STATE OF OHIO, PLAINTIFF-APPELLEE vs. MATTHEW BOROS, DEFENDANT-APPELLANT
Nos. 105173 and 105174
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 31, 2017
2017-Ohio-7405
BEFORE: Boyle, J., E.A. Gallagher, J., and McCormack, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case Nos. CR-16-607506-A and CR-16-608167-A
JUDGMENT: AFFIRMED
Raymond R. Froelich
2100 Salem Parkway
Westlake, Ohio 44145
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Shannon M. Musson
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Matthew Boros, appeals his conviction for one count of criminal trespass and two counts of theft. For the reasons that follow, we affirm.
I. Procedural History
{¶2} In May 2016, in Cuyahoga C.P. No. CR-16-607506, a grand jury indicted Boros for one count of breaking and entering in violation of
{¶3} Boros filed a motion for intervention in lieu of conviction. On September 13, 2016, the trial court ruled that the “motion for intervention in lieu is denied.”
{¶4} Thereafter, Boros retracted his not guilty pleas in both criminal cases in a plea-bargained package deal. Boros pleaded guilty in Cuyahoga C.P. No. CR-16-607506 to one count of criminal trespass, a fourth-degree misdemeanor, and one count of theft, a fifth-degree felony. In Cuyahoga C.P. No. CR-16-608167, Boros pleaded guilty to one count of theft, a fifth-degree felony.
{¶5} At the plea and sentencing hearings, two victims gave statements. One of
{¶6} Another victim, David, explained that he, his fiancee, and five children needed a home. He met Boros because of a house located on West 36th Street in Cleveland that was listed on Craig‘s List. David said that Boros agreed to sell the West 36th Street house to David, and he signed paperwork that he received from Boros. David said that he paid Boros $5,160, but that he never took possession of the house because Boros did not have any right to sell it. David indicated that he had to borrow some of the money to pay Boros because his income last year totaled approximately $5,000.
{¶7} In Cuyahoga C.P. No. CR 16-607506, the trial court sentenced Boros to 30 days in county jail for the criminal trespass charge and 11 months in prison for the theft charge. In Cuyahoga C.P. No. CR 16-608167, the trial court sentenced Boros to 11 months in prison. The trial court ordered the sentences in the two cases to be served
{¶8} Boros appeals from the trial court‘s judgment. He asserts the following two assignments of error:
- The trial court erred and abused its discretion in denying defendant, Boros, his request for intervention in lieu of conviction without a hearing.
- The trial court erred by imposing consecutive sentences on each felony when it failed to make adequate findings required by the Ohio Revised Code.
II. Law and Analysis
A. Intervention in Lieu of Conviction
{¶9} In his first assignment of error, Boros argues that the trial court abused its discretion when it denied his request for intervention in lieu of conviction without a hearing. Specifically, Boros contends that the trial court never ruled on his motion for intervention in lieu of conviction and that “prejudicial error results when there is no record for the appellate court to review.”
{¶10} The state disagrees and argues that
{¶11} Intervention in lieu of conviction is a procedure governed by
{¶12}
{¶13} A trial court‘s decision to deny an offender‘s request for intervention in lieu of conviction is reviewed under an abuse of discretion standard. Roome at ¶ 8. “Abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary, or unconscionable. In re C.K., 2d Dist. Montgomery No. 25728, 2013-Ohio-4513, ¶ 13, citing Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248 (1985).
{¶14} Here, Boros filed a motion for intervention in lieu of conviction. Contrary to his argument, two days after he filed the motion, the trial court denied it. And, after revisiting the request for intervention in lieu of conviction at the plea hearing, the trial
{¶15} Boros‘s first assignment of error is overruled.
B. Consecutive Sentences
{¶16} In his second assignment of error, Boros argues that his sentence “is not in compliance with”
{¶17} We review felony sentences under the standard set forth in
{¶18}
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under postrelease control for a prior offense;(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 adequately reflects the seriousness of the offender‘s conduct;
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶19} In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
{¶20} At the sentencing hearing in this case, the trial court reminded the parties that the victims had spoken at the plea and sentencing hearings. After taking into consideration the victims’ statements, Boros‘s statement, and the arguments of counsel, the trial court stated, in imposing its sentence, the following:
We have one family that‘s dealing with an elderly parent that they‘re trying to take care of, and another family with five children that you literally stole food out of their mouths, and the comfort of care to an elderly gentlemen. And this isn‘t your first day at the rodeo. You‘ve been around a lot.
* * *
You‘ve been a terror for a long time. Looking at your record you have 38 traffic citations; you have a record of numerous municipal cases: Criminal damages; building housing violations; failure to remove a nuisance; building code violations; building code violations in 2008; two separate cases including Cleveland Municipal Court with multiple capiases; and your failure to pay, you were granted multiple extensions to pay for violations; 2008 DUI; passing bad checks, 2014; 2015 theft Solon — I‘m sorry, Stow Municipal Court; 2015 another case in Stow Municipal Court, theft; drug possession, Cleveland; petty theft, Mentor Municipal Court 2015; Strongsville 2015 theft without consent in Berea Municipal Court and now my two cases.
{¶21} The trial court found that consecutive sentences were “necessary to protect the public from future crime and punish the offender and that they‘re not disproportionate to the seriousness of [Boros‘s] conduct and the danger [he] pose[s] to the public.” The trial court noted that Boros committed “multiple offenses 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 adequately reflects the seriousness of [Boros‘s] conduct.” In addition, the trial court stated that Boros‘s history of criminal conduct, “particularly regarding theft cases” demonstrated that consecutive sentences were “necessary to protect the public from future crime” by Boros. The record further reflected that Boros was on probation for a theft conviction from the Berea Municipal Court.
{¶22} The trial court recited Boros‘s lengthy criminal history, including his multiple theft offenses, a passing bad check conviction, and a drug possession conviction. The trial court recounted that Boros‘s current crimes were to victims with very little
{¶23} We find that the record in this case supports the imposition of consecutive sentences. Therefore, we overrule Boros‘s second assignment of error.
{¶24} Judgment affirmed.
It is ordered that appellee recover from appellant 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. 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.
MARY J. BOYLE, JUDGE
EILEEN A. GALLAGHER, P.J., and TIM McCORMACK, J., CONCUR