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State v. Boyce

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 18, 2018

STATE OF OHIO PLAINTIFF-APPELLANT
v.
ANTHONY BOYCE DEFENDANT-APPELLEE

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-91-270594-ZA

          ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga County Prosecutor By: Daniel T. Van Assistant Prosecuting Attorney Justice Center

          ATTORNEYS FOR APPELLEE Mark A. Stanton Cuyahoga County Public Defender By: John T. Martin Assistant Public Defender

          BEFORE: S. Gallagher, J., Boyle, P.J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          SEAN C.GALLAGHER, JUDGE

         {¶1} Appellant, the state of Ohio, appeals from the order of the trial court finding appellee, Anthony Boyce, to be a sexually oriented offender. The trial court's order was entered on February 2, 2017, upon remand from State v. Boyce, 8th Dist. Cuyahoga No. 73375, 1999 Ohio App. LEXIS 900 (Mar. 11, 1999) (hereafter "Boyce I"). Upon review, we reverse the trial court's determination and remand the matter for a sexual offender classification hearing to be conducted in accordance with former R.C. 2950.09 and State v. Eppinger, 91 Ohio St.3d 158, 2001-Ohio-247, 743 N.E.2d 881.

         {¶2} The initial proceedings in this matter were summarized in Boyce I as follows:

Defendant was indicted on August 20, 1991 in CR-270594 for two counts of rape of a child under the age of 13 years old (R.C. 2907.02) and one count of kidnaping (R.C. 2905.01).
Following a plea bargain [which occurred mid-trial] on October 16, 1991, defendant pled guilty to one count of rape for which he was sentenced to five to twenty-five years incarceration, with five years actual incarceration.
Following enactment of H.B. 180, on September 18, 1997, the defendant was returned to the Common Pleas Court for a sexual predator hearing pursuant to the new Act. Defendant was represented by assigned counsel who filed a motion to dismiss the proceedings on the grounds that H.B. 180 was unconstitutional as an ex post facto or retroactive law. These motions were denied by the trial court. (Tr. 3.)
The factors the trial court took into account in its sexual predator determination were enumerated below as follows:
"The fact of the matter is the Court is going to take Judicial notice of the facts in case number 270594, of all the Journal Entries that are attached to the request from the Department of Rehabilitation and Corrections, and as appears in this Court's own docket, on that case number, to commence with the fact that you were arrested in August of 1991, and, subsequently disposed of this case, after a mistrial, by way of a plea of guilty to a Rape Charge that was amended to delete the age of the victim. I'm going to incorporate, by reference, the trial transcript to the extent that we had it prior to it being aborted with the plea in this case. I'm, likewise, going to incorporate, by reference, the Sentencing Hearing that this Court conducted in conjunction with this case, on the day I sentenced you back on October [16], 1991. Is there anything else that the State would like the Court to either notice or put in the record before we hear from the defendant?
"MR. VODRAY: Simply to inform the Court that [S.P.] was eleven-years-old at the time of the offense. Thank you, your Honor."

(Tr. 3-4.)

         The Court then determined that defendant was a sexual predator and informed the defendant what his obligations ...


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