A 29-year-old man convicted of aggravated assault and felony murder in June 2009 has filed for the court to strike the State's refusal of his application of his appeal from the record.
Phillip Boler was arraigned Feb. 25, 2009, on both counts, with each charge having firearm specifications attached. Boler pleaded not guilty, but was convicted on both counts and firearm specifications after an eight-day trial.
Boler was sentenced to 10 years for aggravated robbery, 15 years to life for murder and three additional years for firearm specifications. The firearm specifications sentence was merged into the other sentence lengths.
The charges stemmed from a robbery-turned-gunfight when Boler, attempted to raid Billy Osborne's trailer in New Marshfield for drugs with Abdifatah Abdi, 18; Hamda Jama, 22; and Mohat Osman, 18, in February 2009.
Boler appealed his conviction July 2009 to the Fourth District Court of Appeals, but the court denied his appeal July 2010.
He applied to reopen his appeal in September 2010, citing 12 assignments of error in his previous appeal. The court denied Boler's application for reopening his appeal in October 2010.
Monday, Boler entered a motion to strike the State's Memorandum in Opposition to reopening this case from the record, according to documents.
In his motion, Boler said the State failed to meet the standards of Appellate Rule 13, which pertains to filing records. Boler said the State did not notify him of their decision to reject his application to reopen his appeal, according to documents.
Because he was not given notice of the decision, Boler could not properly litigate and object, according to the motion.
In addition to filing a motion for the State's decision to be stricken from the record, Boler also filed a motion amending his application to reopen his appeal, according to the memorandum.
Boler has reduced the assignments of error in his former application from 12 to two, according to the memorandum.
In the amended application, Boler said the State failed to prove beyond a reasonable doubt a theft or attempted theft occurred in order to establish a basis for an aggravated robbery conviction, according to the amended application.
The second error cited by Boler had to do with trial court proceedings. The court brought up an offense to the jury that Boler was not charged with. Boler said this took away his right to due process of law and a fair trial, according to the amended application.
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Rachel Snively
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Phillip Boler
