from the Franklin County C.P.C. Nos. 15CR-148, 16CR-202 Court
of Common Pleas
O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
K. Wonnell; Jo Hans-Kaiser, for appellant.
1} Defendant-appellant, Bassem S. Haddad, appeals
from the judgments of conviction entered by the Franklin
County Court of Common Pleas. For the reasons that follow, we
affirm those judgments.
Facts and Procedural History
2} On February 8, 2016, in case No. 15CR-148,
assigned appeal case No. 16AP-459, appellant pled guilty to
theft, in violation of R.C. 2913.02, a felony of the fifth
degree. Appellant and plaintiff-appellee, State of Ohio,
jointly recommended a presentence investigation. On April 18,
2016, in case No. 16CR-202, assigned appeal case No.
16AP-464, appellant pled guilty to a stipulated lesser
offense of attempted robbery, in violation of R.C. 2923.02,
as it relates to R.C. 2911.02, a felony of the fourth degree.
The parties jointly recommended a sentence of community
control. The remaining counts in both cases were nolle
prosequi. The court ordered a presentence investigation and
scheduled the cases for sentencing.
3} A sentencing hearing was held on May 19, 2016 on
both cases. In case No. 15CR-148, the trial court sentenced
appellant to 6 months in prison to run concurrent with 9
months in prison imposed in case No. 16CR-202. In both cases,
the court imposed 3 years of optional postrelease control. In
case No. 16CR-202, the court also imposed a $1, 000 fine. The
court credited appellant with 94 days of jail-time credit in
case No. 15CR-148 and 40 days of jail-time credit in case No.
16CR-202. On May 24, 2016, the trial court filed its judgment
entries. Appellant filed notices of appeal from those
Assignments of Error
4} Appellant assigns the following two assignments
of error for our review:
[I.] The Court abused its discretion when sentencing the
Defendant, Bassem Haddad, considering the seriousness of the
[II.] The Court erred when sentencing the Defendant, Bassem
Haddad, by denying the Defendant his due process rights as
stated in the Ohio Revised Code.
Appellant's Second Assignment of Error
5} In his second assignment of error, appellant
argues that the guilty plea he made in case No. 16CR-202 was
not a knowing, voluntary plea because: (1) he has a language
barrier and could not read the plea form, (2) the colloquy
"was not helpful, " (3) appellant denied he did
anything wrong and only pled because he believed he would get
probation, and (4) appellant relied on the advice of counsel
that normally a joint recommendation for community control
"carries a lot of weight with all Judges [and] that
it's very exceptional if they don't follow the joint
recommendation." (Appellant's Brief at 8, 7.)
6} " 'When a defendant enters a plea in a
criminal case, the plea must be made knowingly,
intelligently, and voluntarily. Failure on any of those
points renders enforcement of the plea unconstitutional under
both the United States Constitution and the Ohio
Constitution.' " State v. Veney, 120 Ohio
St.3d 176, 2008-Ohio-5200, ¶ 7, quoting State v.
Engle, 74 Ohio St.3d 525, 527 (1996). Crim.R. 11(C)
addresses guilty pleas in felony cases and requires a trial
judge to determine whether the criminal defendant is fully
informed of his or her rights and understands the
consequences of his or her pleas. Crim.R. 11(C) provides, in
(2) In felony cases the court may refuse to accept a plea of
guilty or a plea of no contest, and shall not accept a plea
of guilty or no contest without first addressing the
defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges
and of the maximum penalty involved, and if applicable, that
the defendant is not eligible for probation or for the
imposition of community control sanctions at the sentencing
(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty or no
contest, and that the court, upon acceptance of the plea, may
proceed with judgment and sentence.
(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is
waiving the rights to jury trial, to confront witnesses
against him or her, to have compulsory process for obtaining
witnesses in the defendant's favor, and to require the
state to prove the defendant's guilt beyond a reasonable
doubt at a trial at which the defendant cannot be compelled
to testify against himself or herself.
7} " 'A trial court must strictly comply
with Crim.R. 11(C)(2)(c) and orally advise a defendant before
accepting a felony plea that the plea waives (1) the right to
a jury trial, (2) the right to confront one's accusers,
(3) the right to compulsory process to obtain witnesses, (4)
the right to require the state to prove guilt beyond a
reasonable doubt, and (5) the privilege against compulsory
self-incrimination. When a trial court fails to strictly
comply with this duty, the defendant's plea is invalid.
(Crim.R. 11(C)(2)(c) applied.)' Veney at
syllabus. A defendant 'need not be advised of those
rights in the exact language of Crim.R. 11(C), but he must be
informed of them in a reasonably intelligible manner.'
" State v. Young, 10th Dist. No. 10AP-292,
2010-Ohio-5873, ¶ 8, quoting State v. Vinson,
10th Dist. No. 08AP-903, 2009-Ohio-3240, ¶ 6, citing
State v. Ballard, 66 Ohio St.2d 473 (1981),
paragraph one of the syllabus. Appellant does not allege any
specific violation of Crim.R. 11(C)(2)(c); therefore, we will
not address the same.
8} Although a trial court must strictly comply with
regard to federal constitutional rights protected by Crim.R.
11, a trial court need only substantially comply with the
non-constitutional protections required under Crim.R.
11(C)(2)(a) and (b). Veney at ¶ 14;
Young at ¶ 9; State v. Allen, 10th
Dist. No. 11AP-640, 2012-Ohio-2986, ¶ 20, citing
State v. Williams, 10th Dist. No. 10AP-1135,
2011-Ohio-6231, ¶ 36, citing State v. Nero, 56
Ohio St.3d 106, 108 (1990). Substantial compliance means
that, under the totality of the circumstances, the defendant
subjectively understands the implications of pleading guilty
and the rights he or she is waiving. State v. Woods,
10th Dist. No. 14AP-534, 2015-Ohio-2534, ¶ 8, citing
Nero at 108. A defendant who challenges his or her
guilty plea on the basis that it was not knowingly,
intelligently, and voluntarily made must demonstrate
prejudice in order to invalidate the plea. Veney at
¶ 15; Allen at ¶ 20; Young at
¶ 9. " 'The test for prejudice is "whether
the plea would have otherwise been made." ' "
Allen at ¶ 20, quoting Williams at
¶ 36, quoting Nero at 108.
9} " 'A determination of whether a plea was
knowingly, intelligently, and voluntarily entered is based
upon a review of the record.' " Woods at
¶ 9, quoting Young at ¶ 6, citing
Vinson at ¶ 7, citing State v. Spates,
64 Ohio St.3d 269, 272 (1992). Here, under the totality of
the circumstances, we find the trial court substantially
complied with Crim.R. 11(C)(2)(a) and (b).
10} In support of his argument that there was a
language barrier, appellant's counsel points out that
appellant stated: "I can't decide for myself because
I don't understand the law, what's going on with it.
If I could speak English, if I could read, I would know the
law." (Apr. 18, 2016 Tr. at 10.) However, at the April
18, 2016 hearing in case No. 16CR-202, the trial judge asked
appellant point blank: "Do you read and write English
reasonably well?" Appellant replied, "[y]es,
sir." (Apr. 18, 2016 Tr. at 6.) Furthermore, on review
of the transcript, we note that the trial court engaged
appellant in a very lengthy and thorough colloquy which
included much back and forth questioning and answering
between the trial judge and appellant. This back and forth
belies appellant's claims that his plea was not knowing
because he had a language barrier. Furthermore, appellant
replied "[y]es, sir" when the court asked him if he
understood the "whole form where he signed on the front
page and the second page." (Apr. 18, 2016 Tr. at 15.)
11} We also do not agree with appellant that the
colloquy was not helpful. To the contrary, it was very
thorough. The judge begins by informing appellant and counsel
that a jury pool of 24 people had been pulled downstairs to
have a jury trial. The judge also explains several times the
rights that appellant has which accompany his right to a jury
THE COURT: Mr. Haddad, as I've said a couple times, you
can have this jury come up of 24 people from whom we'll
pick, with your help, 12 people to be your jury. The state
has to bring in witnesses. They have to prove here in court
to the jury of 12 people beyond a reasonable doubt that you
broke the law before you can be convicted. You don't have
to testify unless you want to. You don't have to prove
you're not guilty. You don't have to really do
anything, other than sit there and help your lawyers defend
the case. That's the nature of what we were proposing to
do this morning that you're going to lose if you plead
this case out with a guilty plea; no jury; the state
doesn't have to prove you're guilty; they don't
have to bring the witnesses here, all those things. Do you
understand all that?
[APPELLANT]: Yes, sir.
THE COURT: All right. The state and you have the opportunity
to bring in witnesses by sending out court orders to folks
called subpoenas. If there were people that you wanted as
witnesses, [your attorney] can send out subpoenas to them if
there is anybody that would come in and help you testify and
help you back up your side of the story. If somebody gets a
subpoena that you need and they don't come when
they're supposed to, we ask the sheriffs department to go
get them and bring them down here in a cruiser, if they have
to, and hold them in jail until they testify. So if
there's people you need, that's the way we get them
forced in to the court system to help you.
[APPELLANT]: I don't know nobody.
THE COURT: Okay. Well, that's just part of the process.
[APPELLANT]: She's the only one I know.
THE COURT: If you go through a trial with me and you're
unhappy with the result because you lose, then you can have
an appeal if you had took the case to trial. An appeal is to
three judges across the street, who look over everything I
did, all the records that we've been making, and they
look to see if I made mistakes and fouled up your cases.
That's essentially gone, that appeal right is gone, if
you plead guilty. Do you understand that?
[APPELLANT]: (Nods yes.)
THE COURT: Then you're basically stuck with me as your
judge. Do you ...