[Cite as State v. Boros, 2017-Ohio-7405.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION Nos. 105173 and 105174
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
MATTHEW BOROS DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-16-607506-A and CR-16-608167-A
BEFORE: Boyle, J., E.A. Gallagher, J., and McCormack, J.
RELEASED AND JOURNALIZED: August 31, 2017 ATTORNEY FOR APPELLANT
Raymond R. Froelich 2100 Salem Parkway Westlake, Ohio 44145
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor BY: Shannon M. Musson Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, J.:
{¶1} Defendant-appellant, Matthew Boros, appeals his conviction for one count
of criminal trespass and two counts of theft. For the reasons that follow, we affirm.
I. Procedural History
{¶2} In May 2016, in Cuyahoga C.P. No. CR-16-607506, a grand jury indicted
Boros for one count of breaking and entering in violation of R.C. 2911.13(A), a
fifth-degree felony, and one count of theft in violation of R.C. 2913.02(A)(3), a
fifth-degree felony. In Cuyahoga C.P. No. CR-16-608167, a grand jury indicted Boros
for one count of theft in violation of R.C. 2913.02(A)(3), a fifth-degree felony, and one
count of securing records by deception in violation of R.C. 2913.43(A), a fifth-degree
felony. The charges in both criminal cases arose out of multiple incidents when Boros
took money from victims for the purchase of homes even though Boros had no right or
ownership interest in the properties. Boros pleaded not guilty to the charges.
{¶3} Boros filed a motion for intervention in lieu of conviction. On September
13, 2016, the trial court ruled that the “motion for intervention in lieu is denied.”
{¶4} Thereafter, Boros retracted his not guilty pleas in both criminal cases in a
plea-bargained package deal. Boros pleaded guilty in Cuyahoga C.P. No.
CR-16-607506 to one count of criminal trespass, a fourth-degree misdemeanor, and one
count of theft, a fifth-degree felony. In Cuyahoga C.P. No. CR-16-608167, Boros
pleaded guilty to one count of theft, a fifth-degree felony.
{¶5} At the plea and sentencing hearings, two victims gave statements. One of the victims, Lisa, stated that she met Boros while looking for a home for her 72-year-old
father who had been living in a nursing home. Boros originally told Lisa that he had a
house in East Cleveland for her to purchase for her father. At Boros’s request, Lisa and
her brother paid for a roof on the East Cleveland home. Thereafter, Boros told Lisa that
the East Cleveland home was no longer available, but that he had found another home for
her father in Euclid. After taking out a loan and paying Boros money on a weekly basis
for the Euclid home, Lisa learned that the house did not belong to Boros. Lisa stated
that her father now believes that she and her siblings have abandoned him in the nursing
home because they were not able to move him into the home as promised by Boros.
{¶6} Another victim, David, explained that he, his fianceé, and five children
needed a home. He met Boros because of a house located on West 36th Street in
Cleveland that was listed on Craig’s List. David said that Boros agreed to sell the West
36th Street house to David, and he signed paperwork that he received from Boros.
David said that he paid Boros $5,160, but that he never took possession of the house
because Boros did not have any right to sell it. David indicated that he had to borrow
some of the money to pay Boros because his income last year totaled approximately
$5,000.
{¶7} In Cuyahoga C.P. No. CR 16-607506, the trial court sentenced Boros to 30
days in county jail for the criminal trespass charge and 11 months in prison for the theft
charge. In Cuyahoga C.P. No. CR 16-608167, the trial court sentenced Boros to 11
months in prison. The trial court ordered the sentences in the two cases to be served consecutively for a total of 22 months.
{¶8} Boros appeals from the trial court’s judgment. He asserts the following
two assignments of error:
1. The trial court erred and abused its discretion in denying defendant, Boros, his request for intervention in lieu of conviction without a hearing.
2. The trial court erred by imposing consecutive sentences on each felony when it failed to make adequate findings required by the Ohio Revised Code.
II. Law and Analysis
A. Intervention in Lieu of Conviction
{¶9} In his first assignment of error, Boros argues that the trial court abused its
discretion when it denied his request for intervention in lieu of conviction without a
hearing. Specifically, Boros contends that the trial court never ruled on his motion for
intervention in lieu of conviction and that “prejudicial error results when there is no
record for the appellate court to review.”
{¶10} The state disagrees and argues that R.C. 2951.041(A)(1) creates a privilege,
not a right, and authorizes a trial court to deny a request for intervention in lieu of
conviction without a hearing. Moreover, the state claims that the trial court denied
Boros’s motion for intervention and, therefore, did not abuse its discretion in failing to
hold a hearing.
{¶11} Intervention in lieu of conviction is a procedure governed by R.C. 2951.041.
Pursuant to that statute, if an offender is charged with a crime, and the trial court has reason to believe that drug or alcohol use was a factor leading to the commission of that
crime, “the court may accept, prior to the entry of a guilty plea, the offender’s request for
intervention in lieu of conviction.” R.C. 2951.041(A)(1). Even when an offender is
eligible for intervention in lieu of conviction, the statute does not create a legal right to it.
State v. Roome, 12th Dist. Madison No. CA2016-09-028, 2017-Ohio-4230, ¶ 7, citing
State v. Crawford, 12th Dist. Fayette No. CA2012-10-034, 2013-Ohio-2280. Rather,
“the statute is permissive in nature and provides that the trial court may, in its discretion,
grant the defendant an opportunity to participate in the early intervention in lieu of a
sentence.” State v. Rice, 180 Ohio App.3d 599, 2009-Ohio-162, 906 N.E.2d 506, ¶ 14
(2d Dist.), citing State v. Dempsey, 8th Dist. Cuyahoga No. 82154, 2003-Ohio-2579.
{¶12} R.C. 2951.041(A)(1) provides that the “court may reject an offender’s
request without a hearing.” See State v. Ogle, 8th Dist. Cuyahoga No. 97926,
2012-Ohio-3693, ¶ 16.
{¶13} A trial court’s decision to deny an offender’s request for intervention in lieu
of conviction is reviewed under an abuse of discretion standard. Roome at ¶ 8. “Abuse
of discretion” has been defined as an attitude that is unreasonable, arbitrary, or
unconscionable. In re C.K., 2d Dist. Montgomery No. 25728, 2013-Ohio-4513, ¶ 13,
citing Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248 (1985).
{¶14} Here, Boros filed a motion for intervention in lieu of conviction. Contrary
to his argument, two days after he filed the motion, the trial court denied it. And, after
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[Cite as State v. Boros, 2017-Ohio-7405.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION Nos. 105173 and 105174
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
MATTHEW BOROS DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-16-607506-A and CR-16-608167-A
BEFORE: Boyle, J., E.A. Gallagher, J., and McCormack, J.
RELEASED AND JOURNALIZED: August 31, 2017 ATTORNEY FOR APPELLANT
Raymond R. Froelich 2100 Salem Parkway Westlake, Ohio 44145
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor BY: Shannon M. Musson Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, J.:
{¶1} Defendant-appellant, Matthew Boros, appeals his conviction for one count
of criminal trespass and two counts of theft. For the reasons that follow, we affirm.
I. Procedural History
{¶2} In May 2016, in Cuyahoga C.P. No. CR-16-607506, a grand jury indicted
Boros for one count of breaking and entering in violation of R.C. 2911.13(A), a
fifth-degree felony, and one count of theft in violation of R.C. 2913.02(A)(3), a
fifth-degree felony. In Cuyahoga C.P. No. CR-16-608167, a grand jury indicted Boros
for one count of theft in violation of R.C. 2913.02(A)(3), a fifth-degree felony, and one
count of securing records by deception in violation of R.C. 2913.43(A), a fifth-degree
felony. The charges in both criminal cases arose out of multiple incidents when Boros
took money from victims for the purchase of homes even though Boros had no right or
ownership interest in the properties. Boros pleaded not guilty to the charges.
{¶3} Boros filed a motion for intervention in lieu of conviction. On September
13, 2016, the trial court ruled that the “motion for intervention in lieu is denied.”
{¶4} Thereafter, Boros retracted his not guilty pleas in both criminal cases in a
plea-bargained package deal. Boros pleaded guilty in Cuyahoga C.P. No.
CR-16-607506 to one count of criminal trespass, a fourth-degree misdemeanor, and one
count of theft, a fifth-degree felony. In Cuyahoga C.P. No. CR-16-608167, Boros
pleaded guilty to one count of theft, a fifth-degree felony.
{¶5} At the plea and sentencing hearings, two victims gave statements. One of the victims, Lisa, stated that she met Boros while looking for a home for her 72-year-old
father who had been living in a nursing home. Boros originally told Lisa that he had a
house in East Cleveland for her to purchase for her father. At Boros’s request, Lisa and
her brother paid for a roof on the East Cleveland home. Thereafter, Boros told Lisa that
the East Cleveland home was no longer available, but that he had found another home for
her father in Euclid. After taking out a loan and paying Boros money on a weekly basis
for the Euclid home, Lisa learned that the house did not belong to Boros. Lisa stated
that her father now believes that she and her siblings have abandoned him in the nursing
home because they were not able to move him into the home as promised by Boros.
{¶6} Another victim, David, explained that he, his fianceé, and five children
needed a home. He met Boros because of a house located on West 36th Street in
Cleveland that was listed on Craig’s List. David said that Boros agreed to sell the West
36th Street house to David, and he signed paperwork that he received from Boros.
David said that he paid Boros $5,160, but that he never took possession of the house
because Boros did not have any right to sell it. David indicated that he had to borrow
some of the money to pay Boros because his income last year totaled approximately
$5,000.
{¶7} In Cuyahoga C.P. No. CR 16-607506, the trial court sentenced Boros to 30
days in county jail for the criminal trespass charge and 11 months in prison for the theft
charge. In Cuyahoga C.P. No. CR 16-608167, the trial court sentenced Boros to 11
months in prison. The trial court ordered the sentences in the two cases to be served consecutively for a total of 22 months.
{¶8} Boros appeals from the trial court’s judgment. He asserts the following
two assignments of error:
1. The trial court erred and abused its discretion in denying defendant, Boros, his request for intervention in lieu of conviction without a hearing.
2. The trial court erred by imposing consecutive sentences on each felony when it failed to make adequate findings required by the Ohio Revised Code.
II. Law and Analysis
A. Intervention in Lieu of Conviction
{¶9} In his first assignment of error, Boros argues that the trial court abused its
discretion when it denied his request for intervention in lieu of conviction without a
hearing. Specifically, Boros contends that the trial court never ruled on his motion for
intervention in lieu of conviction and that “prejudicial error results when there is no
record for the appellate court to review.”
{¶10} The state disagrees and argues that R.C. 2951.041(A)(1) creates a privilege,
not a right, and authorizes a trial court to deny a request for intervention in lieu of
conviction without a hearing. Moreover, the state claims that the trial court denied
Boros’s motion for intervention and, therefore, did not abuse its discretion in failing to
hold a hearing.
{¶11} Intervention in lieu of conviction is a procedure governed by R.C. 2951.041.
Pursuant to that statute, if an offender is charged with a crime, and the trial court has reason to believe that drug or alcohol use was a factor leading to the commission of that
crime, “the court may accept, prior to the entry of a guilty plea, the offender’s request for
intervention in lieu of conviction.” R.C. 2951.041(A)(1). Even when an offender is
eligible for intervention in lieu of conviction, the statute does not create a legal right to it.
State v. Roome, 12th Dist. Madison No. CA2016-09-028, 2017-Ohio-4230, ¶ 7, citing
State v. Crawford, 12th Dist. Fayette No. CA2012-10-034, 2013-Ohio-2280. Rather,
“the statute is permissive in nature and provides that the trial court may, in its discretion,
grant the defendant an opportunity to participate in the early intervention in lieu of a
sentence.” State v. Rice, 180 Ohio App.3d 599, 2009-Ohio-162, 906 N.E.2d 506, ¶ 14
(2d Dist.), citing State v. Dempsey, 8th Dist. Cuyahoga No. 82154, 2003-Ohio-2579.
{¶12} R.C. 2951.041(A)(1) provides that the “court may reject an offender’s
request without a hearing.” See State v. Ogle, 8th Dist. Cuyahoga No. 97926,
2012-Ohio-3693, ¶ 16.
{¶13} A trial court’s decision to deny an offender’s request for intervention in lieu
of conviction is reviewed under an abuse of discretion standard. Roome at ¶ 8. “Abuse
of discretion” has been defined as an attitude that is unreasonable, arbitrary, or
unconscionable. In re C.K., 2d Dist. Montgomery No. 25728, 2013-Ohio-4513, ¶ 13,
citing Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248 (1985).
{¶14} Here, Boros filed a motion for intervention in lieu of conviction. Contrary
to his argument, two days after he filed the motion, the trial court denied it. And, after
revisiting the request for intervention in lieu of conviction at the plea hearing, the trial court told Boros that it had “already made [its] ruling.” We find that the trial court
complied with the statutory language of R.C. 2951.041(A)(1) and properly exercised its
discretion to deny Boros’s request for intervention in lieu of conviction without a hearing.
{¶15} Boros’s first assignment of error is overruled.
B. Consecutive Sentences
{¶16} In his second assignment of error, Boros argues that his sentence “is not in
compliance with” R.C. 2929.14(C)(4). Specifically, he claims that “after review of the
sentencing transcript, it becomes clear that the court lacks compassion for drug addicted
individuals and was so desperate to establish a prior record that she had to include his 38
traffic citations.” We disagree.
{¶17} We review felony sentences under the standard set forth in R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 16. R.C. 2953.08(G)(2) provides that a reviewing court may overturn the
imposition of consecutive sentences where the court “clearly and convincingly” finds that
(1) “the record does not support the sentencing court’s findings” under R.C.
2929.14(C)(4), or (2) “the sentence is otherwise contrary to law.” Id.
{¶18} R.C. 2929.14(C)(4) provides that in order to impose consecutive sentences,
the trial court must find that consecutive sentences are (1) necessary to protect the public
from future crime or to punish the offender, (2) that such sentences would not be
disproportionate to the seriousness of the conduct and to the danger the offender poses to
the public, and (3) that one of the following applies: (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 postrelease 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.
R.C. 2929.14(C)(4). {¶19} In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,
16 N.E.3d 659, ¶ 33. “Nor is [the trial court] required to give a talismanic incantation of
the words of the statute, provided that the necessary findings can be found in the record
and are incorporated into the sentencing entry.” Id.
{¶20} At the sentencing hearing in this case, the trial court reminded the parties
that the victims had spoken at the plea and sentencing hearings. After taking into
consideration the victims’ statements, Boros’s statement, and the arguments of counsel,
the trial court stated, in imposing its sentence, the following:
We have one family that’s dealing with an elderly parent that they’re trying to take care of, and another family with five children that you literally stole food out of their mouths, and the comfort of care to an elderly gentlemen. And this isn’t your first day at the rodeo. You’ve been around a lot. ***
You’ve been a terror for a long time. Looking at your record you have 38 traffic citations; you have a record of numerous municipal cases: Criminal damages; building housing violations; failure to remove a nuisance; building code violations; building code violations in 2008; two separate cases including Cleveland Municipal Court with multiple capiases; and your failure to pay, you were granted multiple extensions to pay for violations; 2008 DUI; passing bad checks, 2014; 2015 theft Solon — I’m sorry, Stow Municipal Court; 2015 another case in Stow Municipal Court, theft; drug possession, Cleveland; petty theft, Mentor Municipal Court 2015; Strongsville 2015 theft without consent in Berea Municipal Court and now my two cases.
{¶21} The trial court found that consecutive sentences were “necessary to protect
the public from future crime and punish the offender and that they’re not disproportionate
to the seriousness of [Boros’s] conduct and the danger [he] pose[s] to the public.” The
trial court noted that Boros committed “multiple offenses as part of one or more courses
of conduct and the harm caused by two of the multiple offenses so committed was so
great or unusual that no single prison term adequately reflects the seriousness of [Boros’s]
conduct.” In addition, the trial court stated that Boros’s history of criminal conduct,
“particularly regarding theft cases” demonstrated that consecutive sentences were
“necessary to protect the public from future crime” by Boros. The record further
reflected that Boros was on probation for a theft conviction from the Berea Municipal
Court.
{¶22} The trial court recited Boros’s lengthy criminal history, including his
multiple theft offenses, a passing bad check conviction, and a drug possession conviction.
The trial court recounted that Boros’s current crimes were to victims with very little money or to the elderly and discussed the harm, financially and emotionally, that he
caused to the victims, thus considering consecutive sentences to be proportionate to the
severity of Boros’s conduct and necessary to protect the public and to punish Boros.
The trial court memorialized its findings in a sentencing journal entry.
{¶23} We find that the record in this case supports the imposition of consecutive
sentences. Therefore, we overrule Boros’s second assignment of error.
{¶24} 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
EILEEN A. GALLAGHER, P.J., and TIM McCORMACK, J., CONCUR