State v. Cassel , 2021 Ohio 661 ( 2021 )

[Cite as State v. Cassel, 2021-Ohio-661.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2020-L-097
- vs - :
JAMES CASSEL, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2020 CR
000119.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Gregory S. Robey, Robey & Robey, 14402 Granger Road, Cleveland, OH 44137 (For
Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, James Cassel, appeals the denial of his Motion to
Suppress and his Sentence following the entry of a Plea of No Contest in the Lake County
Court of Common Pleas. For the following reasons, we affirm the denial of the Motion to
Suppress and the Sentence imposed.
{¶2} On May 4, 2020, the Lake County Grand Jury returned an Indictment
against Cassel charging him with the following: Trafficking in Heroin (Count 1), a felony
of the second degree in violation of R.C. 2925.03(A)(2); Possession of Heroin (Count 2),
a felony of the second degree in violation of R.C. 2925.11; Trafficking in Cocaine (Count
3), a felony of the fifth degree in violation of R.C. 2925.03(A)(2); Possession of Cocaine
(Count 4), a felony of the fifth degree in violation of R.C. 2925.11; Possessing Criminal
Tools (Count 5), a felony of the fifth degree in violation of R.C. 2923.24; Having Weapons
while under Disability (Count 6), a felony of the third degree in violation of R.C.
2923.13(A)(2); Carrying Concealed Weapons (Count 7), a felony of the fourth degree in
violation of R.C. 2923.12(A)(2); and Improperly Handling Firearms in a Motor Vehicle
(Count 8), a felony of the fourth degree in violation of R.C. 2923.16(B). Counts 1 through
4 included firearm specifications pursuant to R.C. 2941.141.
{¶3} On May 8, 2020, Cassel was arraigned and entered pleas of not guilty to all
counts of the Indictment. On the same date, Cassel filed a Motion to Suppress and, on
May 27, a Supplement to Motion to Suppress.
{¶4} On May 22, 2020, the State filed its Response to the Motion to Suppress.
{¶5} On June 19, 2020, a suppression hearing was held.
{¶6} On June 23, 2020, the trial court denied the Motion to Suppress. The court
made the following factual findings:
Patrolman Anthony Pecnik (“Off. Pecnik”), who has been with
the Wickliffe Police Department for six years, testified that he was
driving down Euclid Avenue after 2:00 a.m. on January 2, 2020 when
he saw a vehicle in the parking lot of Gabe’s with its lights on. Off.
Pecnik knew that Gabe’s did not allow overnight parking in its lot, and
had signs posted to prevent it, so he stopped to investigate. The
vehicle was running and the lights were on, and the person in the
driver’s seat (later identified as Defendant) was asleep. Off. Pecnik
called for backup, then ran the license plate while he waited; the car
was registered to Defendant, who had a valid driver’s license and no
active warrants. Patrolman Nicholas Merrifield (“Off. Merrifield”),
who has been with the Wickliffe Police Department for four years and
was previously with the Cleveland Police Department for three years,
responded to assist Off. Pecnik. Off. Pecnik approached the vehicle
and knocked on the driver’s side window, then shone his flashlight
into the vehicle. When Defendant woke up Off. Pecnik asked him to
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open the door. Off. Merrifield approached the vehicle from the front,
heard the engine rev, and yelled “No, no, no don’t put the car in
drive.” Off. Pecnik opened the driver’s side door, and Off. Merrifield
opened the passenger side door, and both officers instructed
Defendant to exit the vehicle. Defendant appeared lethargic and “out
of it,” and based on the lethargy, the fact that he was sleeping or
“passed out” in the car, and the difficulty in waking him, both officers
were concerned that he was intoxicated. Both officers testified that
Defendant put the vehicle in drive a second time, and Off. Merrifield
testified that he got into the passenger’s side of the vehicle and put
the vehicle back in park; Off. Merrifield testified that the vehicle rolled
forward a bit, but Off. Pecnik testified that it did not move. Off. Pecnik
used his Taser, then pulled Defendant out of the vehicle. Defendant
refused to put his hands behind his back, but after the officers used
the Taser several more times Defendant was handcuffed, searched,
and put in the back of a patrol car. [Cassel was arrested for
Obstructing Official Business.] The officers then performed an
inventory search pursuant to department policy and had Defendant’s
vehicle towed.
Defendant called Amara Hassan (“Hassan”) as a witness.
Hassan testified that she lives with Defendant in the apartment
building next to Gabe’s, that many tenants in the apartment building
park in Gabe’s parking lot, and that Defendant usually parks there
without a problem. She also testified that she had driven home
behind Defendant that night and that he had not driven like someone
who was intoxicated.
{¶7} On July 22, 2020, Cassel entered a Written Plea of No Contest to Trafficking
in Heroin (Count 1) and Having Weapons while under Disability (Count 6) including the
specification. Cassel further acknowledged that he was on post-release control at the
time he committed the offenses to which he was pleading. On the State’s motion, the
remaining Counts of the Indictment were dismissed.
{¶8} On August 26, 2020, the sentencing hearing was held. Inter alia, the trial
court ordered Cassel to serve an indefinite prison term with a stated minimum term of four
years and a maximum term of six years for Count 1 and a concurrent twenty-four-month
prison term for Count 6. The court ordered Cassel to serve consecutive prison terms of
one year for the firearm specification and three months for the post-release control
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violation. Cassel’s aggregate prison term ranged from a minimum of five years and three
months to a maximum of seven years and three months.
{¶9} At this point, we emphasize that the seven years and three months is the
maximum aggregate term for all sentences imposed and not the “maximum prison term”
imposed for Trafficking as a “qualifying felony” pursuant to R.C. 2929.144(B). Under the
Reagan Tokes Law, an indefinite prison term is imposed for qualifying felonies such as
Trafficking. The sentencing judge selects a “stated minimum term” from the possible
terms set forth in R.C. 2929.14(A)(1)(a) or (2)(a). The maximum prison term for that
felony is calculated to be “the minimum term imposed on the offender * * * plus fifty
percent of that term.” R.C. 2929.144(B)(1). In the present case, that yields a sentence
of between four and six years for Trafficking.
{¶10} Independent of the indefinite prison sentence imposed for Trafficking, the
trial court imposed additional prison terms of one year for the firearm specification and
three months for the post-release control violation. By law, these terms are required to
be served consecutively to the indefinite prison term for Trafficking. See R.C.
2929.14(C)(1)(a) and R.C. 2929.141(A)(1). They do not become part of Cassel’s
indefinite sentence for Trafficking but are considered as part of Cassel’s aggregate
sentence. Thus, Cassel will serve an aggregate minimum term of five years and three
months (one year for the firearm specification plus three months for the post-release
control violation plus the four-year stated minimum term for Trafficking) and potential
aggregate maximum term of seven years and three months (one year for the firearm
specification plus three months for the post-release control violation plus the six-year
maximum prison term for Trafficking).
{¶11} On August 31, 2020, Cassel’s sentence was memorialized in a written
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Judgment Entry of Sentence.
{¶12} On September 18, 2020, Cassel filed a Notice of Appeal. On appeal, he
raises the following assignments of error:
{¶13} “[1.] The trial court erred in ruling that the investigatory detention of
Appellant was proper.”
{¶14} “[2.] The trial court erred in ruling that the search of Appellant’s vehicle was
proper.”
{¶15} “[3.] The trial court erred in ruling that the arrest of Appellant was proper.”
{¶16} “[4.] The trial court erred in imposing an incorrect indefinite sentence upon
Appellant.”
{¶17} Cassel’s first three assignments of error challenge aspects of the trial
court’s ruling on his Motion to Suppress. The following standard applies to each
assignment. “Appellate review of a motion to suppress presents a mixed question of law
and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
“[A]n appellate court must accept the trial court’s findings of fact if they are supported by
competent, credible evidence,” but “must then independently determine, without
deference to the conclusion of the trial court, whether the facts satisfy the applicable legal
standard.” Id.{¶18} In the first assignment of error, Cassel challenges the validity of the
investigatory stop or detention.
{¶19} The Fourth Amendment to the United States Constitution as well as Article
I, Section 14 of the Ohio Constitution prohibit unreasonable searches and seizures,
including “brief investigative stops that fall short of traditional arrests.” State v. Hairston,
156 Ohio St.3d 363, 2019-Ohio-1622, 126 N.E.3d 1132, ¶ 9. “An officer may perform
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such a stop when the officer has a reasonable suspicion based on specific and articulable
facts that criminal behavior has occurred or is imminent.” Id. The standard is described
as an objective one: “would the facts available to the officer at the moment of the seizure
or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was
appropriate?” Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1688, 20 L.Ed.2d 889 (1968).
The determination as to whether “an objective and particularized suspicion that criminal
activity was afoot must be based on * * * a totality of the surrounding circumstances.”
State v. Andrews, 57 Ohio St.3d 86, 87, 565 N.E.2d 1271 (1991); State v. Batchili, 113
Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 19 (“[t]he ‘reasonable and
articulable suspicion’ analysis is based on the collection of factors, not on the individual
factors themselves”).
{¶20} The facts available to Officers Pecnik and Merrifield in the present case
readily support the conclusion that the investigatory detention of Cassel was reasonable
and justified. Cassel was found after 2:00 a.m. unconscious and behind the wheel of a
vehicle with the engine running, the lights on and music playing. The vehicle was parked
in a commercial property that did not allow overnight parking. Other courts have reached
the same conclusion. State v. Hall, 2017-Ohio-446, 84 N.E.3d 263, ¶ 8 (10th Dist.)
(“[p]olice officers who encounter a person passed out or unconscious in a motor vehicle
in all likelihood have an obligation to further investigate the situation”); State v. Eason,
2016-Ohio-5516, 69 N.E.3d 1202, ¶ 23-24 (8th Dist.) (“investigation and detention of
appellant” were justified where the officer observed a vehicle illegally parked after hours,
the vehicle was idling, and appellant was “sleeping in the driver’s seat”); State v. Jones,
4th Dist. Washington No. 11CA13, 2012-Ohio-1523, ¶ 14 (“[officer] Newell had a
reasonable, articulable suspicion that Jones had driven under the influence of alcohol
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and/or a drug of abuse, parked the vehicle, and passed out behind the wheel” where he
observed “Jones with his head ‘slumped down,’ asleep behind the wheel with the key in
the ignition and the headlights on”).
{¶21} Contrary to this conclusion, Cassel identifies a number of factors that would
weigh against a finding of reasonable suspicion. These factors are generally irrelevant
to our analysis inasmuch as they are circumstances that were not known to either Officer
Pecnik or Merrifield at the time of the detention. For example: Cassel had parked in the
commercial lot on prior occasions without incident; the vehicle was running because it
was cold outside; and his girlfriend had observed him driving without impairment.
Appellant’s brief at 8-9. Likewise, the fact that there were no dispatches or other
complaints regarding Cassel’s driving or parking does not mitigate against a finding of
reasonable suspicion. The officers’ own observations are sufficient in the present case.
We note that the detentions in Hall and Eason were based solely on the officers’
observations.
{¶22} Finally, Cassel notes that the officers had confirmed that the vehicle was
registered to him and that he had a valid driver’s license and no warrants. However,
without an investigatory detention, the officers were unable to confirm Cassel’s identity
as the occupant of the vehicle or determine that he was in a condition to operate the
vehicle. Officer Merrifield testified at the suppression hearing that the windows of the
vehicle were tinted making it difficult to see inside.
{¶23} The State in turn argues in support of the denial of the Motion to Suppress
that the officers are entitled to “approach a person to provide assistance without any
reasonable basis to suspect criminal activity.” Appellee’s brief at 5. See Geneva v.
Fende, 11th Dist. Ashtabula No. 2009-A-0023, 2009-Ohio-6380, ¶ 17 (“under appropriate
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circumstances, a police officer will be justified in approaching a vehicle to provide
assistance, without needing any reasonable basis to suspect criminal activity”). In the
present case, the officers did not merely approach Cassel to inquire about his well-being
but had determined to detain him until they completed their investigation. As the events
unfolded, Cassel attempted to drive away before the officers were able to identify who he
was or whether he was impaired. The duty to determine whether Cassel needed
assistance is certainly part of the totality of the circumstances in this case but is not
determinative of the propriety of the detention.
{¶24} The first assignment of error is without merit.
{¶25} In the second assignment of error, Cassel contends that the warrantless
search of his vehicle was improper.
{¶26} “An inventory search of a lawfully impounded vehicle is a well-defined
exception to the warrant requirement of the Fourth Amendment to the United States
Constitution.” State v. Hathman, 65 Ohio St.3d 403, 405, 604 N.E.2d 743 (1992). “To
satisfy the requirements of the Fourth Amendment to the United States Constitution, an
inventory search of a lawfully impounded vehicle must be conducted in good faith and in
accordance with reasonable standardized procedure(s) or established routine.” Id. at
paragraph one of the syllabus; State v. Mesa, 87 Ohio St.3d 105, 717 N.E.2d 329 (1999),
syllabus (“[a]n inventory search of a compartment of a lawfully impounded vehicle does
not contravene the Fourth Amendment to the United States Constitution or Section 14,
Article I of the Ohio Constitution where the search is administered in good faith and in
accordance with reasonable police procedure(s) or established routine”).
{¶27} At the suppression hearing, a copy of the Wickliffe Police Department’s
Towing Procedures, Policy No. 3.55 was admitted into evidence. Pursuant to these
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Procedures, reasons for towing a vehicle include “arrest of the driver.” Furthermore,
“[e]very vehicle impounded by the Wickliffe Police Department shall be carefully
inventoried and documented,” the scope of the inventory shall include “[a]ll accessible
areas, * * * the passenger compartment, trunk or bed of vehicle, glove box, center
console, and any other area where items of value may be stored.” The inventory of
Cassel’s vehicle produced a loaded firearm, heroin, and xylazine from areas accessible
from the driver compartment.
{¶28} Cassel argues that the decision to impound the vehicle was not reasonable
inasmuch as the officers made no effort to contact family members to remove the vehicle
or to secure it where it was parked. We do not find the decision to impound the vehicle
unreasonable. As explained by Officer Merrifield: “we have complaints from the
businesses about cars being left in the lot overnight, stuff like that and it has no reason to
be there.”
{¶29} The Ohio Supreme Court has observed that, even when it is possible to
afford a defendant the opportunity to make alternative arrangements for removing a
vehicle, “[t]he reasonableness of any particular governmental activity does not
necessarily or invariably turn on the existence of alternative ‘less intrusive’ means.”
(Citations omitted.) Blue Ash v. Kavanagh, 113 Ohio St.3d 67, 2007-Ohio-1103, 862
N.E.2d 810, ¶ 19. Given Cassel’s behavior and the circumstances of his arrest in the
present case, officers were fully justified in deciding to impound the vehicle.
{¶30} Cassel further argues that “the prospect that this was an illegal pre-textual
search” exists because it was unclear “whether police actually called for the tow prior to
conducting the claimed inventory search.” Appellant’s brief at 10. We disagree. Cassel
had been arrested prior to both the inventory of the vehicle and the towing agency being
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contacted. Cassel’s arrest, per Wickliffe Policy No. 3.55, provided the officers with
justification for impounding the vehicle. Once the decision to impound has been made, it
makes little difference whether the search was initiated before or after the towing agency
was contacted since department policy requires the contents of the vehicle to be
inventoried.
{¶31} Lastly, Cassel argues that the inventory search of his vehicle was improper
as his arrest was illegal. For the reasons set forth under the third assignment of error,
Cassel’s arrest was legal and so has no bearing on the validity of the inventory search.
{¶32} The second assignment of error is without merit.
{¶33} In the third assignment of error, Cassel argues that his warrantless arrest
for Obstructing Official Business was improper because that charge requires “an
affirmative act by the accused.” Cassel maintains that he did not commit an affirmative
or overt act but rather “merely refused to exit his vehicle after being asked repeatedly by
officers.” Appellant’s brief at 11.
{¶34} “The standard for a constitutionally valid arrest is probable cause, ‘defined
in terms of facts and circumstances “sufficient to warrant a prudent man in believing that
the [suspect] had committed or was committing an offense.”’” (Citations omitted.) State
v. Tibbetts, 92 Ohio St.3d 146, 153, 749 N.E.2d 226 (2001).
{¶35} A charge of Obstructing Official Business is defined thus: “No person,
without privilege to do so and with purpose to prevent, obstruct, or delay the performance
by a public official of any authorized act within the public official’s official capacity, shall
do any act that hampers or impedes a public official in the performance of the public
official’s lawful duties.” R.C. 2921.31(A). The statute has been construed so that “the
state must show that the accused engaged in an overt act; refusing to answer the door
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or refusing to obey an officer’s request cannot form the basis of a conviction for
obstructing official business.” State v. Kehres, 11th Dist. Ashtabula No. 2019-A-0059,
2020-Ohio-1320, ¶ 19; Cleveland Metroparks v. Cauthen, 8th Dist. Cuyahoga No.
109297, 2020-Ohio-5266, ¶ 12 (“[i]t has long been settled that an affirmative act is
required [to] support a conviction of obstructing official business”). On the other hand,
“Ohio appellate authority * * * holds that fleeing from a police officer who is lawfully
attempting to detain a suspect under the authority of Terry is an affirmative act that
hinders or impedes the officer in the performance of the officer’s duties and constitutes a
violation of R.C. 2921.31, obstructing official business.” State v. Johnson, 2017-Ohio-
5527, 92 N.E.3d 1256, ¶ 33 (10th Dist.) (cases cited).
{¶36} In the present case, Cassel engaged in several overt acts while attempting
to flee from officers performing an investigative detention. As noted by the trial court,
testified to by the officers, and corroborated by body camera videos, Cassel put or
attempted to put his vehicle in drive multiple times and engaged the accelerator. We do
not find it material whether the vehicle actually moved. Cassel’s actions caused the
officers to taser him and forcibly remove him from the vehicle. Even then, Cassel
attempted to flee on foot. See Cleveland v. Weems, 8th Dist. Cuyahoga No. 82752, 2004-
Ohio-476, ¶ 23 (“[t]he officers * * * testified that the actions of the appellant escalated the
situation and caused them to draw their weapons to control the situation”).
{¶37} The third assignment of error is without merit.
{¶38} In the fourth and final assignment of error, Cassel argues that the trial court
erred in calculating his sentence. Specifically, he “contends that the sentencing journal
entry is incorrect because R.C. 2929.144 states that you cannot consider a gun
specification to enhance the maximum term.” Appellant’s brief at 12.
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{¶39} The statute provides in relevant part:
Any mandatory prison term, or portion of a mandatory prison term,
that is imposed or to be imposed on the offender under division (B) *
* * of section 2929.14 of the Revised Code * * *, with respect to a
conviction of or plea of guilty to a specification, and that is in addition
to the sentence imposed for the underlying offense is separate from
the sentence being imposed for the qualifying first or second degree
felony committed on or after the effective date of this section and
shall not be considered or included in determining a maximum prison
term for the offender under divisions (B)(1) to (3) of this section.
R.C. 2929.144(B)(4).
{¶40} We agree with the State that Cassel misinterprets this division of the statute
as somehow preventing the imposition of a consecutive sentence for the firearm
specification in addition to the indefinite sentence for Trafficking in Heroin. Cassel’s
indefinite sentence for Trafficking was determined in accordance with division (B)(1)
whereby “the maximum prison term shall be equal to the minimum prison term imposed
* * * plus fifty per cent of that term.” R.C. 2929.144(B)(1). The trial court imposed a stated
minimum term of four years which results in a maximum prison term of six years without
the prison term for the firearm specification being considered or included. Otherwise, the
maximum prison term would be seven and a half years (based on a minimum term of four
years plus one for the specification). This does not, however, preclude the prison term
for the specification being served, in the words of the statute, “in addition to the sentence
imposed for the underlying offense.” The six-year maximum prison term only applies to
the sentence for the underlying offense.
{¶41} This is the way the statute has been applied in other cases where the courts
have applied R.C. 2929.144(B)(4) in a manner consistent with R.C. 2929.14(C)(1)(a) (“if
a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(a) of this
section for having a firearm on or about the offender’s person or under the offender’s
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control while committing a felony * * * the offender shall serve any mandatory prison term
imposed * * * consecutively to and prior to any prison term imposed for the underlying
felony”). See State v. Miles, 11th Dist. Portage No. 2020-P-0032, 2020-Ohio-6921, ¶ 28
(six-year sentences for firearm specifications to be served prior to and consecutively to
the sentences for the underlying offenses which carry a maximum prison term of nineteen
years for an aggregate maximum sentence of twenty-five years); State v. Ramey, 4th
Dist. Washington Nos. 20CA1 and 20CA2, 2020-Ohio-6733, ¶ 7 (the same).
{¶42} The fourth assignment of error is without merit.
{¶43} For the foregoing reasons, the denial of Cassel’s Motion to Suppress and
his Sentence are affirmed. Costs to be taxed against the appellant.
MARY JANE TRAPP, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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