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State v. Ross

Court of Appeals of Ohio, Fourth District, Scioto

December 16, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
MICHEL L. ROSS, Defendant-Appellant.

          John M. Gonzales, Columbus, Ohio, for appellant.

          Mark E. Kuhn, Scioto County Prosecuting Attorney and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          William H. Harsha, Judge

         {¶1} Based upon his possession, funding and sales of certain controlled substance analogs, Michel L. Ross pleaded guilty to engaging in a pattern of corrupt activity, conspiracy to engage in a pattern of corrupt activity, and aggravated funding of drug trafficking. Ross failed to appear for the sentencing hearing and remained at large for three years. Upon his apprehension, he received an aggregate 30-year prison term.

         {¶2} First Ross asserts that his conviction should be overturned because his acts occurred between October 17, 2011 and December 18, 2011, but selling and possessing controlled substance analogs was not a crime until December 20, 2012. Ross's argument is meritless because the Supreme Court of Ohio recently rejected this argument and held that controlled substance analogs were criminalized on October 17, 2011, the effective date of H.B.64. which treated controlled substance analogs as controlled substances. Therefore, his acts were criminal when he committed them. We overrule Ross's first assignment of error.

          {¶3} Next Ross asserts that the controlled substance analog statute is unconstitutionally vague on its face and as applied to him, violating his constitutional right to due process of law. However, we agree with the federal decisions analyzing a similar federal controlled substance analog statute, and with the decisions from the Twelfth and Ninth District Courts of Appeals; thus we hold that the controlled substance analog statute is neither unconstitutionally vague on its face or as applied to Ross. We overrule Ross's second assignment of error.

         {¶4} Ross also contends that he received ineffective assistance of counsel at both the initial plea hearing and the hearing to withdraw his guilty plea because his counsel failed to challenge the controlled substance analog statute. However, because there was no legal support for his argument, Ross cannot show that a challenge would have had a reasonable probability of success. Therefore, he cannot show that his counsel's performance fell below an objective standard of reasonableness. Counsel has no duty to press untested legal theories. And even if we assume counsel's performance was deficient, Ross can show no prejudice from his counsel's failure to challenge the statute, i.e., a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. We overrule Ross's third assignment of error.

         {¶5} Next Ross asserts that the trial court erred when it refused to allow him to withdraw his guilty plea. He argues that he has a complete defense based on his contentions that (1) his acts were not criminalized when he committed them and (2) the controlled substance analog statute is unconstitutionally vague. However, we reviewed and rejected both arguments under Ross's first two assignments of error. Our review of the record reflects that Ross had a change of heart regarding his guilty plea, which is not a reasonable legitimate basis for withdrawing a plea. Accordingly, the trial court did not act arbitrarily, unreasonably or unconscionably in denying Ross's motion to withdraw his guilty pleas. We overrule Ross's fourth assignment of error.

         {¶6} Finally, Ross asserts that the trial court's imposition of consecutive sentences was not supported by the evidence and he was sentenced for offenses that should have been merged as allied offenses. The state contends that the sentencing was made pursuant to a negotiated plea agreement and is unreviewable. The record reveals that: (1) Ross agreed to the 30-year consecutive prison term as part of his negotiated plea agreement, (2) statutory findings and evidence supporting those findings are not required prior to imposing consecutive sentences that are part of a jointly recommended sentencing agreement, and (3) RICO offenses do not merge with their predicate offenses. We find that the agreed sentence was jointly recommended, imposed by the sentencing judge, and authorized by law. Because, it is not reviewable under R.C. 2953.08(D)(1), we do not undertake a review of the merits of Ross's fifth assignment of error.

         {¶7} We affirm the trial court's judgment.

         I. FACTS

         {¶8} In 2012, a Scioto County Grand Jury indicted Ross on 21 counts, which consisted of one count each of engaging in a pattern of corrupt activity and conspiracy to engage in a pattern of corrupt activity (Ohio RICO violations), one count of aggravated funding of drug activity, two counts of trafficking in drugs, ten counts of aggravating trafficking in drugs - three of which were in the vicinity of a juvenile, two counts of aggravated possession of drugs, one count of trademark counterfeiting, one count of weapon under a disability, one count of trafficking in crack cocaine in the vicinity of a school and one count of possession of crack cocaine.

         {¶9} As part of a negotiated plea agreement Ross pleaded guilty to the two Ohio RICO violations and one drug offense: Count I- engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), Count II - conspiracy to engage in a pattern of corrupt activity in violation of R.C. 2923.01, and Count III - aggravated funding of drug activity in violation of R.C. 2925.05(A)/(C)(1). In return the state agreed to dismiss the remaining counts. At the plea hearing the trial court placed the agreement on the record in open court, stating that if Ross abided by the conditions of bond, Ross would receive a 10-year prison term, but if he failed then he would be sentenced to a 30-year term. The sentencing hearing was set for July 9, 2013, but Ross breached the conditions of bond and failed to appear. Ross remained at large for three years but was eventually apprehended in Cuyahoga County using a false name. He was returned to Scioto County in March 2016.

         {¶10} Upon his return Ross filed a motion to withdraw his guilty plea, which the trial court denied. The trial court sentenced Ross to an 11-year prison term on count I, 8-year term on count II, [1] and 11 -year term on count III. The trial court ordered the sentence to run consecutively for a total aggregate prison term of 30 years as part of "a jointly recommended and agreed to sentence."

         {¶11} Ross appealed.

         II. ASSIGNMENTS OF ERROR

         {¶12} Ross assigns the following errors for our review:

I. IT WAS PLAIN ERROR FOR THE TRIAL COURT TO CONVICT MR. ROSS FOR INNOCENT ACTS, IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO BE FREE FROM EX POST FACTO CONVICTIONS.
II. THE "CONTROLLING SUBSTANCE ANALOG" STATUTE UNDER WHICH MR. ROSS WAS CONVICTED WAS UNCONSTITUTIONALLY VAGUE ON ITS FACE AND IN ITS APPLICATION, AND HIS CONVICTION WAS A FUNDAMENTAL ERROR THAT VIOLATED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW.
III. COUNSEL FOR MR. ROSS PROVIDED INEFFECTIVE ASSISTANCE AT BOTH THE INITIAL PLEA HEARING AND THE HEARING TO WITHDRAW HIS PLEA OF GUILTY.
IV. THE COURT ERRED BY FAILING TO ALLOW MR. ROSS TO WITHDRAW HIS PLEA OF GUILTY.
V. THE TRIAL JUDGE ERRED TO MR. ROSS'S PREJUDICE BECAUSE AN ORDER IMPOSING CONSECUTIVE SENTENCES IN THIS CASE IS NOT SUPPORTED BY THE FACTS.
III. LAW AND ANALYSIS

         A. Controlled Substance Analog Statute

         1. Controlled Substance Analogs were Criminalized on October 17, 2011

         {¶13} Ross argues that his conviction should be overturned because "controlled substance analogs" were not criminalized until December 20, 2012, when 2012 Sub.H.B. No. 334 ("H.B. 334") became effective.[2] Ross contends that his conviction involved the possession, funding and sale of controlled substance analogs from acts that occurred between October 17, 2011 and December 18, 2011. Ross argues that the Tenth District Court of Appeals decision in State v. Smith, 10th Dist. Franklin Nos. 14AP-154, 14AP-155, 2014-Ohio-5303 is directly on point and mandates that his conviction be vacated and he be immediately released from prison. For support Ross also cites two subsequent Tenth District decisions: State v. Mohammad, 10th Dist. Franklin No. 14AP-662, 14AP-871, 2015-Ohio-1234 and State v. Mobarak, 10th Dist. Franklin No. 14AP-517, 2015-Ohio-3007.

         {¶14} Ross did not raise this objection below so our review is limited to whether the trial court committed plain error. See, e.g., State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 123; State v. Neal, 2016-Ohio-64, 57 N.E.3d 272, ¶ 36 (4th Dist.). Appellate courts take notice of plain error "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus; State v. Bethel, 4th Dist. Jackson No. 13CA11, 2014-Ohio-3861, ¶ 7. To prevail Ross "must show that an error occurred, that the error was plain, and that but for the error, the outcome of the trial clearly would have been otherwise." State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 69. The defendant bears the burden of proof on the issue. See State v. Cooper, 170 Ohio App.3d 418, 2007-Ohio-1186, 867 N.E.2d 493, ¶ 31 (4th Dist.) ("The defendant carries the burden to establish the existence of plain error, unlike the situation in a claim of harmless error, where the burden lies with the state").

         {¶15} After Ross filed his appellate brief the Supreme Court of Ohio rejected the Tenth District's analysis in Smith, supra, and reversed the judgments in Mohammad and Mobarak, supra. See State v. Shalash, 148 Ohio St.3d 611, 2016-Ohio-8358, 71 N.E.3d 1089. In Shalash, the Supreme Court of Ohio accepted a certified conflict between the Tenth District's holdings in Mohammad and Mobarak, which held that the sale or possession of controlled substance analogs were not criminalized until December 20, 2012 by H.B. 334, and the Twelfth District's holding in State v. Shalash, 2015-Ohio- 3836, 41 N.E.3d 1263 (12th Dist.), which held that they were criminalized as of October 17, 2011 by 2011 Sub.H.B. No. 64 ("H.B. 64"). The Court held that "controlled substance analogs" were criminalized as of October 17, 2011, the effective date of H.B. 64 and affirmed the Twelfth District's judgment:

Although controlled-substance analogs were not specifically proscribed by R.C. Title 29 when Shalash was arrested and indicted for selling them, other provisions of the Revised Code incorporated controlled-substance analogs into R.C. Title 29. Specifically, R.C. 3719.013 states that controlled-substance analogs "shall" be treated as a controlled substance for purposed of "any provision of the Revised Code."
The certified conflict before us asks "whether 'controlled substance analogs' were criminalized as of October 17, 2011, the effective date of House Bill 64." We conclude that H.B. 64 criminalized controlled-substance analogs, and we affirm the judgment of the court of appeals.

Shalash, 148 Ohio St.3d at ¶13-14.

         {¶16} In his reply brief Ross concedes that Supreme Court of Ohio's decision in Shalash "impacts this appeal." However, he raises a new issue and argues that the application of Shalash to him but not to Thomas Smith, the criminal defendant in State v. Smith, supra, is a violation of Ross's right to equal protection under the law: "Mr. Ross is not being treated equally under Ohio law as was Mr. Smith." In other words Smith enjoyed the benefit of an erroneous legal decision, while Ross (and Shalash and Mohammad and Mobarak) bore the consequences of a subsequent correction of the law. Ross contends this is unconstitutionally unfair to him.

          {¶17} However, the purpose of a reply brief is to afford the appellant an opportunity to respond to the appellee's brief, not to raise an issue for the first time. "Appellate courts generally will not consider a new issue presented for the first time in a reply brief." State v. Spaulding, 2016-Ohio-8126, __N.E.3d, __ ¶ 179, reconsideration denied, 147 Ohio St.3d 1480, 2016-Ohio-8492, 66 N.E.3d 766, ¶ 179; State v. Coleman, 4th Dist. Highland No. 16CA11, 2017-Ohio-1067, ¶ 11. " The appellant cannot raise an issue for the first time in a reply brief, and thus effectively deny the appellee an opportunity to respond to it.' " State v. Nguyen, 4th Dist. Athens No. 12CA14, 2013-Ohio-3170, ¶ 34, quoting Nemeth v. Nemeth, 11th Dist. Geauga No. 2007-G-2791, 2008-Ohio-3263, ¶ 22; see State v. Murnahan, 117 Ohio App.3d 71, 82, 689 N.E.2d 1021 (2d Dist.1996) (refusing to consider error asserted in reply brief, because "[a]n appellant may not use a reply brief to raise new issues or assignments of error); State v. McComb, 2nd Dist. Montgomery No. 26481, 2015-Ohio-2556, ¶ 14 (refusing to consider error raised for the first time in reply brief.); State v. Shaffer, 11th Dist. Portage No. 2002-P-0133, 2004-Ohio-336, ¶ 39 (refusing to consider issue that trial counsel was ineffective in failing to object to testimony of police officers, where issue was raised only in appellant's reply brief); State ex rel. Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943, 850 N.E.2d 1218, ¶ 76 (10th Dist.) (refusing to consider issue that was raised only in reply brief). We therefore decline to consider Ross's equal protection constitutional challenge in this context.

         {¶18} The Supreme Court of Ohio has held that controlled substance analogs were criminalized as of October 17, 2011; we reject Ross's argument and overrule his first assignment of error.

          2. The Controlled Substance Analog Statute is not Unconstitutionally Vague

         {¶19} Ross argues that the controlled substance analog statute under which he was convicted was unconstitutionally vague on its face and in its application. Specifically, he contends the statute is vague on its face in that the definition of "analog" is so impermissibly vague that it violates his right to due process of law. Ross argues that the definition of "controlled substance analog" in R.C. 3719.01(HH)(1) is vague because for a substance to be a controlled substance analog the chemical structure must be "substantially similar to the chemical structure of a controlled substance in schedule I or II." He argues that "substantially similar is an undefined term and a completely subjective one that cannot be uniformly applied with consistent standards, creating an "arbitrary enforcement" problem.

         {¶20} Ross did not raise this issue below; therefore he again forfeits all but plain error.

         {¶21} "[S]tatutes enjoy a strong presumption of constitutionality." State v. Stidam, 4th Dist. Adams No. 15CA1014, 2016-Ohio-7906, ¶ 19, quoting State v. Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993, 916 N.E.2d 1056, ¶ 8. "A statute will be upheld unless the challenger can meet the burden of establishing beyond a reasonable doubt that the statute is unconstitutional." Id. We use a de novo standard of review to assess errors based upon violations of constitutional law. Id. citing State v. Burgette, 4th Dist. Athens No. 13CA50, 2014-Ohio-3483, ¶ 10.

         {¶22} "Under the vagueness doctrine, statutes which do not fairly inform a person of what is prohibited will be found unconstitutional as violative of due process." State v. Carrick, 131 Ohio St.3d 340, 2012-Ohio-608, 965 N.E.2d 264, ¶ 14; State v. Reeder, 18 Ohio St.3d 25, 26, 479 N.E.2d 280 (1985), citing Connally v. Gen. Constr. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); Columbus v. Thompson, 25 Ohio St.2d 26, 266 N.E.2d 571 (1971). However, " '[impossible standards of specificity are not required. * * * The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.' " Id., quoting Jordan v. De George, 341 U.S. 223, 231-232, 71 S.Ct. 703, 95 L.Ed. 886 (1951).

         {¶23} "A statute may be challenged as unconstitutional on the basis that it is invalid on its face or as applied to a particular set of facts." Stidam at ¶ 18, quoting State v. Lowe, 112 Ohio St.3d 507, 861 N.E.2d 512, 2007-Ohio-606, ¶ 17.

         a. Facial Challenge

         {¶24} A facial challenge requires that "the challenging party * * * show that the statute is vague 'not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.' " State v. Carrick, 131 Ohio St.3d 340, 965 N.E.2d 264, 2012-Ohio-608, ¶ 15, quoting State v. Anderson, 57 Ohio St.3d 168, 171, 566 N.E.2d 1224 (1991). In other words, "the challenger must show that upon examining the statute, an individual of ordinary intelligence would not understand what he is required to do under the law." Id. Therefore, Ross "must prove, beyond a reasonable doubt, that the statute was so unclear that he could not reasonably understand that it prohibited the acts in which he engaged." Id.; 25 Ohio Jurisprudence 3d, Criminal Law, Section 8, at 106 (1981).

         {¶25} The definition of "controlled substance analog in R.C. 3719.01(HH) is:

(HH)(1) "Controlled substance analog" means, except as provided in division (HH)(2) of this section, a substance to which both of the following apply:
(a) The chemical structure of the substance is substantially similar to the structure of a controlled substance in schedule I or II.
(b) One of the following applies regarding the substance:
(i) The substance has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.
(ii) With respect to a particular person, that person represents or intends the substance to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the ...

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