[Cite as State v. Cassel , 2021-Ohio-661.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO

STATE OF OHIO, : O P I N I O N Plaintiff-Appellee, : CASE NO. 2020-L-097 - vs - : JAMES CASSEL, : Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Cas e No. 2020 CR 000119.

Jud g ment: Affirmed.

Charles E. Coulson , Lake County Prosecutor, and Teri R. Daniel , Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 ( For Plaintiff-Appellee )

. Gregory S. Robey , Robey & Robey, 14402 Granger Road, Cleveland, OH 44137 (For Defendant-Appellant )

.

MATT LYNCH, J. {¶1} Defendant-appellant, James Cassel, appeals the denial of his Mo tion to Suppress and his Sentence following the entry of a Plea of No C ontest in the Lake County Court of Common Pleas. For the following reasons, we affirm th e denial of the Motion to Suppress and the Sentence imposed. {¶2} On May 4, 2020, the Lake County Grand Jury returned an Indictme nt against Cassel charging him with the following: Trafficking in Heroin (Count 1), a felony of the second degree in violation of R.C. 2925.03(A)(2); Posses sion of Heroin (Count 2),2 a felony of the second degree in violation of R.C. 2925.11; Tra fficking in Cocaine (Count 3), a felony of the fifth degree in violation of R.C. 2925.03(A )(2); Possession of Cocaine (Count 4), a felony of the fifth degree in violation of R.C. 29 25.11; Possessing Criminal Tools (Count 5), a felony of the fifth degree in violation of R .C. 2923.24; Having Weapons while under Disability (Count 6), a felony of the third degree in violation of R.C. 2923.13(A)(2); Carrying Concealed Weapons (Count 7), a felony o f the fourth degree in violation of R.C. 2923.12(A)(2); and Improperly Handling Firear ms in a Motor Vehicle (Count 8), a felony of the fourth degree in violation of R.C. 2 923.16(B). Counts 1 through 4 included firearm specifications pursuant to R.C. 2941.141. {¶3} On May 8, 2020, Cassel was arraigned and entered pleas of not g uilty to all counts of the Indictment. On the same date, Cassel filed a Mot ion to Suppress and, on May 27, a Supplement to Motion to Suppress. {¶4} On May 22, 2020, the State filed its Response to the Motion to Suppress. {¶5} On June 19, 2020, a suppression hearing was held. {¶6} On June 23, 2020, the trial court denied the Motion to Suppress . The court made the following factual findings: Patrolman Anthony Pecnik (“Off. Pecnik”), who has been with the Wickliffe Police Department for six years, testified that h e was driving down Euclid Avenue after 2:00 a.m. on January 2, 2020 w hen he saw a vehicle in the parking lot of Gabe’s with its lights o n. Off. Pecnik knew that Gabe’s did not allow overnight parking in its lot, and had signs posted to prevent it, so he stopped to investigate. The vehicle was running and the lights were on, and the person in t he driver’s seat (later identified as Defendant) was asleep. Off. Pecnik called for backup, then ran the license plate while he waited; the car was registered to Defendant, who had a valid driver’s license a nd no active warrants. Patrolman Nicholas Merrifield (“Off. Merrifie ld”), who has been with the Wickliffe Police Department for four year s and was previously with the Cleveland Police Department for three y ears, responded to assist Off. Pecnik. Off. Pecnik approached the ve hicle and knocked on the driver’s side window, then shone his flashli ght into the vehicle. When Defendant woke up Off. Pecnik asked him to3 open the door . Off. Merrifield approached the vehicle from the front, heard the engine rev, and yelled “No, no, no don’t put the car in drive.” Off. Pecnik opened the driver’s side door, and Off. Me rrifield opened the passenger side door, and both officers instructed Defendant to exit the vehicle. Defendant appeared lethargic an d “out of it,” and based on the lethargy, the fact that he was sleepin g or “passed out” in the car, and the difficulty in waking him, both officers were concerned that he was intoxicated. Both officers testifi ed that Defendant put the vehicle in drive a second time, and Off. Merr ifield testified that he got into the passenger’s side of the vehicle and put the vehicle back in park; Off. Merrifield testified that the ve hicle rolled forward a bit, but Off. Pecnik testified that it did not move. Off. Pecnik used his Taser, then pulled Defendant out of the vehicle. Defe ndant refused to put his hands behind his back, but after the officer s used the Taser several more times Defendant was handcuffed, searched , and put in the back of a patrol car. [Cassel was arrested for Obstructing Official Business.] The officers then performed an inventory search pursuant to department policy and had Defendan t’s vehicle towed. Defendant called Amara Hassan (“Hassan”) as a witness. Hassan testified that she lives with Defendant in the apartment building next to Gabe’s, that many tenants in the apartment bui lding park in Gabe’s parking lot, and that Defendant usually parks th ere without a problem. She also testified that she had driven home behind Defendant that night and that he had not driven like som eone who was intoxicated. {¶7} On July 22, 2020, Cassel entered a Written Plea of No Contest t o Trafficking in Heroin (Count 1) and Having Weapons while under Disability ( Count 6) including the specification. Cassel further acknowledged that he was on post -release control at the time he committed the offenses to which he was pleading. On th e State’s motion, the remaining Counts of the Indictment were dismissed. {¶8} On August 26, 2020, the sentencing hearing was held. Inter ali a, the trial court ordered Cassel to serve an indefinite prison term with a stated minimum term of four years and a maximum term of six years for Count 1 and a concurr ent twenty-four-month prison term for Count 6. The court ordered Cassel to serve con secutive prison terms of one year for the firearm specification and three months for the post-release control4 violation. Cassel’s aggregate prison term ranged from a minimu m of five years and three months to a maximum of seven years and three months. {¶9} At this point, we emphasize that the seven years and three mont hs is the

maximum aggregate term for all sentences imposed and not the “maximum prison ter m” imposed for Trafficking as a “qualifying felony” pursuant to R. C. 2929.144(B). Under the Reagan Tokes Law, an indefinite prison term is imposed for qual ifying felonies such as Trafficking. The sentencing judge selects a “stated minimum te rm” from the possible terms set forth in R.C. 2929.14(A)(1)(a) or (2)(a). The maximu m prison term for that felony is calculated to be “the minimum term imposed on the off ender * * * plus fifty percent of that term.” R.C. 2929.144(B)(1). In the present ca se, that yields a sentence of between four and six years for Trafficking. {¶10} Independent of the indefinite prison sentence imposed for Traff icking, the trial court imposed additional prison terms of one year for the firearm specification and three months for the post-release control violation. By law, t hese terms are required to be served consecutively to the indefinite prison term for Traff icking. See R.C. 2929.14(C)(1)(a) and R.C. 2929.141(A)(1). They do not become p art of Cassel’s indefinite sentence for Trafficking but are considered as part of Cassel’s aggregate sentence. Thus, Cassel will serve an aggregate minimum term of five years and three months (one year for the firearm specification plus three month s for the post-release control violation plus the four-year stated minimum term for Tr afficking) and potential aggregate maximum term of seven years and three months (one yea r for the firearm specification plus three months for the post-release control vi olation plus the six-year maximum prison term for Trafficking). {¶11} On August 31, 2020, Cassel’s sentence was memorialized in a wri tten5 Judgment Entry of Sentence. {¶12} On September 18, 2020, Cassel filed a Notice of Appeal. On app eal, he raises the following assignments of error: {¶13} “[1.] The trial court erred in ruling that the investigatory de tention of Appellant was proper.” {¶14} “[2.] The trial court erred in ruling that the search of Appell ant’s vehicle was proper.” {¶15} “[3.] The trial court erred in ruling that the arrest of Appell ant was proper.” {¶16} “[4.] The trial court erred in imposing an incorrect indefinite sentence upon Appellant.” {¶17} Cassel’s first three assignments of error challenge aspects of the trial court’s ruling on his Motion to Suppress. The following standa rd applies to each assignment. “Appellate review of a motion to suppress presents a mixed question of law

and fact.” State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “[A]n appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence,” but “must then independently det ermine, without deference to the conclusion of the trial court, whether the fac ts satisfy the applicable legal

standard.” Id. {¶18} In the first assignment of error, Cassel challenges the validit y of the investigatory stop or detention. {¶19} The Fourth Amendment to the United States Constitution as well as Article I, Section 14 of the Ohio Constitution prohibit unreasonable se arches and seizures, including “brief investigative stops that fall short of traditi onal arrests.” State v. Hairston , 156 Ohio St.3d 363, 2019-Ohio-1622, 126 N.E.3d 1132, ¶ 9. “An officer may perform6 such a stop when the officer has a reasonable suspicion based o n specific and articulable

facts that criminal behavior has occurred or is imminent.” Id. The standard is described as an objective one: “would the facts available to the officer at the moment of the seizure

or the search ‘warrant a man of reasonable caution in the belie f’ that the action taken was appropriate?” Terry v. Ohio , 392 U.S. 1, 21-22, 88 S.Ct. 1688, 20 L.Ed.2d 889 (1968). The determination as to whether “an objective and particularize d suspicion that criminal activity was afoot must be based on * * * a totality of the sur rounding circumstances.”

State v. Andrews , 57 Ohio St.3d 86, 87, 565 N.E.2d 1271 (1991); State v. Batchili , 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 19 (“[t]he ‘ reasonable and articulable suspicion’ analysis is based on the collection of factors, not on the individual factors themselves”). {¶20} The facts available to Officers Pecnik and Merrifield in the pr esent case readily support the conclusion that the investigatory detention of Cassel was reasonable and justified. Cassel was found after 2:00 a.m. unconscious an d behind the wheel of a vehicle with the engine running, the lights on and music playin g. The vehicle was parked in a commercial property that did not allow overnight parking. Other courts have reached

the same conclusion. State v. Hall , 2017-Ohio-446, 84 N.E.3d 263, ¶ 8 (10th Dist.) (“[p]olice officers who encounter a person passed out or uncons cious in a motor vehicle in all likelihood have an obligation to further investigate the situation”); State v. Eason , 2016-Ohio-5516, 69 N.E.3d 1202, ¶ 23-24 (8th Dist.) (“investiga tion and detention of appellant” were justified where the officer observed a vehicle illegally parked after hours, the vehicle was idling, and appellant was “sleeping in the driv er’s seat”); State v. Jones , 4th Dist. Washington No. 11CA13, 2012-Ohio-1523, ¶ 14 (“[office r] Newell had a reasonable, articulable suspicion that Jones had driven under t he influence of alcohol7 and/or a drug of abuse, parked the vehicle, and passed out behi nd the wheel” where he observed “Jones with his head ‘slumped down,’ asleep behind the wheel with the key in the ignition and the headlights on”). {¶21} Contrary to this conclusion, Cassel identifies a number of fact ors that would weigh against a finding of reasonable suspicion. These factors are generally irrelevant to our analysis inasmuch as they are circumstances that were no t known to either Officer Pecnik or Merrifield at the time of the detention. For example : Cassel had parked in the commercial lot on prior occasions without incident; the vehicle was running because it was cold outside; and his girlfriend had observed him driving w ithout impairment. Appellant’s brief at 8-9. Likewise, the fact that there were n o dispatches or other complaints regarding Cassel’s driving or parking does not mitig ate against a finding of reasonable suspicion. The officers’ own observations are suffi cient in the present case.

We note that the detentions in Hall and Eason were based solely on the officers’

observations. {¶22} Finally, Cassel notes that the officers had confirmed that the vehicle was registered to him and that he had a valid driver’s license and no warrants. However, without an investigatory detention, the officers were unable to confirm Cassel’s identity as the occupant of the vehicle or determine that he was in a co ndition to operate the vehicle. Officer Merrifield testified at the suppression heari ng that the windows of the vehicle were tinted making it difficult to see inside. {¶23} The State in turn argues in support of the denial of the Motion to Suppress that the officers are entitled to “approach a person to provide assistance without any reasonable basis to suspect criminal activity.” Appellee’s bri ef at 5. See Geneva v.

Fende , 11th Dist. Ashtabula No. 2009-A-0023, 2009-Ohio-6380, ¶ 17 (“ under appropriate8 circumstances, a police officer will be justified in approachin g a vehicle to provide assistance, without needing any reasonable basis to suspect cri minal activity”). In the present case, the officers did not merely approach Cassel to in quire about his well-being but had determined to detain him until they completed their inv estigation. As the events unfolded, Cassel attempted to drive away before the officers we re able to identify who he was or whether he was impaired. The duty to determine whether Cassel needed assistance is certainly part of the totality of the circumstanc es in this case but is not determinative of the propriety of the detention. {¶24} The first assignment of error is without merit. {¶25} In the second assignment of error, Cassel contends that the war rantless search of his vehicle was improper. {¶26} “An inventory search of a lawfully impounded vehicle is a well- defined exception to the warrant requirement of the Fourth Amendment to the United States

Constitution.” State v. Hathman , 65 Ohio St.3d 403, 405, 604 N.E.2d 743 (1992). “To satisfy the requirements of the Fourth Amendment to the United States Constitution, an inventory search of a lawfully impounded vehicle must be conduc ted in good faith and in accordance with reasonable standardized procedure(s) or establi shed routine.” Id. at paragraph one of the syllabus; State v. Mesa , 87 Ohio St.3d 105, 717 N.E.2d 329 (1999), syllabus (“[a]n inventory search of a compartment of a lawfully impounded vehicle does

not contravene the Fourth Amendment to the United States Consti tution or Section 14,

Article I of the Ohio Constitution where the search is administ ered in good faith and in accordance with reasonable police procedure(s) or established r outine”). {¶27} At the suppression hearing, a copy of the Wickliffe Police Depa rtment’s Towing Procedures, Policy No. 3.55 was admitted into evidence. Pursuant to these9 Procedures, reasons for towing a vehicle include “arrest of the driver.” Furthermore, “[e]very vehicle impounded by the Wickliffe Police Department s hall be carefully inventoried and documented,” the scope of the inventory shall i nclude “[a]ll accessible areas, * * * the passenger compartment, trunk or bed of vehicle , glove box, center console, and any other area where items of value may be stored. ” The inventory of Cassel’s vehicle produced a loaded firearm, heroin, and xylazin e from areas accessible from the driver compartment. {¶28} Cassel argues that the decision to impound the vehicle was not reasonable inasmuch as the officers made no effort to contact family membe rs to remove the vehicle or to secure it where it was parked. We do not find the decisi on to impound the vehicle unreasonable. As explained by Officer Merrifield: “we have com plaints from the businesses about cars being left in the lot overnight, stuff li ke that and it has no reason to

be there.” {¶29} The Ohio Supreme Court has observed that, even when it is possi ble to afford a defendant the opportunity to make alternative arrangem ents for removing a vehicle, “[t]he reasonableness of any particular governmental a ctivity does not necessarily or invariably turn on the existence of alternative ‘less intrusive’ means.” (Citations omitted.) Blue Ash v. Kavanagh , 113 Ohio St.3d 67, 2007-Ohio-1103, 862 N.E.2d 810, ¶ 19. Given Cassel’s behavior and the circumstance s of his arrest in the present case, officers were fully justified in deciding to impo und the vehicle. {¶30} Cassel further argues that “the prospect that this was an illeg al pre-textual search” exists because it was unclear “whether police actually called for the tow prior to conducting the claimed inventory search.” Appellant’s brief at 10. We disagree. Cassel had been arrested prior to both the inventory of the vehicle an d the towing agency being10 contacted. Cassel’s arrest, per Wickliffe Policy No. 3.55, pro vided the officers with justification for impounding the vehicle. Once the decision to impound has been made, it

makes little difference whether the search was initiated before or after the towing agency was contacted since department policy requires the contents of the vehicle to be

inventoried. {¶31} Lastly, Cassel argues that the inventory search of his vehicle was improper as his arrest was illegal. For the reasons set forth under the third assignment of error, Cassel’s arrest was legal and so has no bearing on the validity of the inventory search. {¶32} The second assignment of error is without merit. {¶33} In the third assignment of error, Cassel argues that his warran tless arrest for Obstructing Official Business was improper because that cha rge requires “an affirmative act by the accused.” Cassel maintains that he did not commit an affirmative or overt act but rather “merely refused to exit his vehicle aft er being asked repeatedly by officers.” Appellant’s brief at 11. {¶34} “The standard for a constitutionally valid arrest is probable c ause, ‘defined in terms of facts and circumstances “sufficient to warrant a pr udent man in believing that the [suspect] had committed or was committing an offense.”’” ( Citations omitted.) State

v. Tibbetts , 92 Ohio St.3d 146, 153, 749 N.E.2d 226 (2001). {¶35} A charge of Obstructing Official Business is defined thus: “No person, without privilege to do so and with purpose to prevent, obstruc t, or delay the performance by a public official of any authorized act within the public of ficial’s official capacity, shall do any act that hampers or impedes a public official in the per formance of the public official’s lawful duties.” R.C. 2921.31(A). The statute has b een construed so that “the state must show that the accused engaged in an overt act; refus ing to answer the door11 or refusing to obey an officer’s request cannot form the basis of a conviction for obstructing official business.” State v. Kehres , 11th Dist. Ashtabula No. 2019-A-0059, 2020-Ohio-1320, ¶ 19; Cleveland Metroparks v. Cauthen , 8th Dist. Cuyahoga No. 109297, 2020-Ohio-5266, ¶ 12 (“[i]t has long been settled that an affirmative act is required [to] support a conviction of obstructing official busi ness”). On the other hand, “Ohio appellate authority * * * holds that fleeing from a polic e officer who is lawfully attempting to detain a suspect under the authority of Terry is an affirmative act that hinders or impedes the officer in the performance of the office r’s duties and constitutes a violation of R.C. 2921.31, obstructing official business.” State v. Johnson , 2017-Ohio5527, 92 N.E.3d 1256, ¶ 33 (10th Dist.) (cases cited). {¶36} In the present case, Cassel engaged in several overt acts while attempting to flee from officers performing an investigative detention. A s noted by the trial court, testified to by the officers, and corroborated by body camera v ideos, Cassel put or attempted to put his vehicle in drive multiple times and engage d the accelerator. We do not find it material whether the vehicle actually moved. Casse l’s actions caused the officers to taser him and forcibly remove him from the vehicle. Even then, Cassel attempted to flee on foot. See Cleveland v. Weems , 8th Dist. Cuyahoga No. 82752, 2004- Ohio-476, ¶ 23 (“[t]he officers * * * testified that the action s of the appellant escalated the situation and caused them to draw their weapons to control the situation”). {¶37} The third assignment of error is without merit. {¶38} In the fourth and final assignment of error, Cassel argues that the trial court erred in calculating his sentence. Specifically, he “contends that the sentencing journal entry is incorrect because R.C. 2929.144 states that you cannot consider a gun specification to enhance the maximum term.” Appellant’s brief at 12.12 {¶39} The statute provides in relevant part: Any mandatory prison term, or portion of a mandatory prison ter m, that is imposed or to be imposed on the offender under division (B) * * * of section 2929.14 of the Revised Code * * *, with respect to a conviction of or plea of guilty to a specification, and that is in addition to the sentence imposed for the underlying offense is separate from the sentence being imposed for the qualifying first or second d egree felony committed on or after the effective date of this section and shall not be considered or included in determining a maximum pr ison term for the offender under divisions (B)(1) to (3) of this sec tion. R.C. 2929.144(B)(4). {¶40} We agree with the State that Cassel misinterprets this division of the statute as somehow preventing the imposition of a consecutive sentence for the firearm specification in addition to the indefinite sentence for Traffi cking in Heroin. Cassel’s indefinite sentence for Trafficking was determined in accordanc e with division (B)(1) whereby “the maximum prison term shall be equal to the minimum prison term imposed * * * plus fifty per cent of that term.” R.C. 2929.144(B)(1). The trial court imposed a stated minimum term of four years which results in a maximum prison te rm of six years without the prison term for the firearm specification being considered or included. Otherwise, the maximum prison term would be seven and a half years (based on a minimum term of four years plus one for the specification). This does not, however, preclude the prison term for the specification being served, in the words of the statute , “in addition to the sentence imposed for the underlying offense.” The six-year maximum pris on term only applies to the sentence for the underlying offense. {¶41} This is the way the statute has been applied in other cases whe re the courts have applied R.C. 2929.144(B)(4) in a manner consistent with R. C. 2929.14(C)(1)(a) (“if a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(a) of this section for having a firearm on or about the offender’s person or under the offender’s13 control while committing a felony * * * the offender shall serv e any mandatory prison term imposed * * * consecutively to and prior to any prison term imp osed for the underlying felony”). See State v. Miles , 11th Dist. Portage No. 2020-P-0032, 2020-Ohio-6921, ¶ 28 (six-year sentences for firearm specifications to be served pri or to and consecutively to the sentences for the underlying offenses which carry a maximum prison term of nineteen years for an aggregate maximum sentence of twenty-five years); State v. Ramey , 4th Dist. Washington Nos. 20CA1 and 20CA2, 2020-Ohio-6733, ¶ 7 (the same). {¶42} The fourth assignment of error is without merit. {¶43} For the foregoing reasons, the denial of Cassel’s Motion to Sup press and

his Sentence are affirmed. Costs to be taxed against the appel lant.

MARY JANE TRAPP, P.J., CYNTHIA WESTCOTT RICE, J.,

concur.