State v. Boler

1

2021-Ohio-4081

STATE OF OHIO, Plaintiff-Appellee, v. PHILLIP DIONTE BOLER, Defendant-Appellant.

No. 20CA09

Court of Appeals of Ohio, Fourth District, Athens

November 8, 2021

CRIMINAL APPEAL FROM COMMON PLEAS COURT

Phillip Dionte Boler, Marion, Ohio, pro se.

Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Assistant Prosecuting Attorney, Athens, Ohio for appellee.

DECISION AND JUDGMENT ENTRY

Peter B. Abele, Judge.

{¶1} This is an appeal from an Athens County Common Pleas Court judgment. Phillip Dionte Boler, defendant below and appellant herein, assigns the following error for review:

"THE TRIAL COURT ERRED TO THE PREJUDICED [SIC] OF APPELLANT'S RIGHT TO DUE PROCESS OF LAW WHERE ITS AUGUST 24, 2020 NUNC PRO TUNC ENTRY CORRECTED AN UNAUTHORIZED SENTENCE OUTSIDE HIS PRESENCE IN VIOLATION OF CRIM.R 43(A)."

{¶2} On February 20, 2009, an Athens County Grand Jury returned an indictment that charged appellant with (1) one count of aggravated robbery in violation of R.C. 2911.01(A)(3), a first-degree felony, along with a firearm specification in violation of R.C. 2941.145, and (2) one count of murder in violation of R.C. 2903.02(B), an unspecified felony, along with a firearm specification in violation of R.C. 2941.145. On June 18, 2009, a jury found appellant guilty of complicity to aggravated robbery and complicity to murder, each with a firearm specification.

{¶3} On July 12, 2010, this court affirmed the trial court's judgment of conviction and sentence and concluded that (1) no prosecutorial misconduct occurred during closing argument, (2) the trial court did not abuse its discretion by allowing certain challenged evidence, and (3) the cumulative error doctrine did not apply. See State v. Boler (Boler I), 4th Dist. Athens No. 09CA24, 2010-Ohio-3344.

{¶4} After Boler I, appellant filed a postconviction relief request that the trial court denied. On appeal, we summarized relevant milestones and procedural history in State v. Boler, 4th Dist. Athens No. 18CA2, 2018-Ohio-3722 (Boler II):

The record reflects that on February 20, 2009, an Athens County grand jury returned an indictment that charged appellant with (1) one count of aggravated robbery in violation of R.C. 2911.01(A)(3), a first-degree felony, and (2) one count of murder in violation of R.C. 2903.02(B), an unspecified felony with the predicate offense being aggravated robbery. Both counts contained firearm specifications. The state issued a Bill of Particulars on April 1, 2009, and amended it on June 17 2009, to add that the underlying theft offense to the aggravated robbery was attempted theft and/or burglary or an attempted burglary of 7467 New Marshfield Road.

On June 19, 2009, a jury found appellant guilty of complicity to aggravated robbery and complicity to murder, both with firearm specifications. On June 22, 2009, the trial court issued an entry to indicate that appellant was convicted of aggravated robbery [2911.01(A)(3)] and complicity to murder [2903.02(B)], but on July 1, 2009 the court issued a nunc pro tunc judgment to correct the June 22, 2009 judgment in which "the amount of money seized from Defendant during this investigation lists the wrong amount. Also, the previous entry stated that defendant was found guilty of Count One, Aggravated Robbery which should actually be Complicity to Aggravated Robbery. * * *" On September 22, 2009, the trial court issued another nunc pro tunc entry, this time to indicate once again that appellant was convicted of aggravated robbery and complicity to murder. On October 2, 2009, the trial court issued another nunc pro tunc entry to state that appellant was convicted of complicity to aggravated robbery and complicity to murder.

On May 5, 2010, and again on May 21, 2010, appellant filed motions for disclosure of grand jury transcripts. On May 21, 2010, appellant also filed his first petition for postconviction relief and asked the trial court to dismiss the defective indictment "do [sic] to lack of Sufficient Subject Matter, and Court have [sic] no Jurisdiction to hear such indictment, since the indictment does not have the necessary ingredience [sic] to create the required elements to display the initial charge." On May 25, 2010, the trial court dismissed appellant's motions for disclosure of grand jury transcripts and his petition for postconviction relief. Appellant did not appeal the decision.

As noted above, on July 12, 2010 this court affirmed the trial court's judgment of conviction. See Boler, 4th Dist. Athens App. No. 09CA24, 2010-Ohio-3344. On September 13, 2010, appellant filed a pro se App.R. 26(B) application to reopen the appeal. On November 1, 2010, appellant filed a motion for leave to file an amended application to reopen. On November 22, 2010, this court denied appellant's application and concluded that "his motion does not show that a 'genuine issue' exists as to whether he was deprived the effective assistance of appellate counsel."

On August 26, 2011, appellant filed an App.R. 26(A) application for reconsideration and argued that the offenses should have merged, as did the convictions of a co-defendant. On December 22, 2011, this court denied appellant's delayed application for reconsideration, finding appellate counsel not ineffective and finding that aggravated robbery and felony murder are not allied offenses of similar import under the test in effect when appellant filed his direct appeal.

On January 11, 2012, appellant filed a second motion to reconsider, or in the alternative, to certify a conflict. On March 5, 2012, this court denied appellant's application for reconsideration and denied the untimely motion to certify a conflict. On March 16, 2012, appellant again filed a motion to reconsider this court's March 5, 2012 decision to deny appellant's January 11, 2012 application to reconsider or to certify a conflict. On May 1, 2012, this court denied appellant's application for reconsideration.

On April 9, 2013, appellant filed a request for a re-sentencing hearing. On April 16, 2013, the trial court denied appellant's request for resentencing, finding that the aggravated robbery related to Osbourne and that the individual murdered was Donnie Putnam, therefore as two victims were involved, the crimes were committed separately or with a separate animus as to each.

On May 2, 2013, appellant filed a second notice of appeal (13CA19) to appeal the trial court's April 16, 2013 decision that denied his motion for resentencing. On June 13, 2013, appellant filed a corrected notice of appeal, and on June 20, 2013, this court (13CA19) dismissed appellant's appeal because the trial court's April 16, 2013 entry is not a final appealable order. In this court's ruling, we also held: "Boler could have raised the issue concerning whether the trial court sentenced him on allied offenses of similar import in his sentencing on his direct appeal, but failed to do so. The doctrine of res judicata bars not only the re-litigation of previous claims, but also bars a litigant from raising any issue, claim or defense that could have been previously raised but was not. (citation omitted). The allied offenses argument was available to Boler on direct appeal. Having failed to raise the issue then, Boler is bared by the doctrine of res judicata from raising it at this time."

On September 14, 2014, appellant filed a motion to vacate a void judgment (09CA24) and raised the same issue he raises here. On October 7, 2014, the magistrate's order denied appellant's motion to vacate a void judgment and stated "[t]his Court finds nothing in Boler's current motion that has not or could not have been raised in his direct appeal. The doctrine of res judicata bars the consideration of errors that could have been raised on direct appeal, but were not. (Citation omitted). Moreover, Boler has not demonstrated that any of these errors would have rendered the trial court's judgment void; therefore, they would also not render this Court's judgment void. Boler's motion to vacate a void judgment is hereby DENIED."

On October 15, 2014 (09CA24), appellant filed a motion for a judgment on the pleadings. On October 29, 2014, the magistrate's order denied appellant's motion for judgment on the pleadings as moot because no pleadings were currently before the court. On November 25, 2014 (09CA24), appellant filed a second motion for judgment on the pleadings, arguing that his four-year-old motion for leave to file amended application on reopening from November 1, 2010 was still pending before the court. On January 23, 2015, this court denied appellant's motion, concluding that appellant's November 1, 2010 motion was untimely filed and implicitly denied by the Court, and thus, the motion was no longer pending.

On July 17, 2017, appellant filed his second petition for postconviction relief, a motion to vacate a void judgment "due to fraud upon the court" in 09CR0091. On August 3, 2017, appellant filed a motion for judgment on the pleadings in the trial court, and on August 15, 2017, the court denied appellant's motion to vacate a void judgment due to fraud upon the court, construing it as "an untimely, as well as successive, R.C. 2953.21 petition for postconviction relief, and therefore denies the motion for want of jurisdiction." The trial court cited appellant's May 21, 2010 "motion to void judgment" as appellant's first motion for postconviction relief. Appellant did not appeal the trial court's decision the motions on May 25, 2010. The court dismissed appellant's July 17, 2017 motion for want of jurisdiction and concluded that the dismissal mooted appellant's August 3, 2017 motion for judgment on the pleadings. Appellant did not appeal that decision.

On December 22, 2017, appellant filed his third

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