STATE OF OHIO v. CARDELL BOYD
No. 109052
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
November 5, 2020
2020-Ohio-5181
MARY J. BOYLE, P.J.
STATE OF OHIO, Plaintiff-Appellee, v. CARDELL BOYD, Defendant-Appellant.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 5, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-636070-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Brandon Piteo, Assistant Prosecuting Attorney, for appellee.
Joseph V. Pagano, for appellant.
MARY J. BOYLE, P.J.:
{¶ 1} Defendant-appellant, Cardell Boyd, appeals his sentence. He raises two assignments of error for our review:
- Appellant‘s sentence is contrary to law because the record does not support the individual sentences or the imposition of consecutive sentences.
The trial court erred by failing to merge all allied offenses of similar import and by imposing separate sentences for allied offenses which violated appellant‘s state and federal rights to due process and protections against double jeopardy.
{¶ 2} Finding no merit to his assignments of error, we affirm the trial court‘s judgment.
I. Procedural History and Factual Background
{¶ 3} The charges in this case arose from Boyd‘s back-to-back attempts to kill his wife. Because each attempt caused her serious injury but failed to kill her, he continued to try different methods. On January 1, 2019, Boyd thought he found evidence that his wife had been unfaithful to him. Boyd and his wife argued, he followed her to their kitchen, and he repeatedly stabbed her in the back with a butcher knife. He then turned on the gas from their stove, pushed her to the ground, held the knife to her throat, and choked her while shouting that he was going to kill her. Boyd‘s wife faked unconsciousness, and Boyd went to retrieve a can of gasoline from their garage. When he left, his wife stood up and opened the living room window. Boyd sprayed gasoline on her through the window and then went inside the house. Boyd‘s wife “dove” through the window, ran to the neighbors’ house, and knocked on their door. Boyd caught her by the neck at the neighbors’ door, “dragged” her back toward their house, and poured the rest of the gasoline on her head. He then tried to set her on fire with a lighter. Before Boyd could get the lighter to ignite, the neighbors approached with a firearm, and Boyd fled to his wife‘s car. While Boyd‘s wife tried to catch her breath near a tree in their front yard, Boyd accelerated the car toward her. She ran behind the tree, and Boyd crashed the car
{¶ 4} In May 2019, Boyd pleaded guilty to six counts: felonious assault in violation of
{¶ 5} At the sentencing hearing in June 2019, the trial court heard from Boyd‘s wife, Boyd‘s daughter from another relationship, one of Boyd‘s friends, and Boyd. Boyd‘s wife said that this incident was the third time Boyd had physically abused her, and she had obtained a protection order against him in 2018 from the Garfield Heights Municipal Court. She thought the January violence occurred
{¶ 6} The trial court heard from each counsel, respectively. The state outlined Boyd‘s criminal history, acknowledged that Boyd did not serve prison time for any of his prior offenses, and asked the trial court to impose the maximum, consecutive prison sentence. The state also recounted the details of Boyd‘s conduct on January 1, 2019. The state started to tell the trial court about other women who came forward with allegations that Boyd had abused them, but Boyd‘s counsel objected, and the trial court instructed the state to focus on the events of this case. The state submitted photos of the knife, damaged vehicle, damaged tree, gasoline can, skid marks in the front yard, blood and scattered items on the kitchen floor, and injuries on his wife‘s back. The trial court admitted the photos over Boyd‘s objection. Boyd‘s counsel did not challenge any part of the state‘s recitation of the events.
{¶ 7} The trial court also heard arguments regarding which counts were allied offenses of similar import. The trial court recognized that the parties
{¶ 8} After indicating that it had considered the presentence investigation report, both parties’ sentencing memoranda, the attorneys’ statements, Boyd‘s wife‘s statement, statements made on Boyd‘s behalf, and sentencing laws, the trial court sentenced Boyd to prison for a total of 17 years as follows: seven years for felonious assault with a knife, three years for felonious assault with a vehicle, two years for abduction, seven years for attempted aggravated arson, and 178 days for aggravated menacing. The trial court imposed no sentence for domestic violence, explaining that it merged with felonious assault with a knife. The trial court ordered that the sentences for both felonious assault counts and attempted aggravated arson run consecutively to one another, and the sentences for abduction and aggravated menacing run concurrently with the sentence for felonious assault with a knife.
{¶ 9} Further, the trial court declared Boyd to be an arson offender and informed him of the accompanying registration requirements and the consequences he would face if he violated them. The trial court told Boyd that he faced a mandatory three years of postrelease control when he was released from prison, advised him of the consequences if he were to violate postrelease control, and ordered that he pay $501.04 in court costs but said that the costs may be satisfied through community service. The trial court imposed no fines or restitution and
{¶ 10} In September 2019, over two months after the sentencing entry, Boyd filed a motion for leave to file a delayed appeal of the trial court‘s sentencing entry. This court granted his motion and assigned him counsel.
II. Lawfulness of Sentence
{¶ 11} In his first assignment of error, Boyd argues that his sentence is contrary to law because the record does not support the length of his individual sentences or the imposition of consecutive sentences.
A. Individual Sentences
{¶ 12} Boyd first argues that the record does not show that the trial court properly considered
{¶ 13} “An appellate court must conduct a meaningful review of the trial court‘s sentencing decision.” State v. McHugh, 8th Dist. Cuyahoga No. 108372, 2020-Ohio-1024, ¶ 11. For felony sentences, an “appellate court‘s standard for
We note that some sentences do not require the findings that
R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors inR.C. 2929.11 and2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.
{¶ 14} When sentencing a defendant, the court must consider the purposes and principles of felony sentencing set forth in
{¶ 15}
{¶ 16}
{¶ 17}
The victim induced or facilitated the offense. - In committing the offense, the offender acted under strong provocation.
- In committing the offense, the offender did not cause or expect to cause physical harm to any person or property.
- There are substantial grounds to mitigate the offender‘s conduct, although the grounds are not enough to constitute a defense.
{¶ 18} Trial courts do not need to make factual findings on the record pursuant to
{¶ 19} To support his argument that the trial court needed to make “separate and distinct findings” pursuant to
{¶ 20} Although the trial court had to consider
{¶ 21} The trial court also explicitly considered the factors set forth in
I do believe that any one of us in this room, even those who support [Boyd‘s wife], can understand why a person loses control, gets triggered to just violate their basic instinct towards decency. I do think all of us can understand that. Of course, when that does happen, an appropriate punishment still has to be given.
* * *
And by the way, I acknowledge and I accept as true all of the good things said about you by your friend and your daughter. I would just counter what they said by saying, and don‘t get me wrong here, you‘re not, you haven‘t been convicted here of killing a person, but even a murderer can be a good person. They do need though to be punished for the crime they committed. And here once again I have to say I‘m not calling
you a murderer, but I do believe you need to be punished for the highly unusual and highly personal nature of the violence you committed.
The trial court also acknowledged that Boyd had been reasonable, presentable, courteous, and cooperative in court but observed that Boyd‘s conduct was “of the sort that [the trial court had] rarely seen in this position.”
{¶ 22} Although the trial court may not have stated all its findings relating to the factors in
{¶ 23} Accordingly, we do not clearly and convincingly find that Boyd‘s individual sentences for felonious assault with a knife and attempted aggravated arson are contrary to law.
B. Consecutive Sentences
{¶ 24} Boyd also argues that the trial court‘s imposition of consecutive sentences for both counts of felonious assault and attempted aggravated arson was contrary to law because the record does not support the trial court‘s findings pursuant to
{¶ 25} As the Ohio Supreme Court has explained, when reviewing consecutive sentences, ”
{¶ 26} A defendant can challenge consecutive sentences on appeal in two ways. First, the defendant can argue that consecutive sentences are contrary to law because the court failed to make the necessary findings required by
{¶ 27} “In Ohio, sentences are presumed to run concurrent to one another unless the trial court makes the required findings under
- 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 post-release control for a prior offense. 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. - The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 28} The failure to make the above findings renders the imposition of consecutive sentences contrary to law. Gohagan at ¶ 29.
{¶ 29} Boyd relies on State v. Metz, 2019-Ohio-4054, 146 N.E.3d 1190, ¶ 97 (8th Dist.), for the proposition that the trial court must explain its reasons for imposing consecutive sentences. To the contrary, in Metz we explained that a reviewing court must determine whether the record clearly and convincingly supports the consecutive sentences. Id. at ¶ 97, 110. A trial court “has no obligation to state reasons to support its findings,” but the necessary findings “must be found in the record and [] incorporated into the sentencing entry.” Bonnell at ¶ 37.
You snapped, you stabbed your wife, and you deserve I think by law to be punished for that. And I‘ve imposed a sentence for that. But then to call the rest of what you did vicious is to gloss over the degradation that you exhibited to the rest of the event. And again, I agree with [defense counsel], it‘s undebatable, this is one event, generally speaking, but there were several points where you could have stopped, where you could have regained control, and acted with human kindness towards a woman that you supposedly love. But you didn‘t. Instead, you tried to run over her with a car. And after that you tried, most violently, to set her on fire. So I don‘t think that a single sentence, even if you were given, for example, the maximum of eight years on one of the felony two‘s and everything else was run concurrent, I don‘t think a single sentence would adequately reflect the conduct at issue here.
Accordingly, the trial court made the requisite
{¶ 31} We also find that the record clearly and convincingly supports the trial court‘s findings pursuant to
{¶ 32} For the same reasons that we find the record clearly and convincingly supports Boyd‘s individual and consecutive sentences, we find that the record supports Boyd‘s aggregate sentence of seventeen years. Boyd caused his wife serious physical harm and tried to kill her in multiple, distinct ways. The trial court considered the purposes and principles of felony sentencing in
{¶ 33} Accordingly, we overrule Boyd‘s first assignment of error.
III. Allied Offenses
{¶ 34} In his second and final assignment of error, Boyd argues that the trial court violated Boyd‘s due process rights and protections against double jeopardy by imposing separate sentences for both counts of felonious assault and abduction, which he claims are allied offenses of similar import. He maintains that these counts arose from a single animus in a continuous course of events against a single victim.
{¶ 35} The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution, and the Ohio Constitution, Article I, Section 10, protect a defendant against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 7. But the Double Jeopardy Clause “does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Thus, the dispositive issue is “whether the General Assembly intended to permit multiple punishments for the offenses at issue.” State v. Childs, 88 Ohio St.3d 558, 561, 728 N.E.2d 379 (2000).
{¶ 37} Pursuant to
[w]here the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶ 38} “At its heart, the allied-offense analysis is dependent upon the facts of a case because
{¶ 39} Two or more offenses are of dissimilar import within the meaning of
{¶ 40} When determining whether two offenses are allied offenses of similar import, we apply a de novo standard of review. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
{¶ 41} Boyd was charged with two counts of felonious assault in violation of
{¶ 42} Boyd was also charged with abduction under
{¶ 43} Under Ruff, we must consider these offenses in the context of Boyd‘s conduct to determine (1) if the offenses were dissimilar in import or significance; (2) if the offenses were committed separately, or (3) if the offenses were committed with a separate animus or motivation. If any of these three factors apply to Boyd‘s
{¶ 44} Offenses that occur “close in time and proximity” can still “involve separate conduct for purposes of an allied offense analysis.” State v. Black, 2016-Ohio-383, 58 N.E.3d 561, ¶ 27 (8th Dist.), discretionary appeal not allowed, State v. Black, 145 Ohio St.3d 1461, 2016-Ohio-2807, 49 N.E.3d 322. In Black, the defendant committed the first offense when he punched the victim in her bedroom, and after a break in the violence when the victim tried to escape through an upstairs window, the defendant committed the second offense by pushing the victim off of the roof. Id. at ¶ 28. Even though the defendant committed the acts close in time and proximity to one another and against the same victim, this court affirmed the trial court‘s holding that the offenses were not allied. Id. at ¶ 29; see also State v. Jenkins, 8th Dist. Cuyahoga No. 105881, 2018-Ohio-2397, ¶ 66 (defendant‘s offense of placing a loaded firearm in his vehicle was separate from the offense of firing the firearm while driving his vehicle, and the offenses did not merge).
{¶ 45} Here, even though Boyd‘s acts of felonious assault and abduction arose close in time and proximity to one another and were against the same victim, and even if those counts arose from a single animus to try to kill his wife, the offenses were each committed separately. After each attempt failed to kill his wife, Boyd tried to kill her in a different manner. Felonious assault with a knife was for Boyd‘s knowing attempt to physically his harm his wife by repeatedly stabbing her with a knife while they were in their kitchen. Boyd‘s wife faked unconsciousness and
{¶ 46} Accordingly, we overrule Boyd‘s second and final assignment of error.
{¶ 47} Judgment affirmed.
It is ordered that appellee recover from appellant 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 is terminated. Case remanded to the trial court for execution of sentence.
MARY J. BOYLE, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and
MARY EILEEN KILBANE, J., CONCUR