STATE OF OHIO v. DAVID C. BOYLE
Appellate Case No. 2013-CA-43
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
March 28, 2014
[Cite as State v. Boyle, 2014-Ohio-1271.]
Trial Court Case No. 2013-CR-42; (Criminal Appeal from Common Pleas Court)
Rendered on the 28th day of March, 2014.
ELIZABETH A. ELLIS, Atty. Reg. #0074332, Greene County Prosecutor‘s Office, 55 Greene Street, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
MICHAEL C. THOMPSON, Atty. Reg. #0041420, 5 North Williams Street, Dayton, Ohio 45407
Attorney for Defendant-Appellant
FAIN, J.
{¶ 1} Defendant-appellant David C. Boyle appeals from his conviction and sentence, following a guilty рlea, on six counts of Rape. Assigned appellate counsel has filed a brief under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),
I. The Negotiated Plea
{¶ 2} Boyle was charged with sixteen counts of Rape. The victim in all counts was his daughter. The first count specified a time period frоm July 4, 2007, until July 3, 2010, when Boyle‘s daughter was less than thirteen years old. This count alleged that the victim was less than thirteen years old, which meant that upon conviction, Boyle could have been sentenced to life imprisonment. The remaining counts each specified a time period from July 5, 2010, until January 17, 2013.
{¶ 3} Boyle agreed to plead guilty to Counts 2, 3, 4, 5, 6, and 7 of the indictment, in exchange for the dismissal of the ten remaining counts. After Boyle pled, but before he was sentenced, the trial court vacated that plea and took a new plea, explaining:
THE COURT: This matter has been scheduled today for a final disposition. However, the Court, in light of a recent decision from the Second District Court of Appeals, has had it brought to the Court‘s attention that the plea, which we originally took in this case, should be vacated for the failure to specifically advise the Defendant of his sexual offender registration reporting requirements.
As such, the Court will, for the recоrd, vacate the plea previously entered in by the Defendant in this case.
{¶ 4} Whereupon, the same plea agreement was again entered into, this time with a full advisement by the trial court of the sexual offender registration, reporting, and notification
II. The Sentence
{¶ 5} The trial court already had the pre-sentence investigation report. As it told Boyle it was going to do, if Boyle decided to рlead guilty again, the trial court proceeded immediately to the sentencing hearing. At this hearing, the victim‘s written statement, in the form of a letter to her father, was read into the record. The State asked for a maximum sentence of 66 years. Boyle and his attorney addressed the court.
{¶ 6} The trial court imposed a sentence of ten years on each count, with the sentences on counts 2, 3, 4, аnd 5 to be served consecutively, but the sentences on counts 6 and 7 to be served concurrently, for a total prison sentence of 40 years. The trial court imposed a mandatory term of five years of post-release control. The trial court imposed a fine of $10,000, but did not award restitution, and did not award costs. Finally, the trial court classified Boyle as a Tier III sex offender.
III. There Are No Pоtential Assignments of Error Having Arguable Merit
{¶ 7} In identifying one potential error, Boyle‘s appellate counsel asserts that in order to imрose consecutive sentences, a trial court must not only make the findings required by
{¶ 8} Then, in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, the Supreme Court of Ohio held that, as a result of Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), a requirement of judicial fact-finding for consecutive sentences would be constitutional, should the General Assembly choose to enaсt one.
{¶ 9} The Ohio General Assembly took up the Supreme Court‘s suggestion in Hodge, and enacted the current version of required judicial fact-finding for consecutive sentences in
If multiple prison terms are imposed on an offender for convictions of multiple offenses, thе court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disрroportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, аnd if the court also finds any of the following:
(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 underpost-release 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 сommitted was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of сonduct 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.
{¶ 10} One of the differences between pre-Foster and post-Hodge judicial fаct-finding for consecutive sentences is that a trial court is no longer required to give its reasons for making the required findings. There is no requirement of that nature in the present version of
{¶ 11} In the case before us, the trial court made the required findings for the imposition of consecutive sentences. We have found no potential assignments of error having arguable merit relating to the sentence impоsed by the trial court. The pre-sentence investigation report makes it clear that Boyle‘s daughter was required to service his sеxual needs on a regular basis from before she was ten years old until she was fifteen years old. In his written and oral statements to the trial court, Boyle did not deny this. His daughter‘s two-page, handwritten victim impact statement demonstrates eloquently the emotional anguish that Boyle‘s criminal conduct has subjected her to, and the continuing adverse consequences to her.
{¶ 12} We do not clearly and convinсingly find that the record does not support the
{¶ 13} We have performed our duty under Anders to review the record independently. We have found no potential assignments of error having arguable merit. Accordingly, the judgment of the trial court is Affirmed.
FROELICH, P.J., and WELBAUM, J., concur.
Copies mailed to:
Elizabeth A. Ellis
Michael C. Thompson
David C. Boyle
Hon. Stephen Wolaver