State v. Alselami

[Cite as State v. Alselami, 2012-Ohio-987.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 5-11-31

v.

HAIDER H. ALSELAMI, OPINION

DEFENDANT-APPELLANT.

Appeal from Hancock County Common Pleas Court
Trial Court No. 2011 CR 84

Judgment Affirmed

Date of Decision: March 12, 2012

APPEARANCES:

Eric Allen Marks for Appellant

Mark C. Miller and Alex K. Treece for Appellee
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WILLAMOWSKI, J.

{¶1} Defendant-Appellant, Haider H. Alselami (“Alselami”), appeals from

the judgment of the Hancock County Court of Common Pleas, sentencing him to

prison for three years after he pled guilty to one count of aggravated possession of

drugs. On appeal, Alselami contends that the trial court erred in accepting his

guilty plea because it was not made knowingly, intelligently, and voluntarily, and

that it abused its discretion in imposing a three-year mandatory prison term

without considering the statutory guidelines. For the reasons set forth below, the

judgment is affirmed.

{¶2} During a traffic stop for speeding on I-75, Alselami was found to be in

possession of 150 Oxymorphone pills. Alselami originally stated that the pills had

been prescribed to him for an injury, but later admitted to purchasing the pills on

the streets in Detroit. He stated that he intended to send them to his mother in

Iraq, who suffered from injuries received in a roadside bombing that had killed

many members of the family. Alselami is an Iraqi national, but has been a

permanent resident of the United States since 1993, when he was granted political

asylum.

{¶3} On April 19, 2011, the Hancock County Grand Jury indicted Alselami

on one count of Aggravated Possession of Drugs, a felony of the second degree in

violation of R.C. 2925.11(A). The indictment stated that Alselami possessed

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Oxymorphone in an amount equal to or greater than five times the bulk amount

but less than fifty times the bulk amount. The penalty for this offense is a

mandatory term of imprisonment for a determinate term of no less than two years,

but no more than eight, and a fine of not less than $7,500 nor more than $15,000.

{¶4} On June 1, 2011, shortly before the scheduled trial, a change of plea

hearing was held. Alselami’s attorney informed the trial court that Alselami did

not read English at all, or very well, but that he understood spoken English with no

problems. Therefore, the attorney assured the trial court that he had read all of the

plea agreement papers to Alselami, as well as the indictment and the discovery,

and explained the constitutional rights that were being waived as a result of this

plea. (Plea Hearing Transcript, p. 7) His attorney represented that Alselami

understood his constitutional rights and what he was giving up by entering a guilty

plea. (Id.)

{¶5} The trial court then spoke directly with Alselami to be certain that his

decision met the requirements of being voluntary, that it was made knowingly, and

was done intelligently. (Tr. p. 9) Because Alselami was not a U.S. citizen, and

English was not his first language, the trial court was very careful to be certain that

Alselami understood everything that was said. The court asked Alselami to

confirm that he understood at each step of the proceedings, and if Alselami did not

understand something, the trial court assured him that it would explain the matter

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in a different way and rephrase it so that it was clear. (Tr. p. 11) The trial court

also offered Alselami the services of a translator, but Alselami assured the court

that was not necessary. (Tr. p. 15)

{¶6} The trial court then conducted a full and extremely detailed Crim.R.

11 plea colloquy, explaining every step in simple language, often repeating the

explanations, and inquiring to make certain that Alselami understood what was

said and what the implications were. Alselami answered all of the questions in the

affirmative and stated that he understood. He acknowledged that he knew what

rights he was giving up and what the consequences of his guilty plea would be.

The trial court also warned Alselami that his conviction could possibly result in

deportation and the denial of naturalization, depending upon what immigration

services chose to do.

{¶7} Before having Alselami sign the plea agreement, the trial court again

inquired as to whether his attorney had read it to him, explained it, and answered

all of his questions. (Tr. pp. 30-31) Alselami answered each question in the

affirmative. (Id.) And finally, before accepting Alselami’s guilty plea, the trial

court asked the State to provide more information “as to what occurred to support

my consideration of the plea.” (Tr. p. 32) The State then provided a summary of

the events leading to the indictment, and explained the results of the State’s

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investigation of the case. Only then did the trial court accept Alselami’s change of

plea and find him guilty. (Tr. p. 34)

{¶8} The sentencing hearing was held on August 5, 2011, and the trial court

reviewed the terms of the plea agreement. The State had agreed it would ask that

the sentence not exceed a four-year term of incarceration. The trial court again

stated the reminder that this was a mandatory incarceration case and that the court

“must impose a prison term upon the Defendant today.” (Sentencing Transcript.,

p. 5)

{¶9} Alselami’s attorney asked the court to consider imposing the

minimum two-year sentence. He acknowledged that Alselami did have prior

convictions, but they were not drug related “and he has led a law abiding life for a

significant number of years.” (Sent. Tr. p. 6) The attorney also stated that

Alselami had requested he ask the court to impose probation, even though he had

advised Alselami that there was a mandatory sentence involved. (Sent. Tr. p. 5)

Alselami’s attorney further asked for leniency because Alselami’s mother was ill

and dying in Iraq, and Alselami had been her sole source of support. Furthermore,

Alselami would likely be deported to Iraq after serving his sentence, which would

be a worse punishment than the incarceration. (Sent. Tr. p. 7-8) Alselami’s

attorney read a letter that Alselami had prepared, expressing his remorse for his

actions, and asking for mercy and leniency. (Sent. Tr. p. 9) Alselami also took

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the opportunity to address the court himself, apologizing for what he did, but

assuring the court that he was not a drug dealer, and that his only intention was to

help his mother. (Sent. Tr. p. 11)

{¶10} The trial court discussed its consideration of the sentencing requests

in great detail, and also reiterated the fact that because the statute specified a

mandatory sentence, he had no discretion to sentence Alselami to probation or

anything less than the minimum time in prison. (Sent Tr. pp. 13-16) The trial

court then sentenced Alselami to a mandatory three years in prison, with credit for

111 days already served, and informed him that he would be subject to postrelease

control.

{¶11} It is from this judgment that Alselami now appeals, raising the

following two assignments of error for our review.

First Assignment of Error

The trial court abused its discretion by imposing a three year
mandatory prison term without considering the statutory
guidelines of R.C. 2929.11 and R.C. 2929.12

Second Assignment of Error

The trial court erred in accepting [Alselami’s] guilty plea
because it was not made knowingly, intelligently, and
voluntarily.

{¶12} To facilitate our review, we shall address the assignments of error in

reverse order. In the second assignment of error, Alselami asserts that his plea

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was not voluntarily, intelligently, and knowingly made because he may not have

fully understood the proceedings due to an uncertain grasp of the English

language. In support Alselami points to a portion of the hearing where he did not

understand a word (“interpreter”), and he also contends that his continued requests

for probation indicated that he did not fully understand that the trial court was

required to impose a “mandatory” prison sentence.

{¶13} Before accepting a guilty plea, Ohio Crim.R. 11 requires the trial

court to personally address a defendant to determine if the plea is voluntary, and

that the defendant understands both the plea itself as well as the rights waived by

pleading guilty. Crim.R. 11(C)(2). In determining whether a guilty plea is

voluntarily, intelligently and knowingly made, the court must look to the totality

of the circumstances. State v. Calvillo, 76 Ohio App.3d 714, 719 (8th Dist.1991),

citing to State v. Carter, 60 Ohio St.2d 34, 38 (1979).

The essential duty imposed upon the trial judge by Crim.R. 11 is to
ascertain that the defendant’s decision to plead guilty, and thereby
waive his various constitutional rights to a fair trial, is a knowing
and intelligent decision. In the typical case, this requires the trial
judge to determine that the defendant, with an understanding of the
nature of the charges against him, acknowledges his guilt, and that,
with an understanding of the constitutional protections to which he is
entitled, he agrees to waive them.

State v. Padgett, 67 Ohio App.3d 332, 338 (2nd Dist. 1990) Crim.R. 11 requires a

meaningful dialogue between the court and the defendant. A trial court’s

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acceptance of a guilty or no contest plea will be affirmed only if the trial court

engaged in meaningful dialogue with the defendant which, in substance, explained

the pertinent constitutional rights “in a manner reasonably intelligible to that

defendant.” State v. Ballard, 66 Ohio St.2d 473 (1981), at paragraph two of the

syllabus; State v. Veney, 120 Ohio St.3d 176, 2008–Ohio–5200, ¶ 27.

{¶14} In reviewing the record, and looking at the totality of the

circumstances, we find that the trial court took great pains to comply with every

aspect of Crim.R. 11 and went beyond those requirements to assure that Alselami

understood everything and that he was fully apprised of all of his rights. The trial

court was assured repeatedly by Alselami and by Alselami’s attorney that he

understood everything.

{¶15} The plea colloquy in the lower court involved a great deal more than

“yes or no” questions and answers. It included a discussion concerning Alselami’s

history, including his immigration status, educational level, and familial status.

Alselami answered all of the court’s questions succinctly and appropriately.

{¶16} Alselami’s lack of understanding of one word in the proceedings, the

word “interpreter,” did not demonstrate a lack of understanding in general. The

trial court repeatedly had made it very clear that if there was anything Alselami

did not understand, he should ask, and the following exchange demonstrates that

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Alselami understood he was free to ask questions and ask for clarification if

necessary.

The Court: As I understand it, you don’t, you cannot read English,
but you speak English and understand English?

Defendant: Right, correct.

The Court: And from what I can tell at this point, you do not need
an interpreter?

Defendant: What is that?

Mr. Shuman: Someone to translate for you?

Defendant: No, sir.

The Court: If something comes up during the proceedings today
that doesn’t make sense for example, or maybe I use a term that you
don’t understand, let me know and we will make sure we change it,
and if there are issues such as that for interpreting or translation,
please let me know that.

Defendant: Sure

(Tr. pp. 14-15) What this exchange demonstrates is that if Alselami had trouble

understanding a term, he would not hesitate to ask for clarification. There was

nothing in the record that would indicate a lack of understanding of the plea.

{¶17} Alselami was also informed multiple times that a prison sentence

would be mandatory. Alselami’s attorney indicated that “[m]y client is aware

there is a mandatory prison sentence in this case.” (Tr. p. 6) The attorney also

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stated that he “read the plea papers to him * * *” and expressed his belief in his

client’s understanding. The trial court confirmed this information with Alselami.

{¶18} The trial court also reaffirmed that prison was the only outcome in

this matter before accepting Alselami’s change of plea. First, concerning the

negotiations, the court indicated, “I could sentence you to something longer than

four years.” (Tr. p. 16). The trial court then further explained:

The Court: Given the nature of the crime, the amount of drugs
involved and the other factors, the law requires what’s called a
mandatory prison term, the minimum is 2 years, the maximum is 8
years. Do you understand that’s the range?

Defendant: I understand.

The Court: Did [your attorney] explain to you what it means to
have a mandatory prison term.

Defendant: Yes, sir.

The Court: That means that you must serve all of your sentence.

Defendant: Yes, sir.

The Court: That means that I cannot release you early.

(Tr. pp. 20-21)

{¶19} The consequences of his plea were explained to Alselami multiple

times. He indicated he understood those terms and pled guilty to the offense.

Alselami has not shown that the trial court committed any error in accepting his

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guilty plea, nor has he presented any viable grounds for the withdrawal of his

guilty plea. The second assignment of error is overruled.

{¶20} The first assignment of error alleges that the trial court erred in

imposing sentence without giving proper consideration to the felony sentencing

statute guidelines. Alselami complains that: (1) the sentence was contrary to law

because the trial court failed to sufficiently indicate that it considered the

sentencing factors in R.C. 2929.11 and R.C. 2929.12; and, (2) the trial court

abused its discretion when it failed to properly apply the seriousness and

recidivisms factors set forth in R.C. 2929.12.

{¶21} Ever since the Ohio Supreme Court’s ruling in State v. Foster, 109

Ohio St.3d 1, 2006-Ohio-856, “trial courts have full discretion to impose a prison

sentence within the statutory range and are no longer required to make findings or

give their reasons for imposing maximum, consecutive, or more than the minimum

sentences.” State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 37. Courts,

nevertheless, are still required to comply with the sentencing laws unaffected by

Foster, such as R.C. 2929.11 and 2929.12, which require consideration of the

purposes and principles of felony sentencing and the seriousness and recidivism

factors. Mathis at ¶ 38. However, a sentencing court does not have to make any

specific findings to demonstrate its consideration of those general guidance

statutes. Foster at ¶ 42.

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{¶22} R.C. 2929.11 provides that sentences for a felony shall be guided by

the overriding purposes of felony sentencing: “to protect the public from future

crime by the offender and others and to punish the offender.” R.C. 2929.11(A).

In order to comply with those purposes and principles, R.C. 2929.12 instructs a

trial court to consider various factors set forth in the statute relating to the

seriousness of the conduct and to the likelihood of the offender’s recidivism. R.C.

2929.12(A) through (D). In addition, a trial court may consider any other factors

that are relevant to achieving the purposes and principles of sentencing. R.C.

2929.12(E).

{¶23} Alselami does not dispute that the sentence he received was within

the statutory guidelines. However, he complains that the trial court imposed more

than a minimum sentence despite the fact that Alselami had no record of drug

related activity. He argues that that fact, coupled with his claims of needing to

send the medication to his dying mother, would show that he was not a major drug

dealer and that Alselami was not the type of person that was an intended target of

the legislature’s choice to impose mandatory prison terms for possession of

controlled substances.

{¶24} Contrary to Alselami’s assertions, the trial court extensively

discussed on the record the various factors, pursuant to R.C. 2929.11 and 2929.12,

that it considered before making the sentencing decision. (Sent. Tr. pp. 13-16)

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The State had advocated for a four-year sentence, citing Alselami’s prior criminal

history and the volume of pills as justification. That was also the term agreed to in

the plea agreement. However, the trial court did discuss the mitigating factors,

even stating that “there are a number of mitigating factors that are present in this

case * * *” and it sentenced Alselami to three years, instead of four or more years.

(Sent. Tr. p. 14).

{¶25} The trial court also explained that “I don’t believe two years is

appropriate because of the fact that there is a prior criminal, substantial prior

criminal record, that [factor,] plus the amount of these drugs we are talking about.”

(Sent. Tr. p. 15) Finally, the trial court discussed how it’s discretion to impose

sentence was limited by the requirements set forth by the legislature in the statutes,

and it had no choice but to impose a mandatory prison sentence. (Sent. Tr. pp. 13-

14)

{¶26} The record in this case shows that the trial court fully complied with

all of the requirements pertaining to consideration of the statutory sentencing

factors. In addition, the trial court’s judgment entry specifically stated that it had

considered “the principles and purposes of sentencing under the guidelines of

[R.C.] 2929.11 and the seriousness and recidivism factors under [R.C.] 2929.12.”

(Aug. 15, 2011 J.E.) Finding no error in the trial court’s imposition of sentence,

the first assignment of error is overruled.

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{¶27} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/jlr

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