[Cite as State v. Castile, 2015-Ohio-5121.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 

 Plaintiff-Appellee, : 

 No. 15AP-103 

v. : (C.P.C. No. 11CR-3857) 

Isaac J. Castile, III, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on December 10, 2015 

 

Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, 

for appellee. 

Carpenter Lipps & Leland LLP, Kort Gatterdam, and 

Erik P. Henry, for appellant. 

 

APPEAL from the Franklin County Court of Common Pleas 

HORTON, J. 

{¶ 1} Defendant-appellant, Isaac J. Castile, III, appeals from a judgment entry of 

the Franklin County Court of Common Pleas, resentencing defendant to a total prison 

term of thirteen and one-half years. Because the trial court erred by sentencing defendant 

on certain felonies of the third degree, we reverse and remand the matter to the trial court 

for resentencing. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} The facts of this case were sufficiently stated in our prior decision in State v. 

Castile, 10th Dist. No. 13AP-10, 2014-Ohio-1918 (Castile I), as follows: 

On July 21, 2011, a Franklin County Grand Jury indicted 

appellant with three counts of securities fraud, in violation of 

R.C. 1707.44(G), three counts of false representations in the 
No. 15AP-103 2 

sale of securities, in violation of R.C. 1707.44(B)(4), three 

counts of the sale of unregistered securities, in violation of 

R.C. 1707.44(C)(1), and three counts of theft, in violation of 

R.C. 2913.02. The charges arose out of different transactions 

in which appellant accepted money from three Ohio citizens: 

John Prater, Jennette Stevens, and Raymond Smith pursuant 

to offerings from the Metropolitan Enhancement TreasureBacked Investements, Ltd. ("METBI"). Appellant was one of 

the managers of METBI. Appellant entered a not guilty plea to 

the charges and proceeded to a jury trial. 

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. 

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.) 

Each of the three victims testified about making what they 

thought were investments with appellant. Although Stevens 
No. 15AP-103 3 

did receive a small portion of her investment back, neither 

Prater nor Smith received any of their investments back. 

The jury found appellant guilty of all counts except one of the 

theft counts. The trial court sentenced appellant accordingly. 

Castile I at ¶ 2-6. 

{¶ 3} The trial court's original sentence imposed both consecutive and concurrent 

prison terms, for a total term of imprisonment of thirteen and one-half years. In Castile I, 

this court concluded that the trial court failed to make the necessary R.C. 2929.14(C)(4) 

findings before imposing consecutive sentences. Id. at ¶ 27. As such, we remanded the 

case for resentencing. 

{¶ 4} The trial court held a resentencing hearing on December 15, 2014. The court 

gave defendant a chance to speak, and defendant stated his belief that he was "innocent of 

the charges." (Dec. 15, 2014 Tr., 5.) The court reviewed R.C. 2929.14(C)(4), and stated the 

statutory reasons in support of consecutive sentences. The court noted that one of the 

victims was "a disabled vet," and further noted that, despite defendant's contentions, "the 

jury did find him guilty of the circumstances after hearing the witnesses." (Dec. 15, 2014 

Tr., 19.) The court found consecutive sentences appropriate, to "really reflect the true 

damage [defendant] caused the public in his economic ventures." (Dec. 15, 2014 Tr., 19.) 

The court resentenced defendant to a total prison term of thirteen and one-half years. 

II. ASSIGNMENTS OF ERROR 

{¶ 5} Defendant appeals, assigning the following errors for our review: 

[I.] THE TRIAL COURT ERRED CONTRARY TO 

APPELLANT'S DUE PROCESS RIGHTS IN SENTENCING 

APPELLANT TO FELONIES OF THE THIRD DEGREE AS 

TO COUNTS NINE THROUGH TWELVE BECAUSE THE 

GENERAL ASSEMBLY INTENDED COUNTS NINE 

THROUGH ELEVEN TO BE CATAGORIZED AS FELONIES 

OF THE FOURTH DEGREE AND COUNT TWELVE TO BE 

CATEGORIZED AS A FELONY OF THE FIFTH DEGREE. 

[II.] THE TRIAL COURT ERRED IN IMPOSING 

CONSECUTIVE SENTENCES WITHOUT MAKING THE 

REQUIRED FINDINGS PURSUANT TO R.C. 2929.14(C)(4) 

DEPRIVING APPELLANT OF DUE PROCESS CONTRARY 

TO THE FOURTEENTH AMENDMENT TO THE UNITED 
No. 15AP-103 4 

STATES CONSTITUTION AND CORRESPONDING RIGHTS 

UNDER THE OHIO CONSTITUTION. 

[III.] THE TRIAL COURT'S SENTENCE WAS CLEARLY AND 

CONVINCINGLY CONTRARY TO LAW AND NOT 

SUPPORTED BY THE RECORD, AND CONSTITUTED AN 

ABUSE OF DISCRETION DEPRIVING APPELLANT OF DUE 

PROCESS CONTRARY TO THE FOURTEENTH 

AMENDMENT TO THE UNITED STATES CONSTITUTION 

AND CORRESPONDING RIGHTS UNDER THE OHIO 

CONSTITUTION. 

[IV.] APPELLANT WAS DEPRIVED OF THE EFFECTIVE 

ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF 

APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH, AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION, AND SECTION 10 AND 16, ARTICLE I OF 

THE OHIO CONSTITUTION. 

III. FIRST ASSIGNMENT OF ERROR – FELONY CLASSIFICATION 

{¶ 6} In his first assignment of error, defendant asserts that the trial court erred 

by imposing a sentence on certain felonies of the third degree. The December 18, 2014 

resentencing judgment entry reflects that that jury found defendant guilty of eleven of the 

twelve charges listed in the indictment. Pertinent to the instant issue, the jury found 

defendant guilty of securities fraud in Count 9, a violation of R.C. 1707.44(G); of false 

representation in the sale of securities in Count 10, a violation of R.C. 1707.44(B)(4); of 

the sale of unregistered securities in Count 11, a violation of R.C. 1707.44(C)(1); and of 

theft in Count 12, a violation of R.C. 2913.02. The court noted in the resentencing entry 

that Counts 10 and 12 merged with Count 9 for purposes of sentencing. The court 

accordingly sentenced defendant on Counts 9 and 11, imposing a sentence of 18 months 

on each count. Both the original sentencing entry and the resentencing entry reflect that 

Counts 9 through 12 were all felonies of the third degree. 

{¶ 7} Because a defendant "is not 'convicted' for purposes of R.C. 2941.25(A) until 

the sentence is imposed," we confine our analysis under this assignment of error to the 

convictions in Counts 9 and 11, for violations of R.C. 1707.44(G) and R.C. 1707.44(C)(1). 

State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 24. Effective September 30, 2011, 

Am.Sub.H.B. No. 86 amended R.C. 1707.99 and reclassified the applicable degrees of 
No. 15AP-103 5 

felonies for violations of R.C. 1707.44. The previous version of the law stated that, if the 

value of the funds or securities involved in any violation of R.C. 1707.44 was between 

$5,000 and $25,000, the offender was guilty of a felony of the third degree. Following 

the Am.Sub.H.B. No. 86 amendments, if the value of the funds or securities involved in 

a violation of R.C. 1707.44 is between $1,000 and $7,500, the offender is guilty of a 

felony of the fourth degree. R.C. 1707.99(B). If the value of the funds or securities 

involved in such an offense is between $7,500 and $37,500, the offender is guilty of a 

felony of the third degree. R.C. 1707.99(C). 

{¶ 8} In their verdict finding defendant guilty on Count 11, the jurors found that 

the value of the funds or the securities involved in the offense was between $1,000 and 

$7,500. (R. 100.) Similarly, in their verdict on Count 9, the jurors found that the value of 

the funds or the securities involved in the offense was between $1,000 and $7,500. (R. 

98.) Thus, R.C. 1707.99(B) instructs that Counts 9 and 11 were both felonies of the 

fourth degree. Although defendant committed the conduct under each count prior to the 

September 30, 2011 effective date of Am.Sub.H.B. No. 86, he was sentenced after that 

date. As such, the trial court had to sentence defendant pursuant to the amended 

version of the statute. See State v. Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, ¶ 1-4 

(concluding that a defendant must benefit from the decrease in a classification and 

penalty of an offense enacted by the General Assembly, if the newly enacted statute 

becomes effective before the defendant is sentenced); R.C. 1.58(B); State v. Gillespie, 

5th Dist. No. 2012-CA-6, 2012-Ohio-3485 (finding error as the trial court convicted the 

defendant of a fifth degree felony, and Am.Sub.H.B. No. 86 had reclassified the offense 

to a first degree misdemeanor). 

{¶ 9} Thus, on Counts 9 and 11, defendant was convicted of a higher 

classification of felony than the law permits. As such, defendant asserts that this matter 

should "be remanded to the trial court for resentencing" and, notably, the state 

"concedes error" on this issue. (Appellant's Brief, 12; Appellee's Brief, 2.) Accordingly, 

we must remand the matter to the trial court for resentencing. See State v. Underwood, 

124 Ohio St.3d 365, 2010-Ohio-1, ¶ 20 (noting that "sentences that do not comport with 

mandatory provisions are subject to total resentencing"). Based on the foregoing, 

defendant's first assignment of error is sustained. 
No. 15AP-103 6 

{¶ 10} Defendant's remaining assignments of error all concern some aspect of his 

sentence. Defendant argues that the court did not make the necessary R.C. 

2929.14(C)(4) findings, that his sentence is clearly and convincingly contrary to law, and 

that his attorney rendered constitutionally ineffective assistance by failing to object to 

the trial court's sentence on Counts 9 and 11. Thus, as the remaining assignments of 

error all relate to the sentence, our resolution of defendant's first assignment of error 

renders the remaining assignments of error moot. See State v. Montgomery, 10th Dist. 

No. 13AP-512, 2014-Ohio-4354, ¶ 67 (noting that, as the case was being "remand[ed] for 

resentencing, appellant's remaining argument challenging his * * * sentence [was] 

moot"). We do note however, that the trial court's findings in support of consecutive 

sentences must also be stated in the court's judgment entry. See State v. Bonnell, 140 

Ohio St.3d 209, 2014-Ohio-3177, ¶ 37 (noting that "[i]n order to impose consecutive 

terms of imprisonment, a trial court is required to make the findings mandated by R.C. 

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing 

entry"). 

IV. DISPOSITION 

{¶ 11} Having sustained defendant's first assignment of error, thereby rendering 

defendant's second, third, and fourth assignments of error moot, we reverse the judgment 

of the Franklin County Court of Common Pleas and remand the case for resentencing. 

Judgment reversed; case remanded. 

BROWN, P.J. and SADLER, J., concur. 

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