[Cite as State v. Cassell,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY

STATE OF OHIO, : Case No. 16CA15

Plaintiff-Appellee, :

v. : DECISION AND JUDGMENT ENTRY RODGER CASSELL, :

Defendant-Appellant. : RELEASED: 2/22/2017

APPEARANCES:

Rodger Cassell, Orient, Ohio, pro se appellant.

Anneka Collins, Highland County Prosecuting Attorney, and James Roeder, Highland County Assistant Prosecuting Attorney, Hillsboro, Ohio, for appellee.

Harsha, J. {¶1} 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 forfeited.

{¶2} 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 Highland App. No. 16CA15 2

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.

{¶3} 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,

,

,

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.

{¶4} 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 Highland App. No. 16CA15 3

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.

{¶5} 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.

{¶6} 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.

{¶7} Therefore, we affirm the trial court’s judgment denying his postsentence

motion to withdraw his guilty plea.

I. FACTS

{¶8} 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 Highland App. No. 16CA15 4

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.

{¶9} 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.

{¶10} 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,

,

,

. Five years later Cassell

filed a motion to withdraw his guilty plea, the trial court denied it, and Cassell appealed.

II. ASSIGNMENTS OF ERROR

{¶11} Cassell assigns the following errors for our review:

I. THE TRIAL COURT ERRED AND ABUSED JUDICIAL DISCRETION WHEN OVERRULING THE POST-SENTENCE MOTION TO Highland App. No. 16CA15 5

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),

,

, IN ACCORDANCE WITH THE PRINCIPLES SET FORTH IN FIORE, BUNKLEY, MONTGOMERY, AND AGEE. (DOC. NO. 100, 04/28/16).

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).

III. LAW AND ANALYSIS

A. Constitutional Claims

1. Background Highland App. No. 16CA15 6

{¶12} Initially we address Cassell’s second assignment of error to facilitate a

more logical discussion of all the issues. Cassell contends that the trial court violated his

supremacy, due process and equal protection constitutional rights by refusing to apply

the holding in State v. Stevens,

,

,

retroactively to his motion.

{¶13} In

(a consolidated appeal) the Supreme Court of Ohio

found that the RICO convictions of two of Cassells co-defendants, Stevens and

Bondurant were erroneous. In doing so in a plurality opinion they ruled that the state

failed to prove Stevens and Bondurant profited individually by more than $500 as a

result of their personal involvement with the illegal drug enterprise. On their appeal to

our court we held that the state only needed to establish the enterprise as a whole

received more than $500 from the activity for any of the individual participants to be

guilty of violating the RICO statute. See State v. Bondurant and Stevens, Highland No.

11CA25 and 11CA27,

,

(4th Dist.)

{¶14} In Stevens, the Supreme Court rejected our analysis, but its opinion did

not have a majority of four justices who agreed upon a clear statement of the analysis

and requirements relating to the monetary threshold element of the crime. See the

discussion below that follows.

2. Retroactivity

{¶15} Generally, new judicial rulings are not “applied retroactively to a conviction

that has become final, i.e., where the accused has exhausted all * * * appellate

remedies.” Ali v. State,

,

,

, ¶ 6.

However, there is an exception to the rule against retroactivity in cases in where the Highland App. No. 16CA15 7

court addresses the meaning of a statute for the first time. In that situation the rule

against retroactive application does not apply because the court is not announcing a

new rule of law, i.e. changing the existing law. Rather the court is determining what the

relevant statutes have meant since their enactment. State v. Ketterer,

,

,

, ¶ 14 citing Hernandez v. Kelly,

,

,

, ¶ 23–25, and Agee v. Russell,

,

543–544,

(2001). Cassell argues that

should be

applied retroactively because it did not announce a new rule of law; it removed an

ambiguity and stated what existing law was at the time when he was convicted.

{¶16} However, Stevens is a plurality opinion, written by Justice O’Neill, with

Justices Pfeifer and Lanzinger concurring that the RICO statute was ambiguous. As a

result, the O’Neill opinion stated the threshold monetary limit applied to each individual,

not collectively to the enterprise as a whole. But Justice French concurred in judgment

only and concluded that the statute is not ambiguous and does not require proof that the

defendant personally profited in excess of the threshold – a defendant could be

convicted even if the defendant received no profit as long as the total proceeds shared

by everyone participating in a violation, or combination of violations, exceeded the $500

threshold. Justices Kennedy and O’Donnell concurred in part, dissented in part, and

concluded that the statute is not ambiguous and does not require that each individual

defendant must participate in activities involving proceeds of more than $500. They

adopted the collective enterprise approach used in our opinion and concluded Stevens

and Bondurant were properly convicted of the RICO count. But they determined Steven

was only guilty of a felony of the second degree, rather than a first degree felony as Highland App. No. 16CA15 8

determined below. They would have reversed only on that ground. Chief Justice

O’Connor dissented and concluded that the statute was not ambiguous and the

threshold applies to the combination of violations committed by all those involved in the

enterprise, i.e. the collective enterprise approach. Chief Justice O’Connor would have

affirmed our decision. Thus four Justices declared the statute was not ambiguous. Only

three found otherwise. Three justices voted to reverse the judgment based upon the

O’Neill opinion. But, Justice French joined Justices O’Neill, Pfeifer, and Lanzinger only

in the result, i.e. reversal, but not the rationale or law espoused by Justice O’Neill’s

opinion.

{¶17} Though it may be persuasive, a plurality opinion is not controlling because

it fails to receive the support of the majority of the court. State v. Reed, 10th Dist.

Franklin No. 08AP-20,

, ¶ 57 citing Hedrick v. Motorists Mut. Ins. Co.,

,

(1986) overruled on other grounds; see generally

Kraly v. Vannewkirk,

,

(1994) (decision had

“questionable precedential value inasmuch as it was a plurality opinion which failed to

receive the requisite support of four justices of this court in order to constitute controlling

law”). Thus, the trial court did not err when it refused to acknowledge Stevens as

controlling authority, and concluded, “the ruling of the Ohio Supreme Court has not

really clarified anything.” Decision, p. 4. In other words, only the result of the Supreme

Court’s decision is clear and binding, i.e. the reversal of the RICO convictions of

Stevens and Bondurant.

{¶18} More importantly, here the trial court in effect applied the law as the

O’Neill opinion and Cassell himself propose. The charges in the indictment and the Highland App. No. 16CA15 9

colloquy at the plea hearing show that the state alleged that the monetary amount

involved in the Ohio RICO count against Casell exceeded the $500 amount as applied

to him individually. In fact, it exceeded $36,000. Cassell is not the “petty criminal” or pot-

dealing “high school senior” the Stevens decision is crafted to protect. Stevens at ¶ 15.

{¶19} The trial court sufficiently explained the nature of the Ohio RICO charge

under R.C. 2923.32(A)(1). Cassell did not profess that he was confused, ask any

questions, or give any indication that he did not understand the nature of the charges.

Cassell raised no question about the $500 monetary threshold set forth in former R.C.

2923.31(I)(2(c) (which is now $1,000).

{¶20} Even if Cassell had harbored some unexpressed confusion about whether

the state was required to prove the $500 threshold against him individually, as opposed

to the enterprise as a whole, any confusion was dispelled a few moments later. The

trial court explained that the value of the property and the proceeds obtained in violation

of the Ohio RICO statute used by Cassell individually exceeded the $500 threshold. The

value of the property attributed solely to Cassell included four vehicles and $36,569.00

in U.S. currency:

THE COURT: All right[.] And then Count 62 is a forfeiture specification. And it alleges that the following property that is indicated in Count 62, uh, was used in the course, or was intended to be used in the course of a violation of ORC 2923.32(A)(1), and that’s Count One (1); or it was used in, intended for, or for use in, or derived from directly or indirectly, or realized through conduct in violation of the same section, Count One (1) and that any interest that you have is subject to forfeiture under 2923.32, which is the corrupt activity statute. And the property is identified as, No. 1, a 2005 Dodge Magnum, * * *, a 2004 Dodge Truck, * * *, a 2002 Jaguar, * * *, $36,569.00 in U.S. currency seized from you; a Magellan GPS seized from you; a Sony television seized from you; a Sonia, or Sonya, * * * television also sized from you[.] And that is property that the State alleges either was used in the commission of these offenses, or was proceeds from profits, or proceeds from the conduct of those activities. You understand that? Highland App. No. 16CA15 10

DEFENDANT CASSELL: Yes, sir.

THE COURT: Do you understand what it is the State is saying, uh, was done, and how, when, and where it was done?

DEFENDANT CASSELL: Yes, sir.

{¶21} Cassell’s constitutional claims are based on an erroneous premise that

Stevens established binding precedent. It did not. Moreover, because the trial court was

not required to apply Stevens as pronounced by the O’Neill opinion, but did in fact do

so, Cassell’s constitutional arguments are meritless. Thus, we overrule his second

assignment of error.

B. Motion to Withdraw & Voluntariness of Plea

{¶22} Cassell’s first and third assignment of error are closely interrelated to each

other and his second assignment of error. First, he argues the trial court erred by

rejecting his motion without conducting a hearing. He contends his motion established

he suffered a manifest injustice because he entered his guilty plea without an accurate

understanding of the RICO statute. He claims this uninformed plea resulted from the

fact that the Supreme Court of Ohio did not decide the appeal of his co-defendants,

Stevens and Bondurant, until after Cassell entered his guilty plea. Thus he argues he

had no way of knowing whether the $500 minimum statutory threshold applied to the

enterprise collectively, or to him individually. This assignment of error contends he was

entitled to a hearing based upon the facts alleged in his motion.

{¶23} The purported involuntariness of his plea also forms the basis of the

argument in his third assignment of error that the plea was somehow rendered void by Highland App. No. 16CA15 11

the Supreme Court’s subsequent “clarification” that the focus of monetary threshold is

upon the individual actors, not upon the enterprise as a whole.

1. Motion to Withdraw Guilty Plea

{¶24} In his first assignment of error Cassell asserts that the trial court erred

when it overruled the motion without a hearing because he established a need to

correct a manifest injustice. Crim.R. 32.1 provides that “[a] motion to withdraw a plea of

guilty or no contest may be made only before sentence is imposed; but to correct

manifest injustice the court after sentence may set aside the judgment of conviction and

permit the defendant to withdraw his or her plea.”

{¶25} “A defendant who seeks to withdraw a plea of guilty after the imposition of

sentence has the burden of establishing the existence of manifest injustice.” State v.

Smith,

,

(1977), paragraph one of the syllabus;

State v. Ogle, 4th Dist. Hocking No. 13CA18,

. A manifest injustice

is a clear and openly unjust act; it relates to a fundamental flaw in the proceedings

resulting in a miscarriage of justice or a deprivation of due process. See State ex rel.

Schneider v. Kreiner,

,

(1998); Ogle at 8; Hall,

10th Dist. Franklin No. 03AP-433,

, at ¶ 12. “This is an ‘extremely high

standard’ that permits a defendant to withdraw his plea ‘only in extraordinary cases.’ ”

State v. Walton, 4th Dist. Wash. No. 13CA9,

, quoting State v.

Darget, 4th Dist. Scioto No. 12CA3487,

.

{¶26} The decision to grant or deny a Crim.R. 32.1 postsentence motion to

withdraw a guilty plea is committed to the sound discretion of the trial court; appellate

review of the denial of the motion is thus limited to a determination of whether the trial Highland App. No. 16CA15 12

court abused its discretion. Walton at ¶ 11; see also Smith at paragraph two of the

syllabus (“A motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion

of the trial court, and the good faith, credibility and weight of the movant’s assertions in

support of the motion are matters to be resolved by that court”). “A trial court abuses its

discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.”

State v. Darmond,

,

,

.

{¶27} An evidentiary hearing is not required for deciding postsentence motions

to withdraw a guilty plea where the record conclusively and irrefutably contradicts the

allegations in the motion. See State v. Pasturzak, 4th Dist. Scioto No. 08CA3252,

, ¶ 18; State v. Iafornaro, 9th Dist. Lorain No. 01CA007967, 2002-Ohio-

5550, ¶ 12. Cassell’s contentions were conclusively and irrefutably contradicted by the

record of the proceedings before the court. Therefore, the trial court properly exercised

its broad discretion in determining that Cassell did not satisfy his burden of establishing

the extremely high standard of manifest injustice that would have warranted a

withdrawal of his guilty plea. There was no clear and openly unjust act or a

fundamental flaw in the proceedings resulting in a miscarriage of justice or a deprivation

of due process.

{¶28} In our discussion of Cassell’s second assignment of error we already

determined that Stevens is a plurality opinion that has only persuasive value. It did not

conclusively establish the law controlling the monetary threshold under Ohio RICO’s

statute, or that the statute was ambiguous. What it did establish is that four of the seven

Justices found the statute was unambiguous. It also established that Stevens and

Bondurant were entitled to have their RICO convictions reversed. However, the error Highland App. No. 16CA15 13

complained of in Stevens was not present in Cassell’s case. Here the indictment and

the trial court’s explanation of the charges clearly advised Cassell that his individual

involvement and profit from engaging in the enterprise exceeded the $500 minimum

threshold. See ¶ 20 above; and ¶ 34, below.

{¶29} Cassell’s contentions that Stevens changed the game are unfounded. The

trial court did not need to conduct an evidentiary hearing to make that decision.

Accordingly, it did not abuse its discretion in deciding Cassell’s delayed motion to

withdraw his guilty plea without holding an evidentiary hearing. We overrule Cassell’s

first assignment of error.

2. Crim. R. 11. Voluntariness

{¶30} “ ‘When a defendant enters a plea in a criminal case, the plea must be

made knowingly, intelligently, and voluntarily. Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.’ ” State v. Veney,

,

,

, quoting State v. Engle,

,

(1996). “An appellate court determining whether a guilty plea was entered knowingly,

intelligently, and voluntarily conducts a de novo review of the record to ensure that the

trial court complied with the constitutional and procedural safeguards.” State v. Moore,

4th Dist. Adams No. 13CA965,

.

{¶31} “Crim.R. 11(C) governs the process that a trial court must use before

accepting a felony plea of guilty or no contest.” Veney at ¶ 8. Before accepting a guilty

plea in a felony case a trial court must address the defendant personally and determine

that “the defendant is making the plea voluntarily, with understanding of the nature of Highland App. No. 16CA15 14

the charges and of the maximum penalty involved, and, if applicable, that the defendant

is not eligible for probation or for the imposition of community control sanctions at the

sentencing hearing.” Crim.R. 11(C)(2)(a). The court must also inform the defendant of

both the constitutional and nonconstitutional rights he is waiving and determine that he

“understands the effect of the plea of guilty or no contest, and that the court, upon

acceptance of the plea, may proceed with judgment and sentence.” Crim.R.

11(C)(2)(b). Finally, the court must determine that the defendant understands that he

“is waiving the rights to jury trial, to confront witnesses against him or her, to have

compulsory process for obtaining witnesses in the defendant’s favor, and to require the

state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the

defendant cannot be compelled to testify against himself or herself.” Crim.R.

11(C)(2)(c).

{¶32} Substantial compliance with Crim.R. 11(C)(2)(a) and (b) is sufficient for a

valid plea because they do not involve constitutional rights. State v. Veney,

, 2008–Ohio–5200,

. “ ‘Substantial compliance means

that, under the totality of the circumstances, appellant subjectively understood the

implications of his plea and the rights he waived.’ “ State v. McDaniel, 4th Dist. Vinton

No. 09CA677, 2010–Ohio–5215, ¶ 13, quoting State v. Vinson, 10th Dist. Franklin No.

08AP–903, 2009–Ohio–3240, ¶ 6. However strict compliance with Crim.R. 11(C)(2)(c)

is required because constitutional rights are involved. “However, failure to [literally

comply] will not necessarily invalidate a plea. The underlying purpose, from the

defendant's perspective, of Crim.R. 11(C) is to convey to the defendant certain

information so that he can make a voluntary and intelligent decision whether to plead Highland App. No. 16CA15 15

guilty.” Veney at ¶ 18 quoting State v. Ballard,

,

(1981).

{¶33} Substantial compliance with Crim.R. 11(C)(2)(a) does not necessarily

require a detailed recitation of the elements of a charge by the court. State v. Wright,

4th Dist. Highland No. 94CA853,

, *4 (Jun. 19, 1995). “In order for a

trial court to determine that a defendant is making a plea with an understanding of the

nature of the charge to which he is entering a plea, it is not always necessary that the

trial court advise the defendant of the elements of the crime, or to specifically ask the

defendant if he understands the charge, so long as the totality of the circumstances are

such that the trial court is warranted in making a determination that the defendant

understands the charge.” State v. Rainey,

,

(10th Dist. 1982).

{¶34} The trial court was not required to recite or explain each definition and

subpart in R.C. 2923.31 when it determined if Cassell understood the nature of an Ohio

RICO charge, “as long as the totality of the circumstances are such that the trial court

was warranted in making the determination.”

A review of the plea

hearing shows that the trial court explained the nature of the Ohio RICO charges:

THE COURT: Okay. Now, Count One (1) indicates, or states in the indictment, that on or about the period of September 1, 2010, continuing through March 30, 2011, in Clinton County, Ohio, and as a continuing course of criminal conduct in Highland County, Ohio, that you, along with several other folks – I believe eight others – did recklessly while being employed by or associated with, directly or indirectly, conduct or participate in the affairs of an enterprise through a pattern of corrupt activity, in violation of Section 2923.32(A)(1) of the Revised Code. And that is the charge of Engaging in a pattern of corrupt activity, a first degree felony, carrying a sentence of three (3) years to ten (10) years actual incarceration; and a fine of up to twenty thousand dollars, and a license suspension of six (6) months to five (5) years, do you understand that charge? Highland App. No. 16CA15 16

DEFENDANT CASSELL: Yes, sir.

THE COURT: Do you understand what the State has said you’ve done, and when, where and how you’ve done it?

DEFENDANT CASSELL: Yes, sir.

{¶35} See also, ¶ 20 above.

{¶36} Under these circumstances Cassell could not establish any violation of

Crim.R. 11. Our rejection of Cassell’s first and second assignments of error renders the

premise of Cassell’s third assignment of error false. Moreover, a review of the plea

hearing reveals the trial court complied with all the requirements of Crim.R. 11,

rendering Cassell’s plea voluntary. A defendant who challenges his guilty plea on the

basis that it was not knowingly, intelligently, and voluntarily made must show a

prejudicial effect. The test is whether the plea would have otherwise occurred. State v.

Nero,

,

(1990). We find no evidence of any

prejudice to Cassell, particularly where the state had alleged a monetary threshold

against him personally in an amount well in excess of $500. We overrule Cassell’s third

assignment of error.

C. Drug Possession/Forfeiture Pleas

{¶37} In his fourth assignment of error Cassell argues that the trial court’s

refusal to allow him to withdraw his guilty plea to the Ohio RICO count was erroneously

based upon the fact that he also pled guilty to another drug charge. He argues that the

rule of law that a defendant cannot collaterally attack a plea’s validity because he later

decides it was a “bad deal” should also apply to the prosecution. Cassell’s “bad deal”

analogy is nonsensical; the prosecution is not attacking the plea agreement as a “bad

deal” for the state. Cassell misinterprets the trial court’s decision. The trial court did not Highland App. No. 16CA15 17

deny his motion to withdraw his Ohio RICO plea because he had also pleaded guilty to

drug possession and forfeiture. Rather, the trial court’s rationale for rejecting the motion

to withdraw the RICO plea was that Cassell had failed to establish the requisite manifest

injustice necessary to grant the motion. And in the absence of a basis for allowing the

withdrawal of that plea, the entire plea agreement remained enforceable.

{¶38} We overrule Cassell’s fourth assignment of error.

IV. CONCLUSION

{¶39} Having overruled the assignments of error, we affirm the trial court’s

judgment.

JUDGMENT AFFIRMED. Highland App. No. 16CA15 18

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Highland County Court of Common Pleas to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment and Opinion. McFarland, J.: Concurs in Judgment Only.

For the Court

BY: ________________________ William H. Harsha, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.