Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
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
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.
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 , 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
Court then determined that defendant was a sexual predator
and informed the defendant what his obligations ...