State v. Boyer

2019 Ohio 2590

• Court: Ohio Court of Appeals
• Decided: June 28, 2019
• Docket: 2018-CA-120
• Status: Published

Opinion

[Cite as State v. Boyer, 2019-Ohio-2590.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2018-CA-120 : v. : Trial Court Case No. 2016-CR-160 : ALEXANDER BOYER : : (Criminal Appeal from Defendant-Appellant : Common Pleas Court) :

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OPINION

Rendered on the 28th day of June, 2019.

JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’s Office, Appellate Division, 50 E. Columbia Street, Suite 449, Springfield, OH 45502 Attorney for Plaintiff-Appellee

TRAVIS KANE, Atty. Reg. No. 0088191, 130 W. Second Street, Suite 460, Dayton, Ohio 45402 Attorney for Defendant-Appellant

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HALL, J. -2-

{¶ 1} Alexander Boyer appeals from his conviction and sentence following a

negotiated guilty plea to one count of attempted murder, a first-degree felony.

{¶ 2} In his sole assignment of error, Boyer contends the trial court erred in

imposing a seven-year prison sentence.

{¶ 3} The record reflects that a grand jury indicted Boyer on charges of attempted

murder, felonious assault, having a weapon while under disability, and related firearm

specifications. The charges stemmed from Boyer shooting the victim with a nine-

millimeter handgun. At the time of the offense, Boyer was having an affair with the victim’s

wife, Jo Ann Perry.1 The victim, Brian Perry, went to Boyer’s house to talk to Jo Ann.

Boyer came outside where husband and wife were talking and fired one shot in Brian

Perry’s chest. Boyer later pled guilty to attempted murder. In exchange, the State

dismissed the other charges and specifications. At sentencing, the trial court heard

arguments from counsel and a statement from Boyer. It also considered a victim-impact

statement and a presentence-investigation report. Based on the information before it, the

trial court imposed a seven-year prison sentence.

{¶ 4} On appeal, Boyer challenges his sentence. He first argues that “there is not

clear and convincing evidence within the record for the required relevant findings under

division (D) of R.C. 2929.13 to support a seven-year prison sentence.” (Appellant’s brief

at pg. 4.) He also cites the PSI report and engages in his own analysis of the statutory

“seriousness” and “recidivism” factors. (Id. at 5-8.) He argues that he “was a good

1 On appeal, Boyer refers to Jo Ann Perry as victim Brian Perry’s “ex-wife.” Brian and Jo Ann Perry apparently divorced after the shooting, and Boyer married her. At the time of the shooting, however, Jo Ann Perry still was married to the victim. -3-

candidate for community control” and that he “was more amenable to community control

than prison and a sentence of seven years is excessive.” (Id. at 6, 8.)

{¶ 5} When reviewing felony sentences, appellate courts apply the standard of

review found in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231, ¶ 9. Under that statute, an appellate court may increase, reduce,

or modify a sentence, or it may vacate the sentence and remand for resentencing, only if

it “clearly and convincingly” finds either (1) that the record does not support certain

specified findings or (2) that the sentence imposed is contrary to law.

{¶ 6} “The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing * * * more than minimum sentences.” State v. King, 2013-Ohio-

2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, a trial court must consider the statutory

criteria that apply to every felony offense, including those set out in R.C. 2929.11 and

R.C. 2929.12. State v. Leopard, 194 Ohio App.3d 500, 2011-Ohio-3864, 957 N.E.2d 55,

¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1,

¶ 38.

{¶ 7} Although sentences exceeding the statutory minimum do not require any of

the findings specified in R.C. 2953.08(G)(2), the Ohio Supreme Court has found it

appropriate “for appellate courts to review those sentences that are imposed solely after

consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally

deferential to the sentencing court. That is, 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.” -4-

Marcum at ¶ 23.

{¶ 8} In the present case, Boyer’s sentence is not contrary to law. The seven-year

sentence is within the authorized statutory range, and the trial court considered the

statutory principles and purposes of sentencing and the statutory seriousness and

recidivism factors, thereby making the sentence authorized by law. State v. Folk, 2d Dist.

Montgomery No. 27375, 2017-Ohio-8105, ¶ 6-7. Therefore, we may vacate or modify

Boyer’s lawful sentence only if we find by clear and convincing evidence that the record

does not support it. We make no such finding here.

{¶ 9} As an initial matter, we reject Boyer’s assertion that “there is not clear and

convincing evidence within the record for the required relevant findings under division (D)

of R.C. 2929.13 to support a seven-year prison sentence.” The trial court made no

findings under R.C. 2929.13(D), and none were required to impose a seven-year

sentence. For the offense of attempted murder, a statutory presumption exists that a

prison term is necessary. R.C. 2929.13(D)(1). Under R.C. 2929.13(D)(2), the presumption

is rebuttable and a trial court may impose community control if it finds, based on its

analysis of the seriousness and recidivism factors in R.C. 2929.12, that community control

“would adequately punish the offender and protect the public from future crime” and that

it “would not demean the seriousness of the offense.” R.C. 2929.13(D)(2). The trial court

did not make these findings, and the record would not support them in any event.

{¶ 10} At the time of the current offense, Boyer was 20 years old. His juvenile

record included six domestic violence adjudications, 2 a rape adjudication, and three

2 Boyer’s appellate brief states that he had four domestic violence “convictions” as a juvenile. Although the PSI report shows four cases, it reflects six separate adjudications, which indicates that there were multiple victims or offenses within some cases. -5-

probation violations, the last of which included a revocation and a recommitment to DYS.

(PSI at 3-5.) As an adult, he had another domestic violence case pending at the time of

sentencing in this case. In a victim-impact statement included with the PSI report, Brian

Perry stated that he went to Boyer’s house because he suspected that Boyer and his wife

were having an affair. Perry asked his wife to come outside and then waited in a car for

her. According to a police report accompanying the PSI, Perry told investigators that he

was sitting in the car talking to his wife when Boyer came outside and banged on the

vehicle’s door and window. Perry’s wife exited the vehicle. As Perry also was getting out,

Boyer pulled a handgun and pointed it at him. According to Perry, he put a hand up, took

a couple of steps back, and said, “Whoa, whoa.” Boyer responded by shooting him in the

chest and then running back inside the house. In his version of the incident, Boyer stated

that he pulled the gun after Perry slammed his wife into the car. As Boyer “was trying to

back away,” Perry “kept charging.” (PSI at 2.) Boyer claimed he fired his gun because he

feared Perry was going to kill him. (Id.)

{¶ 11} In his victim-impact statement, Perry explained that the shooting had forced

him to resign from his job because he no longer could perform the work and to take a

position at much lower pay. He also stated that his children had trouble sleeping after the

incident and were fearful that he would be killed. At least one of the children experienced

longer-term emotional problems as a result of the shooting. Perry stated that he too

remained fearful and felt a need to “look over [his] shoulder.”

{¶ 12} At sentencing, the trial court cited Perry’s serious physical harm as a factor

making Boyer’s conduct more serious than conduct normally constituting the offense.

(Sentencing Tr. at 11.) The trial court found no factors making the offense less serious -6-

than normal. (Id.) As for factors making recidivism more likely, the trial court found that

Boyer previously had been adjudicated delinquent, that he had not been rehabilitated

adequately, and that he showed no genuine remorse. (Id. at 11-12.) As for factors making

recidivism less likely, the trial court noted that Boyer had no adult criminal convictions

prior to committing the offense at issue and that he had a low risk-assessment score. (Id.

at 12-13.) The trial court then found that a prison term was consistent with the principles

and purposes of sentencing and that Boyer was not amenable to community control. The

trial court opined that “any combination of community control sanctions would demean

the seriousness of his conduct and impact on the victim; and the sentence of

imprisonment is commensurate with the seriousness of his conduct and impact on the

victim and does not place an unnecessary burden on state governmental resources.” (Id.

at 14.) The trial court added: “In reviewing [R.C.] 2929.13(D), for factors that would

overcome a presumption of prison for a felony of the first degree, I find that those factors

are not present.” (Id.) The trial court imposed a seven-year prison sentence. (Id.)

{¶ 13} On appeal, Boyer stresses that his only prior adult conviction was a traffic

offense. He also claims the pending domestic violence case cited by the trial court

subsequently was dismissed. The record on appeal fails to show the ultimate disposition

of that case. Regardless, the significance of Boyer’s sparse adult record is diminished by

the fact that he was only 20 years old when he shot Perry. Boyer also stresses his low

risk-assessment score and the fact that he posted bond and complied with the terms of

bond during the pendency of proceedings below. He suggests that these facts made him

a good candidate for community control. Finally, Boyer argues that three of the statutory

“less serious” factors under R.C. 2929.12(C) apply here: (1) Perry induced or facilitated -7-

the offense, (2) Boyer acted under strong provocation, and (3) there are substantial

grounds to mitigate Boyer’s conduct.

{¶ 14} The trial considered Boyer’s low risk-assessment score in its analysis, and

it undoubtedly was aware that he did not commit any violations while on bond. With regard

to the three R.C. 2929.12(C) factors, the trial court acted reasonably in not finding any of

them applicable. To suggest that Perry induced or facilitated the shooting by trying to

speak with his wife in the car is unconvincing. The record also does not support a finding

that Boyer, who was having an affair with Perry’s wife, acted under strong provocation.

Under Perry’s version of events, there were no substantial grounds to mitigate Boyer’s

conduct. Even under Boyer’s version of events, he voluntarily came outside and

confronted Perry with a loaded weapon.

{¶ 15} Finally, we cannot ignore the sentencing benefit Boyer likely obtained by

entering a negotiated guilty plea. His attempted murder conviction itself carried a potential

11-year prison sentence. In exchange for his guilty plea to that charge, the State

dismissed a third-degree-felony weapon-under-disability charge that could have resulted

in additional prison time. It also dismissed a firearm specification that would have required

an additional consecutive prison sentence.3

{¶ 16} Having reviewed the record, we do not find that it clearly and convincingly

fails to support the trial court’s imposition of a seven-year prison sentence for attempted

murder. Boyer’s assignment of error is overruled.

{¶ 17} The judgment of the Clark County Common Pleas Court is affirmed.

3The State also dismissed a felonious assault charge, but it undoubtedly would have been subject to merger at sentencing. -8-

WELBAUM, P.J. and DONOVAN, J., concur.

Copies sent to:

John M. Lintz Travis Kane Hon. Richard J. O’Neill