial court conducted a hearing on the
mental health evaluation report and Wilhelm’s bond motions on December 22, 2020. Via
Decision and Entry filed January 5, 2021, the trial court ordered District V Forensic
Diagnostic Center prepare a supplemental report based upon information revealed at the
hearing. The trial court also ordered Wilhelm be held without bond.
Knox County, Case No. 24CA000004 3
{¶4} On February 4, 2021, Wilhelm filed a motion for bond reduction as well as
a motion to continue the February 9, 2021 jury trial. The trial court continued the trial and
scheduled a bond hearing for April 6, 2021, but the hearing was continued until May 24,
2021, in order for Wilhelm to retain new counsel. Attorneys J.C. Ratliff and Rocky Ratliff
filed a Notice of Appearance on April 15, 2021. Via Order of Conditions of Bond and
Pretrial Release Supervision filed May 25, 2021, the trial court set Wilhelm’s bond in the
amount of $100,000, cash or surety, without the 10% provision, and subject to standard
pretrial supervision requirements. Wilhelm was released after bond was posted by Jason
E. Wheaton, Sr., executing agent for the surety, Bankers Insurance Company (“Bankers
Insurance Co.”). Appellant is a bail bondsman. According to Appellant, the bond was
subsequently transferred to him by Wheaton with Bankers Insurance Co. continuing as
the agent [sic “surety”]. See, Affidavit of Larry Nibert attached to Bonding Company’s
Motion for Relief from Judgment filed August 30, 2022. Attorney Mitchell Yelsky filed a
Notice of Appearance on behalf of Wilhelm on September 14, 2021. The trial court
permitted Attorneys J.C. Ratliff and Rocky Ratliff to withdraw as counsel for Wilhelm via
Entry filed September 21, 2021.
{¶5} On April 4, 2022, the trial court issued a hearing assignment notice,
scheduling a hearing for April 21, 2022, on Attorney Yelsky’s motion to withdraw as
counsel. The notice expressly stated: “If an attorney does not enter an appearance and
the defendant fails to appear, a warrant to arrest may be issued.” April 4, 2022 Hearing
Assignment. On May 2, 2022, the trial court ordered the Knox County Clerk of Courts to
issue a statewide warrant for Wilhelm’s arrest, specifically finding Wilhelm failed to comply
with the pre-trial release program. Upon its own motion, the trial court revoked and
Knox County, Case No. 24CA000004 4
declared forfeited Wilhelm’s bond, and scheduled the matter for a show cause forfeiture
hearing on August 11, 2022. See, June 22, 2022 Judgment Entry.
{¶6} After becoming aware of the trial court’s June 22, 2022 Judgment Entry,
Appellant hired Ken Collins, a bail bondsman and recovery agent, to locate and
apprehend Wilhelm, and secure his appearance at the show cause forfeiture hearing. On
July 22, 2022, J.C. Ratliff and Rocky Ratliff, on behalf of Appellant, filed a Motion to
Release, Discharge, and Exonerate Surety, or in the alternative, Motion to Extend Time
to Locate. The trial court denied the motion in its entirety, finding Wilhelm’s bond had
been revoked and forfeited. See, July 25, 2022 Judgment Entry. The trial court, on its
own motion, reconsidered Appellant’s motion, and extended the time in which to locate
Wilhelm by an additional fourteen (14) days. The trial court rescheduled the show cause
forfeiture hearing from August 11, 2022, to August 25, 2022.
{¶7} During the late evening on August 19, 2022, Collins followed Wilhelm’s
brother to a fenced residential compound where Wilhelm was believed to be located. At
approximately 11:30 p.m., Wilhelm fired shots at Collins’ vehicle. Collins contacted local
law enforcement, informing them of the situation. Multiple law enforcement agencies from
outside Knox County as well as the Ohio State Highway Patrol responded, deploying
dozens of officers, armored vehicles, and a helicopter. Law enforcement engaged
Wilhelm and his brother in armed conflict throughout the early morning hours of August
20, 2022. During the conflict, Wilhelm fired multiple shots at the helicopter and at the
armored vehicles. The conflict ended with the deaths of Wilhelm and his brother.
{¶8} On August 25, 2022, Appellant appeared with counsel, J.C. Ratliff and
Rocky Ratliff, for the scheduled show cause hearing. Collins also appeared to testify as
Knox County, Case No. 24CA000004 5
a witness on Appellant’s behalf. Collins was prepared to testify it was impossible to
produce Wilhelm as he had died during the August 20, 2022 standoff with police. The
trial court heard arguments from counsel for Appellant and the State. Via Decision filed
August 26, 2022, the trial court found, “[b]ased upon the failure of [Wilhelm] to appear for
hearings in the case, and the failure of the surety to secure his arrest or his appearance,
and the risk and expense to the State to secure the arrest of [Wilhelm], the Court hereby
renders judgment against the surety, Bankers Insurance Co. for the entire amount of the
bond of $100,000. The surety is ordered to deposit $100,000 cash with the Clerk's office
within 5 business days of the date of this entry.” August 26, 2022 Decision. The trial court
set the matter for “further hearing to receive evidence regarding the costs to the State
and other law enforcement agencies which were incurred to secure the arrest of
[Wilhelm],” adding, “[t]he surety may present evidence and arguments for remission at
that time.” Id.
{¶9} On August 30, 2022, Appellant filed a motion for relief from judgment and a
motion for reconsideration and to set aside the bond forfeiture and release the surety from
liability or, alternatively, to remit bond. During a telephone status conference on
September 6, 2022, the trial court requested counsel for Appellant file a memorandum
regarding any potential conflict of interest. Counsel for Appellant filed the memorandum
on September 16, 2022. A notice of suggestion of Wilhelm’s death was filed on
September 20, 2022. Prior to the trial court ruling on his August 30, 2022 motions,
Appellant filed a Notice of Appeal from the trial court’s August 26, 2022 Decision, which
ordered the bond forfeiture. This Court dismissed the appeal for lack jurisdiction,
Knox County, Case No. 24CA000004 6
concluding the August 26, 2022 Decision was not a final appealable order. State v.
Wilhelm, 2023-Ohio-3223 (5th Dist.).
{¶10} On October 18, 2023, the trial court ordered the surety, Bankers Insurance
Co., to deposit the sum of $100,000.00, with the Knox County Clerk of Courts within five
(5) business days. Appellant delivered a cashier’s check, paid to the order of Knox
County, on October 24, 2023. The Knox County Clerk of Courts endorsed and deposited
the check. The trial court scheduled a hearing on the remittance of the bond forfeiture for
December 4, 2023.
{¶11} At the remittance hearing, the State presented the testimony of Detective
Craig Feeney with the Knox County Sheriff’s Department; Sergeant Kingsborough of the
Mansfield Police Department; Major Matt Them, Director of Finance and Logistics with
the Ohio State Highway Patrol; Chief Deputy John Scowden of the Delaware County
Sheriff’s Department; and Captain Nate Sachs of the Marysville Police Department and
commander of the Marysville Tactical Response Team. Each witness testified to the
costs, including payroll, expenses, and damages incurred by each of the tactical units
which responded to the August 19-20, 2022 standoff between Wilhelm and police. Via
Decision and Entry filed January 16, 2024, the trial court rendered judgment against
Bankers Insurance Co., as the surety, in the amount of $88,921.07. The trial court
ordered the balance remaining on the $100,000.00 deposit be refunded to the depositor.
On January 16, 2024, the trial court also issued a Decision and Entry, disqualifying the
Ratliff Law Office and all attorneys of the firm from all further matters in the case.
{¶12} It is from these judgment entries Appellant appeals, raising the following
assignments of error:
Knox County, Case No. 24CA000004 7
I. THE TRIAL COURT ERRED WHEN IT DETERMINED
APPELLANT SURETY LARRY NIBERT DID NOT HAVE STANDING.
II. THE TRIAL COURT ERRED IN ENTERING A BOND
FORFEITURE AGAINST APPELLANT SURETY LARRY NIBERT WHEN
THE BOND VIOLATION PENDING BEFORE THE TRIAL COURT WAS
NOT DUE TO DEFENDANT’S FAILURE TO APPEAR TO [SIC] COURT
AND WHEN DEFENDANT’S FAILURE TO APPEAR WAS THE RESULT
OF HIS DEATH PRIOR TO THE SHOW CAUSE HEARING ON BOND
FORFEITURE.
III. THE TRIAL COURT ERRED WHEN IT FAILED TO REMIT THE
ENTIRE $100,000.00 DEPOSITED BOND BECAUSE THE EXHIBITS
PRESENTED DURING THE REMITTANCE HEARING WERE NOT
EXPENDED OR RELATED TO DEFENDANT WILHELM BEING
BROUGHT BEFORE THE TRIAL COURT ON THE BOND FORFEITURE
THAT WAS ENTERED.
IV. THE TRIAL COURT ERRED WHEN IT DISQUALIFIED THE
RATLIFF LAW OFFICE FROM FURTHER REPRESENTING APPELLANT
NIBERT.
I
{¶13} In his first assignment of error, Appellant challenges the trial court’s finding
he lacked standing.
Knox County, Case No. 24CA000004 8
{¶14} Although the present case is criminal in nature, there is no criminal rule
specifically addressing intervention. “If no procedure is specifically prescribed by rule, the
court may proceed in any lawful manner not inconsistent with the rules of criminal
procedure, and shall look to the rules of civil procedure and to the applicable law if no rule
of criminal procedure exists.” Crim.R. 57(B). “[T]he plain language of Crim.R. 57(B)
permits a trial court in a criminal case to look to the Rules of Civil Procedure for guidance
when no applicable Rule of Criminal Procedure exists.” State v. Schlee, 117 Ohio St.3d
153,
2008-Ohio-545, ¶ 10. Accordingly, “the civil rules may be invoked where appropriate
to fill a void in the rules of criminal procedure in a criminal case.” State v. Strunk, 12th
Dist. Butler No. CA2010-09-085,
2011-Ohio-417, ¶ 8, citing Schlee.
{¶15} In its January 16, 2024 Decision and Entry after Forfeiture Hearing, the trial
court stated:
This case as it concerns Mr. Nibert raises the question whether a
party can intervene in a criminal bond forfeiture hearing. … How or
whether Larry Nibert … actually has a legal interest in the Defendant’s
bond giving him standing in the case is a critical issue in the case. Although
at the December 4, 2023 hearing, Mr. Nibert testified that he is obligated to
indemnify the bailbondsman [sic] Jason Wheaton and the surety Bankers
Insurance Co., none of the documents in the Court file, and no documents
produced in any hearing or with Counsel’s briefs filed in the case reference
Larry Nibert as any party with an interest in the bond. More critical,
however, to Mr. Nibert’s position is that Mr. Nibert has not moved to
Knox County, Case No. 24CA000004 9
intervene in the case. (Citation omitted.). Here, Mr. Nibert has failed to file
a motion to intervene in the case. Instead, his counsel has filed pleadings
(and an appeal) purporting to be “the surety”, and “the bonding Co.”. This
Court has reviewed each of the pending Nibert motions filed on August 30,
2022, and hereby denies those motions. The Court also overrules any
objections of Mr. Nibert to the procedure, or to further proceeding in the
case at the hearing on December 4, 2023. This Court finds that Mr. Nibert
does not have standing in this case because he is not a party to the case,
and he has not moved for nor has he been granted intervention in the case.
(Citation omitted.).
Id. at pp. 6, 8.
{¶16} We agree with the trial court and find, because Appellant failed to take the
necessary procedural steps to protect his interest, i.e., not filing a motion to intervene, he
is not a party to this matter.
{¶17} Appellant’s first assignment of error is overruled.
II, III
{¶18} In his second assignment of error, Appellant contends the trial court erred
in ordering forfeiture of the bond without finding Wilhelm failed to appear. In his third
assignment of error, Appellant submits the trial court erred in failing to remit the entire
$100,000.00 deposited bond.
{¶19} As a general rule, a person who is not a party to the case lacks standing to
appeal. See In re Adoption of T.B.S., 2007-Ohio-3559, ¶ 7 (4th Dist.). “Merely appearing
Knox County, Case No. 24CA000004 10
in an action and making a statement does not make one a party who can appeal.”
Id.
Likewise, “[b]eing allowed to appear in an action and to submit a brief in the trial court
likewise does not give a person a right to appeal.”
Id. Instead, to have standing to appeal,
a person either must be a party to the trial court proceeding or must have attempted to
intervene as a party.
Id. A non-party's failure to attempt intervention in the trial court
necessarily results in an incapacity to appeal. Januzzi v. Hickman,
61 Ohio St.3d 40, 45
(1991).
{¶20} Having found, supra, Appellant failed to take the necessary procedural
steps to protect his interest and is a non-party, we find he lacks standing to appeal the
trial court’s decision regarding the bond forfeiture.
{¶21} The trial court entered judgment against Bankers Insurance Co. in the
amount of $88,921.07. See, January 16, 2024 Decision and Entry after Forfeiture
Hearing. Bankers Insurance Co. did not appeal this decision. Appellant must seek any
recourse from Bankers Insurance Co.
{¶22} Appellant’s second and third assignments of error are overruled.
IV
{¶23} In his fourth assignment of error, Appellant asserts the trial court erred in
disqualifying the Ratliff Law Office from further representing him. We agree.
{¶24} In reviewing a trial court's decision to disqualify a party's counsel, we apply
an abuse of discretion standard. (Citations omitted). Hoag v. Ent. Holdings, 2021-Ohio-
506, ¶ 16 (8th Dist.) The term “abuse of discretion” connotes more than an error of law or
judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable.
(Citations omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). However,
Knox County, Case No. 24CA000004 11
disqualification of an attorney is a drastic measure which should not be imposed unless
absolutely necessary. (Citation omitted.) Kala v. Aluminum Smelting & Refining Co., Inc.,
81 Ohio St.3d 1, 6 (1998). “Disqualification, therefore, ‘should ordinarily be granted only
when a violation of the Canons of the Code of Professional Responsibility poses a
significant risk of trial taint’.” Spivey v. Bender,
77 Ohio App.3d 17, 22 (6th Dist. 1991),
quoting Glueck v. Jonathan Logan, Inc.,
653 F.2d 746, 748 (C.A.2 1981).
{¶25} Ohio Courts have adopted the three-part test set forth in Dana Corp. v. Blue
Cross & Blue Shield Mut. of Northern Ohio, 900 F.2d 882 (C.A.6 1990), when considering
the disqualification of counsel due to a conflict of interest. Stanley v. Bobeck, 2009-Ohio-
5696, ¶ 13 (8th Dist.). Disqualification is proper when “(1) a past attorney-client
relationship existed between the party seeking disqualification and the attorney it seeks
to disqualify; (2) the subject matter of those relationships was/is substantially related; and
(3) the attorney acquired confidential information from the party seeking disqualification.”
(Citation omitted.) Id. at 889.
{¶26} If there is no current or past attorney-client relationship, the motion to
disqualify should be denied. Henry Filters, Inc. v. Peabody Barnes, Inc., 82 Ohio App.3d
255, 260 (6th Dist. 1992). However, if the court determines there is or has been an
attorney-client relationship, the court must then determine whether a conflict of interest
exists; only if a conflict exists need the attorney be disqualified.
Id. The disqualification
of an attorney “should not be based solely upon allegation of a conflict of interest.” Kitts
v. U.S. Health Corp. of S. Ohio,
97 Ohio App.3d 271, 275 (4th Dist. 1994)
{¶27} In its January 16, 2024 Decision and Entry on Disqualification of Counsel,
the trial court found:
Knox County, Case No. 24CA000004 12
The Ratliff Law Office represented [Wilhelm] in this case, at the time
[Wilhelm] posted bond through the surety in the case.
The prior representation of [Wilhelm] in this case by the Ratliff Law
Office constitutes matters the same as or substantially related to those the
Ratliff Law Office now bring on behalf of their current client [Appellant],
because there is a “commonality of issues” between the two
representations, and the factual contexts of the representation are related.
…
The Ratliff Law Office is irrebuttably presumed to have benefitted
from confidential information obtained during the prior representation of
[Wilhelm] in this case which is relevant to the current representation of
[Appellant] in this case. In such limited situations there is no necessity to
demonstrate actual exposure to specific confidences which would benefit
the present client. …
Disqualification should be ordered where any substantial relationship
can be shown between the subject matter of the former representation and
that of a subsequent adverse representation. …
This Court finds that the current representation by the Ratliff Law
Office of [Appellant], and any claim by a surety in this case, is adverse to
the interests of the personal representative or the estate of … [Wilhelm],
and that such current representation is the same as or has a substantial
relationship to the former representation of [Wilhelm] by the Ratliff Law
Office.
Knox County, Case No. 24CA000004 13
January 16, 2024 Decision and Entry on Disqualification of Counsel
at pp, 13-14.
{¶28} Based upon those findings, the trial court ordered “the disqualification of
counsel, Ratliff Law Office and all attorneys in the firm, from all further matters in this
case.” (Emphasis added.) Id. at p. 14.
{¶29} Although the matter in which the Ratliff Law Office currently represents
Appellant is related to the case in which the firm represented Wilhelm, such does not, in
and of itself, establish any actual conflict of interest in a possible future representation of
Appellant by the Ratliff Law Office. Any consideration of the Ratliff Law Office’s
representation of Appellant as presenting a conflict of interest in “future matters in this
case” is speculative and premature. If further proceedings arise, the issue may be raised
by the parties at that time.
{¶30} Because the Ratliff Law Office was able to represent Appellant at the
remittance hearing and was not disqualified from doing so by the trial court, we sustain
Appellant’s fourth assignment of error.
Knox County, Case No. 24CA000004 14
{¶31} The judgment of the Knox County Court of Common Pleas is affirmed in
part and reversed in part.
By: Hoffman, J.
Delaney, P.J. and
King, J. concur
