Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANT Mark A. Stanton Cuyahoga County
Public Defender Erika B. Cunliffe Assistant Public Defender
Also Listed: Marcus S. Sidoti Jordan & Sidoti L.L.P.
Joseph V. Pagano
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor Kelly N. Mason Assistant County Prosecutor
BEFORE: Stewart, P.J., Boyle, J., and S. Gallagher, J.
JOURNAL ENTRY AND OPINION
J. STEWART, PRESIDING JUDGE.
This appeal is before us on remand from the Ohio Supreme
Court. See State v. Mohamed, Slip Opinion No.
2017-Ohio-7468 ("Mohamed II ").
A jury found defendant-appellant Shuaib A. Haji Mohamed
guilty of gross sexual imposition, attempted gross sexual
imposition, two counts of kidnapping, and one count of
attempted rape. On direct appeal, we overruled six
assignments of error, but reversed the conviction for
kidnapping and ordered a new trial. State v.
Mohamed, 8th Dist. Cuyahoga Nos. 102398 and 103602,
2016-Ohio-1116 ("Mohamed I "). We
held that the jury should have been instructed on R.C.
2905.01(C)(1), which states that a conviction for kidnapping
shall be lowered by one degree if the victim is released in a
safe place unharmed, because the evidence showed that the
victim was released in a safe place and suffered no physical
harm. We noted case law finding that psychological harm is
not the type of harm considered for purposes of the statutory
analysis. Id. at ¶ 36. With there being no
evidence that the victim suffered physical harm, we concluded
that the defense was ineffective for failing to seek a jury
instruction and that the trial court committed plain error by
not giving the instruction for the jury to consider.
Id. at ¶ 37. Because the reversal on the
kidnapping count required a new trial, we found it mooted
consideration of Mohamed's eighth assignment of error
that the court erred by ordering consecutive service of the
sentences imposed for kidnapping and attempted rape.
Id. at ¶ 46.
The Supreme Court reversed in Mohamed II It held
that the word "harm" under R.C. 2905.01(C)(1) is
not limited to physical harm, therefore psychological harm is
contemplated by the statute. Mohamed II, at ¶
13-15. It then concluded that trial counsel's failure to
request a safe-place-unharmed instruction was trial strategy.
Id. at ¶ 25. It also found that the trial court
did not commit plain error by failing to provide the jury
instruction on its own initiative. Id. at ¶ 28.
It reinstated the conviction for kidnapping and remanded the
case to this court for consideration of Mohamed's eighth
assignment of error relating to consecutive sentences.
Id. at ¶ 30.
In his eighth of assignment of error, Mohamed complains that
the court erred by ordering consecutive service of the
ten-year sentence for kidnapping and the five-year sentence
for attempted rape. Mohamed concedes that the court made the
required findings in support of consecutive sentences, but
argues that (1) the court erred by considering "six
arrests involving alcohol" to be a criminal record, and
(2) the length of his sentence is disproportionate to his
conduct given that both the state and the victim agreed prior
to sentencing that they would recommend a five-year sentence
in exchange for Mohamed waiving his right to appeal.
To order consecutive service of sentences, the court must
make three separate findings under R.C. 2929.14(C)(4). The
first two findings are common to all consecutive sentences -
that (1) consecutive service is necessary to protect the
public from future crime or to punish the offender, and (2)
that consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger
the offender poses to the public. See R.C.
2929.14(C)(4). The third finding varies from case-to-case:
(a) the offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section 2929.16,
2929.17, or 2929.18 of the Revised Code, or was under
postrelease control for a prior offense; (b) at least two of
the multiple offenses were committed as part of one or more
courses of conduct, and the harm caused by two or more of the
multiple offenses committed was so great or unusual that no
single prison term for any of the offenses committed as part
of any of the courses of conduct adequately reflects the
seriousness of the offender's conduct; or (c) the
offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public
from future crime by the offender.
Mohamed argues that the record does not support a finding
that his history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public
from future crime that he might commit. He maintains that
when defense counsel told the court that Mohamed had "no
criminal background whatsoever, " the court took issue
with that statement, telling Mohamed that "in fact, you
do have a criminal record. One[, ] two, three, four, five,
six arrests involving alcohol; some of them involving
driving. That it's clear that, you know, you're a
danger to the community." This record of arrests caused
the court to conclude that Mohamed was a "danger to the
community." Tr. at 1290. Mohamed argues that
alcohol-related arrests do not make him a danger to the
Mohamed fails to recognize that the court did not impose
consecutive sentences because of his history of criminal
conduct - it imposed consecutive sentences because at least
two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more
of the multiple offenses committed was so great or unusual
that no single prison term for any of the offenses committed
as part of any of the courses of conduct adequately reflects
the seriousness of Mohamed's conduct. The court clearly
stated this on the record: "The harm occasioned on the
victim is so great and unusual, in this case, and I heard all
the facts of the case. That a single term would not
adequately punish you." Mohamed's argument about his
alcohol-related arrests is irrelevant to the court's
Mohamed next claims that a 15-year sentence is "clearly
disproportionate to sentences imposed on similarly situated
offenders." This argument erroneously conflates the
proportionality requirement of R.C. 2929.14(C)(4) with
sentencing consistency under R.C. 2929.11(B) (a sentence
should be "consistent with sentences imposed for similar
crimes committed by similar offenders."). See State
v. Carson, 8th Dist. Cuyahoga No. 102424,
2015-Ohio-4183, ¶ 7. "R.C. 2929.14(C)(4) does not
direct the trial court to compare sentences between similarly
situated offenders in making the required proportionality
analysis." State v. Dennison, 10th Dist.
Franklin No. 14AP-486, 2015-Ohio-1135, ¶ 20.
Finally, Mohamed argues that his 15-year sentence failed to
take into account the state's willingness to accept a far
lower sentence: a pretrial offer by the state would have had
Mohamed plead guilty to a fourth-degree gross sexual
imposition and third-degree count of abduction with "a
presumption of probation" and a post-trial offer would