[Cite as State v. Boczek, 2016-Ohio-5708.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103811




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                               MATTHEW A. BOCZEK
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-597591-A

        BEFORE: Boyle, J., Keough, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED:                       September 8, 2016
ATTORNEY FOR APPELLANT

Judith M. Kowalski
333 Babbitt Road
Suite 323
Euclid, Ohio 44123


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Erin Stone
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

         {¶1} Defendant-appellant, Matthew Boczek, pleaded guilty to single counts of

menacing by stalking and telecommunications harassment. The trial court found that the

counts did not merge as allied offenses and sentenced Boczek to 15 months in prison on

the menacing by stalking count (a fourth-degree felony), and 12 months in prison on the

telecommunications harassment count (a fifth-degree felony), ordering them to be served

concurrently. Boczek appeals his sentence, raising the following two assignments of

error:

         I. The trial court erred to the prejudice of the appellant by not finding that
         stalking and telecommunications harassment are allied offenses of similar
         import, and by sentencing him concurrently but separately for each one.

         II. The trial court abused its discretion and erred to the prejudice of
         appellant by sentencing him to a total of fifteen months imprisonment, in
         that a prison sentence is not necessary to protect the public, and is
         disproportionate to the seriousness of the offender’s conduct.

         {¶2} Finding no merit to the appeal, we affirm.

         A. Allied Offenses

         {¶3} In his first assignment of error, Boczek argues that the two counts should

have merged as allied offenses. He contends that the two offenses “are very similar” and

that “the commission of one results in the commission of the other.”

         {¶4} An appellate court applies a de novo standard of review when reviewing

whether two offenses are allied offenses of similar import. State v. Williams, 134 Ohio

St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
       {¶5} R.C. 2941.25 provides:

       (A) Where the same conduct by defendant can be construed to constitute
       two or more allied offenses of similar import, the indictment or information
       may contain counts for all such offenses, but the defendant may be
       convicted of only one.

       (B) Where 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.

       {¶6} When determining whether offenses are allied offenses of similar import

within the meaning of R.C. 2941.25, courts must ask three questions when defendant’s

conduct supports multiple offenses: (1) Were the offenses dissimilar in import or

significance — in other words, did each offense cause separate, identifiable harm? (2)

Were they committed separately? and (3) Were they committed with separate animus or

motivation? State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31.

“An affirmative answer to any of the above will permit separate convictions.              The

conduct, the animus, and the import must all be considered.” Id.

       {¶7} “At its heart, the allied-offense analysis is dependent upon the facts of a

case because R.C. 2941.25 focuses on the defendant’s conduct.” Id. at ¶ 26. As a

result, this analysis “‘may result in varying results for the same set of offenses in different

cases.’” Id. at ¶ 32, quoting State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942

N.E.2d 1061, ¶ 52. When determining whether multiple offenses merge pursuant to R.C.

2941.25, a court must review the entire record. State v. Washington, 137 Ohio St.3d 427,
2013-Ohio-4982, 999 N.E.2d 661, ¶ 24.             Boczek was convicted of menacing by

stalking in violation of R.C. 2903.211(A)(1), which provides as follows:

       No person by engaging in a pattern of conduct shall knowingly cause
       another person to believe that the offender will cause physical harm to the
       other person or cause mental distress to the other person. In addition to
       any other basis for the other person’s belief that the offender will cause
       physical harm to the other person or the other person’s mental distress, the
       other person’s belief or mental distress may be based on words or conduct
       of the offender that are directed at or identify a corporation, association, or
       other organization that employs the other person or to which the other
       person belongs.

       {¶8} The count also carried a furthermore clause, stating that “the offender

trespassed on the land or premises where the victim lives, is employed, or attends school.”

       {¶9} He was also convicted of telecommunications harassment in violation of R.C.

2917.21(A)(3), which provides that

       [n]o person shall knowingly make or cause to be made a
       telecommunication, or knowingly permit a telecommunication to be made
       from a telecommunications device under the person’s control, to another, if
       the caller * * * [d]uring the telecommunication, violates section 2903.21 of
       the Revised Code.

        {¶10} R.C. 2903.21(A) defines the offense of aggravated menacing and provides
as follows:

       No person shall knowingly cause another to believe that the offender will
       cause serious physical harm to the person or property of the other person,
       the other person’s unborn, or a member of the other person’s immediate
       family. In addition to any other basis for the other person’s belief that the
       offender will cause serious physical harm to the person or property of the
       other person, the other person’s unborn, or a member of the other person’s
       immediate family, the other person’s belief may be based on words or
       conduct of the offender that are directed at or identify a corporation,
       association, or other organization that employs the other person or to which
       the other person belongs.
       {¶11} The record reflects that on June 7, 2015, Boczek and the victim were

involved in a minor car accident in Cleveland, Ohio. After the exchange of insurance

information, Boczek realized that his wallet was missing from his truck and believed that

the victim had taken it. Shortly after the accident, the victim received a call from her

insurance agent, asking if her phone number and address could be given to Boczek, which

she declined. Minutes later, the victim’s insurance agent called back, informing the

victim that Boczek had threatened the victim, stating that the victim “would get what was

coming to her.” Based on the insurance agent’s advice, the victim contacted the police.

       {¶12} Thereafter, Boczek began calling the victim’s place of employment,

harassing and threatening her. In one instance, Boczek sat outside the victim’s place of

employment and called her. When the victim indicated that she was not at work, Boczek

told her that he was outside and could see her car. In a separate instance, Boczek

reached the victim’s boss, and upon being told to speak with the police about the

situation, Boczek indicated that he does not deal with the police, “he deals with problems

himself.” According to the victim, Boczek repeatedly called her at work, causing her to

lose focus and ultimately lose her job.

       {¶13} Boczek also harassed the victim on Facebook by reaching out to her friends

to gather information about the victim’s current address and telephone number. Boczek

also posted messages to the victim’s friends on Facebook, indicating that “he’s going to

get her.” Boczek further located a lewd photograph of the victim on a gossip website

and then sent the photograph to the victim’s Facebook friends.
      {¶14} Based on these facts, the trial court found that the two offenses were not

allied offenses of similar import.    Specifically, the trial court found that Boczek’s

conduct involved different harm inflicted upon the victim as a result of the different type

of conduct supporting each offense, stating the following:

       The Court’s finding that the harm as a result of these offenses is separate
       with each different type of conduct. Stalking somebody in person or
       calling and harassing them is different. So I don’t find that these line up
       for purposes of allied offenses of similar import.

       {¶15} We agree. Although there was some overlap of the facts alleged supporting

the offenses, the record reveals that Boczek engaged in separate conduct toward the

victim with respect to the two counts and that the harm that resulted from each offense is

separate and identifiable. The menacing by stalking count arose out of Boczek’s specific

presence at the victim’s employment where he waited outside her building and harassed

her after a series of threatening telephone calls, including one to her insurance agent.

Separate and apart from that, Boczek telephoned and threatened the victim on other

occasions, including telephoning her boss, and sent harassing Facebook messages,

causing the victim to believe that he intended to cause serious physical harm to her.

Accordingly, applying Ruff, we find that Boczek is not entitled to merger of the offenses

under R.C. 2941.25.

       {¶16} The first assignment of error is overruled.

       B. Length of Sentence

       {¶17} In his second assignment of error, Boczek argues that the trial court abused

its discretion in imposing such a lengthy sentence on the two counts.              Boczek
acknowledges that the sentence is “not contrary to law,” but argues that “the sentence

imposed constitutes an abuse of the court’s discretion as it is unreasonable and arbitrary.”

 This argument has no merit.

       {¶18} In support of his argument for an abuse of discretion, Boczek relies on the

test set out by the plurality in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896

N.E.2d 124. But contrary to Boczek’s claim, in reviewing felony sentences, we no

longer use an abuse of discretion standard of review, but apply the standard of review set

forth in R.C. 2953.08(G)(2). State v. Tate, 8th Dist. Cuyahoga No. 97804,

2014-Ohio-5269, ¶ 55; see also State v. Marcum, Slip Opinion No. 2016-Ohio-1002, ¶ 23

(reaffirming that appellate courts should apply the standard set forth in R.C. 2953.08 and

not an abuse of discretion).     Under the plain language of R.C. 2953.08(G)(2), “an

appellate court may vacate or modify a felony sentence on appeal only if it determines by

clear and convincing evidence that the record does not support the trial court’s findings

under relevant statutes or that the sentence is otherwise contrary to law.” Marcum at ¶

23.

       {¶19} Applying Marcum, Boczek’s “abuse of discretion” attack of his sentence,

which falls within the statutory range, provides no basis for relief under the law. See

State v. Cole, 8th Dist. Cuyahoga Nos. 103187–103190, 2016-Ohio-2936, ¶ 78 (“apart

from any claim that the sentencing judge failed to fulfill a statutorily mandated obligation

before imposing sentence, a sentence falling within the statutory range is unreviewable”).

       {¶20} To the extent Boczek’s argument attacks his sentence as not being properly
imposed in accordance with the purposes and principles of the felony sentencing

guidelines, we likewise find that this argument has no merit.

       {¶21} In determining the sentence to impose, a sentencing court is required to

consider the purposes and principles of sentencing pursuant to R.C. 2929.11 and 2929.12.

Under R.C. 2929.11(A), a felony sentence shall be reasonably calculated to achieve two

“overriding purposes”: (1) to protect the public from future crimes by the offender, and

(2) to punish the offender using the minimum sanctions the court determines will achieve

those purposes. Further, under R.C. 2929.11(B), the sentence imposed for a felony must

be commensurate with the seriousness of the offender’s conduct and consistent with

sentences imposed for similar crimes committed by similar offenders.

       {¶22} Under R.C. 2929.12(A), a court sentencing a felony offender has discretion

to determine the most effective way to comply with the purposes and principles of

sentencing outlined in the statute. In exercising its discretion, however, the sentencing

court must consider the seriousness, recidivism, and other mitigating factors set forth in

R.C. 2929.12. Id. Although the trial court must consider the purposes and principles of

sentencing as well as the mitigating factors, the court is not required to use particular

language or make specific findings on the record regarding its consideration of those

factors. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31;

State v. Jones, 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13.

       {¶23} Here, the record overwhelmingly demonstrates that the trial court properly

considered the purposes and principles of felony sentencing. During the sentencing
hearing, trial court considered Boczek’s extensive criminal history, his presentence

investigation report, the arguments of counsel, the victim’s statement, Boczek’s

statement, and the facts supporting the conviction. And although not required, the trial

court further detailed its application of R.C. 2929.11 and 2929.12 on the record, stating

the following:

      Mr. Boczek, in sentencing you and all others that come before the Court on
      felony matters I have to comply with the felony sentencing statutes. The
      overall purpose is to punish the offender and protect the public from future
      crime by the offender and others using the minimum sanctions that the
      Court determines accomplishes those purposes without imposing an
      unnecessary burden upon the state and local government resources.

      ***

             In doing my job here, the Court must, and I have, considered the
      need for incapacitation, deterrence, rehabilitation, and restitution. I have to
      come up with a sentence that’s fair to you, commensurate with, and not
      demeaning to the seriousness of your conduct, its impact on the victim, and
      a sentence that is consistent with what others have received with similar
      offenses.

            And at the outset I would note for the record that we frequently have
      menacing by stalking before this court, usually not the actual criminal
      charges, but we have civil stalking protection orders in here on an alarming
      rate. Some of them describe conduct similar to this but never as extreme.

      ***

             So in this matter I will note you are on court-supervised release with
      Ms. Thompson and she said that you reported as instructed. You submitted
      a negative urine test and followed up with your doctors. So that was a
      positive development here.

             Indicators under the law that your conduct is more serious under
      2929.12(B), you effectively hounded the victim from her job, certainly
      hounded her at her job, and caused her psychological harm. She’s lost her
      sense of well-being.
      ***

              Indicators your conduct is less serious under 2929.12(C), you suffer
      from intermittent explosive disorder. So they’re giving you a medication
      that tends to dull some of that response, I guess is what it does. But it’s not
      — it’s not something that can be controlled completely because there are
      days when you’re here in this court and you’re very lucid and act
      appropriately. And there are other days here where you act the opposite.
      And looking back at everything here you are dangerous. And I’ll address
      that now.

             Indicators that you’re more likely to reoffend under 2929.12(D), you
      do have many prior convictions and prior violations for sanctions. You
      have domestic violence convictions, assault convictions, stalking
      convictions. It’s nine and a half pages of convictions. And this behavior
      that was directed towards [the victim] is not new.

      ***

             So it’s been a constant string of offenses, and although there are
      individuals who have mental illness who we can work with, many of them
      are successful, there are some who are unsuccessful. And in your instance,
      I — that’s why I said, I find you dangerous.

             Now there are positive things I can say for you under 2929.12(E).

      You did admit to your involvement and apologized. You have a full-time

      job, and by all accounts you are a very good worker. You’re taking your

      meds. And there are other letters in support. So this is not a matter of you

      being a good person or a bad person. It’s — as with all of us, we’re all a

      blend of something. But your actions make it very difficult to believe that

      you would be successful in the community.

      {¶24} Notably, although Boczek now attempts to minimize the harm suffered by

the victim, the victim detailed how Boczek’s actions traumatized her, causing her to lose
her job, change her appearance, and seek to relocate. Further, while Boczek maintains

on appeal that the trial court should have given more weight to his mitigating evidence,

such as his current employment situation, his suffering from mental illness at the time of

the offense, and his subsequent remorse for his actions, the trial court is afforded

discretion in weighing the factors. State v. Carrington, 8th Dist. Cuyahoga No. 100918,

2014-Ohio-4575, ¶ 27 (recognizing that the trial court has the discretion to determine the

weight to assign a particular statutory factor). Indeed, as to the consideration of the

factors in R.C. 2929.11 and 2929.12, the Marcum court noted a reviewing court’s duty to

defer to the sentencing court and reiterated that “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.” Marcum, Slip Opinion No. 2016-Ohio-1002, ¶ 23. And here, we find no

basis to conclude by clear and convincing evidence that the record does not support the

sentence.

       {¶25} Thus, given that the trial court’s proper consideration of the purposes and

principles of felony sentencing set forth in R.C. 2929.11 and the relevant seriousness and

recidivism factors listed in R.C. 2929.12, we find no merit to Boczek’s second

assignment of error and overrule it.

       {¶26} Judgment affirmed.

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

for execution of sentence.

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

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
MELODY J. STEWART, J., CONCUR
