[Cite as State v. Asadi-Ousley,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96668

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ASA ASADI-OUSLEY DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-537412, CR-537780, and CR-540397

BEFORE: E. Gallagher, J., Kilbane, P.J., and Stewart, J.

RELEASED AND JOURNALIZED: January 12, 2012 ATTORNEY FOR APPELLANT 2

Paul Mancino, Jr. 75 Public Square Suite 1016 Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: Vincent I. Pacetti Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

EILEEN A. GALLAGHER, J.:

{¶ 1} Defendant-appellant Asa Asadi-Ousley appeals convictions entered in the

Cuyahoga County Court of Common Pleas. Appellant argues that the trial court erred in

accepting his guilty pleas without first determining his competency, failing to inform him

of the effect of a guilty plea, imposing more than a minimum sentence without

considering statutory criteria, and failing to assess court costs in open court. For the

following reasons we affirm in part, reverse in part, and remand.

{¶ 2} Appellant was indicted in three separate cases. In CR-537412, appellant

was charged with burglary in violation of R.C. 2911.12(A)(4) (Count 1) including a 3

one-year firearm specification pursuant to R.C. 2941.141(A), and having weapons while

under disability in violation of R.C. 2923.13(A)(3) (Count 3). In CR-537780, appellant

was charged with two counts of aggravated robbery in violation of R.C. 2911.01(A)(1)

(Counts 1 and 2), which included one- and three-year firearm specifications pursuant to

R.C. 2941.141(A) and 2941.145(A), and two counts of kidnapping in violation of R.C.

2905.01(B)(2) (Counts 3 and 4), which included one- and three-year firearm

specifications. In CR-540397, appellant was charged with burglary in violation of

2911.12(A)(1) (Count 1), theft in violation of R.C. 2913.02(A)(1) (Count 2), robbery in

violation of R.C. 2911.02(A)(2) (Count 3), and kidnapping in violation of R.C.

2905.01(A)(2) (Count 4). Appellant initially pled not guilty to the charges.

{¶ 3} On September 10, 2010, at the request of appellant, the trial court referred

him to the court psychiatric clinic for evaluation of his competence to stand trial and

sanity at the time of the acts. On October 1, 2010 both the appellant and the state

stipulated to the psychiatric reports which found appellant to be incompetent to stand

trial at the time. The trial court referred appellant to North Coast Behavioral Healthcare

System for restoration to competency.

{¶ 4} On December 27, 2010 appellant was ordered to be returned from North

Coast Behavioral to stand trial. The record reflects that on February 7, 2011 both

defense counsel and the state stipulated to December 21, 2010 psychiatric reports that 4

appellant was competent to stand trial and sane at the time of the acts.

{¶ 5} On February 7, 2011, pursuant to a plea agreement, the state moved to

amend the indictment as follows.1 In CR-537412, Count 1 was amended to delete the

one-year firearm specification. Count 3 remained as indicted. In CR-537780, Count 1

was amended to delete the three-year firearm specification and Counts 2, 3 and 4 were

dismissed. In CR-540397, Count 3 was amended to robbery in violation of R.C.

2911.02(A)(3) and Counts 1, 2 and 4 were nolled. Appellant pled guilty to the above

counts as amended. Appellant was sentenced in CR-537412 to eighteen months on

Count 1 and five years on Count 3. In CR-537780 appellant was sentenced to five years

on Count 1 preceded by one year on the attached firearm specification. In CR-540397

appellant was sentenced to five years on Count 3. The trial court further ordered each of

the appellant’s terms to run concurrently to one another for an aggregate of six years in

prison, followed by a mandatory period of five years postrelease control. The court also

ordered appellant to pay restitution.

{¶ 6} Appellant’s first assignment of error states:

{¶ 7} Defendant was denied due process of law when the court accepted defendant’s pleas of guilty without first determining his competency.

1 In addition to the court’s journal entry regarding the parties’ stipulation to appellant’s competency, the trial court further noted that appellant had been found competent by North Coast Behavioral Healthcare System. 5

{¶ 8} Under Ohio law, “a person whose mental condition is such that he lacks

the capacity to understand the nature and object of the proceedings against him, to

consult with counsel, and to assist in preparing his defense may not be subjected to a

trial. The conviction of an accused while he is not legally competent to stand trial

violates due process of law.” (Internal citations omitted.) State v. Rubenstein,

,

(8th Cir. 1987).

{¶ 9} R.C. 2945.37(B) provides that the court, prosecutor, or defense may raise

the issue of the defendant’s competence to stand trial. If the issue is raised before the

trial has commenced, the court shall hold a hearing on the issue within 30 days after the

issue is raised, unless the defendant has been referred for evaluation in which case the

court shall conduct the hearing within 10 days after the filing of the report of the

evaluation. R.C. 2945.37(C).

{¶ 10} This court, however, has held that, “[t]he competency issue is one that can

be waived by the parties. A hearing is not required in all situations, only those where the

competency issue is raised and maintained.” State v. Smith, 8th Dist. No. 95505,

. In Smith we held that where a defendant stipulates to

competency, a trial court need not hold a hearing pursuant to R.C. 2945.37(B) because a

hearing is only needed to introduce evidence rebutting the presumption of competency 6

established in R.C. 2945.37(G).2 Id. at ¶6.

{¶ 11} In the case sub judice, by stipulating to the psychiatric report, appellant

conceded the competency issue and a further hearing was not required. Appellant’s first

assignment of error is overruled.

{¶ 12} Appellant’s second assignment of error states:

{¶ 13} “Defendant was denied due process of law when the court did not advise

defendant concerning the effect of a plea of guilty.”

{¶ 14} When accepting a plea of guilty in a felony case, the trial court is required

to inform the defendant of the effect of the plea. Crim.R. 11(C)(2)(b); State v. Jones,

,

,

. Crim.R.11(B) defines a guilty

plea as, “a complete admission of the defendant's guilt.”

{¶ 15} “The standard for reviewing whether the trial court accepted a plea in

compliance with Crim.R. 11(C) is a de novo standard of review. It requires an appellate

court to review the totality of the circumstances and determine whether the plea hearing

was in compliance with Crim.R. 11(C).” State v. Cardwell, 8th Dist. No. 92796,

2 We did recognize in Smith that “there may be situations where the defendant exhibits outward signs indicating the lack of competency that may necessitate a hearing regardless of any stipulation.” Smith at ¶5. As in Smith, that issue is not present in the current case nor does the record contain any evidence that appellant exhibited any such signs. 7

, ¶26, citing State v. Stewart,

,

(1977).

(Internal citations omitted.)

{¶ 16} The trial court’s duty to inform the defendant of the effect of the plea is a

nonconstitutional requirement of Crim.R. 11. State v. Griggs,

,

,

, citing State v. Nero,

,

(1990). With respect to the nonconstitutional requirements of Crim.R. 11,

as set forth in Crim.R. 11(C)(2)(a) and (b), reviewing courts shall consider whether there

was substantial compliance with the rule. State v. Veney,

,

,

. Substantial compliance means that under

the totality of the circumstances the defendant subjectively understands the implications

of his plea and the rights he is waiving.

citing Nero,

.

{¶ 17} Furthermore, a defendant must show prejudice before a plea will be

vacated for a trial court’s error involving Crim.R. 11(C) procedure when

nonconstitutional aspects of the colloquy are at issue. Veney, at ¶17. The test for

prejudice is whether the plea would have otherwise been made. Id.; see, also, State v.

Clark,

,

,

.

{¶ 18} In the present case, the record reveals that the trial court failed to strictly

comply with Crim.R. 11(C)(2)(b) in that the court did not specifically ask appellant if he

understood that his plea was a complete admission of his guilt. Nonetheless, the Ohio 8

Supreme Court has held that unless a defendant asserts “actual innocence” at the time of

his guilty plea, he is “presumed to understand that he has completely admitted his guilt,”

and “a court’s failure to inform the defendant of the effect of his guilty plea as required

by Crim.R. 11 is presumed not to be prejudicial.” State v. Griggs,

,

, syllabus; see, also, State v. Taylor, 8th Dist. No. 94569,

;

State v. Thomas, 8th Dist. No. 94788,

. Appellant did not assert “actual

innocence” during his plea proceeding. Additionally, appellant offers no argument as to

how he was prejudiced in any way by the trial court’s failure to determine if he

understood the effect of his guilty plea, nor is any prejudice apparent from the record.

{¶ 19} Appellant’s second assignment of error is overruled.

{¶ 20} Appellant’s third assignment of error states:

{¶ 21} “Defendant was denied due process of law when the court imposed more

than a minimum sentence without considering statutory criteria.”

{¶ 22} Appellant asserts that the trial court failed to properly consider the

purposes and principles of felony sentencing contained in R.C. 2929.11 or the

seriousness and recidivism factors of R.C. 2929.12.

{¶ 23} This court has recognized that we review felony sentences using the Kalish

framework. State v. Kalish,

,

,

; State

v. Brunning, 8th Dist. No. 95376,

. In Kalish, the Ohio Supreme 9

Court applied a two-prong approach to appellate review of felony sentences. Appellate

courts must first “examine the sentencing court’s compliance with all applicable rules

and statutes in imposing the sentence to determine whether the sentence is clearly and

convincingly contrary to law.” Kalish at ¶4. If this first prong is satisfied, then we review

the trial court’s decision under an abuse-of-discretion standard. Id. at ¶4 and ¶19.

{¶ 24} In the first step of our analysis, we review whether the sentence is contrary

to law as required by R.C. 2953.08(G). “[T]rial courts have full discretion to impose a

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

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

sentence.” Id. at ¶11, citing State v. Foster,

,

,

. The Kalish court declared that although Foster eliminated mandatory

judicial fact-finding, it left R.C. 2929.11 and 2929.12 intact. Kalish at ¶13. As a result,

the trial court must still consider these statutes when imposing a sentence. Id.

{¶ 25} R.C. 2929.11(A) provides that:

A court that sentences an offender 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. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.

{¶ 26} R.C. 2929.12 provides a nonexhaustive list of factors a trial court must 10

consider when determining the seriousness of the offense and the likelihood that the

offender will commit future offenses.

{¶ 27} The Kalish court also noted that R.C. 2929.11 and 2929.12 are not

fact-finding statutes like R.C. 2929.14. Kalish at ¶17. Rather, they “serve as an

overarching guide for trial judges to consider in fashioning an appropriate sentence.”

Id. Thus, “[i]n considering these statutes in light of Foster, the trial court has full

discretion to determine whether the sentence satisfies the overriding purposes of Ohio’s

sentencing structure.” Id.

{¶ 28} In the instant case, we do not find appellant’s sentence to be contrary to

law. The trial court sentenced appellant to concurrent sentences within the permissible

statutory range for his convictions. In the sentencing journal entry, the trial court

acknowledged that it had considered all factors of law and found that prison was

consistent with the purposes of R.C. 2929.11. On these facts, we cannot conclude that his

sentence is contrary to law.

{¶ 29} Having satisfied the first step, we next consider whether the trial court

abused its discretion. Kalish at ¶4 and ¶19. An abuse of discretion is more than an error

of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or

unconscionable. Id. at ¶19, quoting Blakemore v. Blakemore,

,

(1983), quoting State v. Adams,

, 404 N.E.2d 11

144 (1980).

{¶ 30} The trial court did not abuse its discretion in imposing a six year prison

sentence in the present case. The trial court allowed appellant and his counsel to

advocate a lighter sentence. The trial court noted certain mitigating circumstances in

the case including the fact that appellant had no juvenile record, had never served a

prison sentence, and one of the appellant’s robbery victims chose not to appear.

However, the trial court additionally noted that appellant committed the above offenses

while on probation to the court for drug trafficking. The trial court additionally took

notice of appellant’s North Coast Behavioral Healthcare report which indicated that he

suffered from a marijuana and cocaine dependency. Appellant himself attributed his

actions in robbing a victim of an automobile at gunpoint, CR-537780, to cocaine usage.

Finally the owner of the vehicle appellant stole described her fearfulness that appellant,

prior to being apprehended, retained possession of her keys, including keys to her home.

Her fears proved to be well founded as appellant did, in fact, return to her home from

where he stole her car only two days prior and was apprehended by police at that time.

We find nothing in the record to suggest that the trial court’s decision was unreasonable,

arbitrary, or unconscionable. A review of the record indicates that the trial court also

expressly stated that it had considered all factors of the law and found that prison was

consistent with the purposes and principles of R.C. 2929.11. Accordingly, appellant’s 12

third assignment of error is overruled.

{¶ 31} Appellant’s fourth assignment of error states:

Defendant was denied due process of law when the court did not assess court costs in open court and costs were assessed in the judgment entry.

{¶ 32} The state concedes the trial court erred in that its failure to address court

costs during the sentencing hearing denied appellant the opportunity to seek a waiver of

the payment of costs. Pursuant to State v. Joseph,

,

,

, the appropriate course in such an instance is a limited remand to the

trial court to allow appellant to move the court for a waiver of the payment of court

costs. Appellant’s fourth assignment of error is sustained.

{¶ 33} Accordingly, we reverse the trial court’s judgment as to costs and remand

the case to the trial court for a limited hearing on the issue of court costs.

{¶ 34} The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s conviction

having been affirmed, any bail pending appeal is terminated. A certified copy of this

entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE 13

MARY EILEEN KILBANE, P.J., and MELODY J. STEWART, J., CONCUR