State v. Boyle , 2014 Ohio 1271 ( 2014 )

[Cite as State v. Boyle, 2014-Ohio-1271.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
: Appellate Case No. 2013-CA-43
Plaintiff-Appellee :
: Trial Court Case No. 2013-CR-42
v. :
:
DAVID C. BOYLE : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 28th day of March, 2014.
...........
ELIZABETH A. ELLIS, Atty. Reg. #0074332, Greene County Prosecutor’s Office, 55 Greene
Street, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
MICHAEL C. THOMPSON, Atty. Reg. #0041420, 5 North Williams Street, Dayton, Ohio 45407
Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant David C. Boyle appeals from his conviction and sentence,
following a guilty plea, on six counts of Rape. Assigned appellate counsel has filed a brief
under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),
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indicating that he has not found any potential assignments of error having arguable merit. After
independent review, neither have we. Accordingly, the judgment of the trial court is Affirmed.
I. The Negotiated Plea
{¶ 2} Boyle was charged with sixteen counts of Rape. The victim in all counts was
his daughter. The first count specified a time period from July 4, 2007, until July 3, 2010, when
Boyle’s daughter was less than thirteen years old. This count alleged that the victim was less
than thirteen years old, which meant that upon conviction, Boyle could have been sentenced to
life imprisonment. The remaining counts each specified a time period from July 5, 2010, until
January 17, 2013.
{¶ 3} Boyle agreed to plead guilty to Counts 2, 3, 4, 5, 6, and 7 of the indictment, in
exchange for the dismissal of the ten remaining counts. After Boyle pled, but before he was
sentenced, the trial court vacated that plea and took a new plea, explaining:
THE COURT: This matter has been scheduled today for a final
disposition. However, the Court, in light of a recent decision from the Second
District Court of Appeals, has had it brought to the Court’s attention that the plea,
which we originally took in this case, should be vacated for the failure to
specifically advise the Defendant of his sexual offender registration reporting
requirements.
As such, the Court will, for the record, vacate the plea previously entered
in by the Defendant in this case.
{¶ 4} Whereupon, the same plea agreement was again entered into, this time with a full
advisement by the trial court of the sexual offender registration, reporting, and notification
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requirements to which Boyle would be subject as a Tier III sex offender. In this plea colloquy,
the trial court provided a full explanation of the rights Boyle was waiving, and the effects of his
plea, just as if the prior plea hearing had not occurred. Boyle was told that he could confer with
his attorney at any time during the proceeding. The trial court ascertained that Boyle was
tendering his plea knowingly and voluntarily.
II. The Sentence
{¶ 5} The trial court already had the pre-sentence investigation report. As it told
Boyle it was going to do, if Boyle decided to plead guilty again, the trial court proceeded
immediately to the sentencing hearing. At this hearing, the victim’s written statement, in the
form of a letter to her father, was read into the record. The State asked for a maximum sentence
of 66 years. Boyle and his attorney addressed the court.
{¶ 6} The trial court imposed a sentence of ten years on each count, with the sentences
on counts 2, 3, 4, and 5 to be served consecutively, but the sentences on counts 6 and 7 to be
served concurrently, for a total prison sentence of 40 years. The trial court imposed a mandatory
term of five years of post-release control. The trial court imposed a fine of $10,000, but did not
award restitution, and did not award costs. Finally, the trial court classified Boyle as a Tier III
sex offender.
III. There Are No Potential Assignments of Error Having Arguable Merit
{¶ 7} In identifying one potential error, Boyle’s appellate counsel asserts that in order
to impose consecutive sentences, a trial court must not only make the findings required by R.C.
2929.14(C), it must also state its reasons, citing State v. Moss, 10th Dist. Franklin No. 00AP-574,
2005-Ohio-6806. At the time Moss was decided, that was the law; a trial court imposing
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consecutive sentences was required by R.C. 2929.19(B)(2) to “make a finding that gives its
reasons for” imposing consecutive sentences. State v. Comer, 99 Ohio St.3d 463,
2003-Ohio-4165, 739 N.E.2d 473, ¶ 14. Since then, State v. Foster, 109 Ohio St. 3d 1,
2006-Ohio-856, 845 N.E.2d 470, severed the findings requirement for consecutive sentences
from the statute as unconstitutional.
{¶ 8} Then, in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, the
Supreme Court of Ohio held that, as a result of Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172
L.Ed.2d 517 (2009), a requirement of judicial fact-finding for consecutive sentences would be
constitutional, should the General Assembly choose to enact one.
{¶ 9} The Ohio General Assembly took up the Supreme Court’s suggestion in Hodge,
and enacted the current version of required judicial fact-finding for consecutive sentences in R.C.
2929.14(C)(4):
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison terms
consecutively if the court finds that the consecutive service is necessary to protect
the public from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the offender's conduct and
to the danger the offender poses to the public, and if the court also finds any of the
following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed pursuant
to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under
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post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the multiple
offenses so committed was so great or unusual that no single prison term for any
of the offenses committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
offender.
{¶ 10} One of the differences between pre-Foster and post-Hodge judicial fact-finding
for consecutive sentences is that a trial court is no longer required to give its reasons for making
the required findings. There is no requirement of that nature in the present version of R.C.
2929.19, or in R.C. 2929.14(C)(4).
{¶ 11} In the case before us, the trial court made the required findings for the imposition
of consecutive sentences. We have found no potential assignments of error having arguable
merit relating to the sentence imposed by the trial court. The pre-sentence investigation report
makes it clear that Boyle’s daughter was required to service his sexual needs on a regular basis
from before she was ten years old until she was fifteen years old. In his written and oral
statements to the trial court, Boyle did not deny this. His daughter’s two-page, handwritten
victim impact statement demonstrates eloquently the emotional anguish that Boyle’s criminal
conduct has subjected her to, and the continuing adverse consequences to her.
{¶ 12} We do not clearly and convincingly find that the record does not support the
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court’s findings required for consecutive sentences. R.C. 2953.08(G)(2). Whether we employ
that same standard of review to the length of the sentences, see State v. Rodeffer, — N.E.2d —,
2013-Ohio-5759 (2d Dist.), ¶ 29, or whether we employ the abuse-of-discretion standard of
review, we find no assignment of error regarding Boyle’s sentence having arguable merit.
{¶ 13} We have performed our duty under Anders to review the record independently.
We have found no potential assignments of error having arguable merit. Accordingly, the
judgment of the trial court is Affirmed.
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FROELICH, P.J., and WELBAUM, J., concur.
Copies mailed to:
Elizabeth A. Ellis
Michael C. Thompson
David C. Boyle
Hon. Stephen Wolaver