State v. Boyd

2020 Ohio 5181

STATE OF OHIO, Plaintiff-Appellee, v. CARDELL BOYD, Defendant-Appellant.

No. 109052

COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

November 5, 2020

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-19-636070-A

Appearances:

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Brandon Piteo, Assistant Prosecuting Attorney, for appellee.

Joseph V. Pagano, for appellant.

MARY J. BOYLE, P.J.:

{¶ 1} Defendant-appellant, Cardell Boyd, appeals his sentence. He raises two assignments of error for our review:

1. Appellant's sentence is contrary to law because the record does not support the individual sentences or the imposition of consecutive sentences.

2. The trial court erred by failing to merge all allied offenses of similar import and by imposing separate sentences for allied offenses which violated appellant's state and federal rights to due process and protections against double jeopardy.

{¶ 2} Finding no merit to his assignments of error, we affirm the trial court's judgment.

I. Procedural History and Factual Background

{¶ 3} The charges in this case arose from Boyd's back-to-back attempts to kill his wife. Because each attempt caused her serious injury but failed to kill her, he continued to try different methods. On January 1, 2019, Boyd thought he found evidence that his wife had been unfaithful to him. Boyd and his wife argued, he followed her to their kitchen, and he repeatedly stabbed her in the back with a butcher knife. He then turned on the gas from their stove, pushed her to the ground, held the knife to her throat, and choked her while shouting that he was going to kill her. Boyd's wife faked unconsciousness, and Boyd went to retrieve a can of gasoline from their garage. When he left, his wife stood up and opened the living room window. Boyd sprayed gasoline on her through the window and then went inside the house. Boyd's wife "dove" through the window, ran to the neighbors' house, and knocked on their door. Boyd caught her by the neck at the neighbors' door, "dragged" her back toward their house, and poured the rest of the gasoline on her head. He then tried to set her on fire with a lighter. Before Boyd could get the lighter to ignite, the neighbors approached with a firearm, and Boyd fled to his wife's car. While Boyd's wife tried to catch her breath near a tree in their front yard, Boyd accelerated the car toward her. She ran behind the tree, and Boyd crashed the carinto the tree. Boyd left the scene in a different vehicle, and the neighbors called 911. EMS took Boyd's wife to the hospital, where she was treated for a collapsed lung, four stab wounds to her lower spine, ingestion of gasoline, gasoline in her lungs, abrasions to her ankles, and bruises on her upper left chest and arm. At the time of the offenses, Boyd was serving community control sanctions for a charge of domestic violence against his wife. Garfield Hts. v. Boyd, Garfield Hts. M.C. No. CRB 1802387 (Nov. 19, 2018).

{¶ 4} In May 2019, Boyd pleaded guilty to six counts: felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony, with the knife as the deadly weapon; felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony, with the motor vehicle as the deadly weapon; domestic violence in violation of R.C. 2919.25(A), a third-degree felony; abduction in violation of R.C. 2905.02(A)(2), a third-degree felony; attempted aggravated arson in violation of R.C. 2909.02(A)(2), a third-degree felony; and aggravated menacing in violation of R.C. 2903.21(A), a first-degree misdemeanor. The parties agreed that Boyd would have no contact with his wife. The trial court referred Boyd for a presentence investigation and mitigation of penalty report.

{¶ 5} At the sentencing hearing in June 2019, the trial court heard from Boyd's wife, Boyd's daughter from another relationship, one of Boyd's friends, and Boyd. Boyd's wife said that this incident was the third time Boyd had physically abused her, and she had obtained a protection order against him in 2018 from the Garfield Heights Municipal Court. She thought the January violence occurredbecause Boyd discovered that she had filed for divorce. She described his attacks from January 1, 2019, and told the trial court that she is still in a lot of pain. She expressed fear of what Boyd may do to her in the future and "beg[ed]" the trial court to "lock him up so he can't do this to [her] again." She did not seek any form of restitution for her medical expenses. Boyd's daughter described Boyd as a caring, supportive, and good man. She explained that Boyd had family support, and she asked that he be allowed to come home. Boyd's friend said that Boyd was a hard worker, loving, and very involved in his community and church. Boyd apologized to his family.

{¶ 6} The trial court heard from each counsel, respectively. The state outlined Boyd's criminal history, acknowledged that Boyd did not serve prison time for any of his prior offenses, and asked the trial court to impose the maximum, consecutive prison sentence. The state also recounted the details of Boyd's conduct on January 1, 2019. The state started to tell the trial court about other women who came forward with allegations that Boyd had abused them, but Boyd's counsel objected, and the trial court instructed the state to focus on the events of this case. The state submitted photos of the knife, damaged vehicle, damaged tree, gasoline can, skid marks in the front yard, blood and scattered items on the kitchen floor, and injuries on his wife's back. The trial court admitted the photos over Boyd's objection. Boyd's counsel did not challenge any part of the state's recitation of the events.

{¶ 7} The trial court also heard arguments regarding which counts were allied offenses of similar import. The trial court recognized that the partiesstipulated that the domestic violence count merged with one of the felonious assault counts. The trial court then found that the two counts of felonious assault, the abduction count, and the count for attempted aggravated arson were each separate offenses with a separate animus, and not allied offenses of similar import.

{¶ 8} After indicating that it had considered the presentence investigation report, both parties' sentencing memoranda, the attorneys' statements, Boyd's wife's statement, statements made on Boyd's behalf, and sentencing laws, the trial court sentenced Boyd to prison for a total of 17 years as follows: seven years for felonious assault with a knife, three years for felonious assault with a vehicle, two years for abduction, seven years for attempted aggravated arson, and 178 days for aggravated menacing. The trial court imposed no sentence for domestic violence, explaining that it merged with felonious assault with a knife. The trial court ordered that the sentences for both felonious assault counts and attempted aggravated arson run consecutively to one another, and the sentences for abduction and aggravated menacing run concurrently with the sentence for felonious assault with a knife.

{¶ 9} Further, the trial court declared Boyd to be an arson offender and informed him of the accompanying registration requirements and the consequences he would face if he violated them. The trial court told Boyd that he faced a mandatory three years of postrelease control when he was released from prison, advised him of the consequences if he were to violate postrelease control, and ordered that he pay $501.04 in court costs but said that the costs may be satisfied through community service. The trial court imposed no fines or restitution andgranted Boyd 178 days of jail-time credit. The trial court informed Boyd of his right to appeal and told him it would appoint counsel for him.

{¶ 10} In September 2019, over two months after the sentencing entry, Boyd filed a motion for leave to file a delayed appeal of the trial court's sentencing entry. This court granted his motion and assigned him counsel.

II. Lawfulness of Sentence

{¶ 11} In his first assignment of error, Boyd argues that his sentence is contrary to law because the record does not support the length of his individual sentences or the imposition of consecutive sentences.

A. Individual Sentences

{¶ 12} Boyd first argues that the record does not show that the trial court properly considered R.C. 2929.11 and 2929.12 when it sentenced Boyd for felonious assault with a knife and attempted aggravated arson. He contends that the trial court did not explain why a seven-year prison term for each count was necessary to protect the public and punish Boyd without imposing unnecessary burdens on government resources. He maintains that the trial court did not "go through the sentencing factors" of R.C. 2929.12(C), and that those factors weigh in favor of a shorter sentence. He argues that there are substantial grounds to mitigate his conduct because he suffered from depression, loved his wife, had never been to prison, and was "reasonable, presentable, and cooperative."

{¶ 13} "An appellate court must conduct a meaningful review of the trial court's sentencing decision." State v. McHugh, 8th Dist. Cuyahoga No. 108372,2020-Ohio-1024, ¶ 11. For felony sentences, an "appellate court's standard for review is not whether the sentencing court abused its discretion." R.C. 2953.08(G)(2). Instead, R.C. 2953.08(G)(2) provides that appellate courts "may increase, reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand the matter to the sentencing court for resentencing" if the reviewing court "clearly and convincingly" finds that (a) "the record does not support the sentencing court's findings under [R.C. 2929.14(C)(4)]," or that (b) "the sentence is otherwise contrary to law." The Ohio Supreme Court has further explained:

We note that some sentences do not require the findings that R.C. 2953.08(G) specifically addresses.

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