[Cite as State v. Boyle, 2018-Ohio-3284.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       GREENE COUNTY

 STATE OF OHIO                                    :
                                                  :
          Plaintiff-Appellee                      :   Appellate Case No. 2018-CA-12
                                                  :
 v.                                               :   Trial Court Case No. 2013-CR-0042
                                                  :
 DAVID C. BOYLE                                   :   (Criminal Appeal from
                                                  :   Common Pleas Court)
          Defendant-Appellant                     :
                                                  :

                                             ...........

                                            OPINION

                            Rendered on the 17th day of August, 2018.

                                             ...........

NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene
County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385
      Attorney for Plaintiff-Appellee

DAVID C. BOYLE, Inmate No. 687-887, Chillicothe Correctional Institution, P.O. Box
5500, Chillicothe, Ohio 45601
      Defendant-Appellant-Pro Se

                                            .............




TUCKER, J.
                                                                                        -2-




       {¶ 1} Defendant-appellant David Boyle appeals from a judgment of the Greene

County Court of Common Pleas denying his motion to dismiss an allegedly defective

indictment. For the reasons set forth below, we affirm.



                              I. Facts and Procedural History

       {¶ 2} In 2013, Boyle was indicted on sixteen counts of rape involving his daughter.

Following negotiations, he entered a plea of guilty to six counts of rape in exchange for

the dismissal of the remaining counts.1 No agreement was reached as to sentencing.

The trial court sentenced Boyle to an aggregate prison term of 40 years and designated

him a Tier III sex offender. The conviction and sentence were affirmed on appeal. State

v. Boyle, 2d Dist. Greene No. 2013-CA-43, 2014-Ohio-1271.

       {¶ 3} On June 24, 2018, Boyle filed a document entitled “Motion to Dismiss

Defective Indictment,” in which he argued that the indictment violated his constitutional

right to due process because it contained numerous undifferentiated counts of rape. He

claimed these “carbon-copy” counts failed to describe sufficiently the charges, thereby

preventing him from properly preparing his defense. The State filed a memorandum in

opposition. The trial court overruled the motion upon a finding that Boyle’s guilty plea

waived any error associated with the indictment and that his claims were barred by the

doctrine of res judicata.

       {¶ 4} Boyle appeals.


1
  One of the dismissed counts, if proven, would have required the imposition of a life
sentence as it alleged that his daughter was less than thirteen years of age at the time of
that offense.
                                                                                          -3-




                                       II. Analysis

      {¶ 5} Boyle asserts the following three assignments of error, set forth verbatim:

             THE COURTS HAD ERROR BY NOT EXCEPTING DEFENDANT-

      APPELLANTS MOTION ON ITS MERITS OF THE MULTIPLICITY,

      DUPLICITY, CONSTITUTION AND DOUBLE JEOPARDY RIGHTS.

             THE COURTS HAS ERROR BY ABUSING OF DISCRETION

      STANDARD       FOR     FAILING     TO    ADDRESS      THE    DEFENDANT-

      APPELLANTS MOTION ON ITS MERITS, THUS, CREATING “MANIFEST

      OF JUSTICE.”

             THE COURTS HAD ERROR BY APPLING RES JUDICATA TO

      DEFENDANT-APPELLANTS MOTION, WHERE RES JUDICATA DOES

      NOT AND CAN NOT APPLY WHERE CONSTITUTIONAN RIGHTS, DUE

      PROCESS, AND DOUBLE JEOPARDY ISSUES ARE AT STAKE.

      {¶ 6} Boyle’s arguments, though convoluted, hinge upon his claim that the trial

court erred by denying his motion to dismiss the indictment. In support, he claims that

the indictment was defective because it contained multiple counts charging the same

offense without any differentiation between the offenses. Thus, he claims that his right

to due process was violated. Boyle also contends the trial court erred by determining

that he had waived any claim of error regarding the indictment and by concluding that his

claimed error was barred by res judicata.

      {¶ 7} A “plea of guilty is a complete admission of the defendant's guilt.” Crim.R.

11(B)(1). By entering a guilty plea, a defendant “is not simply stating that he did the
                                                                                         -4-


discrete acts described in the indictment; he is admitting guilt of a substantive crime.”

U.S. v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); State v. Barnett,

73 Ohio App.3d 244, 248, 596 N.E.2d 1101 (2nd Dist. 1991).

       {¶ 8} In State v. Barton, 108 Ohio St.3d 402, 2006-Ohio-1324, 844 N.E.3d 307, the

Supreme Court held that a guilty plea waives the right to claim error arising from a

defective indictment. Id. at ¶ 73. In that case, Barton alleged that the grand jury had

failed to properly indict him for the offense of having a weapon while under a disability

thereby rendering the indictment defective. Id. He argued that the defective indictment

posed a jurisdictional defect which he could raise at any time. Id. at ¶ 69. The Supreme

Court rejected this argument and stated that “Crim.R. 12(C)(2) mandates that ‘[d]efenses

and objections based on defects in the indictment’ must generally be raised ‘[p]rior to’

trial, and we have previously held that ‘failure to timely object to the allegedly defective

indictment constitutes a waiver of the issues involved.’ ” Id. at ¶ 73, quoting State v.

Biros, 78 Ohio St.3d 426, 436, 678 N.E.2d 891 (1997), citing State v. Joseph, 73 Ohio

St.3d 450, 455, 653 N.E.2d 285 (1995). Likewise, the trial court, in this case, correctly

found that Boyle’s guilty plea waived his right to contest the defective indictment.

       {¶ 9} Further, the question of whether an indictment is defective is a matter that is

only capable of being raised on direct appeal. State v. Lowery, 2d Dist. Montgomery No.

24198, 2011-Ohio-2827, ¶ 21. This court has held that the issue of the sufficiency of an

indictment must be raised on direct appeal and cannot be addressed in a collateral attack.

State v. Howe, 2d Dist. Montgomery No. 23423, 2010-Ohio-1621, ¶ 20; accord State v.

Walker, 8th Dist. Cuyahoga No. 93749, 2010-Ohio-4008. Since Boyle failed to challenge

the sufficiency of the indictment during the pendency of the trial court case or on direct
                                                                                        -5-

appeal, the issue is barred by res judicata. Lowery at ¶ 21, citing State v. Tucker, 2d

Dist. Montgomery No. 23408, 2010–Ohio–2642, at ¶ 6.

       {¶ 10} We conclude that the issue was waived by his guilty plea and that it is also

barred by res judicata. Therefore, the trial court did not err or abuse its discretion in

denying the motion to dismiss. Thus, Boyle’s assignments of error are overruled.



                                     III. Conclusion

       {¶ 11} Boyle’s assignments of error being overruled, the judgment of the trial court

is affirmed.



                                     .............



DONOVAN, J. and FROELICH, J., concur.



Copies mailed to:

Nathaniel R. Luken
David C. Boyle
Hon. Stephen Wolaver
