STATE OF OHIO v. THOMAS BOUCHER
Appellate Case No. 2021-CA-16; Trial Court Case No. 2020-CR-423
IN THE COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, CLARK COUNTY
Rendered on the 22nd day of October, 2021.
[Cite as State v. Boucher, 2021-Ohio-3751.]
DONOVAN, J.
Attorney for Plaintiff-Appellee
LUCAS W. WILDER, Atty. Reg. No. 0074057, P.O. Box 574, Dayton, Ohio 45409
Attorney for Defendant-Appellant
{¶ 2} On May 6, 2019, Boucher was in a camper with his pants and underwear off and with his hands on the hips of the seven-year-old victim, F.S, who was also naked from the waist down while straddling Boucher’s penis. At this time, the victim’s aunt walked into the camper, startling Boucher and the child victim and interrupting activity which, if successful, would have resulted in sexual conduct with F.S.
{¶ 3} On July 27, 2020, Boucher pled guilty by way of a bill of information to one charge of attempted rape, a felony of the second degree. A specification included that Boucher had been “previously convicted of two counts of aggravated rape in Nashville, Tennessee on June 12, 1986,” offenses which are substantially similar to first-degree felony rape offenses under Ohio law. (Plea Tr. 3.) By pleading to a subsequent first- or second-degree felony offense in Ohio, a prison sentence was mandatory under
{¶ 4} Before the trial court accepted Boucher’s guilty plea, the judge reviewed the possible maximum penalty for the attempted rape offense, noting that a prison term was mandatory for that offense and that the court would be required to classify Boucher as a
{¶ 5} At sentencing, the trial court stated that it had considered the record, the oral statements, and the written statements received in the presentence investigation report, including two letters from Boucher. Further, the court noted that Boucher had previously been convicted for or pled guilty to a felony of the first or second degree. The trial court also stated that it had reviewed the seriousness and recidivism factors under
{¶ 6} The court considered the factors under
{¶ 7} The court did not find any factors under
{¶ 8} The court considered the recidivism factors under
{¶ 9} Under
{¶ 10} The court found under
{¶ 11} Therefore, considering everything, including the presentence investigation report (PSI), the nature of the offense, the harm caused, and the fact that Boucher, in his interview with the detectives, had stated that he needed mental health help and acknowledged that he had said the same thing in Tennessee, the court ordered Boucher to serve a minimum prison term of 8 years to a maximum prison term of 12 years.
{¶ 12} Boucher’s appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 18 L.Ed.2d 493, indicating that he found no errors by the trial court prejudicial to Boucher on which to base a non-frivolous appeal. This Court informed Boucher that his attorney had filed an Anders brief on his behalf and informed him of his right to file a pro se brief, but Boucher did not file a brief.
{¶ 13} When an Anders brief is filed, the appellate court must determine, “after a full examination of the proceedings,” whether the appeal is “wholly frivolous.” Id. at 744; Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). An issue is not frivolous merely because prosecution can be expected to present a strong argument in reply. State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. Rather, a
{¶ 14} “An appellate court must determine whether the record affirmatively demonstrates that a defendant‘s plea was knowing, intelligent, and voluntary[.]” State v. Russell, 2d Dist. Montgomery No. 25132, 2012-Ohio-6051, ¶ 7, citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). If a defendant‘s plea is not knowing, intelligent, and voluntary, it “has been obtained in violation of due process and is void.” Id.
{¶ 15} “In order for a plea to be given knowingly and voluntarily, the trial court must follow the mandates of
{¶ 16}
{¶ 17} In general, a defendant is not entitled to have his or her plea vacated unless the defendant demonstrates he or she was prejudiced by a failure of the trial court to comply with the provisions of
{¶ 18} This general rule is subject to two exceptions. First, the trial court must comply strictly with
{¶ 19} Second, “a trial court‘s complete failure to comply with a portion of
{¶ 21} The court reviewed the offense to which Boucher was entering a plea and the maximum sentences for the offense. The court told Boucher that prison was mandatory for the offense, that there was no possibility of early release, and that it was presumed he would be released after a minimum sentence but the Parole Authority could increase the sentence up to the maximum time. The court also reviewed what post-release control is and the potential consequences of violating post-release control. The court informed Boucher that it would be required to classify him as a Tier III sex offender, what that classification entailed, and the potential consequences of violating his duty to register.
{¶ 22} The trial court told Boucher that a guilty plea admitted the truth of the facts put on the record and admitted that he committed the offense of attempted rape, a felony
{¶ 23} Upon review of the plea hearing transcript, we find no non-frivolous issues for appeal related to Boucher’s plea.
{¶ 24} In addition, we find nothing in the record to suggest that anything that occurred prior to the plea hearing precluded Boucher from entering a knowing, intelligent, and voluntary plea. A plea of guilty is a complete admission of guilt. E.g., State v. Faulkner, 2d Dist. Champaign No. 2013-CA-43, 2015-Ohio-2059, ¶ 9; State v. Wheeler, 2d Dist. Montgomery No. 24112, 2011-Ohio-3423, ¶ 3;
{¶ 25} In reviewing felony sentences, appellate courts must apply the standard of review set forth in
{¶ 26} “The trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give its reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial court must consider the statutory policies that apply to every felony offense, including those set out in
{¶ 27} In imposing Boucher’s sentence, the trial court made the following findings:
I know the defendant is remorseful. I’m not sure how much of that is because of what he is facing rather than what he has placed the victim through. He just told the Court that he’s haunted by the memory of what he has done. Try to imagine how much the victim is haunted by the memory of what was done.
Disposition Tr. 12.
{¶ 28} The PSI reflects that Boucher was 62 years old when the offense occurred and 63 at sentencing. He had no juvenile record. In 1986, Boucher was convicted of two counts of aggravated rape and sentenced to 16 years in prison in Nashville, Tennessee.
{¶ 29} The maximum prison term for the attempted rape count, a felony of the second degree, was a mandatory eight to twelve years. Additionally, the maximum fine was $15,000, which was not mandatory. Post-release control was mandatory for a period
{¶ 30} We have examined the entire record and conducted our independent review in accordance with Penson, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300. We conclude that no non-frivolous issues exist for appeal in this case.
{¶ 31} The trial court’s judgment is affirmed.
TUCKER, P.J. and WELBAUM, J., concur.
Copies sent to:
Ian A. Richardson
Lucas W. Wilder
Thomas Boucher
Hon. Richard J. O’Neill