[Cite as State v. Boyce, 2018-Ohio-168.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105532




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLANT

                                              vs.

                                    ANTHONY BOYCE
                                                    DEFENDANT-APPELLEE




                                    JUDGMENT:
                              REVERSED AND REMANDED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                  Case No. CR-91-270594-ZA

        BEFORE: S. Gallagher, J., Boyle, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: January 18, 2018
ATTORNEYS FOR APPELLANT

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Mark A. Stanton
Cuyahoga County Public Defender
By: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

      {¶1} Appellant, the state of Ohio, appeals from the order of the trial court finding

appellee, Anthony Boyce, to be a sexually oriented offender. The trial court’s order was

entered on February 2, 2017, upon remand from State v. Boyce, 8th Dist. Cuyahoga No.

73375, 1999 Ohio App. LEXIS 900 (Mar. 11, 1999) (hereafter “Boyce I”). Upon review,

we reverse the trial court’s determination and remand the matter for a sexual offender

classification hearing to be conducted in accordance with former R.C. 2950.09 and State

v. Eppinger, 91 Ohio St.3d 158, 2001-Ohio-247, 743 N.E.2d 881.

      {¶2} The initial proceedings in this matter were summarized in Boyce I as follows:

             Defendant was indicted on August 20, 1991 in CR-270594 for two
      counts of rape of a child under the age of 13 years old (R.C. 2907.02) and
      one count of kidnaping (R.C. 2905.01).

             Following a plea bargain [which occurred mid-trial] on October 16,
      1991, defendant pled guilty to one count of rape for which he was sentenced
      to five to twenty-five years incarceration, with five years actual
      incarceration.

             Following enactment of H.B. 180, on September 18, 1997, the
      defendant was returned to the Common Pleas Court for a sexual predator
      hearing pursuant to the new Act. Defendant was represented by assigned
      counsel who filed a motion to dismiss the proceedings on the grounds that
      H.B. 180 was unconstitutional as an ex post facto or retroactive law. These
      motions were denied by the trial court. (Tr. 3.)

              The factors the trial court took into account in its sexual predator
      determination were enumerated below as follows:
      “The fact of the matter is the Court is going to take Judicial notice of the
      facts in case number 270594, of all the Journal Entries that are attached to
      the request from the Department of Rehabilitation and Corrections, and as
      appears in this Court’s own docket, on that case number, to commence with
      the fact that you were arrested in August of 1991, and, subsequently
      disposed of this case, after a mistrial, by way of a plea of guilty to a Rape
       Charge that was amended to delete the age of the victim. I’m going to
       incorporate, by reference, the trial transcript to the extent that we had it
       prior to it being aborted with the plea in this case. I’m, likewise, going to
       incorporate, by reference, the Sentencing Hearing that this Court conducted
       in conjunction with this case, on the day I sentenced you back on October
       [16], 1991. Is there anything else that the State would like the Court to
       either notice or put in the record before we hear from the defendant?

       “MR. VODRAY: Simply to inform the Court that [S.P.] was
       eleven-years-old at the time of the offense. Thank you, your Honor.”

       (Tr. 3-4.)

                 The Court then determined that defendant was a sexual predator and

       informed the defendant what his obligations would be upon his release from

       prison.

Boyce I at 1-3 (citations above to “Tr.” refer to the transcript of the sexual offender

classification hearing).

       {¶3} On appeal of the sexual predator determination, the panel in Boyce I

determined as follows:

              In the case herein, it may be argued that the trial court relied on the
       defendant’s old conviction data by incorporating its memory of the record
       from the defendant’s partial trial and the sentencing hearing. However,
       this Court on appeal has no access to the information that the trial judge,
       who was also the sitting judge in those prior proceedings, was able to recall.
        No record was transcribed of those proceedings since the defendant never
       filed a direct appeal from his guilty plea. Therefore, since the trial court
       did not specify or even intimate what factors at the hearings supported its
       finding that defendant was a sexual predator, consistent with [State v. Ward,
       130 Ohio App.3d 551, 720 N.E.2d 603 (8th Dist.1999)], we cannot find the
       present record supports the conclusion that defendant is a sexual predator
       by clear and convincing evidence. Accordingly, we will remand the case
       for further consideration of “all parts of the record available to the court”
       including the untranscribed hearings. [Id. at 562].
             Assignment of Error III is sustained.          Remanded for further
       consideration of the record in toto.

Boyce I at 10.

       {¶4} Thus, in Boyce I, because the trial court’s sexual predator determination was

inadequate for review, the panel reversed the sexual predator determination and remanded

the matter “for further consideration of the record in toto.” Id. The remand issued in

Boyce I was consistent with the result reached in Ward. In Ward, the court of appeals

found that the trial court had erred by determining the defendant should be classified as a

sexual predator when it solely relied on facts arising from the underlying sexual offense

and failed to consider other relevant information bearing on the sexual predator

determination.   Id. at 562.    The Ward decision cited to State v. Wilson, 1st Dist.

Hamilton No. C-970880, 1998 Ohio App. LEXIS 4194 (Sept. 11, 1998), and indicated

that the First District had considered a similar case and had remanded the case “for

further consideration of ‘all parts of the record then available [to the court.]’” Ward at

562, quoting Wilson at 13. In making this statement in Wilson, the First District was

recognizing that a trial court has a duty to examine the entire record, and that “had the

court below examined all parts of the record then available to it, * * * the requirements of

R.C. 2950.09 might have been met.”          Wilson at 13.      After the court in Wilson

determined the trial court had committed reversible error by failing to examine the entire

available record in conformance with former R.C. 2950.09, the court reversed the sexual

predator determination and remanded the matter “for consideration of the record in toto
and for other proceedings in accordance with the law.” Id. Likewise, the court in Ward

remanded the matter “for further consideration of the record in toto.”

       {¶5} Though appellant makes much of the reference to “all parts of the record then

available,” in both Ward and Wilson, after determining the trial court had committed

reversible error by failing to examine the entire available record, the appellate court

reversed the sexual predator determination and remanded the matter “for consideration of

the record in toto” and for further proceedings. Ward at 562-563, 576; Wilson at 12-13.

Neither case limited the evidence available for the trial court’s consideration upon remand

or the parties’ ability to supplement the record. Rather, both cases found the trial court

failed to properly adjudicate a defendant as a sexual predator based on the statutory

criteria in former R.C. 2950.09 and recognized the duty of a trial court to consider all

available evidence relevant to a sexual predator determination.1

       {¶6} Upon remand from Boyce I, the trial court issued an order on June 3, 1999,

instructing the Ohio Department of Rehabilitation and Correction to notify the court 120

days prior to the actual release of Boyce and to make a labeling recommendation at that

time, and indicating that upon the notification, “this court will order defendant returned

for a proper sexual predator hearing with full consideration of all factors enumerated in

R.C. 2950.09(B)(2), including completion of institutional programs for sexual offenders.”

 Former R.C. 2950.09(C)(1) required that the Ohio Department of Rehabilitation and

Correction determine whether to recommend that certain sexually oriented offenders


       1
           Accordingly, our decision herein is not in conflict with the decision in Ward.
should be adjudicated a sexual predator and that if it decides to do so, it must send the

recommendation “to the court that sentenced the offender.”

       {¶7} The matter eventually was set for hearing nearly 15 years later, on February 2,

2017, before a successor judge who did not preside over the initial proceedings. Prior to

the hearing, Boyce filed a motion to limit consideration of the record with respect to his

sexual offender classification to those matters that were available to the court on

September 18, 1997. The state filed a brief in opposition to the motion and objected to

Boyce’s attempt to limit the evidence and exclude the state from introducing the

institutional records and the court’s psychiatric clinic report. The trial court granted

Boyce’s motion.

       {¶8} At the hearing, the judge indicated that the matter was remanded for further

consideration of the record in total and that its review would be limited to the information

that was available at the time of the original classification hearing. The judge recognized

that “there was no transcript of the [partial] trial transcribed” and that the court had “next

to nothing to determine what [the] classification should be.” The state indicated on the

record that it had made an objection to Boyce’s motion, proffered the records and report

for purposes of appellate review, and acknowledged it was unable to prove by clear and

convincing evidence that Boyce was likely to reoffend. As the state explained, “the only

record we really have, again, when this original sexual predator hearing occurred was an

indication on the record that the victim was young.” The trial court proceeded to find

Boyce to be a sexually oriented offender.
          {¶9} On appeal from the trial court’s decision, the state raises two assignments of

error for our review. Under its first assignment of error, the state challenges the trial

court’s determination that Boyce was not a sexual predator, arguing that the trial court

erred by limiting its consideration of relevant information and failing to conduct a hearing

in accordance with R.C. 2950.09 and Eppinger, 91 Ohio St.3d 158, 743 N.E.2d 881.

Under the second assignment of error, the state claims the trial court erred in granting

Boyce’s motion to limit consideration of the record. We find merit to the assigned

errors.

          {¶10} Absent extraordinary circumstances, such as an intervening decision by the

Supreme Court of Ohio, a trial court has no discretion to disregard the mandate given by

an appellate court in a prior appeal in the same case. Nolan v. Nolan, 11 Ohio St.3d 1, 5,

462 N.E.2d 410 (1984). In Boyce I, this court reversed the trial court’s sexual predator

determination and the matter was remanded to the trial court “for further consideration of

the record in toto.” Boyce I, 8th Dist. Cuyahoga No. 73375, 1999 Ohio App. LEXIS

900, at 10. The mandate given did not limit the trial court to the record as it existed in

1997, nor did it limit the trial court’s ability to conduct further proceedings. Since the

initial sexual predator determination had been reversed, another hearing was not

precluded by res judicata.         See State v. Lowe, 8th Dist. Cuyahoga No. 82893,

2004-Ohio-367, ¶ 13-16. In fact, in order to comply with the mandate in Boyce I, it was

essential for the trial court to conduct a classification hearing and determine Boyce’s

sexual predator status in accordance with the applicable law.
       {¶11} Former R.C. Chapter 2950, known as “Megan’s Law,” created three

classifications for sexual offenders: sexually oriented offender, habitual sex offender, and

sexual predator. Former R.C. 2950.01(E) defined a “sexual predator” as “a person who

has been convicted of or pleaded guilty to committing a sexually oriented offense and is

likely to engage in the future in one or more sexually oriented offenses.” In making a

sexual predator determination, the trial court was required to consider all relevant factors,

including, but not limited to the factors listed in former R.C. 2950.09(B)(2):

       (a) The offender’s age;

       (b) The offender’s prior criminal record regarding all offenses, including,
       but not limited to, all sexual offenses;

       (c) The age of the victim of the sexually oriented offense for which
       sentence is to be imposed;

       (d) Whether the sexually oriented offense for which sentence is to be
       imposed involved multiple victims;

       (e) Whether the offender used drugs or alcohol to impair the victim of the
       sexually oriented offense or to prevent the victim from resisting;

       (f) If the offender previously has been convicted of or pleaded guilty to any
       criminal offense, whether the offender completed any sentence imposed for
       the prior offense and, if the prior offense was a sex offense or a sexually
       oriented offense, whether the offender participated in available programs
       for sexual offenders;

       (g) Any mental illness or mental disability of the offender;

       (h) The nature of the offender’s sexual conduct, sexual contact, or
       interaction in a sexual context with the victim of the sexually oriented
       offense and whether the sexual conduct, sexual contact, or interaction in a
       sexual context was part of a demonstrated pattern of abuse;
      (i) Whether the offender, during the commission of the sexually oriented
      offense for which sentence is to be imposed, displayed cruelty or made one
      or more threats of cruelty;

      (j) Any additional behavioral characteristics that contribute to the offender’s

      conduct.

A trial court’s sexual predator determination is required to be based on clear and

convincing evidence. Former R.C. 2950.09(B)(3).

      {¶12} In Eppinger, 91 Ohio St.3d 158, 2001-Ohio-247, 743 N.E.2d 881, the

Supreme Court of Ohio set forth the model procedure for a classification hearing as

follows:

              In a model sexual offender classification hearing, there are
      essentially three objectives. First, it is critical that a record be created for
      review. Therefore, the prosecutor and defense counsel should identify on
      the record those portions of the trial transcript, victim impact statements,
      presentence report, and other pertinent aspects of the defendant’s criminal
      and social history that both relate to the factors set forth in R.C.
      2950.09(B)(2) and are probative of the issue of whether the offender is
      likely to engage in the future in one or more sexually oriented offenses. If
      the conviction is old, as in this case, the state may need to introduce a
      portion of the actual trial record; if the case was recently tried, the same
      trial court may not need to actually review the record. In either case, a
      clear and accurate record of what evidence or testimony was considered
      should be preserved, including any exhibits, for purposes of any potential
      appeal.

              Second, an expert may be required, as discussed above, to assist the
      trial court in determining whether the offender is likely to engage in the
      future in one or more sexually oriented offenses. Therefore, either side
      should be allowed to present expert opinion by testimony or written report
      to assist the trial court in its determination, especially when there is little
      information available beyond the conviction itself. While providing an
      expert at state expense is within the discretion of the trial court, the lack of
      other criteria to assist in predicting the future behavior of the offender
      weighs heavily in favor of granting such a request.
              Finally, the trial court should consider the statutory factors listed in

       R.C. 2950.09(B)(2), and should discuss on the record the particular

       evidence and factors upon which it relies in making its determination

       regarding the likelihood of recidivism. See State v. Thompson, [140 Ohio

       App.3d 638, 748 N.E.2d 1144 (8th Dist.1999)]. See, also, State v. Russell,

       1999 Ohio App. LEXIS 1579 (Apr. 8, 1999), Cuyahoga App. No. 73237,

       unreported, 1999 WL 195657; State v. Casper, 1999 Ohio App. LEXIS

       2617 (June 10, 1999), Cuyahoga App. Nos. 73061, 73064, 73062 and

       73063, unreported, 1999 WL 380437.

Eppinger at 166. The standards suggested in Eppinger for trial courts to follow were

designed to “aid the appellate courts in reviewing the evidence on appeal and ensur[ing] a

fair and complete hearing for the offender.” Id. at 167.

       {¶13} Upon review, we find that the mandate in Boyce I did not limit the record

for the trial court’s review and that the trial court erred by failing to conduct a complete

hearing and by failing to consider all available evidence in rendering its determination.

Upon remand, the trial court shall conduct a proper sexual offender classification hearing

in accordance with Eppinger and with full consideration of all factors enumerated in

former R.C. 2950.09(B)(2).

       {¶14} Judgment reversed; case remanded for hearing.

       It is ordered that appellant recover from appellee 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. Case remanded to the trial court for

further proceedings consistent with this opinion.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR
