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State v. Haddad

Court of Appeals of Ohio, Tenth District

April 6, 2017

State of Ohio, Plaintiff-Appellee,
Bassem S. Haddad, Defendant-Appellant.

         APPEALS from the Franklin County C.P.C. Nos. 15CR-148, 16CR-202 Court of Common Pleas

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.

          Nancy K. Wonnell; Jo Hans-Kaiser, for appellant.


          DORRIAN, J.

         {¶ 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.

         I. 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 judgments.

         II. 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 charges.
[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.

         III. Discussion

         A. 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 pertinent part:

(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 hearing.
(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 trial:

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 ...

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