[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, Case No. 2020 CR 

000119. 

Judgment: 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 Motion to 

Suppress and his Sentence following the entry of a Plea of No Contest in the Lake County 

Court of Common Pleas. For the following reasons, we affirm the denial of the Motion to 

Suppress and the Sentence imposed. 

{¶2} On May 4, 2020, the Lake County Grand Jury returned an Indictment 

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); Possession of Heroin (Count 2), 

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a felony of the second degree in violation of R.C. 2925.11; Trafficking 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. 2925.11; 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 of the fourth degree in 

violation of R.C. 2923.12(A)(2); and Improperly Handling Firearms in a Motor Vehicle 

(Count 8), a felony of the fourth degree in violation of R.C. 2923.16(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 guilty to all 

counts of the Indictment. On the same date, Cassel filed a Motion 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 he was 

driving down Euclid Avenue after 2:00 a.m. on January 2, 2020 when 

he saw a vehicle in the parking lot of Gabe’s with its lights on. 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 the 

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 and no 

active warrants. Patrolman Nicholas Merrifield (“Off. Merrifield”), 

who has been with the Wickliffe Police Department for four years and 

was previously with the Cleveland Police Department for three years, 

responded to assist Off. Pecnik. Off. Pecnik approached the vehicle 

and knocked on the driver’s side window, then shone his flashlight 

into the vehicle. When Defendant woke up Off. Pecnik asked him to 
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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. Merrifield 

opened the passenger side door, and both officers instructed 

Defendant to exit the vehicle. Defendant appeared lethargic and “out 

of it,” and based on the lethargy, the fact that he was sleeping or 

“passed out” in the car, and the difficulty in waking him, both officers 

were concerned that he was intoxicated. Both officers testified that 

Defendant put the vehicle in drive a second time, and Off. Merrifield 

testified that he got into the passenger’s side of the vehicle and put 

the vehicle back in park; Off. Merrifield testified that the vehicle 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. Defendant 

refused to put his hands behind his back, but after the officers 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 Defendant’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 building 

park in Gabe’s parking lot, and that Defendant usually parks there 

without a problem. She also testified that she had driven home

behind Defendant that night and that he had not driven like someone 

who was intoxicated. 

{¶7} On July 22, 2020, Cassel entered a Written Plea of No Contest to 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 the State’s motion, the 

remaining Counts of the Indictment were dismissed. 

{¶8} On August 26, 2020, the sentencing hearing was held. Inter alia, 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 concurrent twenty-four-month 

prison term for Count 6. The court ordered Cassel to serve consecutive prison terms of 

one year for the firearm specification and three months for the post-release control 
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violation. Cassel’s aggregate prison term ranged from a minimum 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 months is the 

maximum aggregate term for all sentences imposed and not the “maximum prison term” 

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 qualifying felonies such as 

Trafficking. The sentencing judge selects a “stated minimum term” from the possible 

terms set forth in R.C. 2929.14(A)(1)(a) or (2)(a). The maximum prison term for that 

felony is calculated to be “the minimum term imposed on the offender * * * plus fifty 

percent of that term.” R.C. 2929.144(B)(1). In the present case, that yields a sentence 

of between four and six years for Trafficking. 

{¶10} Independent of the indefinite prison sentence imposed for Trafficking, 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, these terms are required to 

be served consecutively to the indefinite prison term for Trafficking. See R.C. 

2929.14(C)(1)(a) and R.C. 2929.141(A)(1). They do not become part 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 months for the post-release 

control violation plus the four-year stated minimum term for Trafficking) and potential 

aggregate maximum term of seven years and three months (one year for the firearm 

specification plus three months for the post-release control violation plus the six-year 

maximum prison term for Trafficking). 

{¶11} On August 31, 2020, Cassel’s sentence was memorialized in a written 
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Judgment Entry of Sentence. 

{¶12} On September 18, 2020, Cassel filed a Notice of Appeal. On appeal, he 

raises the following assignments of error: 

{¶13} “[1.] The trial court erred in ruling that the investigatory detention of 

Appellant was proper.” 

{¶14} “[2.] The trial court erred in ruling that the search of Appellant’s vehicle was 

proper.” 

{¶15} “[3.] The trial court erred in ruling that the arrest of Appellant 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 standard 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 determine, without 

deference to the conclusion of the trial court, whether the facts satisfy the applicable legal 

standard.” Id.

{¶18} In the first assignment of error, Cassel challenges the validity 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 searches and seizures, 

including “brief investigative stops that fall short of traditional arrests.” State v. Hairston, 

156 Ohio St.3d 363, 2019-Ohio-1622, 126 N.E.3d 1132, ¶ 9. “An officer may perform 
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such a stop when the officer has a reasonable suspicion based on 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 belief’ 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 particularized suspicion that criminal 

activity was afoot must be based on * * * a totality of the surrounding 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 present case 

readily support the conclusion that the investigatory detention of Cassel was reasonable 

and justified. Cassel was found after 2:00 a.m. unconscious and behind the wheel of a 

vehicle with the engine running, the lights on and music playing. 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 unconscious 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.) (“investigation 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 driver’s seat”); State v. Jones, 

4th Dist. Washington No. 11CA13, 2012-Ohio-1523, ¶ 14 (“[officer] Newell had a 

reasonable, articulable suspicion that Jones had driven under the influence of alcohol 
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and/or a drug of abuse, parked the vehicle, and passed out behind 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 factors that would 

weigh against a finding of reasonable suspicion. These factors are generally irrelevant 

to our analysis inasmuch as they are circumstances that were not 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 without impairment. 

Appellant’s brief at 8-9. Likewise, the fact that there were no dispatches or other 

complaints regarding Cassel’s driving or parking does not mitigate against a finding of 

reasonable suspicion. The officers’ own observations are sufficient 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 condition to operate the 

vehicle. Officer Merrifield testified at the suppression hearing 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 brief at 5. See Geneva v. 

Fende, 11th Dist. Ashtabula No. 2009-A-0023, 2009-Ohio-6380, ¶ 17 (“under appropriate 
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circumstances, a police officer will be justified in approaching a vehicle to provide 

assistance, without needing any reasonable basis to suspect criminal activity”). In the 

present case, the officers did not merely approach Cassel to inquire about his well-being 

but had determined to detain him until they completed their investigation. As the events 

unfolded, Cassel attempted to drive away before the officers were 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 circumstances 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 warrantless 

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 conducted in good faith and in 

accordance with reasonable standardized procedure(s) or established 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 Constitution or Section 14, 

Article I of the Ohio Constitution where the search is administered in good faith and in 

accordance with reasonable police procedure(s) or established routine”). 

{¶27} At the suppression hearing, a copy of the Wickliffe Police Department’s 

Towing Procedures, Policy No. 3.55 was admitted into evidence. Pursuant to these 
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Procedures, reasons for towing a vehicle include “arrest of the driver.” Furthermore, 

“[e]very vehicle impounded by the Wickliffe Police Department shall be carefully 

inventoried and documented,” the scope of the inventory shall include “[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 xylazine 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 members to remove the vehicle 

or to secure it where it was parked. We do not find the decision to impound the vehicle 

unreasonable. As explained by Officer Merrifield: “we have complaints from the 

businesses about cars being left in the lot overnight, stuff like that and it has no reason to 

be there.” 

{¶29} The Ohio Supreme Court has observed that, even when it is possible to 

afford a defendant the opportunity to make alternative arrangements for removing a 

vehicle, “[t]he reasonableness of any particular governmental activity 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 circumstances of his arrest in the 

present case, officers were fully justified in deciding to impound the vehicle. 

{¶30} Cassel further argues that “the prospect that this was an illegal 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 and the towing agency being 
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contacted. Cassel’s arrest, per Wickliffe Policy No. 3.55, provided 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 warrantless arrest 

for Obstructing Official Business was improper because that charge 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 after being asked repeatedly by 

officers.” Appellant’s brief at 11. 

{¶34} “The standard for a constitutionally valid arrest is probable cause, ‘defined 

in terms of facts and circumstances “sufficient to warrant a prudent 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, obstruct, or delay the performance 

by a public official of any authorized act within the public official’s official capacity, shall 

do any act that hampers or impedes a public official in the performance of the public 

official’s lawful duties.” R.C. 2921.31(A). The statute has been construed so that “the 

state must show that the accused engaged in an overt act; refusing to answer the door 
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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 business”). On the other hand, 

“Ohio appellate authority * * * holds that fleeing from a police 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 officer’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. As noted by the trial court, 

testified to by the officers, and corroborated by body camera videos, Cassel put or 

attempted to put his vehicle in drive multiple times and engaged the accelerator. We do 

not find it material whether the vehicle actually moved. Cassel’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 actions 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. 
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{¶39} The statute provides in relevant part: 

Any mandatory prison term, or portion of a mandatory prison term, 

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 degree 

felony committed on or after the effective date of this section and 

shall not be considered or included in determining a maximum prison 

term for the offender under divisions (B)(1) to (3) of this section. 

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 Trafficking in Heroin. Cassel’s 

indefinite sentence for Trafficking was determined in accordance 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 term 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 prison term only applies to 

the sentence for the underlying offense. 

{¶41} This is the way the statute has been applied in other cases where 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’s 
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control while committing a felony * * * the offender shall serve any mandatory prison term 

imposed * * * consecutively to and prior to any prison term imposed 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 prior 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 Suppress and 

his Sentence are affirmed. Costs to be taxed against the appellant. 

MARY JANE TRAPP, P.J., 

CYNTHIA WESTCOTT RICE, J., 

concur.