Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Mohamed

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 14, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
SHUAIB A. HAJI MOHAMED DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-585924-A

          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

          MELODY J. STEWART, PRESIDING JUDGE.

         {¶1} This appeal is before us on remand from the Ohio Supreme Court. See State v. Mohamed, Slip Opinion No. 2017-Ohio-7468 ("Mohamed II ").

         {¶2} 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[1] 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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 public.

         {¶7} 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 actual findings.

         {¶8} 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.

         {¶9} 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.