State v. Beverly, 2017 Ohio 7093

Defendant Jordan Beverly convicted on multiple counts including RICO (engaging in a pattern of corrupt activity), multiple burglaries, attempted burglaries, receiving stolen property, having weapons while under disability, and fleeing/eluding; original aggregate term 66.5 years.
In an earlier appeal this court vacated the RICO conviction and ordered resentencing; the Ohio Supreme Court reversed that vacatur and remanded for resentencing with the RICO conviction reinstated.
At resentencing the trial court imposed an entirely consecutive aggregate 50-year sentence; Beverly had already served roughly 4 years, 4 months, and 17 days by the time of resentencing.
Beverly filed an App.R. 26(B) application to reopen his direct appeal alleging ineffective assistance of appellate counsel in four respects: (1) failure to challenge resentencing on counts he had already completed, (2) failure to raise an error in his PSI regarding prior convictions, (3) failure to alert the court to a pending Ohio Supreme Court “trial-tax” case (Rahab), and (4) failure to challenge the sufficiency of the RICO “pattern” allegation.
The appellate court found a genuine issue as to ineffective assistance on issue (1) based on precedent suggesting a trial court may lack jurisdiction to alter sentences already served; it denied reopening as to issues (2)–(4).

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Resentencing on counts already completed	Beverly: trial court lacked jurisdiction to convert counts he had fully served from concurrent to consecutive at resentencing	State: resentencing was proper; counts formed part of aggregate sentence	Reopening granted on this issue — genuine ineffective-assistance claim raised; case to proceed limited to this issue
2. PSI criminal-history error	Beverly: PSI misstates a 2005 burglary conviction, inflating criminal history and violating due process; counsel should have raised it on appeal	State: error would be reviewed for plain error and does not clearly show prejudice	Reopening denied on this issue — no genuine issue of ineffective assistance; no plain error shown
3. Failure to raise pending Rahab (“trial tax”) case	Beverly: counsel should have alerted court to Rahab, which might affect sentencing vindictiveness analysis	State: counsel had no obligation to file a reply or flag acceptance; Rahab would not have helped Beverly	Reopening denied — Rahab would not have altered the court’s prior analysis
4. RICO indictment "pattern" defect	Beverly: alleged predicate acts spanned under 90 days—insufficient to plead a RICO pattern; indictment defective	State: Ohio law requires only that predicate acts be "not isolated" and not a single event; earlier Ohio Supreme Court reinstated RICO conviction	Reopening denied — RICO claim lacks merit and does not implicate jurisdiction

State v. Beverly, 37 N.E.3d 116 (Ohio 2015) (Ohio Supreme Court reinstated RICO conviction and found ample record support for an association-in-fact and a pattern of corrupt activity)
State v. Holdcroft, 1 N.E.3d 382 (Ohio 2013) (addressed limits on resentencing authority where post-release control or sentence components already served)
State v. Fugate, 883 N.E.2d 440 (Ohio 2008) (concurrent sentences are served simultaneously)
State v. Rahab, 80 N.E.3d 431 (Ohio 2017) (rejected a presumption of vindictiveness or an impermissible "trial tax" where a defendant rejected plea and later received higher sentence at trial)
State v. Willan, 41 N.E.3d 366 (Ohio 2015) (three predicate acts over eight months can constitute a RICO "pattern")