State v. CastileState v. Castile
KLATT, J.
{¶ 1} Defendant-appellant, Isaac J. Castile, III, appeals from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas. For the following reasons, we reverse that judgment and remand the matter for resentencing.
I. Factual and Procedural Background
{¶ 2} On July 21, 2011, a Franklin County Grand Jury indicted appellant with three counts of securities fraud, in violation of
{¶ 3} At trial, Harvey McCleskey, Enforcement Attorney for the Ohio Division of Securities (“the division“), testified about his investigation of appellant. The division‘s investigation of appellant began in late 2006 or early 2007 after it received complaints from out-of-state investors. McCleskey learned of Prater, Stevens, and Smith during the investigation. Specifically, Stevens invested $6,000 with appellant in 2006 and received a 10 percent Convertible Subordinated Debenture from METBI, which is a security that entitled her to receive her principal plus interest at the end of the stated term. Prater initially invested $250,000 with appellant for a similar debenture in 2005 and rolled that investment over for another year in 2006. Smith invested $5,000 in another similar investment in 2008.
{¶ 4} A Private Placement Memorandum (“PPM“) that went along with the debentures contained details about the investment. The PPM provided that 100 percent of the proceeds available after expenses of the offering would be used to purchase treasury bills which would then be used to acquire bank guarantees. Those guarantees would be swapped in a repurchase agreement for fixed rate commercial notes. The PPM also warned investors that the securities were speculative and involved a high degree of risk. McCleskey obtained bank records from appellant and METBI and looked for purchases of treasury bills in accordance with the PPM. McCleskey could not find any evidence that appellant purchased treasury bills with money he received from Prater, Stevens, and Smith. Upon his review of the financial records, McCleskey concluded that appellant was collecting money from investors and using that money to pay off other investors as well as his own personal expenses in what McCleskey termed a Ponzi scheme. (Tr. 113-14.)
{¶ 5} Each of the three victims testified about making what they thought were investments with appellant. Although Stevens did receive a small portion of her investment back, neither Prater nor Smith received any of their investments back.
{¶ 6} The jury found appellant guilty of all counts except one of the theft counts. The trial court sentenced appellant accordingly.
{¶ 7} Appellant appeals and assigns the following errors:
[1.] When the trial court actively participates in plea negotiations before trial, the fair trial rights of the accused are violated, contra the Fourth, Fifth, Sixth, and Fourteenth Amendments to the Constitution and Article I, Section 10 of the Ohio Constitution.
[2.] (A) When the trial court responds to a jury question during deliberations, that emphasizes conviction, the accused is denied his fair trial and due process rights under the Sixth and Fourteenth Amendments to the Constitution.
(B) The trial court directed a verdict in favor of the prosecution when it gave an instruction in answering a jury question, contra the Fifth, Sixth, and Fourteenth Amendments to the Constitution.
[3.] (A) The trial court erred when it imposed consecutive sentences without making the required findings required by statute.
(B) The trial court erred when it failed to merge the two securities fraud counts that involved the same conduct and a single state of mind of the accused, contra the double jeopardy clause of the Fifth, and Fourteenth Amendments to the Constitution.
[4.] When the state, through the testimony of a primary witness, introduces prejudicial inadmissible evidence, said misconduct results in violation of the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the accused.
[5.] When the record established judicial bias, from the pre-trial proceedings, during the course of the jury trial, and at the sentencing hearing, the result is a structural error contra the Fifth, Sixth, and Fourteenth Amendment rights of the accused.
{¶ 8} For analytical clarity, we address the assignments of error out of order.
III. Appellant‘s First and Fifth Assignments of Error–Judicial Conduct
{¶ 9} These assignments of error focus on the trial court‘s conduct in these proceedings. Specifically, appellant claims that the trial court violated his fair trial rights
A. Involvement in Plea Negotiations
{¶ 10} Appellant alleges that the trial court improperly participated in plea negotiations before his trial. We disagree.
{¶ 11} Appellant supports his argument with extensive reliance on the Supreme Court of Ohio‘s decision in State v. Byrd, 63 Ohio St.2d 288 (1980). Reliance on that case is misplaced, however, because the defendant in Byrd entered a guilty plea after active negotiations led by the trial court. The court held that:
Although this court strongly discourages judge participation in plea negotiations, we do not hold that such participation per se renders a plea invalid under the Ohio and United States Constitutions. Such participation, however, due to the judge‘s position in the criminal justice system presents a great potential for coerced guilty pleas and can easily compromise the impartial position a trial judge should assume.
As a consequence we hold that a trial judge‘s participation in the plea bargaining process must be carefully scrutinized to determine if the judge‘s intervention affected the voluntariness of the defendant‘s guilty plea. Ordinarily, if the judge‘s active conduct could lead a defendant to believe he cannot get a fair trial because the judge thinks that a trial is a futile exercise or that the judge would be biased against him at trial, the plea should be held to be involuntary and void under the Fifth Amendment and Section 10, Article I of the Ohio Constitution.
{¶ 12} Byrd and its progeny address the potentially coercive effect of a trial court‘s involvement in plea negotiations when determining the voluntariness of a guilty plea. State v. Finroy, 10th Dist. No. 09AP-795, 2010-Ohio-2067, ¶ 6. Here, appellant did not plead guilty but, instead, proceeded to trial. Thus, his argument that the trial court violated the principle of law discussed in Byrd is misplaced. State v. Stadmire, 8th Dist. No. 81188, 2003-Ohio-873, ¶ 16 (Byrd and similar cases inapplicable because defendant did not enter guilty plea but went to trial).
{¶ 13} Appellant also argues that the trial court was biased. Under
{¶ 14} For all these reasons, we overrule appellant‘s first and fifth assignments of error.
IV. Appellant‘s Fourth Assignment of Error–Prosecutorial Misconduct
{¶ 15} Appellant argues that the state engaged in a pattern of calculated misconduct by soliciting the admission of inadmissible evidence throughout McCleskey‘s testimony. We disagree.
{¶ 16} The standard of review for prosecutorial misconduct is whether the comments and questions by the prosecution were improper and, if so, whether they prejudiced appellant‘s substantial rights. State v. Treesh, 90 Ohio St.3d 460, 480 (2001). “The touchstone of analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’ ” State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, ¶ 92, quoting Smith v. Phillips, 455 U.S. 209, 219 (1982). Prosecutorial misconduct will not provide a basis for reversal unless the misconduct can be said to have deprived the appellant of a fair trial based on the entire record. State v. Lott, 51 Ohio St.3d 160, 166 (1990).
{¶ 17} Appellant first notes McCleskey‘s testimony regarding alleged out-of-state victims of appellant‘s conduct. During the state‘s examination of McCleskey, the prosecutor asked him how appellant came to the attention of the division. McCleskey commented that the division had received complaints from out-of-state investors. (Tr. 43.) The trial court overruled appellant‘s objection but instructed the witness to “stay in
{¶ 18} Appellant also argues that the prosecutor improperly elicited McCleskey‘s testimony that appellant was arrested and briefly jailed during the investigation of this case as a result of appellant‘s failure to comply with a subpoena the division issued in 2007 and that appellant requested an attorney after the service of the subpoena. (Tr. 174-75.) This testimony was elicited by the prosecutor to explain the four-year delay between the beginning of the investigation in 2007 and the referral in 2011.
{¶ 19} In essence, appellant is claiming that McCleskey‘s responses to the prosecutor‘s questions were improper, not that the prosecutor‘s questions themselves were improper. This is not grounds for prosecutorial misconduct. The prosecutor‘s questions were not improper. The prosecutor simply asked McCleskey to explain why the division investigated appellant and why there was a delay in the investigation–a delay that appellant‘s own trial counsel brought to the jury‘s attention. The prosecutor did not seek to elicit any details about the out-of-state complaints, the subpoena, or appellant‘s arrest.
{¶ 20} Further, the trial court twice provided the jury with a limiting instruction regarding McCleskey‘s testimony. The instruction regarding the out-of-state complaints warned the jury to only consider them “as to why [McCleskey] did something. * * * They are not before you as an issue. You‘re not getting any evidence on those, so the mere fact that they have complainants in other states, you are not to take into consideration any other factor other than, of course, why [McCleskey] did something.” (Tr. 173.) Then, after the testimony regarding appellant‘s arrest, the trial court instructed the jury “to disregard testimony about the warrant and what happened in the civil proceeding. It has nothing to do with the factual issues in this case. You are directed to disregard it. * * * [T]he fact that
{¶ 21} Having found no prosecutorial misconduct, we overrule appellant‘s fourth assignment of error.
V. Appellant‘s Second Assignment of Error–The Trial Court‘s Answer to Jury Question
{¶ 22} Appellant argues in his second assignment of error that the trial court erred in its response to a jury question. We disagree.
{¶ 23} Generally, a trial court enjoys discretion to determine how to respond to a jury question. State v. Carter, 72 Ohio St.3d 545, 553 (1995). A reversal of a conviction based upon a trial court‘s response to such a request requires a showing that the trial court abused its discretion. Id.; State v. Young, 10th Dist. No. 04AP-797, 2005-Ohio-5489, ¶ 35. Although an abuse of discretion is typically defined as an unreasonable, arbitrary, or unconscionable decision, State v. Beavers, 10th Dist. No. 11AP-1064, 2012-Ohio-3654, ¶ 8, we note that no court has the authority, within its discretion, to commit an error of law. State v. Akbari, 10th Dist. No. 13AP-319, 2013-Ohio-5709, ¶ 7, citing State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶ 70.
{¶ 24} During its deliberations, the jury asked the trial court if “[appellant had] a duty to disclose he was under investigation?” (Tr. 405.) The trial court provided the following answer to the question: “If you find that he knew he was under investigation at the time of the sale then you can consider: If it is a material factor in the investor determination to purchase, please see the definition of ‘material.’ See page 7 of the instruction.” (Tr. 414.) Appellant objected to the response, arguing that the issue of this nondisclosure was not alleged in his indictment and was never “part of the case.” (Tr. 413.)
{¶ 26} We first reject appellant‘s claim that nondisclosures were never part of this case. Appellant faced counts of securities fraud in violation of
VI. Appellant‘s Third Assignment of Error–Sentencing Issues
{¶ 27} Appellant takes issue with two aspects of his sentencing. First, he argues that the trial court failed to make the required findings in order to sentence him to consecutive sentences pursuant to
{¶ 28} Second, he argues that the trial court erred by not merging two of his convictions for securities fraud for purposes of sentencing. We disagree.
{¶ 29} At sentencing, appellant did not request the merger of these two offenses and therefore has forfeited this argument on appeal absent plain error. State v. McClurkin, 10th Dist. No. 11AP-944, 2013-Ohio-1140, ¶ 51; State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, ¶ 127. A trial court commits plain error, however, when it imposes multiple sentences for allied offenses of similar import which should have been merged. State v. Gibson, 10th Dist. No. 10AP-1047, 2011-Ohio-5614, ¶ 47, citing State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 31.
{¶ 30}
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶ 31} To determine whether offenses are allied and of similar import and therefore subject to merger, “the question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. * * * If the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.” State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 48, citing State v. Blankenship, 38 Ohio St.3d 116, 119 (1988); Gibson at ¶ 48-49.
{¶ 32} If the offenses can be committed by the same conduct, then “the court must determine whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’ ” Johnson at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50. If the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to
{¶ 34} Because the trial court failed to make the required findings to impose consecutive sentences under
VII. Conclusion
{¶ 35} In conclusion, we sustain in part and overrule in part appellant‘s third assignment of error. We overrule appellant‘s remaining assignments of error. This case is reversed and remanded to the Franklin County Court of Common Pleas for resentencing.
Judgment reversed; case remanded for resentencing.
BROWN and CONNOR, JJ., concur.