 [Cite as State v. Boyle, 2014-Ohio-1271.]




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

 STATE OF OHIO                                   :
                                                 :     Appellate Case No. 2013-CA-43
           Plaintiff-Appellee                    :
                                                 :     Trial Court Case No. 2013-CR-42
 v.                                              :
                                                 :
 DAVID C. BOYLE                                  :     (Criminal Appeal from
                                                 :     (Common Pleas Court)
           Defendant-Appellant                   :
                                                 :
                                             ...........

                                             OPINION

                              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 plea, 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),
                                                                                               2


indicating that he has not found any potential assignments of error having arguable merit. After

independent review, neither have we. Accordingly, the judgment of the trial court is Affirmed.

                                     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 from 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 record, 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
                                                                                           3


requirements to which Boyle would be subject as a Tier III sex offender. In this plea colloquy,

the trial court provided a full explanation of the rights Boyle was waiving, and the effects of his

plea, just as if the prior plea hearing had not occurred. Boyle was told that he could confer with

his attorney at any time during the proceeding. The trial court ascertained that Boyle was

tendering his plea knowingly and voluntarily.

                                       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 plead 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, and 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 Potential Assignments of Error Having Arguable Merit

       {¶ 7}    In identifying one potential error, Boyle’s appellate counsel asserts that in order

to impose consecutive sentences, a trial court must not only make the findings required by R.C.

2929.14(C), it must also state its reasons, citing State v. Moss, 10th Dist. Franklin No. 00AP-574,

2005-Ohio-6806. At the time Moss was decided, that was the law; a trial court imposing
                                                                                            4


consecutive sentences was required by R.C. 2929.19(B)(2) to “make a finding that gives its

reasons for” imposing consecutive sentences.           State v. Comer, 99 Ohio St.3d 463,

2003-Ohio-4165, 739 N.E.2d 473, ¶ 14. Since then, State v. Foster, 109 Ohio St. 3d 1,

2006-Ohio-856, 845 N.E.2d 470, severed the findings requirement for consecutive sentences

from the statute as unconstitutional.

       {¶ 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 enact 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 R.C.

2929.14(C)(4):

               If multiple prison terms are imposed on an offender for convictions of

       multiple offenses, the 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 disproportionate to the seriousness of the offender's conduct and

       to the danger the offender poses to the public, and 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, or 2929.18 of the Revised Code, or was under
                                                                                            5


       post-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 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.

       {¶ 10} One of the differences between pre-Foster and post-Hodge judicial fact-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 R.C.

2929.19, or in R.C. 2929.14(C)(4).

       {¶ 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 imposed by the trial court. The pre-sentence investigation report

makes it clear that Boyle’s daughter was required to service his sexual 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 convincingly find that the record does not support the
                                                                                           6


court’s findings required for consecutive sentences. R.C. 2953.08(G)(2). Whether we employ

that same standard of review to the length of the sentences, see State v. Rodeffer, — N.E.2d —,

2013-Ohio-5759 (2d Dist.), ¶ 29, or whether we employ the abuse-of-discretion standard of

review, we find no assignment of error regarding Boyle’s sentence having arguable merit.

       {¶ 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
