State v. Boyle

2023 Ohio 3390

• Court: Ohio Court of Appeals
• Decided: September 22, 2023
• Docket: 2023-CA-16
• Status: Published

Opinion

[Cite as State v. Boyle, 2023-Ohio-3390.]

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

STATE OF OHIO : : Appellee : C.A. No. 2023-CA-16 : v. : Trial Court Case No. 2013 CR 0042 : DAVID BOYLE : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on September 22, 2023

DAVID BOYLE, Appellant, Pro Se

MEGAN A. HAMMOND, Attorney for Appellee

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WELBAUM, P.J.

{¶ 1} Appellant, David Boyle, appeals pro se from a judgment of the Greene

County Court of Common Pleas denying his “Motion Pursuant to Criminal Rule 52(B)

Plain Error.” For the reasons outlined below, the judgment of the trial court will be

affirmed. -2-

Facts and Course of Proceedings

{¶ 2} The history of Boyle’s case has been addressed by this court numerous times

and is summarized as follows in State v. Boyle, 2d Dist. Greene No. 2022-CA-19, 2022-

Ohio-2887 (“Boyle IV”):

“In 2013, Boyle was indicted on 16 counts of rape involving his

daughter. Following negotiations, Boyle entered a plea of guilty to six

counts of rape in exchange for the dismissal of the remaining counts. No

agreement was reached as to sentencing. The trial court sentenced Boyle

to an aggregate prison term of 40 years and designated him a Tier III sex

offender. The conviction was affirmed on appeal. State v. Boyle, 2d Dist.

Greene No. 2013-CA-43, 2014-Ohio-1271 [(‘Boyle I’)].

On June 16, 2014, Boyle filed a pro se application to reopen his

appeal pursuant to App.R. 26(B). We denied his application to reopen on

September 29, 2014. Boyle filed three additional applications to reopen in

2016, 2020, and 2021, which were all denied by this Court.

On June 24, 2018, Boyle filed a ‘Motion to Dismiss Defective

Indictment,’ in which he argued that the indictment violated his constitutional

right to due process because it contained numerous undifferentiated counts

of rape. Boyle claimed these ‘carbon-copy’ counts failed to describe

sufficiently the charges, thereby preventing him from properly preparing his

defense. The State filed a memorandum in opposition. The trial court

overruled the motion, finding that Boyle’s guilty plea waived any error -3-

associated with the indictment and that his claims were barred by the

doctrine of res judicata. Boyle appealed, and we affirmed the judgment of

the trial court. See State v. Boyle, 2d Dist. Greene No. 2018-CA-12, 2018-

Ohio-3284 [(‘Boyle II’)].

On September 19, 2018, Boyle filed a ‘Petition for an Evidentiary

Hearing,’ in which he alleged Miranda violations, speedy trial violations,

insufficient evidence, and ineffective assistance of counsel. The trial court

construed the motion as a petition for post-conviction relief and denied it as

untimely on October 23, 2018.

On November 2, 2021, Boyle filed a ‘Motion for Fraud Upon the Court

Pursuant to R.C. 2921.32(A).’ The State filed a memorandum in opposition

on December 1, 2021. The trial court again construed the motion as a

petition for post-conviction relief and denied it as untimely on January 6,

2022.”

This Court affirmed the trial court’s decision denying Boyle’s

November 2021 motion as an untimely and successive petition for post-

conviction relief. [State v. Boyle, 2d Dist. Greene No. 2022-CA-7, 2022-

Ohio-2165, ¶ 16-17 (“Boyle III”)].

Boyle IV at ¶ 2, quoting Boyle III at ¶ 2-6.

{¶ 3} On January 27, 2022, Boyle also filed a motion captioned “Request to

Subpoena Specific Records” wherein he sought grand jury transcripts, Miranda waivers,

sworn affidavits from his defense attorneys, text messages, Ohio Bureau of Criminal -4-

Investigation documents, speedy trial time waivers, and statements made by him, the

victim, and two other witnesses. Boyle explained that he wanted the records to establish

that his conviction had not been supported by the evidence and that his trial counsel had

provided ineffective assistance. Boyle also wanted the records to obtain possible newly-

discovered evidence and to show a potential Brady violation.

{¶ 4} The trial court construed Boyle’s motion as: (1) a petition for postconviction

relief, (2) a request for public records filed pursuant to R.C. 149.43, (3) a request for grand

jury transcripts, and (4) a request for court records as defined by Sup.R. 44. To the

extent that the trial court considered Boyle’s motion a petition for postconviction relief, a

request for grand jury transcripts, and a request for public records, the motion was denied.

To the extent that Boyle’s motion sought court records, the trial court did not deny the

motion but instructed Boyle to request the records from the Greene County Clerk of

Courts and to remit payment to the clerk for the cost of copying the records. Boyle

thereafter appealed, and this court affirmed the judgment of the trial court. State v.

Boyle, 2d Dist. Greene No. 2022-CA-19, 2022-Ohio-2887, ¶ 4, 7-21 (“Boyle IV”).

{¶ 5} Following this court’s decision in Boyle IV, on January 19, 2023, Boyle filed

a motion captioned “Motion Pursuant to Criminal Rule 52(B) Plain Error.” In that motion,

Boyle asserted 16 instances of plain error that he claimed had occurred during his case.

The trial court aptly described the alleged errors as follows:

Two of the errors asserted relate to plea offers extended to him, six

pertain to the consecutive sentences imposed and his belief that some of

the counts were allied offenses, and two relate to perceived failure of his -5-

trial attorney to file a motion or bring an alleged speedy trial violation to the

Court’s attention. Boyle also alleges plain error with respect to the

indictment, the victim’s credibility, an alleged Miranda violation, and

insufficient evidence. Boyle further asserts he wasn’t provided a

preliminary hearing and he was the victim of judicial bias.

Judgment Entry (Feb. 7, 2023), p. 2.

{¶ 6} The trial court denied Boyle’s plain-error motion on the following three

grounds: (1) the plain-error standard under Crim.R. 52(B) is only available on direct

appeal, and thus does not apply to Boyle’s motion; (2) if construing Boyle’s motion as a

petition for postconviction relief, the trial court does not have jurisdiction to consider the

motion because it is untimely and its untimeliness is not excused by R.C. 2953.23(A); and

(3) a majority of the claims asserted in the motion are barred by the doctrine of res

judicata.

{¶ 7} Boyle now appeals from the trial court’s judgment denying his plain-error

motion and raises 16 assignments of error for review.

Assignments of Error

{¶ 8} All of the assignments of error asserted in Boyle’s appellate brief are

reiterations of the 16 alleged instances of plain error that Boyle cited in the motion at

issue. In criminal cases, plain error is governed by Crim.R. 52(B), which provides that:

“Plain errors or defects affecting substantial rights may be noticed although they were not

brought to the attention of the court.” It is well established that “ ‘the plain-error standard -6-

in Crim.R. 52(B) is available only on direct appeal and “does not create a free-standing

procedure to obtain review otherwise.” ’ ” State v. Shabazz, 2d Dist. Greene No. 2017-

CA-11, 2017-Ohio-7199, ¶ 10, quoting State v. Strickland, 10th Dist. Franklin No. 14AP-

307, 2014-Ohio-5105, ¶ 15, quoting State v. Ayala, 10th Dist. Franklin Nos. 12AP-1071,

12AP-1072, 2013-Ohio-1875, ¶ 14. Accord State v. Hayden, 2d Dist. Montgomery No.

28611, 2020-Ohio-3818, ¶ 8. Therefore, the trial court correctly determined that Crim.R.

52(B) did not apply to Boyle’s postconviction motion and provided no remedy.

{¶ 9} “Courts may recast irregular motions [such as Boyle’s] into whatever

category necessary to identify and establish the criteria by which the motion should be

judged.” State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12,

citing State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522, citing State v.

Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131 (1997). “Under certain circumstances, it

is also appropriate for courts to recast motions that are unambiguously named and

presented under a specific rule when said rule has no application to the judgment at

issue.” State v. Clark, 2017-Ohio-120, 80 N.E.3d 1251, ¶ 12 (2d Dist.), citing Schlee.

{¶ 10} To the extent that it alleges a violation of constitutional rights, Boyle’s motion

is properly construed as a petition for postconviction relief. See State v. Ushery, 2d Dist.

Miami No. 2021-CA-28, 2022-Ohio-1695 ¶ 16, citing Reynolds at 160 (“[w]here a criminal

defendant files a motion subsequent to a direct appeal seeking to render the judgment of

conviction void in order to vacate the judgment and sentence on the basis that the

defendant’s constitutional rights were violated, the motion is properly construed as a

petition for post-conviction relief”). -7-

{¶ 11} When a defendant has pursued a direct appeal of his conviction, as Boyle

did in this case, a petition for postconviction relief must be filed no later than 365 days

“after the date on which the trial transcript is filed in the court of appeals in the direct

appeal of the judgment of conviction or adjudication[.]” R.C. 2953.21(A)(2). “Trial

courts lack jurisdiction to consider an untimely or successive petition for post-conviction

relief, unless the untimeliness is excused under R.C. 2953.23(A).” State v. Baker, 2d

Dist. Montgomery No. 27596, 2017-Ohio-8602, ¶ 12, citing State v. Current, 2d Dist.

Champaign No. 2012-CA-33, 2013-Ohio-1921, ¶ 16.

{¶ 12} Pursuant to R.C. 2953.23(A), the untimely filing of a petition for

postconviction relief may be excused with a showing that either: (1) the petitioner was

unavoidably prevented from discovering the facts upon which he or she relies to present

the claim, or (2) the United States Supreme Court recognizes a new federal or state right

that applies retroactively to his or her situation and the petition asserts a claim based on

that right. R.C. 2953.23(A)(1)(a). The petitioner also must show by clear and

convincing evidence that, if not for the constitutional error from which he or she suffered,

no reasonable factfinder would have found the petitioner guilty. R.C. 2953.23(A)(1)(b).

{¶ 13} “We review a denial of a petition for post[-]conviction relief for which no

hearing was held under an abuse of discretion standard.” (Citation omitted.) State v.

Clemmons, 2d Dist. Montgomery No. 28085, 2019-Ohio-2997, ¶ 18. “An abuse of

discretion occurs when the trial court’s decision is unreasonable, arbitrary, or

unconscionable.” (Citations omitted.) Id.

{¶ 14} In this case, the motion at issue was an untimely petition for postconviction -8-

relief, as the motion was filed over eight years after this court affirmed Boyle’s conviction

on direct appeal. The motion was also a successive petition because Boyle previously

had filed several other irregular motions that the trial court denied as untimely petitions

for postconviction relief. See Boyle III and Boyle IV.

{¶ 15} In the motion at issue, Boyle failed to allege or assert any facts that would

excuse its untimeliness under the two-prong test in R.C. 2953.23(A)(1). Specifically,

Boyle failed to allege any facts that would establish he was unavoidably prevented from

discovering the facts upon which he relied to present his claims. While Boyle attempts

to satisfy this requirement in his reply brief by arguing that his “[a]ppellant counsel

withheld any and all documents from [him] for more [than] a year,” this argument was not

raised in his motion and it does not specifically account for the over eight-year delay in

filing the motion. In addition, Boyle’s motion does not assert that the United States

Supreme Court has recognized a new federal or state right that applied retroactively to

his situation. Therefore, to the extent that Boyle’s motion was construed as a petition for

postconviction relief, the trial court did not abuse its discretion when it found that it lacked

jurisdiction to consider the motion due to its untimeliness.

{¶ 16} The trial court also correctly found that a majority of the claims raised in

Boyle’s motion were barred by the doctrine of res judicata. “Under the doctrine of res

judicata, a final judgment of conviction bars a convicted defendant who was represented

by counsel from raising and litigating in any proceeding except an appeal from that

judgment, any defense or any claimed lack of due process that was raised or could have

been raised by the defendant at the trial, which resulted in that judgment of conviction, or -9-

on an appeal from that judgment.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104

(1967), paragraph nine of the syllabus. Simply stated, “res judicata bars the

consideration of issues that could have been raised on direct appeal.” State v. Shah, 2d

Dist. Montgomery No. 29685, 2023-Ohio-2328, ¶ 12, citing State v. Saxon, 109 Ohio St.3d

176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 17.

{¶ 17} In this case, most of the claims raised in Boyle’s motion concerned matters

that were contained within the trial record, and thus could have been raised in Boyle’s

direct appeal from his conviction. For example, Boyle’s motion challenged his sentence,

the indictment, the sufficiency of the evidence, the credibility of the victim, defense

counsel’s failure to file a Crim.R. 29 motion, defense counsel’s failure to notice an alleged

speedy trial violation, the lack of a preliminary hearing, and an alleged biased statement

made by the trial court judge. Because these claims could have been raised on direct

appeal, and because some of the claims had already been raised by Boyle in his prior

petitions for postconviction relief, they were all barred by the doctrine of res judicata.

{¶ 18} In sum, we find that the trial court properly denied Boyle’s motion because:

(1) the plain-error standard in Crim.R. 52(B) is only available on direct appeal, and thus

did not apply to Boyle’s motion; (2) to the extent that Boyle’s motion was a petition for

postconviction relief, the trial court lacked jurisdiction to consider the motion due to its

being an untimely and successive petition for postconviction relief; and (3) the doctrine of

res judicata barred a majority of the claims raised in the motion. For these reasons,

Boyle’s 16 assignments of error are overruled. -10-

Conclusion

{¶ 19} Having overruled all of Boyle’s assignments of error, the judgment of the

trial court denying Boyle’s “Motion Pursuant to Criminal Rule 52(B) Plain Error” is

affirmed.

EPLEY, J. and LEWIS, J., concur.