State v. Almosawi

[Cite as State v. Almosawi, 2012-Ohio-3385.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24633
v. : T.C. NO. 07CR3644
MAHDI ALMOSAWI : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 27th day of July , 2012.
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R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
SHAWN P. HOOKS, Atty. Reg. No. 0079100, 131 N. Ludlow Street, Suite 630, Dayton,
Ohio 45420
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Mahdi Al-Mosawi appeals from a judgment of the Montgomery
County Court of Common Pleas, which corrected an improperly imposed sentence for
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postrelease control. For the reasons discussed below, the judgment of the trial court will be
affirmed.
{¶ 2} In 2008, Al-Mosawi was convicted, on his guilty plea, of two counts of
attempted murder. His guilty pleas were entered after his trial began. He appealed from his
conviction, and we affirmed the trial court’s judgment and sentence. State v. Al-Mosawi, 2d
Dist. Montgomery No. 22890, 2010-Ohio-111. He also appealed, unsuccessfully, from a
decision of the trial court overruling his petition to vacate or set aside his sentence pursuant
to R.C. 2953.21. State v. Al-Mosawi, 2d Dist. Montgomery No. 23873, 2010-Ohio-5382.
{¶ 3} On March 24, 2011, the State filed a motion seeking to correct the judgment
entry of conviction with respect to the imposition of postrelease control and a motion
requesting that Al-Mosawi appear for resentencing via video conferencing equipment, as
permitted by R.C. 2929.191(C). The trial court scheduled a hearing and ordered that
Al-Mosawi appear by video conferencing. Al-Mosawi’s attorney appeared in court for the
hearing.
{¶ 4} Two weeks before the hearing, Al-Mosawi filed a request for an interpreter,
because his “primary” language is Arabic. The trial court overruled the request for an
interpreter, noting that Al-Mosawi had participated in and understood prior proceedings
before the court without the need for an interpreter. Following the hearing, the trial court
filed a nunc pro tunc entry correcting its prior sentence of postrelease control, informing
Al-Mosawi that he would be subject to five years of postrelease control on each count after
his release from prison.
{¶ 5} Al-Mosawi appeals from the trial court’s nunc pro tunc termination entry,
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raising three assignment of error.
{¶ 6} Al-Mosawi’s first assignment of error states:
The trial court abused its discretion when it conducted the hearing
without an interpreter in spite of Mr. Al-Mosawi’s request when the
record was clear that he could not understand the proceedings.
{¶ 7} Al-Mosawi contends that “it was apparent from [his] testimony at the
hearing that he did not understand what was taking place,” contrary to the trial court’s
conclusion, based on observing him at various court proceedings, that he did not need an
interpreter. He notes that “he repeatedly stated that he did not understand what was
happening.”
{¶ 8} In a criminal case, the defendant is entitled to hear the proceedings in a
language that he can understand. State v. Castro, 2d Dist. Montgomery No. 14398, 1995
WL 558782, * 4 (Sept. 20, 1995), citing State v. Pina, 49 Ohio App.2d. 394, 399, 361 N.E.2d
262 (2d Dist.1975). Moreover, R.C. 2311.14(A) requires that a trial court appoint an
interpreter for legal proceedings whenever a participant in the proceeding “cannot readily
understand or communicate” as a result of an impediment. See, also, Crim.R. 11(C).
{¶ 9} The trial court has broad discretion in determining whether a criminal
defendant requires the assistance of an interpreter. State v. Saah, 67 Ohio App.3d 86, 95, 585
N.E.2d 999 (8th Dist. 1990). Therefore, this court will not reverse the trial court’s decision
in this regard absent a showing that the trial court abused its discretion by acting
unreasonably, unconscionably, or arbitrarily. Id., citing, State v. Apanovitch, 33 Ohio St.3d
19, 22, 514 N.E.2d 394 (1987).
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The decision regarding whether a defendant is entitled to a court
appointed language interpreter is initially based on the trial court’s assessment
of the defendant’s apparent ability to comprehend the English language and
communicate therein. See, State v. Quinones (Oct. 14, 1982), Cuyahoga App.
No. CR-59478, unreported, citing Perovich v. United States (1907), 205 U.S.
86 and Suarez v. Desist (1962), 309 F.2d 709. * * * [A]n imperfect grasp of
the English language may be sufficient as long as the defendant has the ability
to understand and communicate in English. See, Perovich, supra; Saah, supra;State v. Davis (May 7, 1981), Cuyahoga App. No. 42672, 42737, 42738,
unreported.
Castro at * 4.
{¶ 10} In this case, the trial court responded to Al-Mosawi’s request for an
interpreter as follows:
* * * I denied your request for an interpreter. You have never had any
difficulty understanding English while you’re [sic] been here in court. And, in
fact, during your trial when I ordered that there be an interpreter present for
you, the interpreter did not interpret. I repeatedly asked you if you were
understanding what was happening and whether you needed the interpreter
and you responded that you understood everything. At your sentencing, you
spoke in English yourself, very clearly and very understandably.
In addition, sir, at your Motion to Suppress, I determined that you
understood English, that you had no difficulty understanding English,
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particularly as it related to the statement that you made to the police.
You have proceeded with your own appeals in this matter, in filing
your own motions in English. And I have determined that, sir, you are not
entitled to an interpreter if one is not needed. I have determined that it is not
needed, sir, and I’ve overruled your request.
{¶ 11} It is apparent from this exchange that the trial court was very familiar with
Al-Mosawi’s language abilities and had a substantial history on which to base its conclusion
that he did not need an interpreter.
{¶ 12} Moreover, in Al-Mosawi’s direct appeal, we commented on his language
abilities as follows:
Although Al-Mosawi can speak and understand English to some
extent, at his competency hearing, suppression hearing, trial, plea proceeding,
and sentencing, the trial court qualified an English-Arabic interpreter (not
always the same at each hearing) and swore in the interpreter. The
proceedings are recorded in the record as video records. In the proceedings we
have watched in the video format (we have reviewed the entirety of the written
transcripts of the proceedings), which includes the entire trial, plea and
sentencing proceedings, the interpreter appears to be constantly interpreting
the proceedings for Al-Mosawi, who does not appear to have any difficulty
following the interpretation. In the plea hearing, when Al-Mosawi responds
to the trial court’s questions, he does so directly, in English. At the sentencing
hearing, when the time came for Al-Mosawi to address the trial court, he did
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so directly, in English, in so much length that the trial court had to gently
nudge him back to material matters at one point. (The trial court did not,
however, cut him off at the sentencing hearing; Al-Mosawi was allowed to
speak until he decided that he was done.)
State v. Al-Mosawi, 2d Dist. Montgomery No. 22890, 2010-Ohio-111, ¶ 16.
{¶ 13} Although there is some contradiction between our account and the trial
court’s about the extent to which Al-Mosawi relied on the interpreter during his trial, the plea
hearing, and the sentencing hearing, it is undisputed that he had been able to interact directly
with the court and had made lengthy statements to the court, in English. In light of these
circumstances, we cannot conclude that the trial court abused its discretion in finding that
Al-Mosawi did not need an interpreter to understand the resentencing related to postrelease
control.
{¶ 14} The first assignment of error is overruled.
{¶ 15} Al-Mosawi’s second assignment of error states:
Mr. Al-Mosawi’s Sixth Amendment rights and rights guaranteed under
Article I, Section 10 of the Ohio Constitution were violated when the
court conducted the hearing via video conferencing over Mr. Al-Mosawi’s
objection.
{¶ 16} Al-Mosawi contends that his resentencing hearing related to postrelease
control was a “critical stage” of the proceedings, and that his constitutional rights were
violated when the trial court ordered that the resentencing be conducted via video
conferencing, because “a fair and just hearing” could not be had in his absence.
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{¶ 17} A trial court must apply the procedures contained in R.C. 2929.191 to
remedy any postrelease control error occurring in a sentence imposed on or after July 11,
2006. State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, paragraph
two of the syllabus. R.C. 2929.191 requires a trial court to hold a hearing before issuing a
corrected sentencing entry. R.C. 2929.191(C) provides, in pertinent part, as follows:
Before a court holds a hearing pursuant to this division, the court shall
provide notice of the date, time, place, and purpose of the hearing to the
offender who is the subject of the hearing, the prosecuting attorney of the
county, and the department of rehabilitation and correction. The offender has
the right to be physically present at the hearing, except that, upon the court’s
own motion or the motion of the offender or the prosecuting attorney, the
court may permit the offender to appear at the hearing by video conferencing
equipment if available and compatible. An appearance by video conferencing
equipment pursuant to this division has the same force and effect as if the
offender were physically present at the hearing. * * *
{¶ 18} A criminal defendant has a fundamental right to be present at all critical
stages of his criminal trial. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d
864, ¶ 100; Sixth and Fourteenth Amendments to the United States Constitution; Ohio
Constitution, Article I, Section 10. “However, a criminal defendant’s absence ‘does not
necessarily result in prejudicial or constitutional error.’ State v. Davis, 116 Ohio St.3d 404,
880 N.E.2d 31, 2008-Ohio-2, ¶ 90. See also State v. Reed, 10th Dist. No. 09AP-1164,
2010-Ohio-5819, ¶ 13.” State v. Morton, 10th Dist. Franklin No. 10AP-562,
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2011-Ohio-1488, ¶ 18. The presence of a defendant is a condition of due process to the
extent that a fair and just hearing would be thwarted by his absence. Id., citing Davis at ¶ 90
and Snyder v. Massachusetts, 291 U.S. 97, 107-108, 54 S.Ct. 330, 333, 78 L.Ed. 674(1934);
see also State v. Morris, 10th Dist. Franklin No. 10AP-512, 2011-Ohio-5484, ¶15. Therefore,
a defendant’s absence in violation of Crim.R. 43(A) can constitute harmless error where he
suffered no prejudice, even though such absence was improper. Morton at ¶ 18; Morris at ¶
15.
{¶ 19} In this case, any error in regard to Al-Mosawi’s physical presence at the
hearing was clearly harmless. The five-year term of postrelease control ordered by the court
was mandatory. Al-Mosawi spoke with his attorney privately before the court went on the
record to reimpose postrelease control, and Al-Mosawi did not ask to speak with counsel
again in response to anything that transpired at the hearing. Counsel addressed the court on
Al-Mosawi’s behalf with regard to sentencing, and Al-Mosawi was also allowed to address
the court.
{¶ 20} Although Al-Mosawi suggests that the videoconferencing exacerbated his
language difficulties, the trial court flatly rejected his claim that he had any trouble
understanding the proceedings, and there is nothing in the record to suggest that
videoconferencing did, in fact, make the proceedings more difficult for Al-Mosawi to
understand. Nothing in the record indicates that any additional information could have been
submitted on Al-Mosawi’s behalf or that his physical presence at the hearing would have
affected the outcome.
{¶ 21} The second assignment of error is overruled.
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{¶ 22} Al-Mosawi’s third assignment of error states:
The trial court erred when it deprived Mr. Al-Mosawi the opportunity to
address the error in sentencing him to PRC on each count of attempted
murder when the two counts are allied offenses of similar import.
{¶ 23} Al-Mosawi recognizes that our “limited remand” required the trial court to
revisit only the issue of postrelease control, but he argues that such limited action was “not
sufficient,” because the trial court failed to merge allied offenses in his original sentence, and
therefore improperly imposed two mandatory terms of postrelease control for those offenses.
{¶ 24} Even assuming, for the sake of argument, that Al-Mosawi’s sentences were
allied offenses of similar import, the trial court’s failure to merge them at the time of
sentencing resulted, at most, in a voidable sentence, not a void sentence. State v. Parson, 2d
Dist. Montgomery No 24641, 2012-Ohio-730, ¶ 9. Arguments challenging a voidable
sentence must be raised on direct appeal. Id. at ¶ 10, citing State v. Simpkins, 117 Ohio
St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 30. The doctrine of res judicata bars any
argument challenging a voidable sentence that could have been raised on direct appeal, but
was not. Id.{¶ 25} Moreover, R.C. 2967.28(F)(4)(c) provides that, “[i]f an offender is subject
to more than one period of post-release control, the period of post-release control for all of
the sentences shall be the period of post-release control that expires last, as determined by the
parole board or court. Periods of post-release control shall be served concurrently and shall
not be imposed consecutively to each other.” Thus, there was no practical effect of the
imposition of two identical terms of postrelease control, and no prejudice to Al-Mosawi.
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{¶ 26} The third assignment of error is overruled.
{¶ 27} The judgment of the trial court will be affirmed.
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GRADY, P.J. and HALL, J., concur.
Copies mailed to:
R. Lynn Nothstine
Shawn P. Hooks
Hon. Mary Katherine Huffman