State v. Boles

2013 Ohio 3376

• Court: Ohio Court of Appeals
• Decided: August 2, 2013
• Docket: 25526
• Status: Published

Opinion

[Cite as State v. Boles, 2013-Ohio-3376.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 25526

v. : T.C. NO. 00CR1576

SHAWN R. BOLES : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 2nd day of August , 2013.

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

SHAWN R. BOLES, #A410-417, Belmont Correctional Institute, P. O. Box 540, St. Clairsville, Ohio 43950 Defendant-Appellant

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Shawn R. Boles,

filed December 13, 2012. Boles appeals from the trial court’s “Entry Overruling Motion for 2

Jail Time Credit,” and “Entry Overruling Petition to Contest Classification, Registration,

and Notification Requirement and Re-instating Sexually Oriented Offender Classification,”

both of which were issued on November 15, 2012 . We hereby affirm the judgments of the

trial court.

{¶ 2} This Court has previously set forth the procedural history herein in State v.

Boles, 187 Ohio App.3d 345, 2010-Ohio-278, 932 N.E.2d 345 (2d Dist.), ¶ 8-12, as follows:

Boles was originally charged in 2000 with one count of improperly

discharging a firearm at or into a habitation, with a firearm specification; one

count of having weapons while under a disability; one count of tampering

with evidence, with a firearm specification; one count of rape by force of a

child under the age of 13; two counts of gross sexual imposition of a child

under the age of 13; and two counts of felonious assault, with firearm

specifications.

In 2001, Boles pleaded no contest to one count of discharging a

firearm into a habitation, with a firearm specification, and one count of rape

of a child under the age of 13 (without a force specification). He was found

guilty and was sentenced accordingly. We reversed those convictions on

appeal. State v. Boles, Montgomery App. No. 18762, 2003 WL 21213383,

2003-Ohio-2693.

On remand, the trial court initially overruled Boles's motion to sever

the rape count from the count of improper discharge of a firearm but decided

to reverse itself and sever the counts when it learned, on the day set for trial, 3

that genetic testing relating to the rape charge had not been completed. Boles

was convicted, following a jury trial, of the count of improper discharge of a

firearm into a habitation, and he was sentenced to seven years' imprisonment

for that offense. We affirmed that conviction and sentence. State v. Boles,

Montgomery App. No. 20730, 2005-Ohio-4490, 2005 WL 2077782.

Boles was later tried on the rape charge, but that trial ended in a hung

jury.

In October 2008, Boles was again tried, to a jury, on the rape charge

(without a force specification, because the state agreed with Boles that the

force specification was unavailable as a result of the earlier appellate

disposition). Boles chose to represent himself at this trial, but standby counsel

was present at counsel table to assist Boles if the need to do so should arise.

That trial ended in a conviction and a ten-year sentence, to be served

consecutively to the previously imposed seven-year sentence for improper

discharge of a firearm.

Boles was designated a Tier III sex offender pursuant to the Adam Walsh Act, and this Court

affirmed his conviction on January 29, 2010. We note that the victim herein was Boles’

daughter.

{¶ 3} On February 10, 2012, Boles filed his “Motion for Jail Time Credit,” in

which he asserted that he was entitled to “all Jail Time Credit from the time of his arrest on

May 24, 2000, pursuant to R.C. 2967.191,” as well as his “Petition to Invalidate the

Classification, Registration, and Notification Requirements of Ohio Revised Code, Chapter 4

2950, under the AWA and Megan’s Law.” In overruling his motion regarding jail time

credit, the trial court indicated as follows: “The Division of Court Services has reviewed the

matter and issued a Jail Time Credit Report, which was filed in this Case on November 5,

2012. It was determined that the correct number of days of jail time credit have already

been given to Defendant Shawn R. Boles.” The court indicated that it reviewed the Jail

Time Credit report and adopted it in its entirety. The report, which we note is consistent

with the warrant to convey issued on October 28, 2008, provides that Boles was in custody

for 533 days.

{¶ 4} In overruling Boles’ motion regarding his classification pursuant to his

conviction for rape, the trial court determined that “it is appropriate for the Defendant to be

classified under S.B. 5, which was in effect when the Defendant committed the rape for

which he was convicted herein.” The court further noted that it “RE-INSTATES the

classification of sexually oriented offender originally imposed by this Court on March 6,

2001.”

{¶ 5} Boles asserts four assigned errors herein. His first assigned error is as

follows:

“WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITS

PLAIN ERROR WHERE IT DENIED APPELLANT THE JAIL TIME CREDIT FROM

THE TIME OF ARREST ON MAY 24, 2000.”

{¶ 6} The jail time credit report relied upon by the trial court indicates that Boles

was in the custody of the jail from May 13, 2007, until October 24, 2008, on the rape charge,

and that he is entitled to 533 days of jail time credit in that matter. It further provides that 5

“[a]ll previous credit was applied to the seven (7) year sentence Mr. Boles received for

Improperly Discharging a Firearm at or Into a Habitation. That portion of the sentence has

been served and is inactive.” The report concludes that “no additional credit shall be

given.”

{¶ 7} R.C. 2967.191 provides:

The department of rehabilitation and correction shall reduce the

stated prison term of a prisoner or, if the prisoner is serving a term for which

there is parole eligibility, the minimum and maximum term or the parole

eligibility date of the prisoner by the total number of days that the prisoner

was confined for any reason arising out of the offense for which the prisoner

was convicted and sentenced, including confinement in lieu of bail while

awaiting trial, confinement for examination to determine the prisoner's

competence to stand trial or sanity, and confinement while awaiting

transportation to the place where the prisoner is to serve the prisoner's prison

term.

{¶ 8} As this Court indicated in State v. Woodward, 2d Dist Montgomery No.

24483, 2012-Ohio-632, ¶ 9, “If a defendant is sentenced to consecutive prison terms for

multiple charges, jail time credit is not applied to each and every prison term as it is for

concurrent sentences, but rather is applied but once, to the total term. Ohio Adm.Code

5120-2-04(G); State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440.”

{¶ 9} Boles was confined in jail for 533 days in 2007 and 2008, as reflected in the

Jail Time Credit Report adopted by the trial court, and that number of days arose from the 6

rape offense. We note that the trial court’s docket contains a pro se Notice of Address

Change filed by Boles on May 17, 2007, that provides that he has been “removed from the

Madison Correctional Institution as the Defendant’s sentence has expired, and has been

placed in the Montgomery County Jail, for a pending trial * * *.” As further reflected in

the Jail Time Credit Report, credit arising from Boles’ prior confinement in jail was applied

to Boles’ expired seven year sentence, and he is not entitled to have that credit again applied

to his consecutive sentence for rape. Woodward. There being no merit to Boles’ first

assigned error, it is overruled.

{¶ 10} We will consider Boles’ remaining assignments of error together. They are

as follows:

“WHETHER THE TRIAL COURT’S RE-INSTATEMENT OF SEXUALLY

ORIENTED OFFENDER CLASSIFICATION VIOLATE THE SEPERATION OF

POWERS DOCTRINE.” (Sic)

And,

PLAIN ERROR WHERE IT RE-INSTATED THE SEXUALLY ORIENTED OFFENDER

CLASSIFICATION THAT WAS FORMALLY VACATED BY THE COURT OF

APPEALS.” (Sic)

ORIENTED OFFENDER CLASSIFICATION VIOLATE THE DOUBLE JEOPARDY

CLAUSE.” 7

(Sic).

{¶ 11} As the State asserts, pursuant to State v. Williams, 129 Ohio St.3d 344,

2011-Ohio-3374, 952 N.E.2d 1108, Boles may no longer be classified as a Tier III offender

under the Adam Walsh Act. “Ohio's version of the federal Megan's Law, Section 14071,

Title 42, U.S.Code, was enacted in 1996, Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II,

2560, and significantly amended in 2003 by Am.Sub.S.B. No. 5 (S.B. 5), 150 Ohio Laws,

Part IV, 6558.” Id., ¶ 7. Subsequently, 2007 Am. Sub. S.B. No.10 “was enacted in 2007,

and is based on the federal Adam Walsh Act, Section 16901 et seq., Title 42, U.S.Code.”

Id. In Williams, the Supreme Court of Ohio determined, “2007 Am.Sub.S.B. No. 10, as

applied to defendants who committed sex offenses prior to its enactment, violates Section

28, Article II of the Ohio Constitution, which prohibits the General Assembly from passing

retroactive laws.” Id., at syllabus. As this Court has noted, “a defendant improperly

classified under the AWA can be re-classified under Megan's Law if his offenses were

committed while Megan's Law was in effect. State v. Stubbs [2d Dist. Greene No.

2011-CA-62, 2012-Ohio-2969].” State v. Turner, 2d Dist. Montgomery No. 25115,

2013-Ohio-806, ¶ 11, appeal not allowed, 136 Ohio St. 3d 1405, 2013-Ohio-2645, 989

N.E.2d 1020.

{¶ 12} Since Boles committed his offense while Megan’s Law was in effect, the

trial court properly reclassified him as a sexually oriented offender. While the trial court

indicated that it “re-instated” Boles’ original sexually oriented classification from 2001, as

noted above and by Boles herein, this Court reversed his 2001 conviction and remanded the

matter. Regardless, Boles remains subject to reclassification, from a Tier III offender to a 8

sexually oriented offender, and we note that in State v. Hayden, 96 Ohio St.3d 211,

2002-Ohio-4169, 773 N.E.2d 502, the Ohio Supreme Court held that the “Due Process

Clauses of the Fourteenth Amendment to the United States Constitution and of Section 16,

Article I of the Ohio Constitution do not require a trial court to conduct a hearing to

determine whether a defendant is a sexually oriented offender.” Id., at paragraph two of the

syllabus. The Hayden Court determined, “according to R.C. Chapter 2950, if a defendant

has been convicted of a sexually oriented offense as defined in R.C. 2950.01(D), and is

neither a habitual sex offender nor a sexual predator, the sexually oriented offender

designation attaches as a matter of law.” Id. Boles’ remaining three assigned errors are

overruled, and the judgment of the trial court is affirmed.

FROELICH, J. and HALL, J., concur.

Copies mailed to:

R. Lynn Nothstine Shawn R. Boles Hon. Barbara P. Gorman