State v. Alselami , 2012 Ohio 987 ( 2012 )

[Cite as State v. Alselami, 2012-Ohio-987.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-11-31
v.
HAIDER H. ALSELAMI, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2011 CR 84
Judgment Affirmed
Date of Decision: March 12, 2012
APPEARANCES:
Eric Allen Marks for Appellant
Mark C. Miller and Alex K. Treece for Appellee
Case No. 5-11-31
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, Haider H. Alselami (“Alselami”), appeals from
the judgment of the Hancock County Court of Common Pleas, sentencing him to
prison for three years after he pled guilty to one count of aggravated possession of
drugs. On appeal, Alselami contends that the trial court erred in accepting his
guilty plea because it was not made knowingly, intelligently, and voluntarily, and
that it abused its discretion in imposing a three-year mandatory prison term
without considering the statutory guidelines. For the reasons set forth below, the
judgment is affirmed.
{¶2} During a traffic stop for speeding on I-75, Alselami was found to be in
possession of 150 Oxymorphone pills. Alselami originally stated that the pills had
been prescribed to him for an injury, but later admitted to purchasing the pills on
the streets in Detroit. He stated that he intended to send them to his mother in
Iraq, who suffered from injuries received in a roadside bombing that had killed
many members of the family. Alselami is an Iraqi national, but has been a
permanent resident of the United States since 1993, when he was granted political
asylum.
{¶3} On April 19, 2011, the Hancock County Grand Jury indicted Alselami
on one count of Aggravated Possession of Drugs, a felony of the second degree in
violation of R.C. 2925.11(A). The indictment stated that Alselami possessed
-2-
Case No. 5-11-31
Oxymorphone in an amount equal to or greater than five times the bulk amount
but less than fifty times the bulk amount. The penalty for this offense is a
mandatory term of imprisonment for a determinate term of no less than two years,
but no more than eight, and a fine of not less than $7,500 nor more than $15,000.
{¶4} On June 1, 2011, shortly before the scheduled trial, a change of plea
hearing was held. Alselami’s attorney informed the trial court that Alselami did
not read English at all, or very well, but that he understood spoken English with no
problems. Therefore, the attorney assured the trial court that he had read all of the
plea agreement papers to Alselami, as well as the indictment and the discovery,
and explained the constitutional rights that were being waived as a result of this
plea. (Plea Hearing Transcript, p. 7) His attorney represented that Alselami
understood his constitutional rights and what he was giving up by entering a guilty
plea. (Id.)
{¶5} The trial court then spoke directly with Alselami to be certain that his
decision met the requirements of being voluntary, that it was made knowingly, and
was done intelligently. (Tr. p. 9) Because Alselami was not a U.S. citizen, and
English was not his first language, the trial court was very careful to be certain that
Alselami understood everything that was said. The court asked Alselami to
confirm that he understood at each step of the proceedings, and if Alselami did not
understand something, the trial court assured him that it would explain the matter
-3-
Case No. 5-11-31
in a different way and rephrase it so that it was clear. (Tr. p. 11) The trial court
also offered Alselami the services of a translator, but Alselami assured the court
that was not necessary. (Tr. p. 15)
{¶6} The trial court then conducted a full and extremely detailed Crim.R.
11 plea colloquy, explaining every step in simple language, often repeating the
explanations, and inquiring to make certain that Alselami understood what was
said and what the implications were. Alselami answered all of the questions in the
affirmative and stated that he understood. He acknowledged that he knew what
rights he was giving up and what the consequences of his guilty plea would be.
The trial court also warned Alselami that his conviction could possibly result in
deportation and the denial of naturalization, depending upon what immigration
services chose to do.
{¶7} Before having Alselami sign the plea agreement, the trial court again
inquired as to whether his attorney had read it to him, explained it, and answered
all of his questions. (Tr. pp. 30-31) Alselami answered each question in the
affirmative. (Id.) And finally, before accepting Alselami’s guilty plea, the trial
court asked the State to provide more information “as to what occurred to support
my consideration of the plea.” (Tr. p. 32) The State then provided a summary of
the events leading to the indictment, and explained the results of the State’s
-4-
Case No. 5-11-31
investigation of the case. Only then did the trial court accept Alselami’s change of
plea and find him guilty. (Tr. p. 34)
{¶8} The sentencing hearing was held on August 5, 2011, and the trial court
reviewed the terms of the plea agreement. The State had agreed it would ask that
the sentence not exceed a four-year term of incarceration. The trial court again
stated the reminder that this was a mandatory incarceration case and that the court
“must impose a prison term upon the Defendant today.” (Sentencing Transcript.,
p. 5)
{¶9} Alselami’s attorney asked the court to consider imposing the
minimum two-year sentence. He acknowledged that Alselami did have prior
convictions, but they were not drug related “and he has led a law abiding life for a
significant number of years.” (Sent. Tr. p. 6) The attorney also stated that
Alselami had requested he ask the court to impose probation, even though he had
advised Alselami that there was a mandatory sentence involved. (Sent. Tr. p. 5)
Alselami’s attorney further asked for leniency because Alselami’s mother was ill
and dying in Iraq, and Alselami had been her sole source of support. Furthermore,
Alselami would likely be deported to Iraq after serving his sentence, which would
be a worse punishment than the incarceration. (Sent. Tr. p. 7-8) Alselami’s
attorney read a letter that Alselami had prepared, expressing his remorse for his
actions, and asking for mercy and leniency. (Sent. Tr. p. 9) Alselami also took
-5-
Case No. 5-11-31
the opportunity to address the court himself, apologizing for what he did, but
assuring the court that he was not a drug dealer, and that his only intention was to
help his mother. (Sent. Tr. p. 11)
{¶10} The trial court discussed its consideration of the sentencing requests
in great detail, and also reiterated the fact that because the statute specified a
mandatory sentence, he had no discretion to sentence Alselami to probation or
anything less than the minimum time in prison. (Sent Tr. pp. 13-16) The trial
court then sentenced Alselami to a mandatory three years in prison, with credit for
111 days already served, and informed him that he would be subject to postrelease
control.
{¶11} It is from this judgment that Alselami now appeals, raising the
following two assignments of error for our review.
First Assignment of Error
The trial court abused its discretion by imposing a three year
mandatory prison term without considering the statutory
guidelines of R.C. 2929.11 and R.C. 2929.12
Second Assignment of Error
The trial court erred in accepting [Alselami’s] guilty plea
because it was not made knowingly, intelligently, and
voluntarily.
{¶12} To facilitate our review, we shall address the assignments of error in
reverse order. In the second assignment of error, Alselami asserts that his plea
-6-
Case No. 5-11-31
was not voluntarily, intelligently, and knowingly made because he may not have
fully understood the proceedings due to an uncertain grasp of the English
language. In support Alselami points to a portion of the hearing where he did not
understand a word (“interpreter”), and he also contends that his continued requests
for probation indicated that he did not fully understand that the trial court was
required to impose a “mandatory” prison sentence.
{¶13} Before accepting a guilty plea, Ohio Crim.R. 11 requires the trial
court to personally address a defendant to determine if the plea is voluntary, and
that the defendant understands both the plea itself as well as the rights waived by
pleading guilty. Crim.R. 11(C)(2). In determining whether a guilty plea is
voluntarily, intelligently and knowingly made, the court must look to the totality
of the circumstances. State v. Calvillo, 76 Ohio App.3d 714, 719 (8th Dist.1991),
citing to State v. Carter, 60 Ohio St.2d 34, 38 (1979).
The essential duty imposed upon the trial judge by Crim.R. 11 is to
ascertain that the defendant’s decision to plead guilty, and thereby
waive his various constitutional rights to a fair trial, is a knowing
and intelligent decision. In the typical case, this requires the trial
judge to determine that the defendant, with an understanding of the
nature of the charges against him, acknowledges his guilt, and that,
with an understanding of the constitutional protections to which he is
entitled, he agrees to waive them.
State v. Padgett, 67 Ohio App.3d 332, 338 (2nd Dist. 1990) Crim.R. 11 requires a
meaningful dialogue between the court and the defendant. A trial court’s
-7-
Case No. 5-11-31
acceptance of a guilty or no contest plea will be affirmed only if the trial court
engaged in meaningful dialogue with the defendant which, in substance, explained
the pertinent constitutional rights “in a manner reasonably intelligible to that
defendant.” State v. Ballard, 66 Ohio St.2d 473 (1981), at paragraph two of the
syllabus; State v. Veney, 120 Ohio St.3d 176, 2008–Ohio–5200, ¶ 27.
{¶14} In reviewing the record, and looking at the totality of the
circumstances, we find that the trial court took great pains to comply with every
aspect of Crim.R. 11 and went beyond those requirements to assure that Alselami
understood everything and that he was fully apprised of all of his rights. The trial
court was assured repeatedly by Alselami and by Alselami’s attorney that he
understood everything.
{¶15} The plea colloquy in the lower court involved a great deal more than
“yes or no” questions and answers. It included a discussion concerning Alselami’s
history, including his immigration status, educational level, and familial status.
Alselami answered all of the court’s questions succinctly and appropriately.
{¶16} Alselami’s lack of understanding of one word in the proceedings, the
word “interpreter,” did not demonstrate a lack of understanding in general. The
trial court repeatedly had made it very clear that if there was anything Alselami
did not understand, he should ask, and the following exchange demonstrates that
-8-
Case No. 5-11-31
Alselami understood he was free to ask questions and ask for clarification if
necessary.
The Court: As I understand it, you don’t, you cannot read English,
but you speak English and understand English?
Defendant: Right, correct.
The Court: And from what I can tell at this point, you do not need
an interpreter?
Defendant: What is that?
Mr. Shuman: Someone to translate for you?
Defendant: No, sir.
The Court: If something comes up during the proceedings today
that doesn’t make sense for example, or maybe I use a term that you
don’t understand, let me know and we will make sure we change it,
and if there are issues such as that for interpreting or translation,
please let me know that.
Defendant: Sure
(Tr. pp. 14-15) What this exchange demonstrates is that if Alselami had trouble
understanding a term, he would not hesitate to ask for clarification. There was
nothing in the record that would indicate a lack of understanding of the plea.
{¶17} Alselami was also informed multiple times that a prison sentence
would be mandatory. Alselami’s attorney indicated that “[m]y client is aware
there is a mandatory prison sentence in this case.” (Tr. p. 6) The attorney also
-9-
Case No. 5-11-31
stated that he “read the plea papers to him * * *” and expressed his belief in his
client’s understanding. The trial court confirmed this information with Alselami.
{¶18} The trial court also reaffirmed that prison was the only outcome in
this matter before accepting Alselami’s change of plea. First, concerning the
negotiations, the court indicated, “I could sentence you to something longer than
four years.” (Tr. p. 16). The trial court then further explained:
The Court: Given the nature of the crime, the amount of drugs
involved and the other factors, the law requires what’s called a
mandatory prison term, the minimum is 2 years, the maximum is 8
years. Do you understand that’s the range?
Defendant: I understand.
The Court: Did [your attorney] explain to you what it means to
have a mandatory prison term.
Defendant: Yes, sir.
The Court: That means that you must serve all of your sentence.
Defendant: Yes, sir.
The Court: That means that I cannot release you early.
(Tr. pp. 20-21)
{¶19} The consequences of his plea were explained to Alselami multiple
times. He indicated he understood those terms and pled guilty to the offense.
Alselami has not shown that the trial court committed any error in accepting his
-10-
Case No. 5-11-31
guilty plea, nor has he presented any viable grounds for the withdrawal of his
guilty plea. The second assignment of error is overruled.
{¶20} The first assignment of error alleges that the trial court erred in
imposing sentence without giving proper consideration to the felony sentencing
statute guidelines. Alselami complains that: (1) the sentence was contrary to law
because the trial court failed to sufficiently indicate that it considered the
sentencing factors in R.C. 2929.11 and R.C. 2929.12; and, (2) the trial court
abused its discretion when it failed to properly apply the seriousness and
recidivisms factors set forth in R.C. 2929.12.
{¶21} Ever since the Ohio Supreme Court’s ruling in State v. Foster, 109
Ohio St.3d 1, 2006-Ohio-856, “trial courts have full discretion to impose a prison
sentence within the statutory range and are no longer required to make findings or
give their reasons for imposing maximum, consecutive, or more than the minimum
sentences.” State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 37. Courts,
nevertheless, are still required to comply with the sentencing laws unaffected by
Foster, such as R.C. 2929.11 and 2929.12, which require consideration of the
purposes and principles of felony sentencing and the seriousness and recidivism
factors. Mathis at ¶ 38. However, a sentencing court does not have to make any
specific findings to demonstrate its consideration of those general guidance
statutes. Foster at ¶ 42.
-11-
Case No. 5-11-31
{¶22} R.C. 2929.11 provides that sentences for a felony shall be guided by
the overriding purposes of felony sentencing: “to protect the public from future
crime by the offender and others and to punish the offender.” R.C. 2929.11(A).
In order to comply with those purposes and principles, R.C. 2929.12 instructs a
trial court to consider various factors set forth in the statute relating to the
seriousness of the conduct and to the likelihood of the offender’s recidivism. R.C.
2929.12(A) through (D). In addition, a trial court may consider any other factors
that are relevant to achieving the purposes and principles of sentencing. R.C.
2929.12(E).
{¶23} Alselami does not dispute that the sentence he received was within
the statutory guidelines. However, he complains that the trial court imposed more
than a minimum sentence despite the fact that Alselami had no record of drug
related activity. He argues that that fact, coupled with his claims of needing to
send the medication to his dying mother, would show that he was not a major drug
dealer and that Alselami was not the type of person that was an intended target of
the legislature’s choice to impose mandatory prison terms for possession of
controlled substances.
{¶24} Contrary to Alselami’s assertions, the trial court extensively
discussed on the record the various factors, pursuant to R.C. 2929.11 and 2929.12,
that it considered before making the sentencing decision. (Sent. Tr. pp. 13-16)
-12-
Case No. 5-11-31
The State had advocated for a four-year sentence, citing Alselami’s prior criminal
history and the volume of pills as justification. That was also the term agreed to in
the plea agreement. However, the trial court did discuss the mitigating factors,
even stating that “there are a number of mitigating factors that are present in this
case * * *” and it sentenced Alselami to three years, instead of four or more years.
(Sent. Tr. p. 14).
{¶25} The trial court also explained that “I don’t believe two years is
appropriate because of the fact that there is a prior criminal, substantial prior
criminal record, that [factor,] plus the amount of these drugs we are talking about.”
(Sent. Tr. p. 15) Finally, the trial court discussed how it’s discretion to impose
sentence was limited by the requirements set forth by the legislature in the statutes,
and it had no choice but to impose a mandatory prison sentence. (Sent. Tr. pp. 13-
14)
{¶26} The record in this case shows that the trial court fully complied with
all of the requirements pertaining to consideration of the statutory sentencing
factors. In addition, the trial court’s judgment entry specifically stated that it had
considered “the principles and purposes of sentencing under the guidelines of
[R.C.] 2929.11 and the seriousness and recidivism factors under [R.C.] 2929.12.”
(Aug. 15, 2011 J.E.) Finding no error in the trial court’s imposition of sentence,
the first assignment of error is overruled.
-13-
Case No. 5-11-31
{¶27} Having found no error prejudicial to the Appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and PRESTON, J., concur.
/jlr
-14-