State v. Boatman , 2022 Ohio 1191 ( 2022 )

[Cite as State v. Boatman, 2022-Ohio-1191.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1170
Appellee Trial Court No. CR0202101597
v.
Floyd Boatman DECISION AND JUDGMENT
Appellant Decided: April 8, 2022
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Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
*****
MAYLE, J.
Introduction
{¶ 1} The defendant-appellant, Floyd Boatman, appeals an August 3, 2021
judgment of the Lucas County Court of Common Pleas convicting him of attempted
felonious assault and domestic violence and sentencing him to an aggregate term of 54
months in prison. For the reasons that follow, we affirm the trial court’s judgment.
Background
{¶ 2} Boatman was indicted for committing the offense of felonious assault, in
violation of R.C. 2903.11(A)(1) and (D), a felony of the second degree (Count 1) and two
counts of domestic violence, in violation of R.C. 2919.25(A) and (D)(1) and (D)(3),
felonies of the fourth degree (Counts 2 and 3).
{¶ 3} At a change-of-plea hearing on July 15, 2021, Boatman entered a guilty plea,
pursuant to North Carolina v. Alford. In exchange, the state amended Count 1 to a
charge of attempt to commit felonious assault, in violation of R.C. 2923.02 and
2903.11(A)(1) and (D), a third degree felony, and agreed to dismiss one of the domestic
violence charges (Count 2).
{¶ 4} In support of the plea, the state provided the following summary of the
evidence: At 1:30 a.m. on April 23, 2021, Boatman’s “live-in” girlfriend, A.A., called
911 for “help.” When the responding officers arrived at the couple’s apartment complex,
they found A.A. screaming and observed “significant swelling above her right eye to the
point that her left eye was swollen shut.” A.A. told police that she and Boatman had
argued hours before, that she had left their apartment, and that when she returned,
Boatman “knocked her to the ground,” climbed on top of her, and then “punched her in
the face multiple times.” Boatman fled the scene when A.A. called 911. Later, at the
hospital, A.A. received a text message from Boatman that read, “before I go to jail again,
I’m breaking that jaw, watch.”
2.
{¶ 5} A.A. returned home at 7:30 a.m., still April 23, 2021. When she did not see
Boatman’s car in the parking lot, A.A. assumed that he was not home. But, Boatman was
there, “waiting in the back bedroom for her and [he] attacked her yet again.” This time,
Boatman “punched her several times in the head until she fell to the floor” and “kicked
[her] several times in the head with his boots on.” A.A. called 911, and Boatman, once
again, fled the scene. A.A. was taken to a different hospital where she was treated for a
nasal fracture, that was surgically corrected days later. At the hearing, the state provided
the court with photographs showing “extensive bruising and swelling to the victim’s
eyes” as a result of “these two separate assaults.”
{¶ 6} During the colloquy, the trial court explained to Boatman that he faced a
maximum prison sentence of up to 36 months as to the attempted felonious assault
charge, and up to 18 months as to the domestic violence charge, for a total prison term of
54 months, if run consecutively. Boatman acknowledged his understanding of the
maximum penalty, in writing and on the record.
{¶ 7} The trial court accepted Boatman’s plea and convicted him of attempted
felonious assault and domestic violence. At Boatman’s request, the court then ordered a
presentence investigation (“P.S.I.”).
{¶ 8} At sentencing, the defense acknowledged Boatman’s criminal history,
“dat[ing] back into his juvenile years, a good 20 years” and an “escalation in his record.”
Upon questioning by the court, the state confirmed that the “significant amount of
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domestic violence and assault charges” from 2019 and a first degree misdemeanor assault
conviction from 2020 also involved A.A., i.e. the victim in this case.
{¶ 9} Boatman personally addressed the court. He claimed not to remember any
of the events in this case due to his drug usage that night. But, he also denied any
“intention[] of hurting * * * trying to kill * * * or beat[ing]” A.A.
{¶ 10} The trial court sentenced Boatman to 36 months as to Count 1 and 18
months as to Count 3, the terms to be served consecutively, for an aggregate prison term
of 54 months. The court also imposed a mandatory term of three years of postrelease
control as to Count 1 and up to three years of discretionary postrelease control as to
Count 3.
{¶ 11} Boatman appealed and raises a single assignment of error for our review:
The trial court erred in sentencing Appellant to a prison term based
upon dismissed Domestic Violence charges as Appellant retained a
presumption of innocence to those charges.
Law and Analysis
{¶ 12} We review a challenge to a felony sentence under R.C. 2953.08(G)(2)
which provides that an appellate court may increase, reduce, or otherwise modify a
sentence or may vacate the sentence and remand the matter to the sentencing court for
resentencing if it clearly and convincingly finds either of the following:
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(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 13} Boatman does not claim that his sentence violated any of the statutes
identified in R.C. 2953.08(G)(2)(a), leaving R.C. 2953.08(G)(2)(b) as the only basis for
challenging his sentence.
{¶ 14} A sentence is not clearly and convincingly “contrary to law” for purposes of
R.C. 2953.08(G)(2)(b) where the trial court has properly applied postrelease control,
sentenced the defendant within the statutorily-permissible range, and considered the
purposes and principles of sentencing in R.C. 2929.11 and the seriousness and recidivism
factors listed in R.C. 2929.12. State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-
Ohio-425, ¶ 15. However, “neither R.C. 2929.11 nor 2929.12 requires a trial court to make
any specific factual findings on the record.” State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-
6729, 169 N.E.3d 649, ¶ 20. And, the trial court’s consideration of the factors set forth in
R.C. 2929.11 and 2929.12 is presumed even on a silent record. State v. Clinton, 153 Ohio
St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1; State v. Cyrus, 63 Ohio St.3d 164, 166, 586
N.E.2d 94, (1992).
5.
{¶ 15} In this case, Boatman—correctly—does not argue that the trial court erred
in weighing the factors set forth in R.C. 2929.11 and 2929.12. Indeed, as the Ohio
Supreme Court in Jones made clear, “[n]othing in R.C. 2953.08(G)(2) permits an
appellate court to independently weigh the evidence and substitute its judgment for that
of the trial court concerning the sentence that best reflects compliance with R.C. 2929.11
and 2929.12.” Jones at ¶ 42. While Boatman concedes that this court may not “conduct
a freestanding inquiry” to determine whether the record supports the sentence or
substitute our judgment for the trial court’s regarding the appropriate sentence, he argues
that, because the trial court made findings under R.C. 2929.11 and 2929.12, we may
“review those findings for certain limited purposes.” Appellant’s Brief at 2, quoting
Jones at ¶ 42, 45, 48 (Fischer, J., concurring) (Agreeing with the majority but writing
separately to emphasize that an appellate court may review the trial court’s findings
under R.C. 2929.11 and 2929.12 for “certain limited purposes,” including, for example,
whether the sentence was “based on an offender’s ‘race, ethnic background, gender, or
religion.’”). Likewise, R.C. 2953.08 does not preclude an appeal of a sentence on
constitutional grounds. State v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172.
N.E.3d 952, ¶ 15-22.
{¶ 16} Here, in imposing maximum and consecutive sentences, the court said,
I do note that there was a sequence of increasing allegations of
violence with dismissal, and the court is only going to note that there were
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allegations[.] I do not note any evidence or any form of conviction on that,
but charges were filed and allegations of domestic violence existed.
There was then a plea to domestic violence in the fall of 2020 in
which there was finding of guilt, a sentence, a request for batterer’s
intervention and protective orders put in place with regard to no contact
with the victim.
We then have the subsequent and quick sequence of events of
increasing, escalating and very, very violent behavior that occurred [in this
case], and in that the course of conduct that was occurring during that time
was so great and unusual that no one prison term for that offense reflects
the seriousness of your conduct[.] [T]he court does find that the harm was
so great and unusual that it would meet for the burden for consecutive
sentences.
In addition, with the escalation of your criminal history, consecutive
sentences can be supported based on the requirement that the court finds
that consecutive sentences are necessary to protect the public from future
crime or punishment and that they are not disproportionate to the
seriousness of your conduct or the danger that you pose. (July 29, 2021 Tr.
at 13-14).
7.
{¶ 17} Boatman argues that his sentence is “contrary to law” because the trial
court “reli[ed] upon prior allegations of domestic violence to justify a maximum prison
term with consecutive sentences.” Boatman contends that the court’s reliance on “mere *
* * allegations” violated his right to be presumed innocent of those charges. We reject
Boatman’s argument for several reasons.
{¶ 18} First, we note—as a point of fact—that Boatman does not profess his
innocence in this case, including as to the domestic violence charge that was dismissed
under the plea agreement. Rather, he claims that he was so “high off drugs [that he]
blacked out [and doesn’t] remember anything that happened.” Similarly, Boatman has
acknowledged an extensive criminal history including a recent “escalation in his record.”
{¶ 19} Either way, the presumption of innocence does not apply in sentencing
proceedings. State v. Wiles, 59 Ohio St.3d 71, 89, 571 N.E.2d 97 (1991), citing State v.
Hutton, 53 Ohio St.3d 36, 42–43, 559 N.E.2d 432 (1990). As articulated by the Ohio
Supreme Court, “[f]ew things can be so relevant as other criminal activity of the
defendant: To argue that the presumption of innocence is affronted by considering
unproved criminal activity is as implausible as taking the double jeopardy clause to bar
reference to past convictions.” (Internal citations and quotations omitted) State v.
Burton, 52 Ohio St.2d 21, 23, 368 N.E.2d 297 (1977). In other words, the trial court did
not violate Boatman’s right to be presumed innocent by considering previous allegations
of domestic violence against him.
8.
{¶ 20} Likewise, the trial court’s consideration of other charges against Boatman
did not render his sentence contrary to law. R.C. 2929.12 (“Factors to consider in felony
sentencing”) specifically requires that a sentencing court “shall consider * * * any * * *
relevant factors,” which may include a broad range of information in fashioning a
sentence. Thus, a sentencing court is “not confined to evidence that strictly relates to the
conviction offense because the court is no longer concerned * * * with the narrow issue
of guilt.” State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 14
(2d Dist.). Specifically, a court may consider a defendant’s prior arrests, even if none
yields prosecution, unindicted acts, not guilty verdicts and criminal charges that are
dismissed under a plea agreement. Id. at ¶ 15. Recently, we addressed the same
argument raised by Boatman in this case. There, as here, we found that “uncharged
crimes and charges dismissed pursuant to plea agreements may be considered at
sentencing * * * [s]o long as they are not the sole basis for the sentence.” State v. Griffin,
6th Dist. Wood No. WD-20-081, 2021-Ohio-3137, ¶ 19, citing State v. Lanning, 6th Dist.
Ottawa No. OT-19-024, 2020-Ohio-2863, ¶ 17 and State v. Goodluck, 6th Dist. Lucas
No. L-16-1027, 2017-Ohio-778, ¶ 11. See also State v. Skaggs, 4th Dist. Gallia No.
16CA19, 2017-Ohio-7368, ¶ 15 (Uncharged crimes are part of the defendant’s social
history and may be considered).
{¶ 21} Here, in imposing maximum, consecutive sentences, the trial court based
its decision on a number of factors. But, it focused primarily on the seriousness of
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Boatman’s conduct, commenting that it had never seen this “level of damage” to a body
that did not involve “a lot of weaponry” and was “as bad as * * * [the court has] seen
where someone hasn’t died.” The court also expressed the need to protect A.A. and the
community from Boatman even though “prison is just a time away from here,” and “once
you’re out, you’re still equally not amenable to living in this [community].” The court
lamented that it just did not have “any additional sanctions.” Finally, the court sharply
rejected Boatman’s attempt to deflect blame by characterizing him as “the most
calculated blacked out person” who—after committing the first act of violence against
A.A.—“knew to lie in wait for [her] return” and to leave his vehicle “somewhere else so
she’d have no forewarning * * * of a secondary attack.”
{¶ 22} Based upon the above, we reject Boatman’s claim that the trial court
imposed its sentence on “the mere fact [that] charges were filed and allegations of
domestic violence existed.” The dismissed charges from 2019 and the dismissed count
from this case were one of many factors that the trial court considered in fashioning its
sentence. Therefore, the trial court did not err in taking into account those charges, and
his sentence is not contrary to law. Accordingly, we find that Boatman’s assignment of
error is not well-taken.
Conclusion
{¶ 23} In imposing maximum and consecutive sentences in this case, the trial
court did not err by considering charges that were dismissed against Boatman. A court
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may consider a defendant’s prior arrests, including those that do not result in conviction,
when they are not the sole basis for the sentence. Here, the charges were but one of many
factors considered by the trial court in fashioning Boatman’s sentence. We find
Boatman’s assignment of error not well-taken.
{¶ 24} We affirm the August 3, 2021 judgment of the Lucas County Court of
Common Pleas. Boatman is ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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