State v. Bosstic

[Cite as State v. Bosstic, 2019-Ohio-1935.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 18CA3671
:
vs. :
: DECISION AND JUDGMENT
MICHAEL L. BOSSTIC, : ENTRY
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Lori J. Rankin, Chillicothe, Ohio, for Appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, Pamela C. Wells, Ross
County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
_____________________________________________________________
Smith, J.
{¶1} Michael L. Bosstic appeals the judgment entry of the Ross
County Common Pleas Court. Bosstic entered a guilty plea to one count of
theft, a violation of R.C. 2913.02 and a felony of the fifth degree. As part of
Appellant’s sentence, he was ordered to make restitution in the amount of
$7,000.00. On appeal, Bosstic asserts the trial court erred and violated his
right to due process when it held the restitution hearing in his absence.
Upon review, we find no merit to his argument. Accordingly, we overrule
the sole assignment of error and affirm the judgment of the trial court.
Ross App. No. 18CA3671 2
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} On November 17, 2017, Michael L. Bosstic, (hereinafter
“Appellant”), was indicted by a Ross County Grand Jury on one count of
theft, a violation of R.C. 2913.02. On December 8, 2017, Appellant was
arraigned and entered a not guilty plea. The arraigning judge established
bond, ordered Appellant to pretrial supervision, and ordered no contact with
Stephanie Butterbaugh and Dennis Capper, the victims of the alleged theft.
{¶3} The indictment arose from events which occurred in August
2017. Appellant posted a mobile home in the Massieville area for sale on
Facebook. Stephanie Butterbaugh contacted Appellant, and the parties
communicated through Facebook Messenger and text messages.
Butterbaugh and her friend, Dennis Capper, who both reside in Laurelville,
Ohio, arranged to meet Appellant and view the mobile home.1 The purchase
price of the mobile home was $7,000.00.
{¶4} On or about August 12, 2017, while viewing the mobile home,
Butterbaugh and Capper inquired about purchasing the property on which
the home was located. Appellant agreed to sell the land for an additional
$1,000.00. On that date, the parties gave Appellant $7,000.00 cash. The
parties arranged to meet the next day to pay Appellant the additional money.
1
Butterbaugh testified that she did not remember the exact address. Specifically, she testified “I don’t
remember the road now but in Massieville, Ohio.”
Ross App. No. 18CA3671 3
Appellant did not appear. Butterbaugh apparently made a criminal report
thereafter.
{¶5} Appellant was appointed an attorney. On June 21, 2018, he
entered a guilty plea. However, Appellant disputed the restitution amount.
Appellant claimed that $1,200.00 was the amount owed, not $7,000.00.
Appellant also requested a delay in disposition of the case because his wife
was due to give birth in September. In order to accommodate Appellant’s
request, the trial court scheduled both the sentencing hearing and the
restitution hearing for September 18, 2018. Appellant did not appear on
September 18th.
{¶6} The trial court chose to conduct the restitution hearing in
Appellant’s absence. Appellant’s counsel posed a general objection as
Appellant’s testimony was the only evidence he intended to present. The
State presented testimony from Butterbaugh, Capper, and a notary, Norma
Walker.
{¶7} Stephanie Butterbaugh identified State’s Exhibit A. She testified
the document was a notarized agreement between Appellant and her. The
terms of the document indicated “they” paid him $7,000.00 “up front,” and
that they intended to pay him the additional $1,000.00 when they received
the title, deed, and “all that.” Butterbaugh also identified State’s Exhibit B,
Ross App. No. 18CA3671 4
a photograph she took which depicted the $7,000.00 in cash she took from a
safe owned by Dennis Capper.2 State’s Exhibit D, according to
Butterbaugh, was a photocopy of a withdrawal slip from her bank, dated
August 14, 2017. The money she withdrew was $1,400.00, with which she
intended to pay Appellant the remaining $1,000.00. The extra $400.00 was
withdrawn in order to pay for title fees and associated costs.
{¶8} On cross-examination, Stephanie Butterbaugh admitted that
there was nothing in the photograph that would identify the money as being
hers. She admitted she did not get a receipt from Appellant, but she
testified, “Well, we did, the notarized agreement. That pretty [sic] was
complete.” She also acknowledged she did not remember the address of the
property. Dennis Capper’s testimony reflected that of Ms. Butterbaugh.
{¶9} Norma Walker, a notary, also identified State’s Exhibit A.
Walker testified she had known Appellant since his childhood. She further
testified that she had seen the top part of the document that Appellant had
brought to her to notarize. The top part stated, “I, Michael Bosstic, sold the
trailer and one acre of land to Stephanie A. Butterbaugh on 8/12/17 for a
total of $8,000.” Walker identified Appellant’s signature beneath and
testified that she had witnessed him sign the document. She testified that
2
Butterbaugh explained that she had received a large sum, approximately $20,000.00 in back pay from
Social Security several years prior. She had spent a portion of the money, and she gave Capper the
remaining amount to keep for her in his safe.
Ross App. No. 18CA3671 5
she had not seen the bottom part that said, “Stephanie Butterbaugh paid
$7,000 down today and will pay the remaining $1,000 tomorrow. That
wasn’t on there when I notarized it.” Walker testified that she saw
Appellant sign the document but did not see Butterbaugh sign it. On cross-
examination Walker testified that Appellant was not sure if the sale was
going through and he planned to bring the document back to have the buyers
sign. That did not occur. Walker also acknowledged that she did not
witness the money transaction. The State’s exhibits were admitted into
evidence.
{¶10} At the conclusion of the State’s evidence, Appellant still had
not appeared. Defense counsel requested a continuance of the hearing. The
trial court overruled the oral motion. The trial court found that the amount
of restitution requested had been proven by a preponderance of the evidence.
A bench warrant was issued for Appellant’s arrest.
{¶11} Appellant was eventually arrested on the warrant and brought
before the court for sentencing on October 16, 2018. Defense counsel again
objected to the restitution amount. Appellant addressed the court as follows:
“My wife, you can see here today in the Courtroom, she’s
actually outside there. She’s passed [sic] her due date, that’s
why you actually gave me the extension for until September
18th, for her to be, for, our due date was September 11th. She
went passed [sic] that. They went and seen [sic] her at Berger
Hospital, she has paperwork on that, when they could, I called
Ross App. No. 18CA3671 6
the secretary for my defender, or for my, for my attorney’s
office and let them know I was on my way. I got back to
Chillicothe a little after four that day and you guys was [sic]
already gone. I know I should have come and turned myself in
the next day and explained what had happened and what not I,
that was my fault.”
{¶12} The trial court imposed a sentence of eight months in prison, to
be served concurrent to another prison sentence.3 The trial court also
ordered restitution in the amount of $7,000.00 be paid to the victims.
{¶13} This timely appeal followed. Where pertinent, additional facts
are set forth below.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED IN VIOLATION OF MR.
BOSSTIC’S RIGHT TO DUE PROCESS OF LAW UNDER
THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND ARTICLE 1
SECTION 16 OF THE OHIO CONSTITUTION BY
OVERRULING MR. BOSSTIC’S OBJECTION TO
HOLDING A RESTITUTION HEARING IN ABSTENTIA
AND DENYING A CONTINUANCE OF THE HEARING.”
A. STANDARD OF REVIEW
{¶14} While Appellant frames his assignment of error in
terms of a due process violation, in actuality, he is challenging the trial
court’s decision denying a continuance of the restitution hearing. We
3
As explained in State v. Rutherford, 4th Dist. Pike No. 17CA883, 2018-Ohio-2638, at fn. 4, and In re
Helfrich, 5th Dist. Licking No.13CA20, 2014-Ohio-1933, at ¶35, we may take judicial notice of the Ross
County Clerk of Courts website which reflects that Appellant was to serve his sentence concurrent with
Ross County Case No. 15CR400. See http://eaccess.co.ross.oh.us/eservices/search.page.3, accessed March
20, 2019.
Ross App. No. 18CA3671 7
observe that under R.C. 2929.18(A)(1), a trial court must “hold a hearing on
restitution if the victim, offender, or survivor disputes the amount.” State v.
Blay, 10th Dist. Franklin No. 11AP-245, 2012-Ohio-62, at ¶12, quoting,
State v. Lamere, 3rd Dist. Allen No. 1–07–11, 2007-Ohio-4930, ¶10.
Implicit within this right to a hearing is the fundamental right to due process
at that hearing. See Fuentes v. Shevin, 407 U.S. 67, 80, 92 S. Ct. 1983, 1994
(1972). While the concept of due process may be flexible and amorphous, at
a minimum, procedural due process requires an opportunity to be heard.
State v. Cowan, 103 Ohio St. 3d 144, 2004-Ohio-4777, citing Boddie v.
Connecticut, 401 U.S. 371, 91 S. Ct. 780 (1971). It is axiomatic that this
opportunity to be heard must be granted in a meaningful manner. Armstrong
v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191 (1965).
{¶15} Furthermore, “[a]n appellate court must not reverse the
denial of a continuance unless there has been an abuse of discretion.” State
v. Neal, 4th Dist. Lawrence Nos. 14CA31, 14CA32, 2015-Ohio-5452, at
¶75, quoting, State v. Unger, 67 Ohio St. 2d 65, 67, 423 N.E.2d 1078 (1981),
citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 849 (1964) and
State v. Bayless, 48 Ohio St. 2d 73, 101, 357 N.E.2d 1035 (1976). “ ‘[A]buse
of discretion’ [means] an ‘unreasonable, arbitrary, or unconscionable use of
discretion, or * * * a view or action that no conscientious judge could
Ross App. No. 18CA3671 8
honestly have taken.’ ” State v. Kirkland, 140 Ohio St. 3d 73, 2014-Ohio-
1966, 15 N.E.3d 818, ¶67, quoting State v. Brady, 119 Ohio St. 3d 375,
2008-Ohio-4493, 894 N.E.2d 671, ¶23. “A decision is unreasonable if there
is no sound reasoning process that would support that decision. It is not
enough that the reviewing court, were it deciding the issue
de novo, would not have found that reasoning process to be persuasive,
perhaps in view of countervailing reasoning processes that would support a
contrary result.” AAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St. 3d 157, 161, 553 N.E.2d 597 (1990). We
are mindful, however, that no court has the authority, within its discretion, to
commit an error of law. State v. Landrum, 4th Dist. Ross No. 17CA3607,
2018-Ohio-1280, at ¶10, citing, State v. Boone, 2017-Ohio-843, 85 N.E.3d
1227, (10th Dist.), ¶9, citing State v. Moncrief, 10th Dist. Franklin No.
13AP-391, 2013-Ohio-4571, ¶7. See also 2-J Supply Co. Inc. V. Garrett &
Parker, LLC, 4th Dist. Highland No. 13CA29, 2015-Ohio-2757, ¶9.
B. LEGAL ANALYSIS
{¶16} Appellant asserts that his attorney’s general objection to
the trial court’s decision to proceed with the restitution hearing, in
Appellant’s absence, was in effect a motion to continue the hearing so
that he could not only be present but also present evidence. Appellant
Ross App. No. 18CA3671 9
points out that the transcript reflects that on the hearing date he had
contacted his attorney’s office and advised he was on his way to the
hospital, which would not be an unusual occurrence in his particular
family situation. Appellant also points out no previous continuances
had been granted.4 However, Appellant contends that denying a
continuance when the amount of $7,000.00 was at issue deprived
Appellant of his due process right to be heard. Appellant requests the
trial court’s order of restitution be vacated and the matter be remanded
for a second evidentiary hearing on restitution.
{¶17} In this case, the trial court granted Appellant’s request that the
sentencing and restitution hearings be continued in order to accommodate
Appellant and his wife with regard to the birth of their child. In open court
on June 21, 2018, at Appellant’s change of plea hearing, he received notice
of his opportunity to be heard. The date scheduled was nearly three months
away.
{¶18} Appellant chose not to attend his opportunity for a meaningful
hearing on the issue of restitution. Thus, we find no merit to his due process
argument. The issue then becomes one of the reasonableness of the court’s
4
Appellant concedes that granting a continuance would have been an inconvenience for Butterbaugh and
Capper.
Ross App. No. 18CA3671 10
decision to deny Appellant a continuance so that he could attend the
restitution hearing and present evidence.
{¶19} Appellee State of Ohio responds that the trial court did not
abuse its discretion in proceeding with the restitution hearing and denying
the motion for continuance. The State points out that Appellant failed to
appear and sufficiently explain his absence. Appellee points out:
1) The State had subpoenaed four witnesses, including the
records custodian from a local bank.
2) Appellant had called the office and indicated he would be
present by 1:30 for the 1:00 hearing, but did not arrive even
by 3:00, with no further explanation.
3) Appellant provided no documentation to support his
argument.
4) The State opposed further continuance because the matter
had already been set far out, in order to accommodate
Appellant’s child’s birth.
5) After failing to appear, Appellant did not turn himself in and
did not report to probation or comply with community
control.
6) Appellant did not cooperate with the law enforcement
officials who served the warrant on him.
{¶20} We agree with Appellee. Based on our review of the
record, we find the trial court did not abuse its discretion in denying
defense counsel’s motion for a continuance of the restitution hearing.
{¶21} “ ‘There are no mechanical tests for deciding when a
Ross App. No. 18CA3671 11
denial of a continuance is so arbitrary as to violate due process. The
answer must be found in the circumstances present in every case,
particularly in the reasons presented to the trial judge at the time the
request is denied.’ ” Neal, supra, at ¶76, quoting Unger at 67, quoting
Ungar, 376 U.S. at 589. “Weighed against any potential prejudice to
a defendant are concerns such as a court's right to control its own
docket and the public's interest in the prompt and efficient dispatch of
justice.” Id. We further observed in Neal, supra:
In evaluating a motion for a continuance, a court should
consider (1) the length of the delay requested; (2) whether other
continuances have been requested and received; (3) the
inconvenience to litigants, witnesses, opposing counsel and the
court; (4) whether the requested delay is for legitimate reasons
or whether it is dilatory, purposeful, or contrived; (5) whether
the defendant contributed to the circumstance which gives rise
to the request for a continuance; and (6) other relevant factors,
depending on the unique facts of each case.
Unger, 423 N.E.2d 1078, at 67–68.
{¶22} Considering the above factors as set forth in Unger, we observe
that Appellant’s hearing date had already been delayed at his request.
Appellant provided no supporting documentation to explain whether his
reason for failing to attend the restitution hearing was legitimate. And,
Appellant concedes that turning himself in the next day was the appropriate
course of action to take, yet he failed to do so.
Ross App. No. 18CA3671 12
{¶23} We also observe the well-established principle that a court has
the right to control its own docket. Id. In this case, the matter had been
delayed approximately three months. The State had subpoenaed the victims
of Appellant’s crime, a notary, and a bank records custodian. Granting
defense counsel’s oral motion for continuance would have caused some
measure of inconvenience to the subpoenaed victims, the other witnesses
and to the court.
{¶24} We find the trial court’s denial was not arbitrary and did not
violate his due process rights. On this record, we do not think potential
prejudice to Appellant existed. Prejudice has been defined as affecting the
outcome of the proceedings. See State v. Hunt, 4th Dist. Scioto No.
17CA3811, 2018-Ohio-4183, at ¶82, (In the context of an ineffective
assistance of counsel claim, prejudice, i.e. a reasonable probability that but
for counsel’s errors, the result of the proceeding would have been different.
State v. Short, 129 Ohio St. 3d 360, 2011-Ohio-3641, 952 N.E.2d 1121,
¶113; Strickland v. Washington, 466 U.S. 688, 687, 104 S. Ct. 2052 (1984)).
Had Appellant appeared and testified at the restitution hearing, we do not
find his testimony would have changed the outcome of the hearing.
{¶25} Defense counsel acknowledged that on the hearing date,
Appellant’s testimony was all that would be presented on his behalf. While
Ross App. No. 18CA3671 13
Appellant argued vigorously in his closing argument that the victims’
testimony was “less than compelling,” and also discredited the exhibits
submitted, the trial court found as follows:
There is a recognizable minority of people in Ross County that
still do business the way they did business one hundred - a
hundred years ago. Cash is king. Receipts are frequently
unheard of or look like Exhibit A. We’ve heard the testimony
of Ms. Butterbaugh and Mr. Capper. Undisputed that the
Agreement was for $8,000. They paid $7,000 the day before
and intended to pay another $1,000 when they got the title
transferred. First of all, Exhibit A confirms and supports the
testimony of Capper and Butterbaugh that the contract was for
$8,000. Mike Bosstic signed it. It was notarized. He swore to
it. These are unsophisticated people. Stephanie Butterbaugh -
somebody wrote in an additional amount but basically it
confirms that the amount was going to be $8,000. So the
defendant confirmed by his signature that he was going to sell
the trailer and the one acre for $8,000.
{¶26} The trial court was in the best position to determine
Butterbaugh, Capper, and Walker’s credibility because the court was in the
best position to gauge their demeanor, gestures, and voice inflections, and to
use these observations to weigh credibility. See State v. Anderson, 4th Dist.
Highland No. 18CA14, 2019-Ohio-395, at ¶14. We will not second-guess
its judgment. Given that Appellant’s crime involved deception, it is unlikely
the trial court would have found his testimony compelling. Thus, it is also
unlikely that a different outcome of the restitution hearing would have
resulted even if Appellant had appeared.
Ross App. No. 18CA3671 14
{¶27} For the foregoing reasons, we find the trial court did not abuse
its discretion in denying Appellant’s oral motion for continuance and
conducting the restitution hearing in his absence. We find no merit to
Appellant’s sole assignment of error. As such, it is hereby overruled.
Accordingly, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
Ross App. No. 18CA3671 15
It is ordered that a special mandate issue out of this Court directing
the Ross County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
McFarland, J. & Hess, J.: Concur in Judgment and Opinion
For the Court,
BY: __________________________________
Jason P. Smith, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.