State v. Boyle , 2023 Ohio 3390 ( 2023 )

[Cite as State v. Boyle, 2023-Ohio-3390.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 2023-CA-16
:
v. : Trial Court Case No. 2013 CR 0042
:
DAVID BOYLE : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on September 22, 2023
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DAVID BOYLE, Appellant, Pro Se
MEGAN A. HAMMOND, Attorney for Appellee
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WELBAUM, P.J.
{¶ 1} Appellant, David Boyle, appeals pro se from a judgment of the Greene
County Court of Common Pleas denying his “Motion Pursuant to Criminal Rule 52(B)
Plain Error.” For the reasons outlined below, the judgment of the trial court will be
affirmed.
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Facts and Course of Proceedings
{¶ 2} The history of Boyle’s case has been addressed by this court numerous times
and is summarized as follows in State v. Boyle, 2d Dist. Greene No. 2022-CA-19, 2022-
Ohio-2887 (“Boyle IV”):
“In 2013, Boyle was indicted on 16 counts of rape involving his
daughter. Following negotiations, Boyle entered a plea of guilty to six
counts of rape in exchange for the dismissal of the remaining counts. No
agreement was reached as to sentencing. The trial court sentenced Boyle
to an aggregate prison term of 40 years and designated him a Tier III sex
offender. The conviction was affirmed on appeal. State v. Boyle, 2d Dist.
Greene No. 2013-CA-43, 2014-Ohio-1271 [(‘Boyle I’)].
On June 16, 2014, Boyle filed a pro se application to reopen his
appeal pursuant to App.R. 26(B). We denied his application to reopen on
September 29, 2014. Boyle filed three additional applications to reopen in
2016, 2020, and 2021, which were all denied by this Court.
On June 24, 2018, Boyle filed a ‘Motion to Dismiss Defective
Indictment,’ in which he argued that the indictment violated his constitutional
right to due process because it contained numerous undifferentiated counts
of rape. Boyle claimed these ‘carbon-copy’ counts failed to describe
sufficiently the charges, thereby preventing him from properly preparing his
defense. The State filed a memorandum in opposition. The trial court
overruled the motion, finding that Boyle’s guilty plea waived any error
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associated with the indictment and that his claims were barred by the
doctrine of res judicata. Boyle appealed, and we affirmed the judgment of
the trial court. See State v. Boyle, 2d Dist. Greene No. 2018-CA-12, 2018-
Ohio-3284 [(‘Boyle II’)].
On September 19, 2018, Boyle filed a ‘Petition for an Evidentiary
Hearing,’ in which he alleged Miranda violations, speedy trial violations,
insufficient evidence, and ineffective assistance of counsel. The trial court
construed the motion as a petition for post-conviction relief and denied it as
untimely on October 23, 2018.
On November 2, 2021, Boyle filed a ‘Motion for Fraud Upon the Court
Pursuant to R.C. 2921.32(A).’ The State filed a memorandum in opposition
on December 1, 2021. The trial court again construed the motion as a
petition for post-conviction relief and denied it as untimely on January 6,
2022.”
This Court affirmed the trial court’s decision denying Boyle’s
November 2021 motion as an untimely and successive petition for post-
conviction relief. [State v. Boyle, 2d Dist. Greene No. 2022-CA-7, 2022-
Ohio-2165, ¶ 16-17 (“Boyle III”)].
Boyle IV at ¶ 2, quoting Boyle III at ¶ 2-6.
{¶ 3} On January 27, 2022, Boyle also filed a motion captioned “Request to
Subpoena Specific Records” wherein he sought grand jury transcripts, Miranda waivers,
sworn affidavits from his defense attorneys, text messages, Ohio Bureau of Criminal
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Investigation documents, speedy trial time waivers, and statements made by him, the
victim, and two other witnesses. Boyle explained that he wanted the records to establish
that his conviction had not been supported by the evidence and that his trial counsel had
provided ineffective assistance. Boyle also wanted the records to obtain possible newly-
discovered evidence and to show a potential Brady violation.
{¶ 4} The trial court construed Boyle’s motion as: (1) a petition for postconviction
relief, (2) a request for public records filed pursuant to R.C. 149.43, (3) a request for grand
jury transcripts, and (4) a request for court records as defined by Sup.R. 44. To the
extent that the trial court considered Boyle’s motion a petition for postconviction relief, a
request for grand jury transcripts, and a request for public records, the motion was denied.
To the extent that Boyle’s motion sought court records, the trial court did not deny the
motion but instructed Boyle to request the records from the Greene County Clerk of
Courts and to remit payment to the clerk for the cost of copying the records. Boyle
thereafter appealed, and this court affirmed the judgment of the trial court. State v.
Boyle, 2d Dist. Greene No. 2022-CA-19, 2022-Ohio-2887, ¶ 4, 7-21 (“Boyle IV”).
{¶ 5} Following this court’s decision in Boyle IV, on January 19, 2023, Boyle filed
a motion captioned “Motion Pursuant to Criminal Rule 52(B) Plain Error.” In that motion,
Boyle asserted 16 instances of plain error that he claimed had occurred during his case.
The trial court aptly described the alleged errors as follows:
Two of the errors asserted relate to plea offers extended to him, six
pertain to the consecutive sentences imposed and his belief that some of
the counts were allied offenses, and two relate to perceived failure of his
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trial attorney to file a motion or bring an alleged speedy trial violation to the
Court’s attention. Boyle also alleges plain error with respect to the
indictment, the victim’s credibility, an alleged Miranda violation, and
insufficient evidence. Boyle further asserts he wasn’t provided a
preliminary hearing and he was the victim of judicial bias.
Judgment Entry (Feb. 7, 2023), p. 2.
{¶ 6} The trial court denied Boyle’s plain-error motion on the following three
grounds: (1) the plain-error standard under Crim.R. 52(B) is only available on direct
appeal, and thus does not apply to Boyle’s motion; (2) if construing Boyle’s motion as a
petition for postconviction relief, the trial court does not have jurisdiction to consider the
motion because it is untimely and its untimeliness is not excused by R.C. 2953.23(A); and
(3) a majority of the claims asserted in the motion are barred by the doctrine of res
judicata.
{¶ 7} Boyle now appeals from the trial court’s judgment denying his plain-error
motion and raises 16 assignments of error for review.
Assignments of Error
{¶ 8} All of the assignments of error asserted in Boyle’s appellate brief are
reiterations of the 16 alleged instances of plain error that Boyle cited in the motion at
issue. In criminal cases, plain error is governed by Crim.R. 52(B), which provides that:
“Plain errors or defects affecting substantial rights may be noticed although they were not
brought to the attention of the court.” It is well established that “ ‘the plain-error standard
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in Crim.R. 52(B) is available only on direct appeal and “does not create a free-standing
procedure to obtain review otherwise.” ’ ” State v. Shabazz, 2d Dist. Greene No. 2017-
CA-11, 2017-Ohio-7199, ¶ 10, quoting State v. Strickland, 10th Dist. Franklin No. 14AP-
307, 2014-Ohio-5105, ¶ 15, quoting State v. Ayala, 10th Dist. Franklin Nos. 12AP-1071,
12AP-1072, 2013-Ohio-1875, ¶ 14. Accord State v. Hayden, 2d Dist. Montgomery No.
28611, 2020-Ohio-3818, ¶ 8. Therefore, the trial court correctly determined that Crim.R.
52(B) did not apply to Boyle’s postconviction motion and provided no remedy.
{¶ 9} “Courts may recast irregular motions [such as Boyle’s] into whatever
category necessary to identify and establish the criteria by which the motion should be
judged.” State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12,
citing State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522, citing State v.
Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131 (1997). “Under certain circumstances, it
is also appropriate for courts to recast motions that are unambiguously named and
presented under a specific rule when said rule has no application to the judgment at
issue.” State v. Clark, 2017-Ohio-120, 80 N.E.3d 1251, ¶ 12 (2d Dist.), citing Schlee.
{¶ 10} To the extent that it alleges a violation of constitutional rights, Boyle’s motion
is properly construed as a petition for postconviction relief. See State v. Ushery, 2d Dist.
Miami No. 2021-CA-28, 2022-Ohio-1695 ¶ 16, citing Reynolds at 160 (“[w]here a criminal
defendant files a motion subsequent to a direct appeal seeking to render the judgment of
conviction void in order to vacate the judgment and sentence on the basis that the
defendant’s constitutional rights were violated, the motion is properly construed as a
petition for post-conviction relief”).
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{¶ 11} When a defendant has pursued a direct appeal of his conviction, as Boyle
did in this case, a petition for postconviction relief must be filed no later than 365 days
“after the date on which the trial transcript is filed in the court of appeals in the direct
appeal of the judgment of conviction or adjudication[.]” R.C. 2953.21(A)(2). “Trial
courts lack jurisdiction to consider an untimely or successive petition for post-conviction
relief, unless the untimeliness is excused under R.C. 2953.23(A).” State v. Baker, 2d
Dist. Montgomery No. 27596, 2017-Ohio-8602, ¶ 12, citing State v. Current, 2d Dist.
Champaign No. 2012-CA-33, 2013-Ohio-1921, ¶ 16.
{¶ 12} Pursuant to R.C. 2953.23(A), the untimely filing of a petition for
postconviction relief may be excused with a showing that either: (1) the petitioner was
unavoidably prevented from discovering the facts upon which he or she relies to present
the claim, or (2) the United States Supreme Court recognizes a new federal or state right
that applies retroactively to his or her situation and the petition asserts a claim based on
that right. R.C. 2953.23(A)(1)(a). The petitioner also must show by clear and
convincing evidence that, if not for the constitutional error from which he or she suffered,
no reasonable factfinder would have found the petitioner guilty. R.C. 2953.23(A)(1)(b).
{¶ 13} “We review a denial of a petition for post[-]conviction relief for which no
hearing was held under an abuse of discretion standard.” (Citation omitted.) State v.
Clemmons, 2d Dist. Montgomery No. 28085, 2019-Ohio-2997, ¶ 18. “An abuse of
discretion occurs when the trial court’s decision is unreasonable, arbitrary, or
unconscionable.” (Citations omitted.) Id.{¶ 14} In this case, the motion at issue was an untimely petition for postconviction
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relief, as the motion was filed over eight years after this court affirmed Boyle’s conviction
on direct appeal. The motion was also a successive petition because Boyle previously
had filed several other irregular motions that the trial court denied as untimely petitions
for postconviction relief. See Boyle III and Boyle IV.
{¶ 15} In the motion at issue, Boyle failed to allege or assert any facts that would
excuse its untimeliness under the two-prong test in R.C. 2953.23(A)(1). Specifically,
Boyle failed to allege any facts that would establish he was unavoidably prevented from
discovering the facts upon which he relied to present his claims. While Boyle attempts
to satisfy this requirement in his reply brief by arguing that his “[a]ppellant counsel
withheld any and all documents from [him] for more [than] a year,” this argument was not
raised in his motion and it does not specifically account for the over eight-year delay in
filing the motion. In addition, Boyle’s motion does not assert that the United States
Supreme Court has recognized a new federal or state right that applied retroactively to
his situation. Therefore, to the extent that Boyle’s motion was construed as a petition for
postconviction relief, the trial court did not abuse its discretion when it found that it lacked
jurisdiction to consider the motion due to its untimeliness.
{¶ 16} The trial court also correctly found that a majority of the claims raised in
Boyle’s motion were barred by the doctrine of res judicata. “Under the doctrine of res
judicata, a final judgment of conviction bars a convicted defendant who was represented
by counsel from raising and litigating in any proceeding except an appeal from that
judgment, any defense or any claimed lack of due process that was raised or could have
been raised by the defendant at the trial, which resulted in that judgment of conviction, or
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on an appeal from that judgment.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104(1967), paragraph nine of the syllabus. Simply stated, “res judicata bars the
consideration of issues that could have been raised on direct appeal.” State v. Shah, 2d
Dist. Montgomery No. 29685, 2023-Ohio-2328, ¶ 12, citing State v. Saxon, 109 Ohio St.3d
176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 17.
{¶ 17} In this case, most of the claims raised in Boyle’s motion concerned matters
that were contained within the trial record, and thus could have been raised in Boyle’s
direct appeal from his conviction. For example, Boyle’s motion challenged his sentence,
the indictment, the sufficiency of the evidence, the credibility of the victim, defense
counsel’s failure to file a Crim.R. 29 motion, defense counsel’s failure to notice an alleged
speedy trial violation, the lack of a preliminary hearing, and an alleged biased statement
made by the trial court judge. Because these claims could have been raised on direct
appeal, and because some of the claims had already been raised by Boyle in his prior
petitions for postconviction relief, they were all barred by the doctrine of res judicata.
{¶ 18} In sum, we find that the trial court properly denied Boyle’s motion because:
(1) the plain-error standard in Crim.R. 52(B) is only available on direct appeal, and thus
did not apply to Boyle’s motion; (2) to the extent that Boyle’s motion was a petition for
postconviction relief, the trial court lacked jurisdiction to consider the motion due to its
being an untimely and successive petition for postconviction relief; and (3) the doctrine of
res judicata barred a majority of the claims raised in the motion. For these reasons,
Boyle’s 16 assignments of error are overruled.
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Conclusion
{¶ 19} Having overruled all of Boyle’s assignments of error, the judgment of the
trial court denying Boyle’s “Motion Pursuant to Criminal Rule 52(B) Plain Error” is
affirmed.
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EPLEY, J. and LEWIS, J., concur.