State v. Ross
103 N.E.3d 81
Oh. Ct. App. 4th Dist. Scioto2017Background
- Michel L. Ross pleaded guilty (negotiated plea) to: engaging in a pattern of corrupt activity (RICO), conspiracy to engage in a pattern of corrupt activity, and aggravated funding of drug activity; other counts dismissed.
- Plea agreement on the record: if Ross complied with bond he would receive an aggregate 10-year term; if he breached bond he faced a 30-year aggregate term. Ross failed to appear and remained at large ~3 years; was later apprehended and returned for sentencing.
- Trial court denied Ross’s post-return motion to withdraw his guilty plea and imposed the jointly recommended consecutive sentences totaling 30 years.
- Ross appealed raising five assignments: (1) ex post facto / effective date of criminalization of controlled substance analogs; (2) statute unconstitutionally vague (face and as-applied); (3) ineffective assistance of counsel for not challenging the analog statute; (4) trial court erred in refusing plea withdrawal; (5) consecutive sentences unsupported / allied-offense merger.
- Appellate court affirmed: held analogs were criminalized as of Oct. 17, 2011; the analog statute is not unconstitutionally vague; counsel’s performance was not deficient; plea-withdrawal denial was proper; agreed consecutive sentence was authorized and not reviewable.
Issues
| Issue | Plaintiff's Argument (Ross) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether possession/sale of "controlled substance analogs" was criminal when Ross acted (Oct–Dec 2011) | Acts occurred before Dec 20, 2012; analogs weren’t criminal until H.B. 334 took effect | H.B. 64 (effective Oct 17, 2011) treated analogs as controlled substances; Shalash supports criminalization as of Oct 17, 2011 | Affirmed: analogs criminalized Oct 17, 2011; Ross’s conduct was criminal when committed |
| Whether R.C. 3719.01(HH) ("controlled substance analog") is unconstitutionally vague (facial / as-applied) | “Substantially similar” is undefined and subjective; ordinary persons lack notice | Analog definition parallels federal law; federal and Ohio appellate precedent reject vagueness challenges; Ross waived trial evidence | Rejected: statute not unconstitutionally vague on its face or as applied to Ross |
| Whether counsel was ineffective for failing to challenge the analog statute | Counsel failed to press constitutional/evidentiary challenges at plea and withdrawal stages | No reasonable probability such challenges would succeed; counsel pursued Daubert/funding motions and negotiated a favorable plea | Rejected: no deficient performance or prejudice under Strickland |
| Whether trial court erred in denying plea withdrawal and in imposing consecutive sentences/merger | Ross asserted complete defense (timing/vagueness/Daubert exclusion) and that certain counts should merge | Ross’s reasons were meritless or forfeited; plea was a negotiated jointly recommended agreement including 30-year conditional term; RICO does not merge with predicate offenses | Denial of withdrawal affirmed (change of heart; untimely); consecutive agreed sentence not reviewable and RICO/predicate offenses do not merge |
Key Cases Cited
- State v. Shalash, 148 Ohio St.3d 611 (Ohio 2016) (held controlled-substance analogs criminalized as of Oct. 17, 2011)
- State v. Underwood, 124 Ohio St.3d 365 (Ohio 2010) (R.C. 2953.08(D)(1) bars review of jointly recommended, law‑authorized sentences)
- State v. Miranda, 138 Ohio St.3d 184 (Ohio 2014) (RICO offenses do not merge with predicate offenses for sentencing)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part ineffective assistance of counsel test)
- United States v. Granberry, 916 F.2d 1008 (5th Cir. 1990) (federal analogue-definition not unconstitutionally vague)