State v. Boyle
This text of 2020 Ohio 1224 (State v. Boyle) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
[Cite as State v. Boyle, 2020-Ohio-1224.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Earle E. Wise, Jr., J. -vs- : : JOHN F. BOYLE, JR. : Case No. 2019 CA 0114 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 1990CR56
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 30, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH C. SNYDER JOHN F. BOYLE, JR., PRO SE 38 South Park Street Inmate No. A222-633 Mansfield, OH 44902 Marion Correctional Institution P.O. Box 57 Marion, OH 43301-0057 Wise, Earle, J.
{¶ 1} Defendant-Appellant, John F. Boyle, Jr., appeals the November 15, 2019
order of the Court of Common Pleas of Richland County, Ohio overruling his motions
regarding his 1990 sentence. Plaintiff-Appellee is state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} In 1990, appellant was convicted of aggravated murder and abuse of a
corpse. By journal entry filed July 2, 1990, the trial court sentenced appellant to an
indeterminate term of twenty years to life on the murder count and one and one half years
on the abuse of a corpse count, to be served consecutively, with no parole eligibility until
after appellant served twenty years.
{¶ 3} On July 3, 1990, the trial court issued a judgment entry nunc pro tunc and
sentenced appellant to a term of life imprisonment with no parole eligibility until twenty full
years have been served on the murder count and one and one half years on the abuse
of a corpse count, to be served consecutively.
{¶ 4} Between September 19, and November 4, 2019, appellant filed several
motions regarding his sentence. By order filed November 15, 2019, the trial court
overruled his motions.
{¶ 5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 6} "WHERE A JOURNALIZED SENTENCE IS FACIALLY CONTRARY TO
LAW, STATE V. SMITH, 2019 OHIO 155; AND, STATE V. HOUSTON, 2019 OHIO 355,
AND SUCH SENTENCE VARIES FROM THE SENTENCE ANNOUNCED IN OPEN
COURT, THE OFFICE OF NUNC PRO TUNC MAY NOT BE EMPLOYED ['BY A JUDGE WHOM DID NOT PRESIDE OVER THE TRIAL'] IN DEFENDANT'S ABSENCE, CRIM.
R. 43(A); WHEN DEFENDANT WAS NOT REPRESENTED BY COUNSEL, CRIM. R.
44(A), U.S.C.A. CONST. AMEND. 6, NOR HAD DEFENDANT RECEIVED ANY 'NOTICE'
THAT SUCH A HYBRID, EX PARTE RESENTENCING HAD OCCURRED. SEE: APP.
R. 5 (*REQUIRING THE PROSECUTOR TO FILE A TIMELY APPEAL IN SUCH
CASES). SEE ALSO: STATE V. GOIST, 1998 OHIO APP. LEXIS 6390, TO WIT: CRIM.
R. 43(A) PROVIDES IN PART: "DEFENDANT'S PRESENCE. THE DEFENDANT
SHALL BE PRESENT AT THE ARRAIGNMENT AND EVERY STAGE OF THE TRIAL,
INCLUDING THE IMPANELING OF THE JURY, THE RETURN OF THE VERDICT, AND
THE IMPOSITION OF SENTENCE, EXCEPT AS OTHERWISE PROVIDED BY THESE
[*10] RULES."
{¶ 7} In his sole assignment of error, appellant claims the trial court erred in
denying his motions regarding his 1990 sentence. We disagree.
{¶ 8} During the sentencing hearing at transcript pages 3230-3231, the trial court
sentenced appellant to the following:
Pursuant to section 2929.01 of the Ohio Revised Code, John F.
Boyle, Jr., I now sentence you to life imprisonment with an opportunity or
possibility of probation or parole, I should say, after service of 20 years.
Upon that crime, pursuant to 2929.01, I'm going to fine you the sum of
$21,500. On the charge of abuse of a corpse and pursuant to section
2929.11 of the Ohio Revised Code which sets out the penalties for felonies
in Ohio, I'm going to sentence you to 18 months to run consecutive to the term on the Aggravated Murder charge and a fine of $2,500 to run
consecutive to the fine on the Aggravated Murder charge.
{¶ 9} The July 2, 1990 journal entry stated the following:
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that
the defendant, John F. Boyle, Jr. be imprisoned in the Ohio State
Penitentiary, for an indeterminate term of not less than twenty (20) years to
LIFE as it pertains to Count I, Aggravated Murder, and an additional one
and one half years (1 1/2) years as it pertains to Count II, Abuse of a Corpse,
to be served consecutively to Count I; with no parole eligibility until after
Defendant has served twenty (20) years.
defendant pay $25,000 fine pertaining to Count I, and an additional
$2,500.00 fine as it pertains to Count II.
{¶ 10} The July 3, 1990 judgment entry nunc pro tunc stated the following:
the defendant, John F. Boyle, Jr., be imprisoned in the Ohio State
Penitentiary for a term of life imprisonment with no parole eligibility until
twenty (20) full years have been served by the defendant, as it pertains to
Count One of the Indictment of Aggravated Murder. IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED, that
an additional one and one half (1 1/2) years determinate sentence of
imprisonment in the Ohio State Penitentiary be imposed upon the
Defendant as it pertains to Count Two, Abuse of a Corpse, to be served
consecutively to Count One.
IT IS FURTHER ORDERED that defendant pay $25,000.00 fine
pertaining to Count One, and an additional $2,500.00 fine as it pertains to
Count Two.
{¶ 11} Through various motions filed in 2019, appellant challenged his 1990
sentence, arguing the July 3, 1990 judgment entry nunc pro tunc changed his sentence
without him being present, and objecting to the fact that both the July 2 and 3, 1990 entries
were signed by the administrative judge instead of the presiding judge on the case.
{¶ 12} In its November 15, 2019 order overruling appellant's motions, the trial court
first found the signature of the administrative judge on the entries "was a ministerial act
and permitted by Crim.R. 25(B) as held by the Supreme Court of Ohio." We agree. See
Crim.R. 25; State v. Robb, 88 Ohio St.3d 59, 2000-Ohio-275, 723 N.E.2d 1019 (2000);
State ex rel. Harris v. Hamilton County Court of Common Pleas, 139 Ohio St.3d 149,
2014-Ohio-1612, 9 N.E.3d 1057.
{¶ 13} The trial court then noted the wording in the July 2, 1990 journal entry
"would appear to allow the Defendant parole eligibility after serving his one and half year
sentence in Count Two and eighteen and a half years of the twenty to life sentence. This
is an incorrect statement of the sentence required by law and of the sentence that was
actually imposed on the record in court." {¶ 14} The trial court concluded the July 3, 1990 judgment entry nunc pro tunc "is
a correct statement of the law and a correct statement of the sentence that was imposed
on the record in open court. A nunc pro tunc order was appropriate in this case to fix
what was a ministerial wording issue." See Crim.R. 36(A); State v. Bryan, 5th Dist.
Muskingum No. CT2018-0058, 2019-Ohio-2980. Again, we agree. A defendant does not
have the right to be present when a nunc pro tunc sentencing entry is issued that does
not change the defendant's sentence and accurately reflects the original sentence. State
v. Spears, 8th Dist. Cuyahoga No. 94089, 2010-Ohio-2229.
{¶ 15} Further, the trial court noted appellant could not point to any prejudice in the
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2020 Ohio 1224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-boyle-ohioctapp-2020.