State v. Asadi-Ousley

[Cite as State v. Asadi-Ousley, 2012-Ohio-106.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96668
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ASA ASADI-OUSLEY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-537412, CR-537780, and CR-540397
BEFORE: E. Gallagher, J., Kilbane, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: January 12, 2012
ATTORNEY FOR APPELLANT
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Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Vincent I. Pacetti
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} Defendant-appellant Asa Asadi-Ousley appeals convictions entered in the
Cuyahoga County Court of Common Pleas. Appellant argues that the trial court erred in
accepting his guilty pleas without first determining his competency, failing to inform him
of the effect of a guilty plea, imposing more than a minimum sentence without
considering statutory criteria, and failing to assess court costs in open court. For the
following reasons we affirm in part, reverse in part, and remand.
{¶ 2} Appellant was indicted in three separate cases. In CR-537412, appellant
was charged with burglary in violation of R.C. 2911.12(A)(4) (Count 1) including a
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one-year firearm specification pursuant to R.C. 2941.141(A), and having weapons while
under disability in violation of R.C. 2923.13(A)(3) (Count 3). In CR-537780, appellant
was charged with two counts of aggravated robbery in violation of R.C. 2911.01(A)(1)
(Counts 1 and 2), which included one- and three-year firearm specifications pursuant to
R.C. 2941.141(A) and 2941.145(A), and two counts of kidnapping in violation of R.C.
2905.01(B)(2) (Counts 3 and 4), which included one- and three-year firearm
specifications. In CR-540397, appellant was charged with burglary in violation of
2911.12(A)(1) (Count 1), theft in violation of R.C. 2913.02(A)(1) (Count 2), robbery in
violation of R.C. 2911.02(A)(2) (Count 3), and kidnapping in violation of R.C.
2905.01(A)(2) (Count 4). Appellant initially pled not guilty to the charges.
{¶ 3} On September 10, 2010, at the request of appellant, the trial court referred
him to the court psychiatric clinic for evaluation of his competence to stand trial and
sanity at the time of the acts. On October 1, 2010 both the appellant and the state
stipulated to the psychiatric reports which found appellant to be incompetent to stand
trial at the time. The trial court referred appellant to North Coast Behavioral Healthcare
System for restoration to competency.
{¶ 4} On December 27, 2010 appellant was ordered to be returned from North
Coast Behavioral to stand trial. The record reflects that on February 7, 2011 both
defense counsel and the state stipulated to December 21, 2010 psychiatric reports that
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appellant was competent to stand trial and sane at the time of the acts.
{¶ 5} On February 7, 2011, pursuant to a plea agreement, the state moved to
amend the indictment as follows.1 In CR-537412, Count 1 was amended to delete the
one-year firearm specification. Count 3 remained as indicted. In CR-537780, Count 1
was amended to delete the three-year firearm specification and Counts 2, 3 and 4 were
dismissed. In CR-540397, Count 3 was amended to robbery in violation of R.C.
2911.02(A)(3) and Counts 1, 2 and 4 were nolled. Appellant pled guilty to the above
counts as amended. Appellant was sentenced in CR-537412 to eighteen months on
Count 1 and five years on Count 3. In CR-537780 appellant was sentenced to five years
on Count 1 preceded by one year on the attached firearm specification. In CR-540397
appellant was sentenced to five years on Count 3. The trial court further ordered each of
the appellant’s terms to run concurrently to one another for an aggregate of six years in
prison, followed by a mandatory period of five years postrelease control. The court also
ordered appellant to pay restitution.
{¶ 6} Appellant’s first assignment of error states:
{¶ 7} Defendant was denied due process of law when the court accepted
defendant’s pleas of guilty without first determining his competency.
1
In addition to the court’s journal entry regarding the parties’ stipulation to
appellant’s competency, the trial court further noted that appellant had been found
competent by North Coast Behavioral Healthcare System.
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{¶ 8} Under Ohio law, “a person whose mental condition is such that he lacks
the capacity to understand the nature and object of the proceedings against him, to
consult with counsel, and to assist in preparing his defense may not be subjected to a
trial. The conviction of an accused while he is not legally competent to stand trial
violates due process of law.” (Internal citations omitted.) State v. Rubenstein, 40 Ohio
App.3d 57, 60, 531 N.E.2d 732 (8th Cir.1987).
{¶ 9} R.C. 2945.37(B) provides that the court, prosecutor, or defense may raise
the issue of the defendant’s competence to stand trial. If the issue is raised before the
trial has commenced, the court shall hold a hearing on the issue within 30 days after the
issue is raised, unless the defendant has been referred for evaluation in which case the
court shall conduct the hearing within 10 days after the filing of the report of the
evaluation. R.C. 2945.37(C).
{¶ 10} This court, however, has held that, “[t]he competency issue is one that can
be waived by the parties. A hearing is not required in all situations, only those where the
competency issue is raised and maintained.” State v. Smith, 8th Dist. No. 95505,
2011-Ohio-2400, at ¶5. In Smith we held that where a defendant stipulates to
competency, a trial court need not hold a hearing pursuant to R.C. 2945.37(B) because a
hearing is only needed to introduce evidence rebutting the presumption of competency
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established in R.C. 2945.37(G).2 Id. at ¶6.
{¶ 11} In the case sub judice, by stipulating to the psychiatric report, appellant
conceded the competency issue and a further hearing was not required. Appellant’s first
assignment of error is overruled.
{¶ 12} Appellant’s second assignment of error states:
{¶ 13} “Defendant was denied due process of law when the court did not advise
defendant concerning the effect of a plea of guilty.”
{¶ 14} When accepting a plea of guilty in a felony case, the trial court is required
to inform the defendant of the effect of the plea. Crim.R. 11(C)(2)(b); State v. Jones, 116
Ohio St.3d 211, 216, 2007-Ohio-6093, 877 N.E.2d 677. Crim.R.11(B) defines a guilty
plea as, “a complete admission of the defendant's guilt.”
{¶ 15} “The standard for reviewing whether the trial court accepted a plea in
compliance with Crim.R. 11(C) is a de novo standard of review. It requires an appellate
court to review the totality of the circumstances and determine whether the plea hearing
was in compliance with Crim.R. 11(C).” State v. Cardwell, 8th Dist. No. 92796,
2
We did recognize in Smith that “there may be situations where the
defendant exhibits outward signs indicating the lack of competency that may
necessitate a hearing regardless of any stipulation.” Smith at ¶5. As in Smith,
that issue is not present in the current case nor does the record contain any
evidence that appellant exhibited any such signs.
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2009-Ohio-6827, ¶26, citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).
(Internal citations omitted.)
{¶ 16} The trial court’s duty to inform the defendant of the effect of the plea is a
nonconstitutional requirement of Crim.R. 11. State v. Griggs, 103 Ohio St.3d 85, 87,
2004-Ohio-4415, 814 N.E.2d 51, citing State v. Nero, 56 Ohio St.3d 106, 107, 564
N.E.2d 474 (1990). With respect to the nonconstitutional requirements of Crim.R. 11,
as set forth in Crim.R. 11(C)(2)(a) and (b), reviewing courts shall consider whether there
was substantial compliance with the rule. State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, at ¶14-17. Substantial compliance means that under
the totality of the circumstances the defendant subjectively understands the implications
of his plea and the rights he is waiving. Id., citing Nero, 56 Ohio St.3d at 108.
{¶ 17} Furthermore, a defendant must show prejudice before a plea will be
vacated for a trial court’s error involving Crim.R. 11(C) procedure when
nonconstitutional aspects of the colloquy are at issue. Veney, at ¶17. The test for
prejudice is whether the plea would have otherwise been made. Id.; see, also, State v.
Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, at ¶32.
{¶ 18} In the present case, the record reveals that the trial court failed to strictly
comply with Crim.R. 11(C)(2)(b) in that the court did not specifically ask appellant if he
understood that his plea was a complete admission of his guilt. Nonetheless, the Ohio
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Supreme Court has held that unless a defendant asserts “actual innocence” at the time of
his guilty plea, he is “presumed to understand that he has completely admitted his guilt,”
and “a court’s failure to inform the defendant of the effect of his guilty plea as required
by Crim.R. 11 is presumed not to be prejudicial.” State v. Griggs, 103 Ohio St.3d 85,
814 N.E.2d 51, syllabus; see, also, State v. Taylor, 8th Dist. No. 94569, 2010-Ohio-5607;
State v. Thomas, 8th Dist. No. 94788, 2011-Ohio-214. Appellant did not assert “actual
innocence” during his plea proceeding. Additionally, appellant offers no argument as to
how he was prejudiced in any way by the trial court’s failure to determine if he
understood the effect of his guilty plea, nor is any prejudice apparent from the record.
{¶ 19} Appellant’s second assignment of error is overruled.
{¶ 20} Appellant’s third assignment of error states:
{¶ 21} “Defendant was denied due process of law when the court imposed more
than a minimum sentence without considering statutory criteria.”
{¶ 22} Appellant asserts that the trial court failed to properly consider the
purposes and principles of felony sentencing contained in R.C. 2929.11 or the
seriousness and recidivism factors of R.C. 2929.12.
{¶ 23} This court has recognized that we review felony sentences using the Kalish
framework. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124; State
v. Brunning, 8th Dist. No. 95376, 2011-Ohio-1936, at ¶16. In Kalish, the Ohio Supreme
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Court applied a two-prong approach to appellate review of felony sentences. Appellate
courts must first “examine the sentencing court’s compliance with all applicable rules
and statutes in imposing the sentence to determine whether the sentence is clearly and
convincingly contrary to law.” Kalish at ¶4. If this first prong is satisfied, then we review
the trial court’s decision under an abuse-of-discretion standard. Id. at ¶4 and ¶19.
{¶ 24} In the first step of our analysis, we review whether the sentence is contrary
to law as required by R.C. 2953.08(G). “[T]rial courts have full discretion to impose a
prison sentence within the statutory range and are no longer required to make findings
and give reasons for imposing maximum, consecutive or more than the minimum
sentence.” Id. at ¶11, citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, ¶100. The Kalish court declared that although Foster eliminated mandatory
judicial fact-finding, it left R.C. 2929.11 and 2929.12 intact. Kalish at ¶13. As a result,
the trial court must still consider these statutes when imposing a sentence. Id.{¶ 25} R.C. 2929.11(A) provides that:
A court that sentences an offender 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. To
achieve those purposes, the sentencing court shall consider the need for
incapacitating the offender, deterring the offender and others from future
crime, rehabilitating the offender, and making restitution to the victim of
the offense, the public, or both.
{¶ 26} R.C. 2929.12 provides a nonexhaustive list of factors a trial court must
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consider when determining the seriousness of the offense and the likelihood that the
offender will commit future offenses.
{¶ 27} The Kalish court also noted that R.C. 2929.11 and 2929.12 are not
fact-finding statutes like R.C. 2929.14. Kalish at ¶17. Rather, they “serve as an
overarching guide for trial judges to consider in fashioning an appropriate sentence.”
Id. Thus, “[i]n considering these statutes in light of Foster, the trial court has full
discretion to determine whether the sentence satisfies the overriding purposes of Ohio’s
sentencing structure.” Id.{¶ 28} In the instant case, we do not find appellant’s sentence to be contrary to
law. The trial court sentenced appellant to concurrent sentences within the permissible
statutory range for his convictions. In the sentencing journal entry, the trial court
acknowledged that it had considered all factors of law and found that prison was
consistent with the purposes of R.C. 2929.11. On these facts, we cannot conclude that his
sentence is contrary to law.
{¶ 29} Having satisfied the first step, we next consider whether the trial court
abused its discretion. Kalish at ¶4 and ¶19. An abuse of discretion is more than an error
of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or
unconscionable. Id. at ¶19, quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d
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144 (1980).
{¶ 30} The trial court did not abuse its discretion in imposing a six year prison
sentence in the present case. The trial court allowed appellant and his counsel to
advocate a lighter sentence. The trial court noted certain mitigating circumstances in
the case including the fact that appellant had no juvenile record, had never served a
prison sentence, and one of the appellant’s robbery victims chose not to appear.
However, the trial court additionally noted that appellant committed the above offenses
while on probation to the court for drug trafficking. The trial court additionally took
notice of appellant’s North Coast Behavioral Healthcare report which indicated that he
suffered from a marijuana and cocaine dependency. Appellant himself attributed his
actions in robbing a victim of an automobile at gunpoint, CR-537780, to cocaine usage.
Finally the owner of the vehicle appellant stole described her fearfulness that appellant,
prior to being apprehended, retained possession of her keys, including keys to her home.
Her fears proved to be well founded as appellant did, in fact, return to her home from
where he stole her car only two days prior and was apprehended by police at that time.
We find nothing in the record to suggest that the trial court’s decision was unreasonable,
arbitrary, or unconscionable. A review of the record indicates that the trial court also
expressly stated that it had considered all factors of the law and found that prison was
consistent with the purposes and principles of R.C. 2929.11. Accordingly, appellant’s
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third assignment of error is overruled.
{¶ 31} Appellant’s fourth assignment of error states:
Defendant was denied due process of law when the court did not assess
court costs in open court and costs were assessed in the judgment entry.
{¶ 32} The state concedes the trial court erred in that its failure to address court
costs during the sentencing hearing denied appellant the opportunity to seek a waiver of
the payment of costs. Pursuant to State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954,
926 N.E.2d 278, the appropriate course in such an instance is a limited remand to the
trial court to allow appellant to move the court for a waiver of the payment of court
costs. Appellant’s fourth assignment of error is sustained.
{¶ 33} Accordingly, we reverse the trial court’s judgment as to costs and remand
the case to the trial court for a limited hearing on the issue of court costs.
{¶ 34} The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s conviction
having been affirmed, any bail pending appeal is terminated. A certified copy of this
entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
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MARY EILEEN KILBANE, P.J., and
MELODY J. STEWART, J., CONCUR