STATE OF OHIO v. HAKEEM SULTAANA
No. 101492
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 21, 2016
[Cite as State v. Sultaana, 2016-Ohio-199.]
E.T. Gallagher, J., Jones, A.J., and Stewart, J.
JOURNAL ENTRY AND OPINION; AFFIRMED; Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-571616-A
Hakeem Sultaana, pro se
Inmate Number 654-265
Lake Erie Correctional Institution
P.O. Box 8000
Conneaut, Ohio 44030
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: James A. Gutierrez
Erica Barnhill
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Hakeem Sultaana (“Sultaana“), appeals his convictions and sentence. He raises four assignments of error for our review:
- Hakeem Sultaana was deprived of his liberty without due process of law, where his conviction for engaging in a pattern of corrupt activity is insufficient as a matter of law.
- The trial court erred by refusing to grant Mr. Sultaana‘s Rule 29 motion for acquittal on the tampering with records charges because those counts were more specifically and properly charged under
R.C. 4505.01 , providing false statements on requests for duplicate titles. - The trial court erred in failing to merge the securing writings by deception and theft by deception as allied offenses of similar import.
- The trial court imposed a sentence contrary to law and violated Hakeem Sultaana‘s Fourteenth amendment right to due process and Sixth amendment right to trial by jury when it punished Sultaana for exercising his right to trial.
{¶2} We find no merit to the appeal and affirm.
I. Facts and Procedural History
{¶3} In February 2013, the Cuyahoga County Grand Jury issued a 102-count indictment charging Sultaana and 18 codefendants with various offenses, including engaging in a pattern of corrupt activity, tampering with records, securing writings by deception, forgery, grand theft, and unclassified felony title offenses. The state dismissed, without prejudice, the charges against four codefendants who were unavailable for trial, and the remaining 14 codefendants entered plea agreements with the state in exchange for truthful testimony at Sultaana‘s trial.
{¶4} The state alleged that Sultaana was the mastermind of a theft ring, which was responsible for stealing over $47,625 from title loan companies, such as LoanMax (a.k.a Integrity Funding) and Ace Cash Express. Sultaana and the codefendants obtained title loans on vehicles
{¶5} One of Sultaana‘s girlfriends, Angel Strong, testified that she assisted Sultaana and at least four individuals to obtain fraudulent loans. (Tr. 2089-2100, 2112-2138.) According to Strong, Sultaana forged whoever‘s name was originally on the title in order to transfer it into a codefendant‘s name so that the codefendant could apply for a title loan. Strong and Sultaana subsequently went with the individual to a loan company where the codefendant obtained a loan with the falsified title. Strong testified, as did numerous codefendants, that Sultaana kept most of the cash received from the loans even though the codefendants were the named borrowers, who were responsible for repayment. In each case, Sultaana promised the codefendants, who were his friends and acquaintances, that he would promptly repay the loans on their behalf.
{¶6} According to Strong, Sultaana used a notary stamp belonging to his friend, Susan Palcisco, and forged Palcisco‘s name to notarize documents associated with some of the transactions. (Tr. 2079-2080.) Palcisco аdmitted at trial that she also notarized several documents for Sultaana that she knew were forged. (Tr. 2184-2186.) An elderly friend notarized other documents for Sultaana and his codefendants. Strong and several witnesses
{¶7} Michael Russo (“Russo“), a detective with the Ohio BMV, investigated a report that customers of two loan companies, Ace Cash Express and LoanMax, were obtaining duplicate titles to fraudulently secure title loans. At the time of the report, Russo was not aware of any lag time between the time a loan was extended and the time the lien appeared on the title in the BMV database. Russo searched the BMV database and discovered a recurring pattern in which a title was used to procure a loan, a duplicate title was subsequently obtained, and a second loan was made on the duplicate title.
{¶8} According to Russo, there were also commonalities within several of the loan documents. For example, several applicants listed Unique Auto Sales, located at 4364 West 130th Street, as a place of employment. Russo discovered that Sultaana previously worked at Unique Auto Sales, which was once a car dealership at that location, but the dealership had been out of business for several years. The location where the dealership had existed wаs a now vacant lot with weeds poking through cracks in the cement. (Tr. 3008.)
{¶9} Russo also found that the license plates listed for the vehicles in the loan applications typically did not belong to the vehicle. The vehicles actually had temporary tags for which no permanent tags had been issued. Russo further discovered that Sultaana was also known as “Kevin Hughley” and the name “Kevin Hughley” was listed on several loan documents as the applicant‘s employer. Sultaana‘s cell phone number was frequently listed on the applications, but the last digit was changed.
{¶10} Russo testified that he created a data sheet depicting the fraudulently secured loans in chronological order. The data sheet listed the loans, duрlicate titles, additional loans, and
{¶11} At the conclusion of the trial, the jury found Sultaana guilty of 94 counts in the indictment, including engaging in a pattern of corrupt activity and grand theft. They also found him guilty of all the attendant furthermore specifications. The court sentenced Sultaana to a ten-year prison term for engaging in a pattern of corrupt activity, four years on each of the unclassified felony title offenses, and shorter sentences on the forgery, tampering with records, theft, and securing writings by deception convictions. The court ordered the shorter sentences to run concurrently with the ten-year sentence. However, the court ordered the ten-year prison term to be served consecutive to the concurrent four-year terms on title offenses for an aggregate 14-year prison term.
{¶12} Sultaana, through appointed counsel, filed a timely notice of appeal, and counsel filed a comprehensive merit brief. Sultaana later requested removal of his appointed counsel, and we granted the request. Sultaana filed a motion for new counsel, and we appointed the state public defender to represent him. The state public defender subsequently moved to withdraw as counsel. We denied the motion and gave Sultaana three options (1) retain new counsel, (2) proсeed pro se, or (3) work with appointed counsel. Sultaana rejected all three of these options and gave notice that he had instituted proceedings against appointed counsel in the federal district court. Thereafter, we granted counsel‘s second motion to withdraw as counsel.
{¶13} Throughout several months, Sultaana filed numerous pro se motions even when he was represented by counsel. On October 1, 2015, we declared Sultaana a vexatious litigator and ruled that “Sultaana is prohibited from instituting any appeals or original actions, continuing appeals or original actions, or filing pro se motions in any pending appeal without leave of
II. Law and Analysis
A. Sufficiency of the Evidence
{¶14} In the first and second assignments of error, Sultaana challenges the sufficiency of the evidence supporting his engaging in a pattern of corrupt activity and tampering with records convictions. The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fаct could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
1. Engaging in a Pattern of Corrupt Activity
{¶15} Sultaana contends there was insufficient evidence to support his engaging in a pattern of corrupt activity conviction. He contends that although there was evidence of a pattern of activity, there was no evidence of an enterprise, which is a necessary element of the offense.
{¶16} Ohio‘s Racketeer Influenced and Corrupt Organizations Act (“RICO“) was modeled after the federal RICO Act,
{¶17} Thus, in order to prove a RICO offense, the state must prove that (1) the defendant committed two or more predicate offenses, (2) the defendant was “employed by, or associated with” an “enterprise,” and (3) the defendant conducted or participated in the enterprise “through a pattern of corrupt activity.” State v. Miranda, 138 Ohio St.3d 184, 2014-Ohio-451, 5 N.E.3d 603, ¶ 13, citing
{¶18}
any individual, sole proprietorship, partnership, limited partnership, corporation, trust, union, government agency, or other legal entity, or any organization, association, or group of persons associated in fact although not a legal entity. “Enterprise” includes illicit as well as licit enterprises.
{¶19} Sultaana argues there was no evidence of a conspiracy or “association in fact” because the crimes were nothing but a series of unrelated transactions between Sultaana and each individual codefendant. Although the existence of an “enterprise” is a separate element from the “pattern of corrupt activity” that must be proved beyond a reasonable doubt, an enterprise may be inferred from the evidence indicating associates engaged in a pattern of corrupt activity. Boyle, 556 U.S. at 938. The Ohio Supreme Court recently held that “the existence of an enterprise, sufficient to sustain a conviction for engaging in a pattern of corrupt activity under
{¶20} The facts of Beverly are helpful in determining whether an enterprise may be inferred from the defendant‘s conduct. In Beverly, the court held that the existence of an enterprise could be inferred from the fact that the defendant and one other person stole three vehicles, which they used to commit several burglaries. Id. at ¶ 16. In reaching this conclusion, the court reasoned that “the definition of ‘enterprise’ is remarkably open-ended.” Id. at ¶ 8. However, it is significant that the two co-conspirators collaborated to commit several offenses at different times.
{¶22} At first, the series of transactions involving Sultaana and each individual codefendant appears to have “wheel and spoke” structure, with Sultaana at the hub and the individual codefendants in the “rim.” Conspiracies involving a “wheel and spoke” structure require proof that each defendant in the “rim” knew or had reason to know of the scope of the conspiracy and that “each defendant had reason to believe that their own benefits were dependent upon the success of the entire venture.” United States v. Kenny, 645 F.2d 1323 (9th Cir.1981), quoting United States v. Kostoff, 585 F.2d 378, 380 (9th Cir.1978). Sultaana argues that since the codefendants were unaware of one another and the pattern of corrupt activity, there was no proof of an enterprise.
{¶23} However, the evidence at trial demonstratеd that at least two codefendants teamed up with Sultaana in the commission of numerous offenses with the other individual codefendants and would be considered the “hub” of the wheel with Sultaana. Susan Palcisco testified that she notarized false auto titles “a good handful of times,” knowing that Sultaana used the titles to fraudulently obtain loans with other codefendants.2 (Tr. 2191.) Palcisco testified that she could
{¶24} Palcisco also testified that she lent her notary stamp to Sultaana. Sometime later, Strong and Sultaana persuaded Palcisco to sign a letter authenticating her notary signature on an auto title that had been rejected because a clerk at the title bureau did not believe it was genuine. (Tr. 2193-2194.) Palcisco acknowledged they wanted her to sign the authentication letter because Sultaana had “notarized a title and had it signed, and [the signature] didn‘t match my signature so they wouldn‘t let the title go through.” Although she was concerned by the deception, she nevertheless signed the letter. The fact thаt Palcisco helped Sultaana obtain fraudulent certificates of title for the purpose of securing loans by deception established that Palcisco had a relationship with Sultaana that helped Sultaana pursue the enterprise‘s purpose. Sultaana‘s association with Palcisco, by itself, was sufficient to prove the existence of an enterprise.
{¶25} The evidence also established that Angel Strong participated in fraudulent transactions with Sultaana and at least four other codefendants at different times and locations. For example, Strong and Sultaana helped codefendant Natasha Reyes transfer the title to her
{¶26} On another occasion, Strong, Sultaana, and codefendant Sarah McCown obtained a fraudulent loan in McCown‘s name from LoanMax. (Tr. 2112-2114, 2249-2265.) They first went to a title bureau where Sultaana assisted McCown in transferring the title of someone else‘s vehicle into her name. With respect to the loan process, Strong testified:
Q: Was there any information given to Sarah regarding what to put down on the loan application?
A: Just the income and how much she made at work.
Q: Okay. And who gave that information to whom?
A: Kevin gave it to me, and I gave it to her.
According to Strong, McCown received a loan for “a little over a thousand dollars,” of which Sultaana gave her “a little over 150 dollars.” (Tr. 2119.)
{¶27} Strong assisted codefendant Stephanie Lenz in completing a loan application with false information after Sultaana helped her procure a falsified title to a vehicle. Sultaana took most of the loaned money and gave “a little bit of money” to Strong and Lenz. (Tr. 2133.) After receiving the loan, Strong and Sultaana helped Lenz get a duplicate title so the vehicle could be sold for scrap. (Tr. 2135-2136.)
{¶28} Strong also collaborated with Sultaana and Palcisco to secure a loan in her own name. Strong testified that she and Sultaana fraudulently transferred the title to Sultaana‘s mother‘s Honda into Strong‘s name, which Sultaana notarized with Palcisco‘s notary stamp. (Tr. 2079.) Strong used the falsified title to obtain a loan in the amount of $8,000 from LoanMax. (Tr. 2075.) Sultaana took most of the money and gave $2,500 to his mother. In
{¶29} Although Strong received little money from the loan transactions, she received “gifts,” mostly in the form of drugs, in exchange for her participation. (Tr. 2099.) Strong‘s testimony alone is sufficient to establish that Strong and Sultaana associated for the purpose of committing a pattern of corrupt activity. Both Strong‘s and Palcisco‘s testimony demonstrates that they played larger roles in the conspiracy than the individual codefendants at the “rim“; they were in the “hub” of the wheel with Sultaana.
{¶30} The evidence showed that Sultaana engaged in numerous fraudulent transactions at title bureaus and loan companies with various codefendants. The collaborative actions of Strong, Palcisco, and Sultaana established the enterprise element of the offense. The series of deceitful acts undertaken to attain the loans constitute a pattern of corrupt activity. And the fact that these transactions occurred on different dates and locations demonstrates the longevity of the enterprise. Therefore, there was sufficient evidence to sustain Sultaana‘s conviction for engaging in a pattern of corrupt activity.
{¶31} The first assignment of error is overruled.
2. Tampering With Records
{¶32} In the second assignment of error, Sultaana argues there was insufficient evidence to sustain his tampering with records convictions because those charges were erroneously charged under
{¶33} Sultaana was convicted of 28 counts of tampering with records, in violation of
{¶34}
If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.
{¶35} A tampering with records offense under
{¶36} Furthermore,
{¶37} The second assignment of error is overruled.
B. Allied Offenses
{¶38} In the third assignment of errоr, Sultaana argues the trial court erred in failing to merge his securing writings by deception convictions with his grand theft conviction. He contends the grand theft offense incorporates the totality of the theft offenses charged in the indictment.
{¶39} ”
Where the defendant‘s cоnduct 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.
{¶40} The Ohio Supreme Court set forth the test courts should employ when deciding whether two or more offenses are allied offenses that merge into a single conviction under
{¶41} Sultaana was convicted of one count of grand theft as charged in Count 2 of the indictment. Count 2 alleges that Sultaana purposely deprived Integrity Funding, Ace Cash Express, American Honda Finance, Amy Agosti, and James Wallace, of property or money by deception, “and the property * * * stolen is valued at $7,500 or more and less than $150,000.” Sultaana was convicted of 22 counts of securing writings by deception as a result of each fraudulently secured loan. Each of the 22 counts of securing writings by deception alleged that Sultaana, by deception, caused either Ace Cash Express or LoanMax to execute a “writing that disposed of or encumbered property, or by which a pecuniary obligation was incurred and the value of the property or obligation involved was $1,000 or more and less than $7,500.” The
{¶42} However, we find that the individual counts of securing writings by deception do not merge with the grand thеft count because they were not committed by the same conduct. Each of the securing writings by deception offenses were committed separately on different days, at several different locations. The state suggests that in some cases the value of all theft amounts may be aggregated, and all thefts may be tried as a single offense pursuant to
{¶43} Additionally, the legislative comments to
Under the new code, embezzlement is not defined as a separate offense, but is a series of theft offenses committed by an offender within a given span of time in his same employment, capacity, or relationship to another. An example of this is the truck driver who over a period of a year lifts a few items from various of his cargoes, even though the cargoes may belong or be consigned to different persons. Another example is the social club treasurer who during his term converts dues money to his own use.
{¶45} Sultaana had no legitimate ongoing relationship with the loan companies. Thus, the securing writings by deception offense alleged in Count 47 is the only count that could arguably merge with the grand theft offense alleged in Count 2 because they both involve property loss “valued at $7,500 or more and less than $150,000,” and they were committed in a single transaction.
{¶46} However, some of the victims of the grand theft offense were not victims of the securing writings by deception offenses. In addition to the loan companies, Amy Agosti and James Wallace were victims of the grand theft.3 Thus, the offenses are dissimilar because they involve different victims. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, at ¶ 26.
{¶47} Moreover, Ruff instructs us to examine not only the defendant‘s conduct or actions, but also his animus, and whether the offenses caused separate identifiable harm. In this case, the evidence showed that in each act of securing writings by deception, Sultaana intended to deceive the loan companies as well as each of the individual codefendants who participated in those
{¶48} The fact that Sultaana repeatedly persuaded people to take out loans and give him the money without repaying the loans demonstrates that Sultaana never intended to repay the loans as promised. Sultaana planned on keeping the stolen money for himself and leaving the codefendants in the lurch. His actions evidence an intent to harm both the loan companies and each individual codefendant. Sеparate victims are sufficient to establish a separate animus for each offense, as each victim has a specific and identifiable right to redress against the conduct of the defendants. Ruff at paragraph two of the syllabus (“[T]wo or more offenses of dissimilar import exist within the meaning of
{¶49} The trial court properly determined that Sultaana‘s securing writings by deception and grand theft offenses do not merge into a single conviction under
{¶50} The third assignment of error is overruled.
C. Sentence and Right to Trial
{¶51} In the fourth assignment of error, Sultaana argues the trial violated his constitutional rights by imposing a 14-year sentence as punishment for exercising his right to trial.
{¶53} However, vindictiveness is not presumed merely because the trial court imposed a stricter sentence than the one offered in plea negotiations. Id. In determining whether а court was motivated by vindictiveness to impose a harsher sentence, the record must affirmatively show retaliation as a result of the rejected plea bargain. Id.; see also State v. Warren, 125 Ohio App.3d 298, 307, 708 N.E.2d 288 (8th Dist.1998). There must be some positive evidence demonstrating a vindictive purpose on the court‘s part. Shepherd at ¶ 68.
{¶54} Here, the trial court explained at sentencing that as a result of hearing witness testimony, “the Court learned more information and discovered the extent of the harm.” (Tr. 3503.) The court explained:
As the case progressed * * * the Court learned the details of more of these facts, the details of how the various victims were scammed, were defrauded, how the process was manipulated, not unlike what was going on in the courtroom, and especially how the State‘s title system was manipulated and defrauded.
(Tr. 3498.) The court indicated that after hearing witness testimony, it learned how Sultaana
took advantage of people with those vulnerabilities, he used his emotions with his girlfriends, with women. He used their vulnerabilities with respect to drug addiction, substance abuse. The evidence was clear that he perpetrated these scams in order to get more money for drugs, to keep his girlfriends, his codefendants, his minions doing his bidding * * *
So that substance abuse contributed to the seriousness of his conduct.
(Tr. 3500.) The court concluded that the codefendants were, themselves, victims. The codefendants not only suffered financial loss, but also acquired felony convictions, in part, as a result of Sultaanа‘s manipulation.
{¶55} The trial court recognized that, in addition to the loan companies, innocent citizens such as Amy Agosti and James Wallace were victimized. The court also noted that “[t]his defendant‘s own family members, Dashara Hughley, his own mother [was] sucked into this scam. It shows a lack of any concern for the rules of society. And this was an organized criminal activity.” (Tr. 3500.) Thus, the court explained that it found a more severe sentence was warranted after it learned the scope and magnitude of the harm. (Tr. 3500.)
{¶56} The court also discovered more about Sultaana‘s likelihood for recidivism from the presentence investigation report, which the court lacked during plea negotiations. (Tr.3497.) The court found that Sultaana was known by other aliases, had other social security numbers, and had an extensive criminal history that included prior prison terms.
{¶57} It is undisputed that all the sentences were within the statutory range, and the court complied with the requirements of
{¶58} Therefore, the fourth assignment of error is overruled.
III. Conclusion
{¶59} There was sufficient evidence to support Sultaana‘s RICO conviction. The evidence showed that he conspired with two codefendants to induce “outside” codefendants to
{¶60} Appellant was properly charged with and convicted of tampering with records because
{¶61} The trial court‘s decision not to merge Sultaana‘s securing writings by deception convictions with his grand theft conviction was appropriate where the offenses were committed separately, there werе separate victims, and there was separate identifiable harm.
{¶62} Finally, the trial court did not violate Sultaana‘s constitutional right to trial by punishing him with a harsher sentence. The trial court explained that it decided a more severe sentence was necessary after learning the scope and magnitude of the harm to the large number of victims.
{¶63} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
LARRY A. JONES, SR., A.J., and
MELODY J. STEWART, J., CONCUR