Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Boswell

Court of Appeals of Ohio, Sixth District, Erie

July 19, 2019

State of Ohio Appellee
v.
William Boswell Appellant

          Trial Court No. 2017-CR-037

          Kevin J. Baxter, Erie County Prosecuting Attorney, and Anthony A. Battista III, Assistant Prosecuting Attorney, for appellee.

          Danielle C. Kulik and Kenneth R. Bailey, for appellant.

          DECISION AND JUDGMENT

          ZMUDA, J.

         I. Introduction

         {¶ 1} Appellant, William Boswell, appeals the judgment of the Erie County Court of Common Pleas, sentencing him to 34 months in prison after he entered a guilty plea to two counts of theft from a person in a protected class. Finding no error in the proceedings below, we affirm.

         A. Facts and Procedural Background

         {¶ 2} On January 10, 2017, a 23-count indictment was filed with the trial court, charging appellant with eight counts of theft from a person in a protected class in violation of R.C. 2913.02(A)(3) and (B)(3), felonies of the fourth degree, five counts of theft from a person in a protected class in violation of R.C. 2913.02(A)(3) and (B)(3), felonies of the third degree, two counts of attempted theft from a person in a protected class in violation of R.C. 2923.02 and 2913.02(A)(3) and (B)(3), felonies of the fifth degree, five counts of theft from a person in a protected class in violation of R.C. 2913.02(A)(2) and (B)(3), felonies of the third degree, two counts of theft from a person in a protected class in violation of R.C. 2913.02(A)(2) and (B)(3), felonies of the fourth degree, and one count of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1) and (B)(1), a felony of the first degree.

         {¶ 3} The foregoing indictment related to a scheme carried out by appellant from July 2016 through September 2016, in which appellant defrauded 13 elderly victims of over $60, 000 by offering to provide asphalt at a reduced price, performing the work in a substandard manner, and then dramatically increasing the price at the time of completion.

         {¶ 4} On July 31, 2017, appellant appeared before the trial court for arraignment. Appellant entered a plea of not guilty, and the matter proceeded through pretrial discovery and plea negotiations. As a result of successful plea negotiations, appellant agreed to plead guilty to two counts of theft from a person in a protected class in violation of R.C. 2913.02(A)(3) and (B)(3), felonies of the fourth degree. In exchange for his guilty plea, and in an effort to facilitate appellant's payment of restitution to the victims in this case, the state agreed to dismiss the remaining charges and recommend five years of community control, with a 36-month prison sentence to be reserved and applied in the event that appellant violated the terms of his community control. At a subsequent plea hearing held on May 18, 2018, the foregoing plea agreement was discussed and the trial court accepted appellant's guilty plea following a Crim.R. 11 colloquy. The matter was continued for sentencing and the trial court ordered a presentence investigation report.

         {¶ 5} Appellant's sentencing hearing was held on August 23, 2018. At the start of the hearing, the trial court reiterated the terms of appellant's plea agreement. The court then indicated its consideration of the purpose and principles of sentencing, as well as its examination of the impact statements provided by the victims, and informed appellant of his rights to appeal under Crim.R. 32. Thereafter, the trial court explained appellant's postrelease control obligations, and turned to the issue of mitigation.

         {¶ 6} Both appellant and his counsel addressed the trial court in mitigation. Appellant's counsel focused his statement on the fact that appellant had been compliant with the court's orders and had demonstrated good faith by bringing a $22, 000 check to sentencing to begin making restitution to the victims. Appellant addressed the court personally and explained that he was intent upon paying back the victims. Appellant stressed that he meant to do the victims no harm, and stated that he "didn't think [he] was doing [anything] wrong." For its part, the state asked the trial court to follow the recommended sentence of community control in an effort to achieve the "primary goal" of making the elderly victims financially whole.

         {¶ 7} After receiving statements in mitigation, the trial court again referenced the principles and purposes of sentencing under R.C. 2929.11, as well as the seriousness and recidivism factors under R.C. 2929.12. The court informed appellant that it had "thoroughly" considered the presentence investigation report. According to the report, appellant was previously convicted of a number of offenses, including home improvement fraud in 2003. As to this offense, the court noted that the victims in this case were particularly vulnerable as a product of their advanced age and health conditions.

         {¶ 8} According to the trial court, the victims reported in their impact statements that they were coerced, targeted, intimidated, and harassed by appellant. One such victim reported that although she was quoted a fee of $400 to perform certain services, appellant demanded that she pay $7, 000 for the work once it was completed. Because appellant had frightened her, the victim wrote him a postdated check, which she later cancelled. When appellant was notified of the cancelled check, he returned to the victim's home "with a look of utter rage on his face." According to the trial court, the victim reported that she was so frightened by appellant's actions that she has not been able to get a full night of sleep.

         {¶ 9} Based upon the conduct detailed in the presentence investigation report, the trial court found no credibility in defense counsel's statement that appellant was "just trying to provide for [his] family" or appellant's statement that he did not think he was doing anything wrong. Addressing appellant, the trial court stated: "You knew what you were doing. You're saying you're remorseful. Those actions don't show it."

         {¶ 10} Thereafter, the trial court noted that appellant had two bond violations during the pendency of this matter, a failure to check-in on March 20, 2018, and a late check-in on May 15, 2018. The court also found that appellant had committed the offenses in this case as part of an organized criminal activity based upon the fact that the criminal activity took place over a two-month period, involved multiple victims, and was perpetrated by appellant and two co-defendants. Because of the bond violations and the organized criminal activity, the trial court found that it had the discretion to impose a prison term under R.C. 2929.13(B)(1)(b)(iii) and (ix).

         {¶ 11} In applying the seriousness and recidivism factors under R.C. 2929.12, the trial court found three factors under R.C. 2929.12(B) applicable and demonstrative of the fact that appellant's conduct was more serious than conduct normally constituting the offense. First, the court stated that the injuries suffered by the victims were exacerbated because of the physical and mental condition of the victims as well as their ages. Second, the trial court found that the victims suffered serious physical, psychological, and economic harm as a result of appellant's conduct. Third, the court reiterated its determination that appellant committed the offense as a part of an organized criminal activity.

         {¶ 12} Moving forward with its analysis of the seriousness and recidivism factors, the trial court found the factors under R.C. 2929.12(C), indicating that the offender's conduct is less serious than conduct normally constituting the offense, to be inapplicable in this case. The court then looked to appellant's prior criminal record and concluded that "some factors for recidivism" were applicable under R.C. 2929.12(D) and (E).

         {¶ 13} As a result of its R.C. 2929.12 analysis, the trial court determined that a prison sentence was necessary to accomplish the principles and purposes of sentencing. Addressing appellant, the court stated:

You agreed to the maximum sentence, 18 months on each count to run consecutive. And that's consecutive under 2929.14(C)(4), Necessary to protect the public from future crimes by you and punish you, not disproportionate to the seriousness of the count of the count (sic) of the danger you pose. And that, the harm caused by two or more multiple offenses committed was so great or unusual that no single prison term for any of those offense[s] adequately reflects the seriousness of [the] conduct. And also you have a history of criminal conduct. * * * The Court is going to go along with the 18 and 18 consecutive for 36 months.

         {¶ 14} Thereafter, appellant's counsel reminded the court that the parties were recommending a reserved 36-month prison sentence, to be applicable only in the event of a community control violation. In response, the trial court revised appellant's prison sentence, ordering appellant to serve 17 months as to each offense, to be served consecutively for a total of 34 months. In addition, the trial court ordered appellant to make restitution in the agreed amount of $61, 660. Appellant timely appealed.

         B. Assignments of Error

         {¶ 15} On appeal, appellant alleges six errors for our review:

1. The trial court erred in not ordering community control pursuant to R.C. 2929.13(B).
2. There is a denial of due process when the court considers [victims'] impact statements from acquitted charges, ignores the revised views of the victims and uses old [victims'] impact statements to form the court's opinion as to sentencing against recommendation of the state, the victims, adult probation and the police.
3. The court erred in using its own factors of recidivism and ignoring the statutory factors.
4. The court erred in sentencing defendant to incarceration when the sentence was not reasonably calculated to serve any of the purposes and factors of felony sentencing.
5. The court erred in sentencing defendant to consecutive sentences when the sentence is disproportionate to the crime, there is no need to protect the public, and the harm caused was purely financial and the victims did not feel prison was necessary.
6. The court erred in having blanket pleading procedures which curtail a defendant's right to plead at any ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.