2021 Ohio 3751
Ohio Ct. App.2021Background:
- On May 6, 2019, Boucher was found in a camper with a 7‑year‑old victim in a sexual situation that was interrupted before penetration.
- Boucher had prior convictions (two counts of aggravated rape in Tennessee, 1986) substantially similar to Ohio first‑degree rape.
- On July 27, 2020, Boucher pleaded guilty by bill of information to one count of attempted rape (second‑degree felony); the plea included the prior‑felony specification.
- Because of his prior convictions, R.C. 2929.13(F)(6) mandated a prison term; on August 18, 2020 the court imposed an 8–12 year sentence and Tier III sex‑offender classification.
- The trial court conducted a Crim.R. 11 plea colloquy, discussed maximum penalty, post‑release control, and constitutional rights, and considered R.C. 2929.11/2929.12 sentencing factors and the PSI.
- Appellate counsel filed an Anders brief asserting no non‑frivolous issues; the court performed an independent review and affirmed the conviction and sentence.
Issues:
| Issue | State's Argument | Boucher's Argument | Held |
|---|---|---|---|
| Whether the plea was knowing, intelligent, and voluntary under Crim.R. 11 | Trial court complied with Crim.R.11; court personally addressed defendant and explained rights, penalties, and consequences | (No pro se brief filed) Any contention would be that the plea was not knowing/voluntary | Court found full compliance with Crim.R.11; plea was knowing, intelligent, voluntary; no non‑frivolous issue |
| Whether appellate review was sufficient after counsel filed an Anders brief | Anders brief followed; appellate court must independently review the record for frivolousness | Counsel or appellant could argue Anders brief inadequate or issues overlooked | Court performed independent Anders/Penson review and found no non‑frivolous issues |
| Whether the mandatory sentence was contrary to law or unsupported by the record (R.C. 2953.08(G)(2)) | Sentence was mandatory under the prior‑felony specification and within statutory range; court considered statutory factors | Could argue sentence excessive or unsupported | Court concluded sentence was within statutory authority, supported by the record, and not contrary to law |
| Whether pre‑plea events preserved any appellate claim despite plea waiver | Plea waives appealable errors unless they precluded a knowing, voluntary plea | Any claim that pre‑plea errors prevented a valid plea | Court found no pre‑plea errors that would have nullified the plea; waiver applies |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (requirement for counsel to file brief when appeal deemed frivolous and for court to conduct independent review)
- Penson v. Ohio, 488 U.S. 75 (appellate court’s obligation to perform independent review after Anders brief)
- Boykin v. Alabama, 395 U.S. 238 (plea must be voluntary to satisfy due process)
- State v. Dangler, 162 Ohio St.3d 1 (trial court must ensure defendant understands consequences of plea; distinction between constitutional and nonconstitutional advisements)
- State v. Clark, 119 Ohio St.3d 239 (trial courts urged to literally comply with Crim.R.11)
- State v. Nero, 56 Ohio St.3d 106 (prejudice test for Crim.R.11 noncompliance)
- State v. Marcum, 146 Ohio St.3d 516 (appellate standard of review for felony sentences under R.C. 2953.08(G)(2))
- State v. Mathis, 109 Ohio St.3d 54 (trial court must consider statutory sentencing policies when imposing sentence)