Court of Appeals of Ohio, Fourth District, Highland
Cassell, Orient, Ohio, pro se appellant.
Collins, Highland County Prosecuting Attorney, and James
Roeder, Highland County Assistant Prosecuting Attorney,
Hillsboro, Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
William H. Harsha, Judge.
Rodger Cassell pleaded guilty to drug possession and engaging
in a pattern of corrupt activity with forfeiture
specifications under Ohio's Racketeer Influenced and
Corrupt Organizations (RICO) statute. After accepting the
plea the court convicted him, imposed consecutive sentences,
and ordered certain of Cassell's personal property
Approximately five years later Cassell filed a motion to
withdraw his guilty plea to the RICO count. He argued that
after he pleaded guilty, the Supreme Court of Ohio, in a case
involving two of his co-defendants, held that the RICO
statute was ambiguous concerning the monetary threshold
necessary to obtain a conviction, and that the minimum
threshold must be applied to each individual within the
enterprise, rather than to the enterprise as a whole. Cassell
argues that he did not have a complete understanding of the
RICO charge at the time he pleaded guilty because the Supreme
Court of Ohio had not yet clarified that the $500 threshold
applied to each individual, rather than collectively to the
enterprise. He argued that this created a manifest injustice
justifying the withdraw of his guilty plea. The trial court
denied the motion.
On appeal Cassell claims that the trial court violated the
supremacy, due process and equal protection clauses of the
United States Constitution when it refused to give the Ohio
Supreme Court's decision in State v. Stevens,
139 Ohio St.3d 247, 2014-Ohio-1932, 11 N.E.3d 252 retroactive
application. However, the trial court was not required to
apply the decision retroactively. Stevens is a
plurality opinion and therefore not binding on anyone beyond
the parties in that case. Moreover, the trial court in effect
applied Stevens retroactively when it indicated
Cassell was charged with personally receiving more than $36,
000 from his activity within the enterprise. We reject this
assignment of error.
Cassell also claims that the trial court abused its
discretion when it overruled his motion without a hearing
because he established that a manifest injustice occurred due
to an incorrect application of the RICO statute's
monetary threshold at his plea hearing. We reject this
contention for two reasons. First, Cassell's guilty plea
was an admission that he personally received more than $500
from his activity in the enterprise. Second, our review of
the plea colloquy discloses that the trial court explained
the nature of the Ohio RICO count. Cassell did not profess
any confusion, ask any questions, or give any indication that
he did not understand the nature of the charges. And, any
possible confusion that may have existed about the monetary
threshold was immediately dispelled when the trial court
informed Cassell that the monetary amount the state alleged
against him individually exceeded the minimum threshold of
$500, i.e. more than $36, 000. Because the trial court did
not abuse its discretion in denying his motion to withdraw
without a hearing, we reject this assignment of error.
Cassell also contends that his guilty plea was void, as being
involuntary, because he could not be expected to understand a
statute that the Supreme Court subsequently determined was
ambiguous. Thus, Cassell argues that his guilty plea was not
knowingly entered, making it void. Based upon our rejection
of his first and second assignment of errors, the premise for
his claim that he could not have knowingly entered a guilty
plea is false. Moreover, to the extent that he argues the
trial court failed to comply with Civ. R. 11, the record
clearly refutes that contention.
Last Cassell contends that the trial court erred in denying
his motion because the court improperly relied upon his
guilty plea to other drug charges in reaching its decision.
Cassell misconstrues the trial court's decision. The
trial court did not deny his motion to withdraw his RICO plea
because he had also pleaded guilty to drug possession.
Instead the trial court noted that in the absence of manifest
injustice justifying the withdrawal of Cassell's RICO
plea, the entire plea agreement should remain enforceable. We
overrule Cassell's fourth assignment of error.
Therefore, we affirm the trial court's judgment denying
his postsentence motion to withdraw his guilty plea.
A Highland County grand jury charged Cassell with engaging in
a pattern of corrupt activity (the Ohio RICO count),
tampering with evidence, drug possession, drug trafficking,
drug trafficking in a school zone, and a forfeiture
specification associated with the Ohio RICO count. The
indictment included a total of 62 counts and 9 defendants.
Cassell was charged in 57 of the 62 counts. The state alleged
that Cassell was the leader of an illegal drug enterprise
and, as leader, he obtained heroin and cocaine for
distribution, and directed the drug trafficking activities of
his co-defendants. The forfeiture specification alleged that
Cassell used, derived, or realized property in his RICO
activities, including $36, 569.00 in U.S. currency seized
from him, four vehicles, two televisions and a GPS.
Cassell pleaded guilty to one Ohio RICO count, the forfeiture
count, and one count of drug possession. He agreed to forfeit
all interest in the monies and property identified in the
indictment. The state dismissed the remaining charges and
recommended a total sentence of 9 years. The trial court
conducted a colloquy to determine whether Cassell was fully
informed of his rights and understood the consequences of his
guilty plea. Upon being satisfied that Cassell knowingly,
intelligently, and voluntarily entered his plea and waived
his constitutional rights, the court accepted his plea,
convicted him, sentenced him to nine years in prison and
ordered the forfeiture of the listed property and money.
Co-defendants Jeffrey Stevens and Zachary Bondurant went to
trial and ultimately had their RICO convictions reversed by
the Supreme Court in State v. Stevens, 139 Ohio
St.3d 247, 2014-Ohio-1932, 11 N.E.3d 252. Five years later
Cassell filed a motion to withdraw his guilty plea, the trial
court denied it, and Cassell appealed.
ASSIGNMENTS OF ERROR
Cassell assigns the following errors for our review:
I. THE TRIAL COURT ERRED AND ABUSED JUDICIAL DISCRETION WHEN
OVERRULING THE POST-SENTENCE MOTION TO WITHDRAW GUILTY PLEA
WITHOUT A HEARING BECAUSE THE MOTION SET FORTH A MANIFEST
INJUSTICE IN NEED OF CORRECTION AS DEFINED BY OHIO CRIM. R.
32.1. (DOC. NO. 100, 04/28/16).
II. THE TRIAL COURT ERRED, ABUSED JUDICIAL DISCRETION, AND
VIOLATED THE SUPREMACY, DUE PROCESS AND EQUAL PROTECTIONS
[SIC] CLAUSES OF THE UNITED STATES CONSTITUTION BY OVERRULING
THE POST-SENTENCE MOTION TO WITHDRAW GUILTY PLEA WITHOUT A
HEARING WHEN REFUSING TO RETROSPECTIVEY [SIC] APPLY STATE
V. STEVENS & BONDURANT (2014), 139 Ohio St.3d 247,
11 N.E.3d 252, IN ACCORDANCE WITH THE PRINCIPLES SET FORTH IN
FIORE, BUNKLEY, MONTGOMERY, AND AGEE. (DOC. NO. 100,
III. THE TRIAL COURT ERRED AND ABUSED JUDICIAL DISCRETION
WHEN OVERRULING THE POST-SENTENCE MOTION TO WITHDRAW GUILTY
PLEA WITHOUT A HEARING WHEN PROVEN THAT THE GUILTY PLEA WAS
"VOID" BECAUSE IT WAS PREDICATED ON AN AMBIGUOUS
INTERPRETATION OF OHIO'S "RICO ACT" THAT WAS
SUBJECTED TO A LATTER CLARIFICATION AND DEFINITIONAL
CORRECTION BY THE SUPREME COURT OF OHIO IN APPELLANT'S
CO-DEFENDANTS' CASE, IN ACCORDANCE WITH THE PRINCIPLES
SET FORTH IN FIORE, BUNKLEY, MONTGOMERY, AND AGEE.
(DOC. NO. 100, 04/28/16).
IV. THE TRIAL COURT ERRED, ABUSED JUDICIAL DISCRETION, AND
VIOLATED THE DUE PROCESS AND EQUAL PROTECTIONS [SIC] CLAUSES
OF THE UNITED STATES CONSTITUTION WHEN OVERRULING THE
POST-SENTENCE MOTION TO WITHDRAW GUILTY PLEA WITHOUT A
HEARING BY RULING THAT APPELLANT WAS NOT ALLOWED TO WITHDRAW
HIS GUILTY PLEA TO THE UNCONSTITUTIONALLY INTERPRETED OHIO
RICO CHARGE, STANDING ALONE, BECAUSE HE ALSO PLEAD [SIC]
GUILTY TO ANOTHER DRUG CHARGE. (DOC. NO. 100, 04/28/16).