State v. Boysel , 2011 Ohio 1732 ( 2011 )

[Cite as State v. Boysel, 2011-Ohio-1732.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
VAN WERT COUNTY
STATE OF OHIO, CASE NO. 15-10-09
PLAINTIFF-APPELLEE,
v.
BENJAMIN R. BOYSEL, OPINION
DEFENDANT-APPELLANT.
Appeal from Van Wert County Common Pleas Court
Trial Court No. CR 10-03-039
Judgment Affirmed
Date of Decision: April 11, 2011
APPEARANCES:
Dillon W. Staas for Appellant
Kevin H. Taylor for Appellee
Case No. 15-10-09
PRESTON, J.
{¶1} Defendant-appellant, Benjamin R. Boysel (hereinafter “Boysel”),
appeals the Van Wert County Court of Common Pleas’ judgment entry of
conviction and sentence. We affirm.
{¶2} On March 26, 2010, the Van Wert County Grand Jury indicted Boysel
on four counts of sexual battery, violations of R.C. 2907.03(A)(9) and third degree
felonies. (Doc. No. 1).
{¶3} On March 29, 2010, an arraignment was held, and Boysel entered
pleas of not guilty to the indictment. (Doc. No. 6).
{¶4} On May 10, 2010, Boysel withdrew his previously tendered pleas of
not guilty and tendered pleas of guilty to all four counts pursuant to plea
negotiations. (Doc. Nos. 20-23). In exchange for Boysel’s guilty pleas, the State
agreed to recommend four (4) years imprisonment on count one, two (2) years
imprisonment on count two, four (4) years imprisonment on count three, and two
(2) years imprisonment on count four. (Doc. No. 21, Ex. A). The State further
agreed to recommend that the terms imposed be served consecutively to each other
for an aggregate total of twelve (12) years imprisonment. (Id.). The trial court
accepted Boysel’s guilty pleas, ordered a pre-sentence investigation (PSI) report,
and set sentencing for June 30, 2010. (Doc. No. 23).
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{¶5} On May 26, 2010, the trial court rescheduled sentencing for July 7,
2010. (Doc. No. 25). On July 7, 2010, the trial court followed the State’s
recommended sentence, sentencing Boysel to a total of twelve (12) years
imprisonment. (Doc. No. 28).
{¶6} On September 10, 2010, Boysel filed a notice of delayed appeal and a
motion with this Court for leave to appeal pursuant to App.R. 5(a), which motion
this Court granted on November 1, 2010.
{¶7} Boysel now appeals raising two assignments of error for our review.
ASSIGNMENT OF ERROR NO. I
APPELLANT WAS DENIED THE RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL AND WAS PREJUDICED AS A
RESULT.
{¶8} In his first assignment of error, Boysel argues that he entered his
guilty plea based upon trial counsel’s misrepresentation that his sentence would
not exceed more than ten (10) years, despite the prosecution’s recommendation, in
light of his military service, lack of a prior record, and the remorse he
demonstrated by seeking counseling before being criminally charged. Boysel
asserts that he would not have pled guilty if he believed he would have received
more than ten (10) years since that would eliminate his opportunity for judicial
release. Boysel also argues that trial counsel was ineffective at sentencing by
failing to argue that he should have been sentenced to less than ten (10) years
imprisonment.
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{¶9} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) the counsel’s performance was deficient or unreasonable under the
circumstances; and (2) the deficient performance prejudiced the defendant. State
v. Kole (2001), 92 Ohio St.3d 303, 306, 750 N.E.2d 148, citing Strickland v.
Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.
{¶10} To establish prejudice when ineffective assistance of counsel relates
to a guilty plea, a defendant must show there is a reasonable probability that but
for counsel’s deficient or unreasonable performance the defendant would not have
pled guilty. State v. Xie (1992), 62 Ohio St.3d 521, 524, 584 N.E.2d 715, citing
Hill v. Lockhart (1985), 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.E.2d 203; Strickland,
466 U.S. at 687.
{¶11} Boysel’s argument lacks merit. The record lacks any evidence of
counsel’s assurance that the trial court would sentence him to less than ten (10)
years imprisonment. The record does demonstrate, however, that Boysel was
aware that the State was recommending twelve (12) years of incarceration. (Doc.
No. 21, Ex. A); (Change of Plea Hearing Tr. at 12-13). Furthermore, the trial
court advised Boysel that he faced a possible twenty (20) years of incarceration,
and that he would be ineligible for judicial release if he was sentenced to more
than ten (10) years of incarceration. (Change of Plea Hearing Tr. at 9). Boysel
indicated that he had discussed the change of plea with his attorney and was
satisfied with his attorney’s representation. (Id. at 7). Boysel further indicated that
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he had not been induced to change his plea by any promises. (Id. at 11). Aside
from that, “an attorney’s ‘mere inaccurate prediction of a sentence’ does not
demonstrate the deficiency component of an ineffective assistance of counsel
claim.” U.S. v. Martinez (C.A. 7, 1999), 169 F.3d 1049, 1053. See, also, State v.
Bari, 8th Dist. No. 90370, 2008-Ohio-3663, ¶11.
{¶12} Boysel also argues that trial counsel was ineffective for failing to
argue that he should be sentenced to less than ten (10) years at the sentencing
hearing. Trial counsel made the following statement at sentencing:
Yes, Your Honor, just briefly. I would like to point out to the
Court that I have had an opportunity to review the presentence
investigation and I appreciate that. The presentence
investigation show [sic] that the Defendant is a first offender, the
only prior violations of law were traffic violations. I would like
to state to the Court that I would ask the Court to review
2929.12(C) in particular subsection one (1) and three (3)
regarding the factors in rendering sentencing in this matter and
further Revised Code 2929.14(E)(4) regarding the multiple
sentences that could be a factor in this case. I would ask the
Court to consider the fact he is a truly first offender in this
matter and I believe that my client has a statement that he would
like to make to the Court.
(Sentencing Tr. at 3). Thereafter, Boysel made a lengthy statement
acknowledging the “utterly deplorable and despicable” nature of his conduct and
expressing his regret to the victims, the victims’ families, and members of the
church. (Id. at 3-6). One of Boysel’s four female victims also made a statement
before the trial court. (Id. at 7-8).
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{¶13} After reviewing the record, we cannot conclude that trial counsel was
ineffective at the sentencing hearing. Trial counsel noted that Boysel had no
previous criminal offenses, argued that the victims induced or facilitated the
offenses, and that Boysel never used any threat of physical harm to the victims.
Furthermore, trial counsel noted that Boysel’s lack of a previous criminal record
mitigated the need for consecutive sentences. When making his statement, trial
counsel was no doubt aware that Boysel was going to make a statement
acknowledging his guilt and expressing his remorse. Furthermore, trial counsel
highlighted the PSI in this case, which indicated Boysel’s prior military service
and ministry experience. Aside from this, Boysel has failed to demonstrate that
the result of the proceedings would have been different had trial counsel made a
more exhaustive statement in mitigation. Namely, Boysel has failed to
demonstrate that the trial court would have sentenced him to less than ten (10)
years imprisonment. For all these reasons, we cannot conclude that trial counsel
was ineffective at sentencing.
{¶14} Boysel’s first assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT’S SENTENCE DOES NOT COMPORT
WITH THE PRINCIPLES AND PURPOSES OF FELONY
SENTENCING ACCORDING TO SECTIONS 2929.11 AND
2929.12 OF THE OHIO REVISED CODE.
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{¶15} In his second assignment of error, Boysel argues that the trial court’s
sentence does not comport with the principles and purposes of sentencing set forth
in R.C. 2929.11, 2929.12. Boysel argues that the trial court did not consider the
consensual nature of the relationships, his unlikelihood of committing future
crimes, his genuine remorse, and his service in the U.S. Military.
{¶16} A trial court’s sentence will not be disturbed on appeal absent a
defendant’s showing by clear and convincing evidence that the sentence is
unsupported by the record; the sentencing statutes’ procedure was not followed or
there was not a sufficient basis for the imposition of a prison term; or that the
sentence is contrary to law. State v. Ramos, 3d Dist. No. 4-06-24, 2007-Ohio-767,
¶23 (the clear and convincing evidence standard of review set forth under R.C.
2953.08(G)(2) remains viable with respect to those cases appealed under the
applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v. Rhodes,
12th Dist. No. CA2005-10-426, 2006-Ohio-2401, ¶4; State v. Tyson, 3d Dist. Nos.
1-04-38; 1-04-39, 2005-Ohio-1082, ¶19, citing R.C. 2953.08(G).1 Clear and
convincing evidence is that “which will produce in the mind of the trier of facts a
firm belief or conviction as to the facts sought to be established.” Cross v. Ledford
(1954), 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus; State v.
1
This Court notes that the Ohio Supreme Court has recently released a plurality opinion on the issue of
whether a clear and convincing standard or an abuse of discretion standard is proper for reviewing felony
sentences under R.C. 2953.08(G). State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124.
Although this Court utilized our precedential clear and convincing standard, affirmed and adopted by
Kalish’s three dissenting Justices, we would have concluded that Boysel’s sentence was proper under the
Kalish plurality’s two-step approach as well.
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Boshko (2000), 139 Ohio App.3d 827, 835, 745 N.E.2d 1111. An appellate court
should not, however, substitute its judgment for that of the trial court because the
trial court is ‘“clearly in the better position to judge the defendant’s likelihood of
recidivism and to ascertain the effect of the crimes on the victims.”’ State v.
Watkins, 3d Dist. No. 2-04-08, 2004-Ohio-4809, ¶16, quoting State v. Jones
(2001), 93 Ohio St.3d 391, 400, 754 N.E.2d 1252.
{¶17} Boysel was convicted of four counts of sexual battery, violations of
R.C. 2907.03(A)(9) and third degree felonies. (July 8, 2010 JE, Doc. No. 28).
Boysel was sentenced to four (4) years on count one; two (2) years on count two;
four (4) years on count three; and two (2) years on count four. (Id.). R.C.
2929.14(A)(3) provides that, “[f]or a felony of the third degree, the prison term
shall be one, two, three, four, or five years.” Since the terms of imprisonment
imposed by the trial court upon each count fall within the range proscribed in R.C.
2929.14(A)(3), Boysel’s sentence is not contrary to law.
{¶18} Boysel has also failed to clearly and convincingly demonstrate that
the sentencing statutes’ procedure was not followed. Ramos, 2007-Ohio-767, at
¶23. Before pronouncing its sentence, the trial court noted that it had reviewed the
PSI, including the victim impact statements, considered the statements made in
mitigation, as well as the factors in R.C. 2929.12 and 2929.13(B), and the
principles and purposes of sentencing set forth in R.C. 2929.11. (Sentencing
Hearing Tr. at 9-10); (July 8, 2010 JE, Doc. No. 28).
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{¶19} Finally, Boysel has failed to clearly and convincingly demonstrate
that sentence was unsupported by the record or there was not a sufficient basis for
the imposition of a prison term. Ramos, 2007-Ohio-767, at ¶23. A review of the
record herein demonstrates that Boysel was having sexual relations with four
female members of his youth group, ages 14 to 16, while he was employed as the
youth pastor of the Trinity United Methodist Church in Van Wert. (PSI). The
record further indicates that Boysel was married at the time of these sexual
offenses, and that many of the offenses occurred while Boysel hosted overnight
stays for members of the youth group at his house. (Id.). The victims have
suffered severe psychological harm as a result of Boysel’s actions. (Id.). Many of
the victims stated that they: have left their faith or question their faith; view men
as predators; have endured strained relationships with friends and family; have had
doubts about having future relationships and their self-worth; have endured
flashbacks and dreams; and question the motives of adults in positions of
authority. (Id). The trial court expressed its concern for the impact of Boysel’s
crimes upon the victims at sentencing. (Sentencing Hearing Tr. at 9). As noted
before, Boysel accepted responsibility for his actions and expressed remorse to
those involved. (Id. at 3-6). The trial court also had reviewed the PSI, which
indicated Boysel’s prior service in the military and ministry, and that Boysel’s
prior record was limited to four speeding offenses. After reviewing the record
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herein, we cannot conclude that trial court erred in sentencing Boysel to an
aggregate of twelve (12) years imprisonment.
{¶20} Boysel’s second assignment of error is, therefore, overruled.
{¶21} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS, P.J., concurs.
/jnc
WILLAMOWSKI, J., concurs separately.
{¶22} I concur with the majority opinion, however write separately because
the appropriate standard of review for challenges regarding the application of R.C.
2929.12(B) is whether the trial court abused its discretion. The standard of review
for sentences was set forth in the plurality opinion of Kalish, supra. In Kalish,
four panel members noted that R.C. 2953.08(G) requires that appellants must meet
a clearly and convincingly contrary to law standard of review when reviewing a
sentence.2 For example, if the sentencing court imposed consecutive sentences,
the standard of review would be whether appellant has shown that the sentence
was clearly and convincingly contrary to law. However, if the appeal is based
upon alleged improper application of the factors in R.C. 2929.12, four panel
2
Justices Pfeifer, Lundberg Stratton, Lanzinger, and Judge Willamowski, sitting by assignment, all
reached this conclusion.
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members in Kalish would require review using an abuse of discretion standard as
specifically set forth in R.C 2929.12.3
{¶23} In his assignments of error, Boysel alleges that the trial court erred
by incorrectly applying the factors set forth in 2929.12(B)(2). Boysel’s appeal of
the application of these factors requires a review using an abuse of discretion
standard. However, I concur with the majority that there was no abuse of
discretion and would affirm the judgment of the trial court.
3
Justices O’Connor, Moyer, O’Donnell, and Judge Willamowski, sitting by assignment, concurred in this
position, although the first three would use both standards of review in all cases.
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