State v. Mohamed , 2021 Ohio 3643 ( 2021 )

[Cite as State v. Mohamed, 2021-Ohio-3643.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Craig R. Baldwin, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2020 CA 00053
:
MOHAMED A. MOHAMED :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 2019 CR
00718
JUDGMENT: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART
DATE OF JUDGMENT ENTRY: October 8, 2021
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
WILLIAM C. HAYES JAMES A. ANZELMO
LICKING COUNTY PROSECUTOR 446 Howland Dr.
Gahanna, OH 43230
PAULA M. SAWYERS
ASSISTANT PROSECUTING ATTORNEY
20 S. Second St., 4th Floor
Newark, OH 43055
Licking County, Case No. 2020 CA 00053 2
Delaney, J.
{¶1} Defendant-Appellant Mohamed A. Mohamed appeals his conviction and
sentence for Tampering with Evidence and Vandalism by the Licking County Court of
Common Pleas. Plaintiff-Appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
Rear End Accident with a Car and a Building
{¶2} On March 13, 2019, Defendant-Appellant Mohamed A. Mohamed was
involved in a minor rear end traffic accident with another car, which caused minimal
damage to Mohamed’s vehicle and the other car. Witnesses observed Mohamed and the
other driver exchange information, and the other driver appeared to take photos of the
damage with his cell phone. The other driver then left the scene.
{¶3} After the other driver left the scene, police officers responded to the report
of an accident around 12565 National Road in Pataskala, Licking County, Ohio. The
officers spoke to Mohamed who informed them that a car had rear ended him and then
took off. The officers noted that Mohamed’s vehicle appeared to have struck more than
just another vehicle due to the heavy rear end damage.
{¶4} Shortly thereafter, the police officers were notified that Mohamed had
backed his vehicle into a building located at 12565 National Road approximately three
times and then left the scene. Officers were able to obtain the photos taken by the other
driver in the original accident, which showed only minor damage to Mohamed’s car after
the original accident. There was substantial damage to the building amounting to $7,200
for exterior repair and debris removal. Mohamed admitted to being in the area of the
damaged building.
Licking County, Case No. 2020 CA 00053 3
Licking County Municipal Court Proceedings
{¶5} On March 13, 2019, Mohamed was arrested and charged with the first-
degree misdemeanor offense of hit/skip involving realty in violation of R.C. 4549.03. He
entered a plea of not guilty to the charge in the Licking County Municipal Court. The matter
was set for a jury trial.
{¶6} Mohamed entered a change of plea to guilty. On May 23, 2019, the Licking
County Municipal Court held a change of plea hearing where it accepted the plea and
moved directly to sentencing. It imposed a sentence of 120 days incarceration with 119
days suspended and one day jail time credit; one year probation; 100 hours of community
service; and six months driver’s license suspension. (Judgment Entry, May 23, 2019,
Licking County Municipal Court, Case No. 19 TRD 2559). The municipal court ordered
that restitution be held in abeyance for further review and hearing.
{¶7} The continued hearing was held on June 18, 2019. Mohamed did not
appear for the hearing. The municipal court found the State presented testimony and
documents in support of “restitution amount net of insurance coverage.” It ordered
restitution in the amount of $1,000 to be paid through adult probation. (Judgment Entry,
June 18, 2019, Licking County Municipal Court, Case No. 19 TRD 2559).
Common Pleas Proceedings
{¶8} On September 12, 2019, Mohamed was indicted by the Licking County
Grand Jury on one count of tampering with evidence, a third-degree felony in violation of
R.C. 2921.12(A)(1), and one count of vandalism, a fifth-degree felony in violation of R.C.
2909.05(B)(1)(a) based on the events that occurred on March 13, 2019. Mohamed
entered a not guilty plea to the charges.
Licking County, Case No. 2020 CA 00053 4
Motion to Dismiss
{¶9} Mohamed filed a Motion to Dismiss on January 6, 2020. In his motion, he
argued the felony charges should be dismissed because Mohamed already plead and
was found guilty by the Licking County Municipal Court to the charge of hit/skip involving
realty, which arose out of the same incident and set of facts. The State, Mohamed alleged,
failed to expressly reserve the right to bring further charges against him when he entered
his plea and was found guilty by the Licking County Municipal Court. Mohamed had a
reasonable belief at the time of his plea that it would have the effect of terminating the
incident and no further charges would be brought. In support of his argument, Mohamed
cited to State v. Carpenter, 68 Ohio St.3d 59, 623 N.E.2d 66 (1993), for the proposition
that when a court accepts a negotiated plea, the State is precluded from prosecuting the
defendant for additional charges unless the State expressly reserves the right to file
additional charges on the record at the time of the defendant’s plea. In support of his
motion, he submitted as exhibits the Licking County Sheriff Department’s crash report,
the Licking County Sheriff Department’s field case report, and a copy of the Licking
County Municipal Court docket for Case No. 19 TRD 2559.
{¶10} The State filed its response to the Motion to Dismiss on January 23, 2020.
It argued the holding in State v. Carpenter was inapplicable to the matter because the
record in the Licking County Municipal Court proceedings did not show that Mohamed
changed his plea based on a negotiated plea agreement with the State. It provided the
trial court with exhibits from the municipal court proceedings, including the video of the
Mohamed’s change of plea hearing and the filed entries related to Mohamed’s change of
plea. The State argued the facts in State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807,
Licking County, Case No. 2020 CA 00053 5
806 N.E.2d 542, were on point with the circumstances of Mohamed’s plea. There was no
evidence that any promises were made to Mohamed that his change of plea to guilty in
the municipal court proceedings would preclude subsequent felony charges. Further, after
applying the “same elements test” to the three charges resulting from the incident, double
jeopardy did not bar prosecution.
{¶11} The trial court denied the Motion to Dismiss on February 4, 2020. It found
the State did not reserve the right to pursue further charges, but Mohamed did not bargain
for a release from further charges resulting out of the incident. The trial court further
applied the same elements test to the charges of hit/skip involving realty, tampering with
evidence, and vandalism. It found no similar elements between the three charges, and
none were the lesser-included offenses of the others.
Change of Plea and Sentencing
{¶12} On June 9, 2020, Mohamed changed his plea to no contest to the charges
of tampering and vandalism. The Admission of No Contest filed on June 9, 2020 stated
in pertinent part: “Defendant will file appeal of denial of motion to suppress and no
additional charges stemming from this incident.” A change of plea hearing was held where
the trial court accepted Mohamed’s change of plea to no contest and found him guilty of
the charges. The sentencing hearing was deferred for the completion of a presentence
investigation.
{¶13} The sentencing hearing was held on August 4, 2020 with the Sentencing
Entry journalized the same day. At the sentencing hearing, Mohamed requested the trial
court impose community control sanctions, rather than a jail term. The trial court found
that Mohamed did not complete his presentence investigation packet. It also found that
Licking County, Case No. 2020 CA 00053 6
Mohamed had been charged with theft in March 2019, had two drunk driving charges,
and incurred a charge of theft while released on bond in the present case. The trial court
sentenced Mohamed to 15 months in prison for tampering with evidence and 12 months
in prison for vandalism, to be served concurrently. While the damages to the building were
estimated at $7,200, the State asked for $1,000 in restitution, which was the amount of
the insurance deductible. Mohamed argued that restitution was ordered in the municipal
court case, but he did not know the amount. The trial court ordered Mohamed pay $7,200
in restitution.
Anders
{¶14} A Notice of Appeal was filed on September 2, 2020. Original appellate
counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, rehearing den., 388
U.S. 924. By judgment entry filed March 4, 2021, this Court found a meritorious issue
existed as to whether the trial court erred in overruling Mohamed’s motion to dismiss the
indictment based on double jeopardy grounds. We allowed appellate counsel to withdraw
and ordered the trial court to appoint replacement appellate counsel.
{¶15} It is from this factual and procedural history that Mohamed now appeals.
ASSIGNMENTS OF ERROR
{¶16} Mohamed raises three Assignments of Error:
{¶17} “I. THE TRIAL COURT ERRED BY DENYING MOHAMED’S MOTION TO
DISMISS THE FELONY CHARGES OF VANDALISM AND TAMPERING WITH
EVIDENCE BECAUSE THE CONVICTIONS FOR THOSE CHARGES VIOLATED THE
DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED
STATES CONSTITUTION, AND BECAUSE MOHAMED WAS PREVIOUSLY
Licking County, Case No. 2020 CA 00053 7
CONVICTED, PURSUANT TO A PLEA BARGAIN, OF A CHARGE STEMMING FROM
THE INCIDENT GIVING RISE TO THE FELONY CHARGES.
{¶18} “II. THE TRIAL COURT ERRED WHEN IT SENTENCED MOHAMED TO
PRISON, INSTEAD OF COMMUNITY CONTROL, IN VIOLATION OF HIS DUE
PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE
OHIO CONSTITUTION.
{¶19} “III. THE TRIAL COURT UNLAWFULLY ORDERED MOHAMED TO PAY
RESTITUTION, IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE TO THE FIFTH
AMENDMENT TO THE UNITED STATES CONSTITUTION.”
ANALYSIS
I. Double Jeopardy
{¶20} In his first Assignment of Error, Mohamed contends the trial court erred in
denying his motion to dismiss the tampering with evidence and vandalism charges as
being in violation of his double jeopardy protections. We disagree.
{¶21} A de novo standard of review applies when an appellate court reviews the
denial of a motion to dismiss an indictment on the grounds of double jeopardy. State v.
Mullins, 5th Dist. Fairfield No. 12 CA 17, 2013-Ohio-1826, ¶ 13 citing State v. Betts, 8th
Dist. Cuyahoga No. 88607, 2007-Ohio-5533, ¶ 20.
No Evidence of a Negotiated Plea
{¶22} In support of his argument that his double jeopardy protections were
violated when he was indicted on additional charges after he plead guilty to an offense
arising out of the incident, Mohamed relies on State v. Carpenter, 68 Ohio St.3d 59, 623
Licking County, Case No. 2020 CA 00053 8
N.E.2d 66 (1993). In Carpenter, the Ohio Supreme Court held: “The state cannot indict a
defendant for murder after the court has accepted a negotiated guilty plea to a lesser
offense and the victim later dies of injuries sustained in the crime, unless the state
expressly reserves the right to file additional charges on the record at the time of the
defendant’s guilty plea.” Id. at syllabus. The Supreme Court recently revisited Carpenter
in State v. Azeen, 163 Ohio St.3d 447, 2021-Ohio-1735, 170 N.E.3d 864.
State v. Azeen
{¶23} In Azeen, the underlying facts took place in 1987, when Abdul Azeen shot
two men. Azeen entered a plea of no contest to felonious assault to one of the victims
and attempted murder of the other victim, who was paralyzed from the gunshot wound.
Id. at ¶ 4. The trial court held a plea hearing where it conducted the plea colloquy affirming
that Azeen intended to enter a no-contest plea. After the trial court accepted Azeen’s
plea, the State informed the trial court that the paralyzed victim would not improve and
would continue to deteriorate but did not suggest the victim’s injuries might be fatal or
there was a possibility the State would bring additional charges in the event the victim
died from his injuries. Id. at ¶ 7. The trial court found Azeen guilty and proceeded directly
to sentencing. During sentencing, the State asked the trial court how the sentences were
to be served, to which the trial court responded concurrently. Id. at ¶ 8.
{¶24} The paralyzed victim died in 2014 and the cause of death was determined
to be from the gunshot wound and therefore, a homicide. Id. at ¶ 9. In 2016, the State
indicted Azeen for aggravated murder based on the 1987 shooting. Id. at ¶ 10. Based on
State v. Carpenter, supra, Azeen filed a motion to dismiss the 2016 indictment on the
Licking County, Case No. 2020 CA 00053 9
grounds that it violated the terms of a negotiated plea agreement that Azeen claimed he
entered into with the State in 1987. Id.
{¶25} The trial court held a hearing on the motion to dismiss where Azeen
conceded that no explicit plea agreement appeared on the record. Id. at ¶ 11. He
presented the transcript of the 1987 plea hearing which the trial court utilized to grant the
motion to dismiss after determining all the elements of a contract existed. Id. at ¶ 13. The
trial court found that Azeen’s sentence was a result of discussions that had taken place
off the record. Id. On appeal, the Eighth District affirmed. Id.
{¶26} The State appealed and the Supreme Court answered the question as to
whether Carpenter applied to protect Azeen from further prosecution. The Supreme Court
reviewed its judgment in Carpenter, where the Court considered whether a plea
agreement barred a subsequent prosecution related to the same incident. In Carpenter,
the defendant and the State negotiated a plea agreement under which the State would
reduce the defendant’s felonious assault charge in exchange for a guilty plea, even
though it was known the victim of the assault was likely to die. Id. at ¶ 18 citing Carpenter,
68 Ohio St.3d at 60-62. The victim died and the State brought murder charges against
the defendant. The Carpenter court concluded the plea agreement barred any further
prosecution of the defendant for crimes arising out of the assault. Id. at ¶ 19.
{¶27} As part of its analysis in Carpenter, the Court deliberated over the nature of
a plea agreement. “* * * [A] plea agreement sometimes may reflect a mutual
understanding between the prosecutor and the defendant that the plea will finalize the
entire prosecution related to a criminal incident.” Id. at ¶ 17. The Court was concerned
about breaking a promise made by the prosecutor in the original plea agreement, because
Licking County, Case No. 2020 CA 00053 10
“’when a plea rests in any significant degree on a promise or agreement of the prosecutor,
so that it can be said to be a part of the inducement or consideration, such promise must
be fulfilled.’” Id. at ¶ 20 citing Carpenter, supra at 62 quoting Santobello v. New York, 404
U.S. 257, 262, 92 S.Ct. 495, 30 L.E.2d 427 (1971). Accordingly, the Court held that effect
must be given to the intentions of the State and the defendant in their plea bargain by
enforcing what the court perceives to be the terms of the original plea agreement. Id. at ¶
20 citing State v. Dye, 127 Ohio St.3d 357, 2010-Ohio-5728, 939 N.E.2d 1217, ¶ 22. To
enforce the terms of the original plea agreement, the Court held in Dye, “* * * for a guilty
plea to be a ‘negotiated guilty plea’ within the meaning of State v. Carpenter, the record
must show the existence of the elements of a contract (the plea agreement).” Azeen,
supra at ¶ 20 citing Dye, supra at ¶ 23. The takeaway from Carpenter and Dye was “that
whether the state may bring additional charges against someone who has entered into a
negotiated plea agreement depends on the scope of the agreement.” Azeen, supra at ¶
23.
{¶28} To determine the scope of the agreement, the court must consider what
terms both parties reasonably understood to be included in the agreement. Id. at ¶ 23
citing State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d 542. In Carpenter,
the Court examined the circumstances surrounding the plea agreement where it was
known the victim’s death was likely. The evidence showed the State had chosen to enter
into the plea agreement and therefore, the defendant had reasonably expected that his
plea would resolve the matter entirely and the prosecutor was fully aware that was the
defendant’s understanding. Id. at ¶ 19. The Court held that if the State wanted to retain
Licking County, Case No. 2020 CA 00053 11
the option of bringing additional charges if the victim died, it should have made that an
explicit part of the agreement. Id.
{¶29} Based on Carpenter, the Court looked to the record to determine whether a
plea agreement existed between the State and Azeen. The parties in Azeen did not put
any plea agreement on the record. The lower courts determined that Azeen’s plea must
have been negotiated because an off-the-record conversation had taken place before the
plea hearing. Id. at ¶ 26. The Supreme Court agreed the record showed the trial court
spoke with the parties before the plea hearing when the judge stated, “’I have indicated
to your attorney that you will expect, under the circumstances presented here, I’m going
to sentence you to three years actual incarceration and on top of that I’m going to
sentence you to five to twenty-five years[,]’” but the Court rejected the conclusion that the
trial court’s reference demonstrated a negotiated plea. (Emphasis sic.) Id. at ¶ 26. Azeen
noted that the State did not argue with the trial court to impose a harsher sentence, but
the Court observed conversely that the State asked the trial court how the imposed
sentence was to be served. The Court found the State’s question suggested the sentence
was not the product of an agreement between Azeen and the State. Id. at ¶ 29. The Court
next held it was speculation, not evidence of a plea agreement, that Azeen’s experienced
trial counsel would have permitted him to enter a guilty plea without knowing the sentence.
Id. at ¶ 31. The Court’s review of the plea hearing showed it was devoid of any reference
to a negotiated plea agreement, in violation of Crim.R. 11(F), which states, “[w]hen a
negotiated plea of guilty or no contest to one or more offenses charged to one or more
other or lesser offenses is offered, the underlying agreement upon which the plea is based
shall be stated on the record in open court.” The Court concluded:
Licking County, Case No. 2020 CA 00053 12
The transcript of the plea hearing indicates that an off-the-record
conversation took place regarding Azeen’s sentence. As to the content of
that conversation, we can only guess. Nothing on the record demonstrates
that the state had entered into any plea agreement with Azeen. And in the
absence of an agreement demonstrating that Azeen had been induced into
offering his plea by a promise from the state (express or implied) not to
further pursue the matter, the state is not barred on that ground from
prosecuting Azeen for aggravated murder.
Id. at ¶ 38.
{¶30} Pursuant to Carpenter, Dye, and Azeen, this Court must closely examine
the record to determine whether a negotiated plea exists. Mohamed argues in his
appellate brief that the prosecution entered into a plea agreement with Mohamed, and he
established these facts through his motion to dismiss. In the motion’s statement of facts,
Mohamed stated, “On May 23, 2019, after conducting discovery and several pretrials,
Defendant Mohamed waived a number of his constitutional rights and entered into a plea
agreement with the City of Newark and plead to one count of Hit/Skip * * *.” (Motion to
Dismiss, Jan. 6, 2020). Mohamed attached the Licking County Sheriff’s Department field
case report based on the March 13, 2019 event as an exhibit to the motion to dismiss.
The field case report lists “offenses” as:
STATUTE/DESCRIPTION COUNTS ATTEMPTS (SIC)
2909.06
01 1 Committed
Criminal Damaging
2921.31
02 1 Committed
Obstructing Official Business
4549.03
03 1 Committed
Hit Skip Involving Realty
Licking County, Case No. 2020 CA 00053 13
The Licking County Municipal Court docket for Case No. 19 TRD 2559 shows the “Section
Code” as “4549.03 – HIT-SKIP (REALTY).” There are no other “Section Codes” listed in
the docket as to Case No. 19 TRD 2559.
{¶31} The State provided the trial court with exhibits from Mohamed’s
proceedings in the Licking County Municipal Court: the change of plea entry, the video of
the change of plea hearing, and the sentencing judgment entry. The change of plea form
filed with the municipal court stated as follows:
In the presence of my attorney, I hereby acknowledge and state that I have
asked the Court for permission to withdraw my previously entered plea of
not guilty and enter a plea of guilty to the charge of HIT/SKIP REALTY, a
misdemeanor of the 1st degree, carrying a possible maximum penalty of a
fine of up to $1,000, a jail sentence of 180 (days/months), and/or both. Also,
.
***
I hereby state and understand the following:
***
[Mohamed’s Initials] That there have been no promises made by my
attorney or any person as an inducement to change my plea.
***
(Change of Plea, May 23, 2019, Licking County Municipal Court, Case No. 19 TRD 2559).
The State contended in its opposition to the motion to dismiss that there was no evidence
in the record that Mohamed and the State entered into a negotiated plea agreement
Licking County, Case No. 2020 CA 00053 14
where the State agreed it would not bring further charges in exchange for Mohamed’s
guilty plea to hit/skip involving realty.
{¶32} In its judgment entry denying the motion to dismiss, the trial court
determined the State did not reserve the right to pursue further charges, but Mohamed
did not bargain for the release of any further charges. Upon our review of the record, we
find the facts of this case are similar to those of Azeen. The record presented by both
parties shows that Mohamed, like Azeen, entered a plea but there is no competent,
credible evidence of a negotiated plea agreement. The change of plea entry contained
no references to a negotiated plea agreement between the State and Mohamed. The
video of the plea hearing showed the municipal court judge, Mohamed, and his trial
counsel in the courtroom. During the plea hearing and subsequent sentencing, there was
no reference to any negotiated plea agreement between the State and Mohamed. The
field case report suggests that Mohamed was originally charged with multiple offenses
but the remaining evidence before the trial court in the form of a copy of the docket,
change of plea entry, and video of the plea hearing make no reference to these charges,
requiring the court to impermissibly guess as to the disposition of those charges. In the
absence of an agreement demonstrating that Mohamed had been induced into offering
his plea to hit/skip involving realty by a promise from the State (express or implied) not to
further pursue the matter, the State is not barred on that ground from prosecuting
Mohamed for tampering with evidence and vandalism.
Reliance on His Plea in Municipal Court
{¶33} In its opposition to Mohamed’s motion to dismiss, the State also argued that
State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d 542, rather than
Licking County, Case No. 2020 CA 00053 15
Carpenter, supra, was on point with the circumstances surrounding Mohamed’s
prosecution. In Zima, the defendant pleaded no contest in municipal court to driving under
the influence after the State agreed during plea negotiations to dismiss additional charges
for driving under suspension, failure to yield, and failure to wear a seatbelt. Four days
before the defendant entered her plea, the grand jury indicted her on two counts of
aggravated vehicular assault and one count of driving under the influence. After
sentencing in the municipal court, the defendant moved to dismiss the indictment, arguing
the State was barred from prosecuting her following her conviction in municipal court.
{¶34} The Ohio Supreme Court explained in Zima that its holding in Carpenter,
supra, was “essentially a synthesis of contract and criminal law in a particular factual
setting.” Id. at ¶ 11. The defendant's expectation in Carpenter that “his guilty plea would
terminate the incident was inherently justified because the prosecutor and the court had
jurisdiction over all the charges, both actual and potential, and because the negotiated
guilty plea included the dismissal of all pending charges.” Id. at ¶ 12. The Court further
explained that “[i]n the absence of these or equivalent circumstances, * * * it would be
exceedingly difficult to sustain a defendant's belief that no further charges will be brought
or prosecuted.” Id. Applying Carpenter to the facts in Zima, the Ohio Supreme Court
concluded that the defendant could not reasonably have believed that no further charges
would be brought. Id. at ¶ 14. At the time of her plea in municipal court, the Court noted
the defendant had already been indicted and neither the municipal court nor the city
prosecutor had the authority to dismiss the pending felony charges. Id. Acknowledging
that the defendant may not have been aware of the indictment, the Court observed that
“a defendant should be aware that a plea taken before a municipal judge with limited
Licking County, Case No. 2020 CA 00053 16
criminal jurisdiction might not dispose of the matter fully.” Id., quoting State v. Zima, 8th
Dist. Cuyahoga No. 80824, 2002-Ohio-6327, 2002 WL 31618556, ¶ 44 (Kilbane, J.,
concurring in part and dissenting in part). See State v. Cooper, 9th Dist. No. 29110, 2019-
Ohio-770, 132 N.E.3d 1229, 2019 WL 1062459, ¶ 7.
{¶35} As discussed above, there is nothing in the record to indicate that during
the municipal proceedings, Mohamed was promised that his guilty plea would resolve any
other charges arising out of the incident. Under Zima, it was unreasonable for Mohamed
to assume that his unnegotiated misdemeanor plea would resolve felony charges in the
same county. See State v. Mullins, 5th Dist. Fairfield No. 12 CA 17, 2013-Ohio-1826, ¶
27.
Same Elements Test
{¶36} In its judgment entry denying the motion to dismiss, the trial court further
found that Mohamed was not being successively prosecuted for the same offense. We
agree.
{¶37} The Fifth Amendment to the United States Constitution provides that “[n]o
person shall * * * be subject for the same offence to be twice put in jeopardy of life or
limb.” Similarly, Section 10, Article I, Ohio Constitution provides, “No person shall be twice
put in jeopardy for the same offense.”
{¶38} In State v. Best, 42 Ohio St.2d 530, 533, 330 N.E.2d 421 (1975), the Ohio
Supreme Court explained that “the fact that the indictment was brought in the name of
the state of Ohio, and the other * * * charges in the name of the city * * *, does not affect
the claim of double jeopardy. * * * [T]he state and the city are parts of a single sovereignty,
Licking County, Case No. 2020 CA 00053 17
and double jeopardy stands as a bar to a prosecution by one, after an accused has been
in jeopardy for the same offense in a prosecution by the other.” Zima, supra at ¶ 17.
{¶39} To determine whether an accused is being successively prosecuted for the
“same offense,” the Best court adopted the “same elements” test pronounced in
Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and
held:
The applicable rule under the Fifth Amendment is that where the same act
or transaction constitutes a violation of two distinct statutory provisions, the
test to be applied to determine whether there are two offenses or only one
is whether each provision requires proof of a fact which the other does not.
A single act may be an offense against two statutes, and if each statute
requires proof of an additional fact which the other does not, an acquittal or
conviction under either statute does not exempt the defendant from
prosecution and punishment under the other.
Best at paragraph three of the syllabus; Zima, supra at ¶ 18-19.
{¶40} In State v. Thomas, 61 Ohio St.2d 254, 259, 400 N.E.2d 897 (1980),
overruled on other grounds in State v. Crago, 53 Ohio St.3d 243, 559 N.E.2d 1353 (1990),
syllabus, the Court explained, “This test focuses upon the elements of the two statutory
provisions, not upon the evidence proffered in a given case.” Thus, the Blockburger test
“inquires whether each offense contains an element not contained in the other; if not, they
are the ‘same offence’ and double jeopardy bars additional punishment and successive
prosecution.” Zima, supra at ¶ 20 quoting United States v. Dixon, 509 U.S. 688, 696, 113
S.Ct. 2849, 125 L.Ed.2d 556 (1993).
Licking County, Case No. 2020 CA 00053 18
{¶41} In the instant case, Mohamed was first charged with hit/skip involving realty
under R.C. 4549.03. The statute reads:
The driver of any vehicle involved in an accident resulting in damage to real
property, or personal property attached to real property, legally upon or
adjacent to a public road or highway immediately shall stop and take
reasonable steps to locate and notify the owner or person in charge of the
property of that fact, of the driver's name and address, and of the
registration number of the vehicle the driver is driving and, upon request
and if available, shall exhibit the driver's or commercial driver's license.
If the owner or person in charge of the property cannot be located after
reasonable search, the driver of the vehicle involved in the accident
resulting in damage to the property, within twenty-four hours after the
accident, shall forward to the police department of the city or village in which
the accident or collision occurred, or if it occurred outside the corporate
limits of a city or village to the sheriff of the county in which the accident or
collision occurred, the same information required to be given to the owner
or person in control of the property and give the location of the accident and
a description of the damage insofar as it is known.
{¶42} Mohamed was then indicted for tampering with evidence, in violation of R.C.
2921.12(A)(1). It states:
(A) No person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall do any of the
following:
Licking County, Case No. 2020 CA 00053 19
(1) Alter, destroy, conceal, or remove any record, document, or thing, with
purpose to impair its value or availability as evidence in such proceeding or
investigation;
{¶43} Mohamed was also indicted with vandalism, in violation of R.C.
2909.05(B)(1)(a). The statute reads:
(B)(1) No person shall knowingly cause physical harm to property that is
owned or possessed by another, when either of the following applies:
(a) The property is used by its owner or possessor in the owner's or
possessor's profession, business, trade, or occupation, and the value of the
property or the amount of physical harm involved is one thousand dollars or
more;
{¶44} The trial court found that none of the three charges had any similar
elements, and none were lesser-included offenses to the others. In comparing the three
offenses under Blockburger, we find the trial court did not err in finding there was no
violation of Mohamed’s double jeopardy protections from successive prosecutions.
{¶45} Mohamed’s first Assignment of Error is overruled.
II. Sentencing
{¶46} In his second Assignment of Error, Mohamed contends the trial court erred
when it imposed a prison sentence, rather than community control sanctions, upon
Mohamed’s conviction for tampering with evidence, a third-degree felony, and vandalism,
a fifth-degree felony. He was sentenced to 15 months in prison for tampering with
evidence and 12 months in prison for vandalism, to be served concurrently.
Licking County, Case No. 2020 CA 00053 20
{¶47} R.C. 2953.08 governs appeals based on felony sentencing guidelines.
Subsection (G)(2) sets forth this Court's standard of review as follows:
(2) The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or
modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court's
standard for review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section
2929.14, or division (I) of section 2929.20 of the Revised Code, whichever,
if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶48} “Clear and convincing evidence is that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three
of the syllabus.
Licking County, Case No. 2020 CA 00053 21
{¶49} A sentence is not clearly and convincingly contrary to law where the trial
court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
within the permissible statutory range.” State v. Morris, 5th Dist. Ashland No. 20-COA-
015, ¶ 90 quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-022 and CA2019-
03-026, 2019-Ohio-4209, ¶ 36.
{¶50} Here, Mohamed does not argue that his sentence is contrary to law, and
we find that his sentence is within the statutory range for a third-degree felony and a fifth-
degree felony. This Court is therefore without authority to disturb Mohamed’s sentence
absent a finding by clear and convincing evidence that the record does not support the
trial court's findings under R.C. 2929.11 and 2929.12.
{¶51} In the instant case, the trial court was not required to sentence Mohamed
to community control and the trial court was within its discretion to impose a prison term.
The trial court heard arguments from Mohamed’s counsel. It appeared the trial court was
unable to review a presentence investigation report because Mohamed did not complete
his portion of the report. However, Mohamed committed a new offense while on bond in
the present case and he had a prior misdemeanor record for which he had been placed
on probation. (T. 10-11). The trial court specified that his poor bond performance included
failing to report on bond and testing positive for drugs. (T. 11). A review of the record
shows the clear and convincing evidence supports the trial court's findings under R.C.
2929.11 and 2929.12.
{¶52} Mohamed’s second Assignment of Error is overruled.
Licking County, Case No. 2020 CA 00053 22
III. Restitution
{¶53} In his third Assignment of Error, Mohamed argues the trial court abused its
discretion when it ordered him to pay $7,200 in restitution. For the following reasons, we
agree, and therefore sustain this Assignment of Error.
{¶54} We review restitution orders under an abuse-of-discretion standard. State
v. Hodge, 5th Dist. Muskingum No. CT2019-0038, 2020-Ohio-901, ¶ 51 citing State v.
Sheets, 5th Dist. Licking No. 17 CA 44, 2018-Ohio-996, 2018 WL 1358039, ¶ 15, citing
State v. Cook, 5th Dist. Fairfield No. 16-CA-28, 2017-Ohio-1503, 2017 WL 1436377, ¶ 8;
State v. Andrews, 5th Dist. Delaware No. 15 CAA 12 0099, 2016-Ohio-7389, 2016 WL
6138888, ¶ 40. This Court has held that an order of restitution must be supported by
competent and credible evidence from which the trial court can discern the amount of
restitution to a reasonable degree of certainty. Hodge at ¶ 51 citing Sheets, supra, citing
State v. Spencer, 5th Dist. Delaware No. 16 CAA 04 0019, 2017-Ohio-59, 2017 WL
90619, ¶ 44 (citations omitted); State v. Frank, 5th Dist. No. CT2017-0102, 2018-Ohio-
5148, 127 N.E.3d 363, ¶ 64. Furthermore, a trial court abuses its discretion if it orders
restitution in an amount that does not bear a reasonable relationship to the actual loss
suffered. Id. (citations omitted).
{¶55} At sentencing for his convictions of tampering with evidence and vandalism,
the trial court ordered Mohamed to pay restitution in the amount of $7,200. Prior to
ordering restitution, the following dialogue took place:
MR. BURGESS: * * * We are asking for restitution in the amount of $1,000.
I believe damages in this case were $7,200, but the insurance deductible is
only $1,000.
Licking County, Case No. 2020 CA 00053 23
THE COURT: Well, the insurance company is entitled to restitution, also so
– * * * So, what are the damages?
MR. BURGESS: So, it would be restitution in the amount of $1,000 to [M.R.],
I believe, and then it would – the balance or – yes, the balance would be to
that insurance company. * * *
***
MR. BURGESS: Seventy-two hundred dollars, Your Honor.
THE COURT: So, the total amount of damages is $8,200.
MR. BURGESS: No, Your Honor, 7,200.
THE COURT: Okay. So, the amount to the insurance company would be
$6,200.
MR. BURGESS: Correct, Your Honor.
***
MR. DYE: Your Honor, this is the first I’ve heard about restitution. However,
I would say that restitution was ordered in the Municipal Court case.
THE COURT: Okay.
MR. DYE: I don’t know what that amount was –
THE COURT: Okay.
MR. DYE: -- but that has also been addressed already.
THE COURT: Well, as long as it’s been paid, then we’re fine. It can only be
paid once.
(T. 8-10).
Licking County, Case No. 2020 CA 00053 24
{¶56} Mohamed does not dispute that $7,200 was the amount damages to the
building he hit on March 13, 2019. He argues the trial court abused its discretion by
ordering restitution in the amount of $7,200 when the Licking County Municipal Court
previously ordered him to pay $1,000 in restitution based on the same incident.
{¶57} In response to the motion to dismiss, Mohamed and the State provided the
trial court with portions of the record from the Licking County Municipal Court in Case No.
19 TRD 2559. The May 23, 2019 municipal court judgment entry stated that, “Restitution
held in abeyance for further review and hearing.” The copy of the Licking County
Municipal Court docket submitted with Mohamed’s motion to dismiss showed that on June
18, 2019, the municipal court held a hearing on the issue of restitution. The docketing
entry for June 18, 2019 summarized the court’s entry which found the State presented
testimony and documents in support of restitution amount “net of insurance coverage”
and ordered restitution in the amount of $1,000. At the sentencing hearing, Mohamed’s
counsel informed the trial court that restitution had already been ordered by the Licking
County Municipal Court, to which the trial court acknowledged, “it can only be paid once.”
{¶58} Based on this record, we find there was insufficient evidence to support
restitution in the amount of $7,200. R.C. 2929.18(1) states in pertinent part as to
restitution:
Restitution by the offender to the victim of the offender's crime or any
survivor of the victim, in an amount based on the victim's economic loss. *
* * If the court imposes restitution, at sentencing, the court shall determine
the amount of restitution to be made by the offender. If the court imposes
restitution, the court may base the amount of restitution it orders on an
Licking County, Case No. 2020 CA 00053 25
amount recommended by the victim, the offender, a presentence
investigation report, estimates or receipts indicating the cost of repairing or
replacing property, and other information, provided that the amount the
court orders as restitution shall not exceed the amount of the economic loss
suffered by the victim as a direct and proximate result of the commission of
the offense. If the court imposes restitution for the cost of accounting or
auditing done to determine the extent of economic loss, the court may order
restitution for any amount of the victim's costs of accounting or auditing
provided that the amount of restitution is reasonable and does not exceed
the value of property or services stolen or damaged as a result of the
offense. If the court decides to impose restitution, the court shall hold a
hearing on restitution if the offender, victim, or survivor disputes the amount.
* * *.
{¶59} In this case, the State presented evidence at the sentencing hearing that
the damages to the building were $7,200 and the insurance deductible was $1,000. There
was also evidence in the record, and broached by Mohamed’s counsel at the sentencing
hearing, that the Licking County Municipal Court had already ordered Mohamed to pay
$1,000 in restitution as “net of insurance coverage” arising out of the damages to the
building. In total, Mohamed has been ordered to pay restitution arising out of the March
13, 2019 incident in the amount of $8,200. R.C. 2929.18 states that “restitution shall not
exceed the amount of the economic loss suffered by the victim as a direct and proximate
result of the commission of the offense.” It appears from this record that the restitution
Licking County, Case No. 2020 CA 00053 26
ordered by the trial court in this case would exceed the economic loss for the damages
to the building.
{¶60} We find insufficient evidence to support the $7,200 restitution order and
grant Mohamed’s third Assignment of Error and remand this matter for a restitution
hearing. State v. Hodge, 5th Dist. Muskingum No. CT2019-0038, 2020-Ohio-901, 2020
WL 1170812, ¶ 54 citing State v. LaFever, 5th Dist. Morrow No. 2009CA0003, 2009-Ohio-
5471, ¶ 28.
{¶61} Mohamed’s third Assignment of Error is sustained, the restitution order is
reversed and vacated, and the matter is remanded for a restitution hearing.
CONCLUSION
{¶62} Mohamed’s first and second Assignments of Error are overruled, and his
third Assignment of Error is sustained. The judgment of the Licking County Court of
Common Pleas is affirmed in part and reversed in part, and this matter is remanded for
further proceedings.
By: Delaney, J.,
Baldwin, P.J. and
Gwin, J., concur.