STATE OF OHIO v. SHAWN R. BOLES
C.A. CASE NO. 25526
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
August 2, 2013
2013-Ohio-3376
T.C. NO. 00CR1576; (Criminаl appeal from Common Pleas Court)
Rendered on the 2nd day of August, 2013.
R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
SHAWN R. BOLES, #A410-417, Belmont Correctional Institute, P. O. Box 540, St. Clairsville, Ohio 43950 Defendant-Appellant
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Shawn R. Boles, filed December 13, 2012. Boles appeals from the trial court‘s “Entry Overruling Motion for
{¶ 2} This Court has previously set forth the procedural history herein in State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, 932 N.E.2d 345 (2d Dist.), ¶ 8-12, as follows:
Boles was originally charged in 2000 with оne count of improperly discharging a firearm at or into a habitation, with a firearm specification; one count of having weapons while under a disability; one count of tampering with evidence, with a firearm specification; one count of rape by force of a child under the age of 13; two counts of gross sexual imposition of a child under the age of 13; and two counts of felonious assault, with firearm specifications.
In 2001, Boles pleaded no contest to one count of discharging а firearm into a habitation, with a firearm specification, and one count of rape of a child under the age of 13 (without a force specification). He wаs found guilty and was sentenced accordingly. We reversed those convictions on appeal. State v. Boles, Montgomery App. No. 18762, 2003 WL 21213383, 2003-Ohio-2693.
On remand, the trial court initially overruled Boles‘s motion to sever the rape count from the count of improper discharge of a firearm but decided to reverse itself and sever the counts when it learned, оn the day set for trial,
that genetic testing relating to the rape charge had not been completed. Boles was convicted, following a jury trial, of the count of improper discharge of a firearm into a habitation, and he was sentenced to seven years’ imprisonment for that offense. We affirmed that conviction and sentеnce. State v. Boles, Montgomery App. No. 20730, 2005-Ohio-4490, 2005 WL 2077782. Boles was later tried on the rape charge, but that trial ended in a hung jury.
In October 2008, Boles was again tried, to a jury, on the rape charge (without a force specification, because the state agreed with Boles that the force specification was unavailable as a result of the еarlier appellate disposition). Boles chose to represent himself at this trial, but standby counsel was present at counsel table to assist Boles if the need to do so should arise. That trial ended in a conviction and a ten-year sentence, to be served consecutively to the previously imposed seven-year sentеnce for improper discharge of a firearm.
Boles was designated a Tier III sex offender pursuant to the Adam Walsh Act, and this Court affirmed his conviction on January 29, 2010. We nоte that the victim herein was Boles’ daughter.
{¶ 3} On February 10, 2012, Boles filed his “Motion for Jail Time Credit,” in which he asserted that he was entitled to “all Jail Time Credit from the time of his arrest on May 24, 2000, pursuant to
{¶ 4} In overruling Boles’ motion regarding his classification pursuant to his conviction for rape, the trial court determined that “it is appropriate for the Defendant tо be classified under S.B. 5, which was in effect when the Defendant committed the rape for which he was convicted herein.” The court further noted that it “RE-INSTATES the classification of sexually oriented offender originally imposed by this Court on March 6, 2001.”
{¶ 5} Boles asserts four assigned errors herein. His first assigned error is as follows:
“WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITS PLAIN ERROR WHERE IT DENIED APPELLANT THE JAIL TIME CREDIT FROM THE TIME OF ARREST ON MAY 24, 2000.”
{¶ 6} The jail time credit report relied upon by the trial court indicates that Boles was in the custody of the jail from May 13, 2007, until October 24, 2008, on the rape charge, and that he is entitled to 533 days of jail time credit in that mattеr. It further provides that
{¶ 7}
The department оf rehabilitation and correction shall reduce the stated prison term of a prisoner or, if the prisoner is serving a term for which there is parole eligibility, the minimum and maximum term or the parole eligibility date of the prisoner by the total number of days that the prisoner was confined for any reason arising out of the offense for which the prisoner was convicted and sentenced, including confinement in lieu of bail while awaiting trial, confinement for examination to determine the prisoner‘s competence to stand trial or sanity, and confinement while awaiting transportation to the place where the prisoner is to serve the prisoner‘s prison term.
{¶ 8} As this Court indicated in State v. Woodward, 2d Dist Montgomery No. 24483, 2012-Ohio-632, ¶ 9, “If a defendant is sеntenced to consecutive prison terms for multiple charges, jail time credit is not applied to each and every prison term as it is for concurrent sentenсes, but rather is applied but once, to the total term.
{¶ 9} Boles was confined in jail for 533 days in 2007 and 2008, as reflected in the Jail Time Credit Report adopted by the trial court, аnd that number of days arose from the
{¶ 10} We will consider Boles’ remaining assignments of error together. They are as follows:
“WHETHER THE TRIAL COURT‘S RE-INSTATEMENT OF SEXUALLY ORIENTED OFFENDER CLASSIFICATION VIOLATE THE SEPERATION OF POWERS DOCTRINE.” (Sic)
And,
“WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITS PLAIN ERROR WHERE IT RE-INSTATED THE SEXUALLY ORIENTED OFFENDER CLASSIFICATION THAT WAS FORMALLY VACATED BY THE COURT OF APPEALS.” (Sic)
And,
“WHETHER THE TRIAL COURT‘S RE-INSTATEMENT OF SEXUALLY ORIENTED OFFENDER CLASSIFICATION VIOLATE THE DOUBLE JEOPARDY CLAUSE.”
{¶ 11} As the State asserts, pursuant to State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, Boles may no longer be classified as a Tier III offender under the Adam Walsh Act. “Ohio‘s version of the federal Megan‘s Law, Section 14071, Title 42, U.S.Code, was enacted in 1996, Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, and significantly amended in 2003 by Am.Sub.S.B. No. 5 (S.B. 5), 150 Ohio Laws, Part IV, 6558.” Id., ¶ 7. Subsequently, 2007 Am. Sub. S.B. No.10 “was enacted in 2007, and is based on the federal Adam Walsh Act, Section 16901 et seq., Title 42, U.S.Code.” Id. In Williams, the Supreme Court of Ohio determined, “2007 Am.Sub.S.B. No. 10, as applied to defendants who committed sex offenses prior to its enactment, violates
{¶ 12} Since Boles committed his offense while Megan‘s Law was in effeсt, the trial court properly reclassified him as a sexually oriented offender. While the trial court indicated that it “re-instated” Boles’ original sexually oriented classification from 2001, as noted above and by Boles herein, this Court reversed his 2001 conviction and remanded the matter. Regardless, Boles remains subject to reclassification, from a Tier III offender to a
FROELICH, J. and HALL, J., concur.
Copies mailed to:
R. Lynn Nothstine
Shawn R. Boles
Hon. Barbara P. Gorman