State v. Boyd , 2014 Ohio 1081 ( 2014 )

[Cite as State v. Boyd, 2014-Ohio-1081.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100225
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROSCOE BOYD
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; REVERSED IN PART
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-563247
BEFORE: Kilbane, P.J., Blackmon, J., and Stewart, J.
RELEASED AND JOURNALIZED: March 20, 2014
ATTORNEY FOR APPELLANT
John H. Lawson
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Ronni Ducoff
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:
{¶1} Defendant-appellant, Roscoe Boyd, appeals from his guilty plea and the
sentence imposed in connection with his convictions for sexual battery, abduction, and
gross sexual imposition. Through counsel, he assigns the following errors for our
review:
I. The trial court denied Appellant due process of law and violated
Crim.R. 11(C)(2)(c) by failing to conduct a colloquy with Appellant
prior to accepting his guilty plea from which the trial court could
determine that Appellant understood that by entering a guilty plea he
was waiving his constitutional rights to confront the witnesses
against him, have compulsory process for obtaining witnesses in his
favor, to require the state to prove his guilt beyond a reasonable
doubt, and to refuse to be a witness against himself.
II. The trial court erred by failing to attach the “explanation of duty to
register as a sex offender” to the nunc pro tunc order dated January
16, 2013.
{¶2} Defendant also raises pro se assignments of error in which he contends that
the bail ordered by the trial court was excessive, that there was a lack of proof that he
committed the offenses, that the trial court was biased against him, and that his trial
counsel was ineffective.
{¶3} Having reviewed the record and the controlling case law, we affirm the
convictions; however, we conclude that the sentencing journal entry does not properly
reflect the sentence announced in open court, and therefore, we reverse and remand for
resentencing.
{¶4} On June 27, 2012, defendant was indicted pursuant to a seven-count
indictment in connection with the alleged sexual abuse of a child who is less than 13
years old from 2008 to 2012. Count 1 charged him with rape and contained a
furthermore specification alleging that the victim was less than ten years old at the time of
the offense. Count 2 charged him with kidnapping with a sexual motivation
specification. Count 3 charged him with disseminating matter harmful to juveniles, with
a furthermore clause alleging that the juvenile was under the age of 13. Counts 4-7
charged defendant with gross sexual imposition.
{¶5} Defendant pled not guilty to the charges. He subsequently reached a plea
agreement with the state, and on October 10, 2012, he pled guilty to sexual battery, (a
lesser charge of Count 1), abduction with a sexual motivation specification (a lesser
charge of Count 2), and one count of gross sexual imposition. The remaining charges
were dismissed.
{¶6} On November 13, 2012, the trial court sentenced defendant. The court
determined that the sexual battery and abduction convictions would merge for purposes of
sentencing, and the state elected to proceed to sentencing for battery, a Tier III offense.
(Tr. 33.) In open court, the judge stated that defendant would serve a total of eight years,
which included five years for abduction and three years for gross sexual imposition. (Tr.
40.) In the journal entry of the same date, the trial court sentenced defendant to a total of
eight years of imprisonment and five years of postrelease control sanctions, but because
of a clerical error, incorrectly provided that a five-year sentence for abduction and
eight-year sentence for gross sexual imposition were to run consecutively. This entry
indicated that defendant had been advised of the Tier III reporting requirements, and the
Explanation of Reporting Requirements form required by R.C. 2950.03 was attached to
the sentencing entry.
{¶7} On November 30, 2012, the trial court later issued a nunc pro tunc order.
The nunc pro tunc order provided that the court was proceeding to sentencing on the
abduction and gross sexual imposition convictions and that the two terms would run
concurrently. This entry again set forth an eight-year sentence for gross sexual
imposition and again indicated that defendant had been advised of the Tier III reporting
requirements; however, the Explanation of Reporting Requirements form was not
attached to the sentencing entry.
{¶8} On January 16, 2013, the court issued a second nunc pro tunc order that
restated the sentence announced in open court, i.e., a total prison term of eight years,
which included five years for abduction, consecutive to three years for gross sexual
imposition. This entry indicated that defendant had been advised of the Tier III reporting
requirements, but the Explanation of Reporting Requirements form was not attached to
the sentencing entry.
Crim.R. 11
{¶9} In considering whether a guilty plea was entered knowingly, intelligently,
and voluntarily, an appellate court examines the totality of the circumstances through a de
novo review. State v. Siler, 11th Dist. Ashtabula No. 2010-A-0025, 2011-Ohio-2326, ¶
12.
{¶10} Crim.R. 11(C)(2) governs guilty pleas and provides:
In felony cases, the court may refuse to accept a plea of guilty or a plea of
no contest, and shall not accept a plea of guilty or no contest without first
addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum penalty
involved, and, if applicable, that the defendant is not eligible for probation
or for the imposition of community control sanctions at the sentencing
hearing.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the court,
upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to jury trial,
to confront witnesses against him or her, to have compulsory process for
obtaining witnesses in the defendant’s favor, and to require the state to
prove the defendant’s guilt beyond a reasonable doubt at a trial at which the
defendant cannot be compelled to testify against himself or herself.
{¶11} In order to determine whether a criminal defendant knowingly, intelligently,
and voluntarily entered a plea, we review the record to determine whether the trial court
adequately advised the defendant of his constitutional and nonconstitutional rights set
forth in Crim.R. 11(C). State v. Nero, 56 Ohio St.3d 106, 564 N.E.2d 474 (1990).
Constitutional Rights
{¶12} The trial court must strictly comply with those provisions of Crim.R. 11(C)
that relate to the waiver of constitutional rights. State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, syllabus; State v. Stewart, 51 Ohio St.2d 86, 88-89,
364 N.E.2d 1163 (1977); State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981), at
paragraph one of the syllabus. “Strict compliance” does not require an exact recitation of
the precise language of the rule, but instead focuses on whether the trial court explained
or referred to the right in a manner reasonably intelligible to that defendant. Id.{¶13} Also with regard to the trial court’s duty to explain the defendant’s
constitutional rights, the court must require that the defendant be advised of the right to a
jury trial, the right to confront one’s accusers, the privilege against compulsory
self-incrimination, the right to compulsory process to obtain witnesses, and the right to
require the state to prove guilt beyond a reasonable doubt. Veney at ¶ 18. The court must
determine that the defendant understands that by the plea the defendant is waiving the
rights to a jury trial and to confront witnesses. Id. Nonetheless, “the trial court is not
required to stop after each right and ask the defendant whether he understands the right
and knows that by pleading guilty, he is effecting a waiver of it.” Ballard at 479-480;
State v. Compton, 11th Dist. Lake No. 97-L-010, 1998 Ohio App. LEXIS 6361 (Dec. 31,
1998).
{¶14} In this matter, the trial court’s colloquy provided:
THE COURT: You have fine counsel, so I’m confident that he has
carefully gone over your trial rights and your Constitutional rights. Mr.
Boyd, I’m going to independently go over your rights and make sure that
you understand them. If you have any questions about your rights or
anything that I say, will you let me know that?
THE DEFENDANT: Yes, I will, sir.
THE COURT: Mr. Boyd, do you understand you have an absolute right to
go to trial and have your case decided by either a judge or jury; do you
understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand a jury would be 12 people and they all
would have to agree upon your guilt for you to get a conviction; do you
understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that you have a right to have an attorney
represent you at trial, if you cannot afford an attorney one will be appointed
to represent you at no cost; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Mr. Boyd, do you understand that at trial you don’t have to
prove anything because the burden of proof is on the State of Ohio. The
State of Ohio must prove your guilt beyond a reasonable doubt on each and
every element of the charges against you; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that you have a right to confront the
witnesses that accuse you and to cross-examine them at trial through your
attorney?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand at trial you would be entitled to present
a defense, you could call witnesses on your behalf, and we could force the
participation of those witnesses at trial through the Court’s subpoena
power; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand at trial you could choose not to testify
in your own defense. If you chose not to testify and you remained silent,
your silence cannot be used against you in any way; do you understand that?
THE DEFENDANT: Yes, sir.
{¶15} From the foregoing, the record clearly indicates that the court tracked the
language of Crim.R. 11(C), using words reasonably intelligible to defendant, and that
defendant repeatedly indicated that he understood his rights. The record therefore
demonstrates that the trial court met its duty of strict compliance as it properly explained
defendant’s constitutional rights and that defendant understood the rights that he was
waiving. The plea was knowingly, voluntarily, and intelligently made.
{¶16} The first assignment of error advanced by counsel is without merit.
Failure to Include Copy of the Explanation of Reporting Requirements
{¶17} R.C. 2929.19(B) sets forth the notification requirements for individuals who
are sentenced to Tier III sex offenses. Under this statute, a trial court must, at the time of
sentencing, comply with the notification requirements contained in R.C. 2950.03. State
v. Baker, 4th Dist. Highland No. 11CA5, 2012-Ohio-1085, ¶ 14, citing State v. Kase, 187
Ohio App.3d 590, 2010-Ohio-2688, 932 N.E.2d 990, ¶ 25 (7th Dist.). In addition, the
trial court must include a statement of the defendant’s sex offender classification in the
judgment entry of sentencing. Kase at ¶ 29. Under R.C. 2950.03, the defendant must
“read and sign” a form setting forth the proper notice. In accordance with R.C.
2950.03(B)(3), after the offender has signed the form, the judge must certify on the form
that he or she explained the reporting requirements to the offender and the offender has
indicated an understanding of those duties. As explained in State v. Mack, 1st Dist.
Hamilton No. C-050968, 2006-Ohio-6284,
[t]he required notice is detailed. The court must provide Mack with the
notice on a form prescribed by the bureau of criminal identification and
investigation. It must have Mack read and sign the form or, if Mack
cannot read, explain the contents of the form to him and certify that he has
indicated an understanding of his duties. The court is then required to give
a copy of the form to Mack and to send a copy to the bureau of criminal
identification and investigation and the sheriff. Id. at ¶ 20 (internal
citations omitted).
Accord State v. Sheriff, 3d Dist. Logan No. 8-08-4, 2008-Ohio-5192.
{¶18} In this matter, the form was not provided when the nunc pro tunc orders
were issued.
{¶19} The record demonstrates that in open court the trial court provided notice
of defendant’s classification as a Tier III sex offender and the duties flowing from that
classification as follows:
THE COURT: All right. Now, do you also understand that — it’s my
understanding that count 1, sexual battery, by pleading guilty to that
offense, you will automatically be classified as a Tier III sex or child victim
offender; do you understand that?
THE DEFENDANT: Yes, I do.
THE COURT: Now for the gross sexual imposition, you would
automatically be classified as a Tier II, but Tier III is worse, so I’m going to
give you the rights and requirements under Tier III because that’s the most
extreme classification; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Now, and in addition to any penalty that’s
imposed by this Court, you’ll be required to immediately register with the
sheriff of the county in which you reside and must verify your registration
in person every 90 days for the rest of your life;
do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: You will also be required to notify the sheriff of the
counties in which you reside of any change in your resident address or
school or institution of higher education at least 20 days in advance of the
change and within three days after changing jobs; do you understand that?
THE DEFENDANT: Yes, I do, sir.
THE COURT: Now with respect to the Tier II, I’m just going to give you
that information because you need that information since there are different
— you’ll be both and so it might change how often you have to register, but
for Tier II offenders you must register every six months for 25 years; do you
understand that?
THE DEFENDANT: Yes, I do.
THE COURT: Now, as a Tier III and II offender the information such as
your name, photo, resident address, place of employment address, your
school address and your offense designation will be listed on an internet sex
offender and child victim offender database which will be available to the
public, and that members of the public may request e-mail notification from
the sheriff if you move to within one mile of a selected address; do you
understand that?
THE DEFENDANT: Yes, I do, sir.
THE COURT: Finally, if you fail to register or verify your registration as
required by law, you’ll be subject at a minimum to a prison sentence of 6 to
18 months; do you understand that?
THE DEFENDANT: Yes, sir.
{¶20} In the November 13, 2012 journal entry, the trial court attached the
completed “Explanation of Duties to Register as a Sex Offender or Child Victim Offender
Duties.” However, with regard to the merger of offenses, the November 30, 2012 and
January 16, 2013 nunc pro tunc journal entries fail to properly indicate that the state
elected to proceed on the sexual battery charge and instead erroneously indicate that the
state elected to proceed on the charge of abduction with a sexual motivation specification.
(Tr. 33.)
{¶21} Moreover, this error constitutes plain error, since the trial court imposed the
Tier III reporting requirements for sexual battery, R.C. 2950.01(G)(1)(a), but the other
offenses carry Tier II reporting requirements (gross sexual imposition in violation of
R.C. 2907.05(A)(4) is a Tier II offense under R.C. 2950.01(F)(1)(c)), (abduction in
violation of R.C. 2905.02(A)(1) is a Tier II offense under R.C. 2950.01(F)(1)(f)).
Further, a nunc pro tunc order may only be employed to supply clerical omissions in the
exercise of its functions and may not be used to show what the court might or should have
decided or intended to decide. State v. Straley, 4th Dist. Highland No. 12CA3,
2013-Ohio-3334.
{¶22} The second assignment of error advanced by counsel is well taken.
Therefore, we reverse and remand for resentencing.
Excessive Bail1
{¶23} In Russell v. McFaul, 8th Dist. Cuyahoga No. 82548, 2003-Ohio-1970, this
court considered a $500,000 bond imposed where the prisoner faced charges of rape of a
child under the age of 13 with force specifications, felonious sexual penetration,
attempted rape, gross sexual imposition, and kidnapping. Following a hearing on
defendant’s motion to reduce bond, the trial court continued the $500,000 bond. In
In Smith v. Leis, 106 Ohio St.3d 309, 2005-Ohio-5125, 835 N.E.2d 5, the
1
Ohio Supreme Court held that a challenge to an order requiring cash only bail was
reviewable on appeal.
refusing to grant a writ of habeas corpus, this court concluded that the trial court did not
err in setting the $500,000 bond because the court was to consider all relevant
information, including but not limited to the nature and circumstances of the offense, the
weight of the evidence, the accused’s history of flight or failure to appear, his ties to the
community, his character, and mental condition. Defendant did not challenge the bond
order, and in light of the extreme seriousness of the charges and the lack of any other
relevant information, we presume regularity.
{¶24} Defendant’s first pro se assignment of error is without merit.
Insufficient Proof
{¶25} In accordance with Crim.R. 11(B)(1), a guilty plea is a complete admission
of guilt. Therefore, by entering a guilty plea, defendant has waived the requirement that
the state prove his guilt beyond a reasonable doubt. Crim.R. 11(C)(2)(c). The guilty
plea itself provides all the necessary proof of the elements of the offense and is sufficient
evidence to support the conviction. State v. Stroub, 3d Dist. Wyandot No. 16-10-02,
2011-Ohio-169.
{¶26} Defendant’s second pro se assignment of error is without merit.
Bias of the Court
{¶27} Judicial bias is a hostile feeling or spirit of ill-will, wherein the judge has
formed a fixed anticipatory judgment. State v. Boyce, 136 Ohio St.3d 1271,
2013-Ohio-4232, 996 N.E.2d 938, ¶ 5. Due process requires that a criminal defendant be
tried before an impartial judge. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128,
767 N.E.2d 166, ¶ 34. If the record indicates that the trial was affected by judicial bias,
the remedy is a new trial. State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937
N.E.2d 97, ¶ 2.
{¶28} Here, the record fails to support defendant’s claim of judicial bias. There is
no evidence of hostility or ill-will toward defendant, no evidence of friendship or
favoritism toward the state, and no evidence that the court had a fixed anticipatory
judgment. Rather, the court was neutral and dispatched its duties in a nonpartisan
manner.
{¶29} Defendant’s third pro se assignment of error is without merit.
Ineffective assistance of Counsel
{¶30} In order to establish deficient performance, it must be shown that, under
the totality of the circumstances, counsel’s representation fell below an objective standard
of reasonableness. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80
L.Ed.2d (1984). A court “must indulge a strong presumption that counsel’s conduct falls
within a wide range of reasonable professional assistance.” Id. at 689. Debatable trial
tactics and strategies generally do not constitute deficient performance. State v. Phillips,
74 Ohio St.3d 72, 85, 1995-Ohio-171, 656 N.E.2d 643.
{¶31} In order to establish prejudice, it must be shown that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. Strickland at 688. A reasonable probability is “a probability
sufficient to undermine confidence in the outcome” of the proceeding. Id.{¶32} Within defendant’s pro se assignments of error, he has failed to delineate
counsel’s claimed error and has also failed to establish prejudice.
{¶33} Defendant’s fourth pro se assignment of error is therefore without merit.
{¶34} Convictions affirmed, sentence reversed, and remanded for resentencing.
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
PATRICIA A. BLACKMON, J., and
MELODY J. STEWART, J., CONCUR