State v. Thrower

Decision Date01 November 1989
Docket Number14095 and 14096,Nos. 14044,14045,s. 14044
PartiesThe STATE of Ohio, Appellee, v. THROWER et al., Appellants. *
CourtOhio Court of Appeals
                Count  Revised Code Section  Offense
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Additionally, Albert was indicted in count nine for having a weapon while under disability, R.C. 2923.13.

Thereafter, on January 6, 1989, Albert and Thomas were indicted in case No. CR 89-01-0026 as follows Count Revised Code Section Offense

1 2925.03(A)(3) Trafficking in

Marihuana

2 2923.01(A)(1) or Conspiracy to commit

(A)(2) Trafficking in

Marihuana

3 and 2923.32(A)(2) and Engaging in a Pattern

4 (A)(3) of Corrupt Activity

These cases are consolidated for purposes of appeal.

A negotiated plea arrangement with the state resulted in the dismissal of three charges in the indictment in case No. 89-01-0026: trafficking in marihuana, conspiracy and engaging in a pattern of corrupt activity. The Throwers entered guilty pleas to the remaining counts in both indictments. The Throwers were sentenced on February 22, 1989 and March 3, 1989. At the March 3, 1989 hearing, the Throwers fired their attorneys and moved to withdraw their guilty pleas.

On March 20, 1989, the trial court held an evidentiary hearing upon, and then denied, the Throwers' motions to withdraw their guilty pleas. The Throwers appeal.

Assignments of Error III and IV 1

"III. The defendants were denied their constitutional rights as they were convicted under an unconstitutional statute.

"IV. The defendants' constitutional rights were violated when they were convicted under a statute which was unconstitutional as it failed to set forth ascertainable standards of guilt."

The Throwers contend that R.C. 2923.32 is unconstitutional for various reasons including that it violates the Ex Post Facto Clause and fails to set forth ascertainable standards of guilt. In response, appellee asserts that the statute is constitutional and, further, that the Throwers have waived the issue of constitutionality of the statute because they failed to timely raise this issue at the trial court level.

"In Ireland v. Palestine, Braffetsville, N.P. & N.W. Turnpike Co. (1869), 19 Ohio St. 369, 373, it was stated that no constitutional question is ripe for judicial review 'where the case can be disposed of upon other tenable grounds.' " Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 105, 522 N.E.2d 489, 495. Accordingly, before addressing the constitutional issues, this court will determine whether appellants failed to raise the issue of constitutionality of the statute at the trial court level.

The general rule is that an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. State v. Awan (1986), 22 Ohio St.3d 120, 122, 22 OBR 199, 201, 489 N.E.2d 277, 279. Failure to raise at the trial court level the issue of constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue, and therefore need not be heard for the first time on appeal. Id. at the syllabus.

Appellee contends that because the Throwers did not challenge the constitutionality of the statute prior to trial in a motion to dismiss, they failed to preserve their constitutionality arguments on appeal.

Crim.R. 12(B) provides in pertinent part:

"(B) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised before trial:

" * * *

"(2) Defenses and objections based on defects in the indictment, information, or complaint (other than failure to show jurisdiction in the court or to charge an offense, which objections shall be noticed by the court at any time during the pendency of the proceeding)[.]"

The rule specifically contains two exceptions to the general requirement that all defects in the indictment must be raised by a pretrial motion. One such exception is a challenge that the indictment fails to charge an offense which may be raised at any time during the pendency of the proceeding.

Both Albert and Thomas made pro se motions to withdraw their guilty pleas during the pendency of the proceeding. Each motion alleged that the charge under R.C. 2923.32 was not an offense. Moreover, counsel included this same assertion as part of the additional motion to withdraw the guilty pleas.

The defense of failure to charge an offense may be based on the unconstitutionality of a statute. 8 Moore, Federal Practice (1989), Paragraph 12.03, at 12-20. Therefore, there has been no waiver of this issue.

The Throwers allege that R.C. 2923.32 is unconstitutional for multiple reasons. All legislative enactments enjoy a presumption of constitutionality. State v. Dorso (1983), 4 Ohio St.3d 60, 61, 4 OBR 150, 151, 446 N.E.2d 449, 450. Therefore, this court must apply all presumptions and pertinent rules of construction so as to uphold, if at all possible, a statute or ordinance attacked as unconstitutional. Id.

Ex Post Facto And Retroactive Laws

Although the effective date of R.C. 2923.31 was January 1, 1986, the Ohio RICO statute can be applied by the state to prosecute anyone who conducted an enterprise through a pattern of corrupt activity having its inception prior to that date. This is because a pattern of corrupt activity is deemed to exist if at least two acts of corruption take place and at least one of these acts has occurred after the effective date of the statute. R.C. 2923.31(E). The state charged the Throwers, in count four of the indictment in case No. 89-01-0026, with knowingly using or investing proceeds derived from a pattern of corrupt activity, R.C. 2923.32(A)(3), and acquiring an interest in real property through a pattern of corrupt activity, R.C. 2923.32(A)(2). Furthermore, the indictment alleged that these activities occurred between January 1, 1983 and September 30, 1988. Thus, the state was authorized to establish a pattern of corrupt activity by showing one or more additional acts of corruption. The state charged Albert with two additional acts of corruption which occurred prior to the effective date of the statute. Moreover, the state charged the Throwers with the additional acts of corruption delineated in case No. 88-09-1300, which occurred after the statute was enacted.

The Throwers contend that this action violates the prohibition against ex post facto and retroactive legislation. The state contends that the statute does not violate ex post facto prohibitions because a conviction cannot be obtained unless it is established that one of the acts of corruption occurred after the effective date of the statute.

Ex post facto laws are prohibited by Section 10, Article I, United States Constitution, which provides, in part: "No State shall * * * pass any * * * ex post facto law * * *." The United States Supreme Court has defined an ex post facto law as follows:

" '1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.' " Miller v. Florida (1987), 482 U.S. 423, 429, 107 S.Ct. 2446, 2450, 96 L.Ed.2d 351, 359, citing Calder v. Bull (1798), 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648, 650. Accord Dobbert v. Florida (1977), 432 U.S. 282, 292, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344, 355-356, quoting Beazell v. Ohio (1925), 269 U.S. 167, 169-170, 46 S.Ct. 68, 68-69, 70 L.Ed. 216, 217-218.

The Ohio Legislature is prohibited from enacting retrospective laws under Section 28, Article II, Constitution, which provides: "The General Assembly shall have no power to pass retroactive laws * * *."

A "retrospective (retroactive) law" is defined as:

" 'Upon principle, every statute which takes away or impairs vested rights, acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective.' " Herrick v. Lindley (1979), 59 Ohio St.2d 22, 25, 13 O.O.3d 13, 14-15, 391 N.E.2d 729, 731-732, citing Rairden v. Holden (1864), 15 Ohio St. 207, 210.

The pertinent distinction between ex post facto and a retroactive law is that ex post facto laws include statutes which increase the punishment for a prior criminal act, whereas retroactive laws include statutes " ' * * * which take away or impair vested rights, acquired under existing laws, or which create a new obligation, impose a new duty, or attach a new disability in respect to past transactions or considerations * * *.' " State, ex rel. Michaels, v. Morse (1956), 165 Ohio St. 599, 604, 60 O.O. 531, 534, 138 N.E.2d 660, 664. Retroactive laws therefore comprise a larger category than ex post facto laws, and include statutes imposing disabilities as well as those imposing punishments. State, ex rel. Corrigan, v. Barnes (1982), 3 Ohio App.3d 40, 44, 3 OBR 43, 46, 443 N.E.2d 1034, 1038.

The Ohio RICO statute was based on the Federal RICO 2 statute and statutes passed by other states. R.C. 2923.31 et seq....

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