State v. Bolton

[Cite as State v. Bolton, 2016-Ohio-5706.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103628
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TREVOR BOLTON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-10-537424-A
BEFORE: Celebrezze, J., Keough, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: September 8, 2016
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
BY: Paul Kuzmins
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Trevor Bolton, brings this appeal challenging the trial
court’s sentence for rape, kidnapping, gross sexual imposition, and having weapons while
under disability. Specifically, appellant argues that the trial court erred by imposing
consecutive sentences, and that the trial court erred by imposing a five-year prison term
for having weapons while under disability. Furthermore, appellant argues that the trial
court erred by denying his motion to dismiss based on the unjustifiable delay between
remand and resentencing and his motion for DNA testing. After a thorough review of
the record and law, this court affirms.
II. Factual and Procedural History
{¶2} The Cuyahoga County Grand Jury returned a seven-count indictment
charging appellant with: Count 1 — aggravated burglary, in violation of R.C.
2911.11(A)(2), with one- and three-year firearm specifications; Count 2 — kidnapping, in
violation of R.C. 2905.01(A)(4), with one- and three-year firearm specifications and a
sexual motivation specification; Counts 3-5 — rape, in violation of R.C. 2907.02(A)(2),
with one- and three-year firearm specifications; Count 6 — gross sexual imposition, in
violation of R.C. 2907.05(A)(1); and Count 7 — having weapons while under disability,
in violation of R.C. 2923.13(A)(3). Appellant pled not guilty to the indictment.
{¶3} During the pretrial proceedings, appellant filed three motions: (1) a motion to
dismiss the indictment based on preindictment delay, (2) a motion to suppress the victim’s
identification of appellant from a photo array, and (3) a motion to suppress evidence
obtained from DNA samples taken from appellant. The trial court denied all three
motions. Appellant elected to try Count 7 to the bench; Counts 1 through 6 were tried to
the jury. Appellant’s trial commenced on November 30, 2010. At the close of trial, the
jury found appellant not guilty of Counts 1, 3, and 4, all of the firearm specifications, and
the sexual motivation specification; the jury found appellant guilty of Counts 2, 5, and 6.
The trial court found appellant guilty of Count 7. The trial court ordered a presentence
investigation report and set the matter for sentencing.
{¶4} On January 6, 2011, the trial court sentenced appellant to an aggregate prison
term of 16 and one-half years: ten years on the kidnapping and rape counts to be served
concurrently, 18 months on the gross sexual imposition count, and five years on the
having weapons while under disability count to be served consecutively to each other and
consecutively to the rape and kidnapping counts. The trial court ordered appellant’s
sentence to run concurrently with his sentence in Cuyahoga C.P. No. CR-10-537277-A.1
The trial court classified appellant under the Adam Walsh Act as a Tier III sex offender,
requiring lifetime registration.
1 Appellant pled guilty to drug trafficking, in violation of R.C. 2925.03(A)(2); drug possession, in
violation of R.C. 2925.11(A); and possessing criminal tools, in violation of R.C. 2923.24(A). The
trial court sentenced appellant to a prison term of six months.
{¶5} In State v. Bolton, 8th Dist. Cuyahoga No. 96385, 2012-Ohio-169 (“Bolton
I”), this court affirmed appellant’s convictions, but remanded the matter to the trial court
for merger of, and resentencing on, the kidnapping and gross sexual imposition
convictions. Id. at ¶ 97. Furthermore, this court instructed the trial court on remand to
“reclassify appellant in accordance with Megan’s Law[,]” rather than S.B. 10 and the
Adam Walsh Act. Id. at ¶ 103.
{¶6} On September 27, 2012, the trial court held a resentencing hearing. The trial
court merged the kidnapping and gross sexual imposition counts, and the state elected to
sentence appellant on the gross sexual imposition count. The trial court resentenced
appellant to the same prison term that it had previously imposed: ten years on the rape
count, 18 months on the gross sexual imposition count, and five years on the having
weapons while under disability count. The trial court ordered the gross sexual
imposition and having weapons while under disability counts to run consecutively to one
another and consecutively to the rape count for a total prison term of 16 and one-half
years. The trial court designated appellant as a sexually oriented offender under Megan’s
Law, requiring annual registration for ten years.
{¶7} In State v. Bolton, 8th Dist. Cuyahoga No. 99137, 2013-Ohio-2467 (“Bolton
II”), appellant challenged the sentence imposed at resentencing. Specifically, appellant
argued that the trial court
erred by refusing to conduct a de novo resentencing on all counts; that the
court was legally barred from imposing consecutive sentences and in any
event failed to make the requisite findings for doing so; that the court
should have applied statutory changes to reduce [appellant’s] sentence for
having a weapon under disability; and that the court failed to consider
[appellant’s] present circumstances when it resentenced him.
Id. at ¶ 1. This court concluded that the trial court could not conduct a de novo
resentencing on all counts and that the trial court lacked the authority to resentence
appellant on the having weapons while under disability count. Id. at ¶ 7. Rather, this
court concluded that under State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951
N.E.2d 381, the trial court could only resentence appellant on the gross sexual imposition
count. Id. at ¶ 6. This court explained that the gross sexual imposition count “was the
only sentence affected by the remand necessitated by the allied offenses error.” Id.
Furthermore, this court concluded that although the trial court had the authority to impose
consecutive sentences, the trial court did not make any of the findings required under
R.C. 2929.14(C)(4). Id. at ¶ 14. This court remanded the matter to the trial court for
further proceedings. Id. at ¶ 15.
{¶8} On May 29, 2015, appellant filed the following pro se motions: (1) a motion
for DNA testing, (2) a motion to dismiss for delay in sentencing, (3) a motion for an
evidentiary hearing, (4) a motion for relief from judgment, (5) a motion for leave to file
a delayed motion for a new trial, (6) a motion for a new trial, and (7) a memorandum in
support of allocution.
{¶9} On September 16, 2015, the trial court held a hearing to resentence appellant
and to address his pro se motions. The trial court denied all seven of appellant’s
motions.
{¶10} The trial court found that R.C. 2929.14(C)(4)(b) was applicable in the
instant matter:
Under [R.C. 2929.14(C)](4)(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 will adequately reflect the seriousness of
[appellant’s] conduct. And this was a jury trial.
The [c]ourt sat through that trial, presided over that trial, and had an
opportunity to view — especially the victim’s testimony in this case and the
harm that she did suffer as a result of the various offenses that [appellant]
was found guilty of.
So I do believe that subsection C(4)(b) does apply. (Tr. 11-12.)
{¶11} Furthermore, the trial court found that appellant’s “history of criminal
conduct demonstrates that consecutive sentences are necessary to protect the public from
future crime by [appellant], and as [appellant’s counsel] has indicated, the prior crimes of
[appellant] were primarily drug related.” (Tr. 12.) Accordingly, the trial court
sentenced appellant to ten years on the rape count, 18 months on the gross sexual
imposition count, and five years on the having weapons while under disability count.
The trial court ordered the gross sexual imposition and having weapons while under
disability counts to run consecutively to one another and consecutively to the rape count,
for a total prison term of 16 and one-half years.
{¶12} Appellant filed the instant appeal assigning four errors for review:
I. The trial court erred in imposing [consecutive] sentences where the trial
court was obligated to impose concurrent sentences.
II. The trial court erred in sentencing to [sic] the appellant to the five years
for having a weapon under disability.
III. The trial court erred in denying appellant’s motion to dismiss for the
unjustifiable delay between remand and resentencing.
IV. The trial court erred in failing to grant DNA testing as requested by the
appellant.
II. Law and Analysis
A. Trial Court’s Sentence
{¶13} In his first assignment of error, appellant argues that the trial court exceeded
the scope of this court’s remand in Bolton II. Specifically, appellant contends that the
trial court “was only authorized to strike the imposition of consecutive sentences and
impose concurrent terms of incarceration.”
{¶14} In Bolton II, this court concluded that during the September 27, 2012
resentencing hearing, the trial court “did not make any of the findings required under R.C.
2929.14(C)(4) before ordering consecutive sentences.” Id. at ¶ 14. Accordingly, this
court reversed the trial court’s imposition of consecutive sentences and remanded the
matter to the trial court. However, this court did not specifically instruct the trial court
on remand to either consider whether consecutive sentences were appropriate under R.C.
2929.14(C)(4), conduct a de novo resentencing hearing, or, as appellant suggests, to
impose concurrent sentences.
{¶15} Appellant argues that “when a trial court fails to properly impose
consecutive sentences the sentences must be run concurrently.” In support of his
argument, appellant directs this court to State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, 16 N.E.3d 659. In Bonnell, the Ohio Supreme Court held:
if the trial court does not make the factual findings required by R.C.
2929.14(C)(4), then “a prison term, jail term, or sentence of imprisonment
shall be served concurrently with any other prison term, jail term, or
sentence of imprisonment imposed by a court of this state, another state, or
the United States.” R.C. 2929.41(A). Thus, judicial fact-finding is once
again required to overcome the statutory presumption in favor of concurrent
sentences.
Id. at ¶ 23. Appellant’s argument is misplaced.
{¶16} In State v. Nia, 2014-Ohio-2527, 15 N.E.3d 892 (8th Dist.), this court,
sitting en banc, held that when a trial court fails to make the requisite statutory findings to
support the imposition of consecutive sentences, “the trial court is limited on remand to
only the question raised regarding the required findings pursuant to R.C. 2929.14(C)(4) to
justify consecutive sentences.” Id. at ¶ 22.
{¶17} After reviewing the record, we cannot say that the trial court exceeded the
scope of this court’s remand in Bolton II. Although this court did not explicitly instruct
the trial court to do so, the proper remedy when a trial court imposes consecutive
sentences without making the requisite statutory findings is to vacate the sentence and
remand the matter to the trial court for the limited purpose of considering whether
consecutive sentences are appropriate under R.C. 2929.14(C)(4) and to make the
necessary findings. State v. Vargas, 8th Dist. Cuyahoga No. 101796, 2015-Ohio-2856, ¶
15, citing Nia at ¶ 28. This court’s holding in Bolton II neither instructed nor obligated
the trial court to impose concurrent sentences on remand. Accordingly, appellant’s first
assignment of error is overruled.
{¶18} In his second assignment of error, appellant argues that the trial court erred
by imposing a five-year prison sentence for having weapons while under disability.
Specifically, appellant contends that the trial court should have sentenced him under R.C.
2929.14(A)(3)(b), under which the maximum sentence for felonies of the third degree is
36 months. We disagree.
{¶19} Appellant raised this argument in Bolton II. This court rejected the
argument, concluding that because the having weapons while under disability offense was
not the subject of the reversal in Bolton I, the trial court “had no authority to consider
whether to resentence [appellant] on the weapons disability count based on certain
statutory changes to prison terms for third degree felonies under R.C. 2929.14(A)(3)(b).”
Bolton II at ¶ 7. Res judicata bars the relitigation of an issue already decided. Russell v.
Mitchell, 84 Ohio St.3d 328, 329, 703 N.E.2d 1249 (1999). This court’s holding in
Bolton II remains the law of the case. State v. Davis, 139 Ohio St.3d 122,
2014-Ohio-1615, 9 N.E.3d 1031, ¶ 27 (the decision of a reviewing court in a case remains
the law of that case on the legal questions involved for all subsequent proceedings in the
case at both the trial and reviewing levels).
{¶20} The limited purpose of the trial court’s September 16, 2015 resentencing
hearing was to consider whether consecutive sentences were appropriate under R.C.
2929.14(C)(4) and, if so, to make the necessary findings. The trial court was neither
obligated nor authorized to resentence appellant on the having weapons while under
disability count. Accordingly, appellant’s second assignment of error is overruled.
B. Crim.R. 32(A)
{¶21} In his third assignment of error, appellant argues that his sentence should be
vacated based on the unjustifiable delay between remand and resentencing.
{¶22} Crim.R. 32(A) provides, in relevant part, that “a sentence shall be imposed
without unnecessary delay.” However, this court has repeatedly held that the
requirement under Crim.R. 32(A) that a sentence be imposed without unnecessary delay
does not apply to resentencing. Nia, 2014-Ohio-2527, 15 N.E.3d 892, at ¶ 30, citing
State v. Harris, 8th Dist. Cuyahoga No. 95010, 2011-Ohio-482; State v. Coleman, 8th
Dist. Cuyahoga No. 94866, 2011-Ohio-341; State v. Craddock, 8th Dist. Cuyahoga No.
94387, 2010-Ohio-5782; State v. Huber, 8th Dist. Cuyahoga No. 85082, 2005-Ohio-2625.
{¶23} This court, in reviewing a delay in resentencing, must consider whether the
delay prejudiced the defendant. State v. McQueen, 8th Dist. Cuyahoga No. 91370,
2009-Ohio-1085, ¶ 5. Whether the defendant suffered prejudice as a result of the delay
depends on the facts of the case. Id. For example, this court has found prejudice when
the defendant was released on bond during the delay and was subsequently ordered to
return to prison to serve an additional two months after the length of his sentence had
lapsed. Euclid v. Brackis, 135 Ohio App.3d 729, 735 N.E.2d 511 (8th Dist.1999).
However, where a defendant was incarcerated during the length of delay and would not
have been eligible for release during that time period, this court did not find prejudice.
Huber at ¶ 10.
{¶24} In the instant matter, this court’s judgment in Bolton II was issued on June
13, 2013, and the trial court resentenced appellant on September 16, 2015. Thus,
approximately 27 months elapsed between remand and resentencing.
{¶25} Despite the delay, we cannot find prejudice to appellant based on the facts
of this case. At the original 2011 sentencing hearing, the trial court sentenced appellant
to a prison term of ten years on the rape count and five years on the having weapons
while under disability count. These sentences were not disturbed by either Bolton I or
Bolton II. Even if the trial court ordered appellant to serve these counts concurrently,
which it did not, appellant would not have been eligible for release during the 27-month
delay. Accordingly, appellant was not prejudiced by the delay. Appellant’s third
assignment of error is overruled.
C. Motion for DNA Testing
{¶26} In his fourth assignment of error, appellant argues that the trial court erred
by denying his motion for DNA testing.
{¶27} This court reviews a trial court’s decision granting or denying an application
for DNA testing for an abuse of discretion. R.C. 2953.74(A). An abuse of discretion
implies that the trial court’s attitude is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶28} In his motion for DNA testing, appellant specifically requested
access to the state DNA database maintained pursuant to [R.C.] 109.573 by
the [Bureau of Criminal Investigation], to seek any and/or all profiles which
share 9 alleles/loci with either [appellant’s] own DNA sample, or the
biological samples obtained as evidence in this case, to include the two
unknown donors as well as the victim.
Appellant contends that the need for DNA testing and expert review of the DNA evidence
is “clearer” now than at the time of his trial because “potential problems with DNA
evidence [have] become more and more apparent.” Furthermore, appellant appears to
suggest that further DNA testing is required because his DNA was only a partial match to
the DNA profile recovered from the victim’s underwear. Appellant references a study in
which two unrelated individuals “shared the same two markers at nine of 13 places in a
standard DNA profile.”
{¶29} R.C. 2953.74(A) provides:
[i]f an eligible offender submits an application for DNA testing under
section 2953.73 of the Revised Code and a prior definitive DNA test has
been conducted regarding the same biological evidence that the offender
seeks to have tested, the court shall reject the offender’s application.
R.C. 2953.71(U) defines a definitive DNA test as follows:
a DNA test that clearly establishes that biological material from the
perpetrator of the crime was recovered from the crime scene and also
clearly establishes whether or not the biological material is that of the
eligible offender. A prior DNA test is not definitive if the eligible offender
proves by a preponderance of the evidence that because of advances in
DNA technology there is a possibility of discovering new biological
material from the perpetrator that the prior DNA test may have failed to
discover. Prior testing may have been a prior “definitive DNA test” as to
some biological evidence but may not have been a prior “definitive DNA
test” as to other biological evidence.
{¶30} After reviewing the record, we cannot say that the trial court abused its
discretion in denying appellant’s motion for DNA testing. We initially note that
appellant failed to comply with R.C. 2953.73(A), which requires the applicant to “submit
an application for DNA testing on a form prescribed by the attorney general for this
purpose[.]” Appellant did not submit his request for DNA testing on the proper form.
Although appellant filed his motion for DNA testing pro se, pro se litigants are presumed
to have knowledge of the law and of correct legal procedure, and are held to the same
standard as all other litigants. Loreta v. Allstate Ins. Co., 8th Dist. Cuyahoga No. 97921,
2012-Ohio-3375, ¶ 8.
{¶31} Furthermore, the record reflects that definitive DNA test results were
admitted at trial regarding the DNA profile recovered from the victim’s underwear. In
Bolton I, this court summarized the trial testimony of Melissa Zielaskiewicz, a forensic
scientist with the Bureau of Criminal Investigation:
[a]t trial, Melissa Zielaskiewicz testified that, in comparing the DNA
sample from appellant to the DNA profile found in [the victim’s]
underwear, she could not exclude appellant as the source of the DNA.
Zielaskiewicz explained that the expected frequency of occurrence of the
partial DNA profile from the sperm cutting from [the victim’s] underwear is
1 in 1,481,000,000,000 unrelated individuals.
Id. at ¶ 90. Because there was a prior definitive DNA test, the trial court did not abuse
its discretion in denying appellant’s motion for DNA testing. Appellant’s fourth
assignment of error is overruled.
III. Conclusion
{¶32} The trial court did not err in imposing consecutive sentences during the
September 16, 2015 resentencing hearing. The trial court was not required to sentence
appellant on the having weapons while under disability count under R.C.
2929.14(A)(3)(b), and appellant’s second assignment of error is barred by res judicata.
Because appellant was not prejudiced by the delay between remand and resentencing, the
trial court did not err in denying appellant’s motion to dismiss. Finally, based on the
prior definitive DNA testing, the trial court did not err in denying appellant’s motion for
DNA testing.
{¶33} Judgment affirmed.
It is ordered that appellee recover from appellant 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 convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EILEEN A. GALLAGHER, J., CONCUR