Court No. 2017-CR-037
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
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.
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
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
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
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
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.
Assignments of Error
15} On appeal, appellant alleges six errors for our
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
6. The court erred in having blanket pleading procedures
which curtail a defendant's right to plead at any ...