[Cite as State v. Kami,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 19 CAC12 0065 : DHAN KAMI : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware Municipal Court, Case No. 19 TRC 10812

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: October 29, 2020

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

AMELIA BEAN-DEFLUMER MARK J. MILLER 70 North Union St. 555 City Park Ave. Delaware, OH 43015 Columbus, OH 43215 Delaware County, Case No. 19CAC120065 2

Delaney, J.

{¶1} Appellant Dhan Kami appeals from the November 12, 2019 Judgment Entry

of the Delaware Municipal Court. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following statement of facts is taken from appellee’s statement at the

change-of-plea and sentencing hearing on November 12, 2019.

{¶3} This case arose in Delaware County on August 10, 2019, when appellant

operated a motor vehicle, traveled off the right side of the roadway, and crossed marked

lanes of travel. An officer attempted to stop the vehicle but it failed to respond to lights

and sirens and traveled another mile before stopping. Appellant was found to be the

operator of the vehicle. Based upon his interactions with appellant, the officer asked

appellant to submit to field sobriety testing and appellant complied. As a result of the field

sobriety tests, appellant was arrested for O.V.I. Appellant agreed to submit to a breath

alcohol test and the result was .198.

{¶4} Appellant was charged by Uniform Traffic Ticket (U.T.T.) with one count of

O.V.I. pursuant to R.C. 4511.19(A)(1)(a) [Count I], one count of O.V.I. pursuant to R.C.

4511.19(A)(1)(h) [Count II], and one count of marked lanes pursuant to R.C. 4511.33

[Count III].

{¶5} On August 14, 2019, appellant appeared for arraignment and entered pleas

of not guilty. The “Journal Entry/Magistrate Decision” of that date notes, e.g., “Need

Nepali interp.”

{¶6} The matter proceeded to a pretrial hearing on September 4, 2019, at which

appellant was represented by counsel. The “Journal Entry Criminal/Traffic Pre-trial Delaware County, Case No. 19CAC120065 3

Conference Memorandum” of that date notes discovery was incomplete because defense

counsel needed to view the video of the traffic stop, and a plea offer was made to O.V.I.

A handwritten notation states, “Counsel for Defendant to inspect video b/f accepting

offer.”

{¶7} The matter was scheduled for a change-of-plea hearing on November 12,

2019.

{¶8} On November 12, 2019, an “Appointment and Oath of Interpreter” was filed.

This document states the defendant does not speak English and his spoken language is

Nepali; identifies the interpreter by name [Devi Sharma]; and provides the interpreter’s

address and telephone number. The form includes an “Oath of Interpreter” stating the

following:

* * * *.

The undersigned having been duly sworn says:

I will make a true interpretation of the herein proceedings and

I will truly, fully, and accurately translate and repeat the statements

made during the proceedings to the best of my ability.

I am fluent in the following languages:

Language: English, Native: No; Years spoken if not native: 35

Language: Nepali; Native: Yes

I have the following special language training: [blank]

I have no interest in the outcome of these proceedings and I

am not related to, or associated with any of the witnesses or parties

in the case except as follows: [blank] Delaware County, Case No. 19CAC120065 4

I have conversed with the non English (sic) speaking person

identified herein. I certify said person speaks the language shown

above with which I am fluent. I am able to accurately provide

translation to and from English. I will not divulge to any person any

information regarding attorney-client communications.

/s/ Devi Sharma

Sworn to an subscribed in my presence on

November 12, 2019

/s/ Donna Brown

Bailiff

{¶9} On November 12, 2019, appellant changed his plea to guilty upon Count I,

O.V.I. pursuant to R.C. 4511.19(A)(1)(a). Appellee dismissed Counts II and III. The trial

court sentenced appellant to, e.g., 180 days in jail with 177 suspended on the condition

that appellant attend a 3-day Driver Intervention Program.

{¶10} Appellant now appeals from the trial court’s judgment entry of November

12, 2019.

{¶11} Appellant raises three assignments of error:

ASSIGNMENTS OF ERROR

{¶12} “I. THE TRIAL COURT ERRED IN FAILING TO SWEAR IN THE

INTERPRETER, VERIFYING THE INTERPRETER’S CREDENTIALS, AND

ESTABLISHING THAT THE INTERPRETER WAS FLUENT IN BOTH THE ENGLISH

AND NEPALI LANGUAGES PRIOR TO USING THE INTERPRETER FOR

INTERPRETATION DURING THE APPELLANT’S PLEA HEARING.” Delaware County, Case No. 19CAC120065 5

{¶13} “II. THE TRIAL COURT ERRED IN ACCEPTING THE APPELLANT’S

GUILTY PLEA.”

{¶14} “III. THE APPELLANT WAS DEPRIVED [OF] EFFECTIVE ASSISTANCE

OF COUNSEL.”

ANALYSIS

I., II.

{¶15} Appellant’s first and second assignments of error are related and will be

considered together. Appellant argues the trial court did not properly swear in the

interpreter, verify the interpreter’s credentials or establish the interpreter’s fluency in

English and Nepali. Appellant also argues the trial court erred in accepting his guilty plea.

We disagree.

Appellant’s plea of guilty to petty misdemeanor

{¶16} Pursuant to Ohio Crim. R. 11(E), “[i]n misdemeanor cases involving petty

offenses the court may refuse to accept a plea of guilty or no contest, and shall not accept

such pleas without first informing the defendant of the effect of the plea of guilty, no

contest, and not guilty.* * * *.” Pursuant to Crim.R. 2(C) and 2(D), a “serious offense”

includes a misdemeanor “for which the penalty prescribed by law includes confinement

for more than six months,” and a petty misdemeanor is any other misdemeanor offense.

Here, appellant's OVI charge was a first-degree misdemeanor punishable by up to 180

days in jail; therefore, a petty misdemeanor. R.C. 4511.19(G)(1)(a). The trial court was

required only to inform appellant of the effect of his guilty plea, “i.e., that his guilty plea

was a complete admission of guilt.” State v. Faulkner, 2nd Dist. Champaign No. 2013-

CA-43,

, ¶ 14. Delaware County, Case No. 19CAC120065 6

{¶17} Appellant argues the trial court “failed to specifically inquire whether the

plea was being offered voluntarily,” did not address appellant personally, and failed to

advise appellant of the potential penalties involved as a consequence of his guilty plea.

As noted supra, the trial court was obligated only to advise appellant of “the effect of the

plea being entered,” and the issue posed here is whether the trial court satisfied this

requirement.

{¶18} In Newark v. Monk, 5th Dist. Licking No. 07 CA 132,

, we looked to the decision of the Ohio Supreme Court in State v. Jones,

,

,

, at paragraphs one and two of the syllabus,

for guidance as to how a trial court must advise a defendant of “the effect of the plea

being entered”:

In accepting a plea to a misdemeanor involving a petty

offense, a trial court is required to inform the defendant only of the

effect of the specific plea being entered. Crim.R. 11(E) construed.

To satisfy the requirement of informing a defendant of the

effect of a plea, a trial court must inform the defendant of the

appropriate language under Crim.R. 11(B).

{¶19} Crim.R. 11(B), captioned “Effect of guilty or no contest pleas”, states as

follows: With reference to the offense or offenses to which the plea is entered: (1) The

plea of guilty is a complete admission of the defendant's guilt. (2) The plea of no contest

is not an admission of defendant's guilt, but is an admission of the truth of the facts alleged

in the indictment, information, or complaint, and the plea or admission shall not be used

against the defendant in any subsequent civil or criminal proceeding. (3) When a plea of Delaware County, Case No. 19CAC120065 7

guilty or no contest is accepted pursuant to this rule, the court, except as provided in

divisions (C)(3) and (4) of this rule, shall proceed with sentencing under Crim.R. 32.

{¶20} In the instant case, the record reveals the following colloquy:

* * * *.

THE COURT: Before I can accept any plea, I need to make

sure you understand your constitutional rights, Mr. Kami. Did you

read through this form and go over your rights with your attorney?

THE INTERPRETER: Yes, Your Honor.

THE COURT: And do you have any questions about your

rights?

THE INTERPRETER: No, Your Honor.

THE COURT: [Defense trial counsel], do you wish me to go

through any rights more formally?

DEFENSE TRIAL COUNSEL: No, we wouldn’t. We went

extensively over them.

THE COURT: Very good. Mr. Kami, in understanding your

rights, do you now wish to waive or give them up and enter a guilty

plea today?

THE INTERPRETER: Yes, Your Honor.

THE COURT: Do you understand that a guilty plea is a

complete admission of your guilt, that you acknowledge your guilt and

accept legal consequences that flow from your actions?

THE INTERPRETER: Yes, Your Honor. Delaware County, Case No. 19CAC120065 8

THE COURT: Do you understand the maximum penalties

you’re facing here today?

THE INTERPRETER: Yes, Your Honor.

THE COURT: Do you understand the minimum penalties that

you’re facing here today?

THE INTERPRETER: Yes, Your Honor.

THE COURT: Do you understand that sentencing is

completely up to me?

THE INTERPRETER: Yes, Your Honor.

THE COURT: Do you understand that if you’re not a United

States citizen, any plea of conviction could result in your deportation,

your exclusion from admission into the United States, and/or denial of

naturalization under United States laws?

THE INTERPRETER: Yes, Your Honor.

THE COURT: Do you understand or has anybody promised

you anything or threatened you to get you to admit here today or plea

here today?

THE INTERPRETER: No, Your Honor.

THE COURT: And are you under the influence of drugs or

alcohol here today?

THE INTERPRETER: No, Your Honor. I’m not drinking

anything.

THE COURT: All right. Very good. * * * *. Delaware County, Case No. 19CAC120065 9

T. 4-6.

{¶21} The form referenced by the trial court is a “Waiver of Rights/Plea

Agreement/Plea” filed November 12, 2019, signed by appellant and defense trial counsel.

That form acknowledges the rights appellant waived by entering his plea of guilty to one

count of O.V.I. See, Newark v.

.

{¶22} Although appellant does not reference Crim.R. 11(B) in his argument, he

acknowledges he entered a plea of guilty to a petty offense. We understand his argument

to be, therefore, that the trial court’s colloquy above did not effectively inform appellant of

the effect of his plea of guilty. We have previously found a trial court’s failure to recite the

language of Crim.R. 11(B) explaining the effect of a plea to be harmless. State v.

Robinson, 5th Dist. Stark No. 2013CA00244,

. Appellant’s

summary arguments do not specify how the trial court erred, much less how appellant

was prejudiced. Because the rights contained in Crim.R. 11(B) and 11(E) are

nonconstitutional, appellant must show that he suffered some prejudice from the court's

omission.

The test for prejudice is “whether the plea would have otherwise been

made.” State v. Griggs,

, 2004–Ohio–4415,

, ¶ 12,

citing State v. Nero,

,

(1990). Appellant does not

argue he was prejudiced by the trial court's alleged failure to advise him of the effect of

his guilty plea and there is no evidence of prejudice apparent on the record.

. Appellant was represented by counsel throughout the case, including the

guilty plea. The record further demonstrates that at no time did appellant communicate

to the trial court that he was confused or lacked understanding as to the implications of

entering a guilty plea or the rights he would be waiving. We note this is a plea to a first- Delaware County, Case No. 19CAC120065 10

time O.V.I., albeit with a high breath test, and appellant received standard first-time O.V.I.

penalties. The minor misdemeanor traffic offense was dismissed.

{¶23} Based on the foregoing, we find the trial court advised appellant of the

“effect” of his plea as required by Crim.R. 11(E). Appellant was advised that, by pleading

guilty, he was completely admitting his guilt. State v. Beamer, 5th Dist. Coshocton No.

05CA004,

, citing State v. Henry, 5th Dist. Ashland No.

,

. The trial court, in accepting the plea, orally advised appellant of his

rights during a dialogue with appellant.

citing State v. Kasmer, 5th Dist.

Muskingum No. CT2002-0048,

(Nov. 21, 2003).

The role of the interpreter, his oath, and his qualifications

{¶24} Appellant’s argument regarding the voluntariness of his guilty plea, though,

is intertwined with his argument that the interpreter was not properly sworn by the trial

court. As noted in the plea colloquy supra, the interpreter, not appellant, responded to

the trial court’s questions.

{¶25} “[I]n a criminal case the defendant is entitled to hear the proceedings in a

language he can understand.” State v. Pina,

,

(2nd Dist. 1975). The trial court has the discretion to determine whether the defendant

requires an interpreter for assistance. State v. Saah,

,

(8th Dist. 1990). In order to find an abuse of discretion, the reviewing court must

determine that the trial court’s decision was unreasonable, arbitrary, or unconscionable

and not merely an error of law or judgment. Blakemore v. Blakemore,

,

(1983). Delaware County, Case No. 19CAC120065 11

{¶26} We first note the record does not contain any written or oral motion by

appellant to appoint an interpreter; the need for a Nepali interpreter arose at arraignment

as reflected by the notation in the judgment entry. “[W]hether a party or witness is entitled

to an interpreter is initially based on the trial court's assessment of their apparent ability

to comprehend and communicate in English.” State /City of Toledo v. Abdugheneima, 6th

Dist. Lucas No. L-17-1013,

, citing State v. Luna–Corona v.

Esquivel–Parrales, 12th Dist. Butler No. CA2008–07–175, 2009–Ohio–2628, ¶ 10,

internal citation omitted.

{¶27} The “Appointment and Oath of Interpreter” filed November 12, 2019

contains a sworn affidavit of the interpreter in the instant case. Appellant argues the trial

court failed to administer an oath on the record, did not assess the interpreter’s

qualifications, and did not confirm that the interpreter was fluent in both English and

Nepali. We note the Appointment and Oath of Interpreter attests to each of these

requirements, and that appellant raised no objection thereto before the trial court.

{¶28} Appointment of interpreters is addressed by the Rules of Evidence, the Ohio

Revised Code, and the Rules of Superintendence. Evid.R. 604 states that “[a]n

interpreter is subject to the provisions of these rules relating to the qualification as an

expert and the administration of an oath or affirmation that he will make a true translation.”

Although Evid.R. 604 provides that “an interpreter be administered an oath or affirmation

that [he] will make a true translation [,] * * * [t]he primary concern regarding a ‘functionary’

such as an interpreter is one of qualification[s], not veracity or fidelity.” State v. Razo, 9th

Dist. No. 03CA008263,

,

,

, Delaware County, Case No. 19CAC120065 12

citing State v. Ruiz, 9th Dist. No. 16063,

(Mar. 16, 1994) and United

States v. Perez,

(C.A.5, 1981).

{¶29} Under the mandates of Evid.R. 604, an interpreter must qualify as an expert

under Evid.R. 702, which provides:

If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to determine a

fact in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form of

an opinion or otherwise.

{¶30} R.C. 2311.14(B) provides that “before entering upon official duties, the

interpreter shall take an oath that the interpreter will make a true interpretation of the

proceedings to the party or witness, and that the interpreter will truly repeat the statements

made by such party or witness to the court, to the best of the interpreter's ability.”

{¶31} In addition, Ohio Sup.R. 88(D) “provides a hierarchy for preferred

candidates: (1) a Supreme Court of Ohio certified foreign language interpreter; (2) a

provisionally-qualified foreign language interpreter; (3) a language-skilled foreign

language interpreter; and (4) telephonic interpreter.” State v. Gaspareno,

,

, ¶ 63 (3d Dist.), citing Sup.R. 88(D)(1)-(4). Ultimately, the trial court shall

administer an oath or affirmation to a foreign language interpreter that the interpreter will

make an accurate and true interpretation. R.C. 2311.14(B); Sup.R. 88(I).

{¶32} It is not clear from the record how the need for an interpreter first arose,

although it is evident the trial court took note of this at the arraignment. The record is

silent regarding the interpreter until the date of the guilty plea, when the “Oath of Delaware County, Case No. 19CAC120065 13

Interpreter” was filed. Appellant raised no objection at any point to the interpreter’s

qualifications in the trial court and has again waived the right to claim error on appeal

regarding the expert qualification of the interpreter. State v. Rosa,

,

(8th Dist. 1988); In re M.A.P., 12th Dist. Butler No. CA2012-08-164,

; In re Marriage of Beynenson, 11th Dist. Geauga No. 2012-G-3066,

;

, citing State v. Mejia, 8th Dist. Cuyahoga No.

72716,

(Sept. 3, 1998) [failure to object to trial court's failure to

administer oath to interpreter waives the issue on appeal].

{¶33} An appellate court need not consider error which a party could have called

to the trial court's attention when such error could have been avoided or corrected. See,

State v. Hammock, 5th Dist. Richland No. 18CA27,

. We have

referred to waiver as an intentional relinquishment of a known right. Starner v. Starner,

5th Dist. Holmes No. 10CA001,

, ¶ 21, citing State ex rel. Wallace v. State

Med. Bd. Of Ohio,

, 2000–Ohio–213,

. Under the

invited-error doctrine, a party will not be allowed to take advantage of an error that he or

she has invited or induced the trial court to make.

citing State ex rel. Beaver v.

Kontech,

, 1998–Ohio–295,

.

{¶34} We will therefore address the process by which the trial court used this

interpreter according to plain error. If no objection is raised as to the qualifications of the

interpreter, the usage of a language-skilled interpreter instead of a certified or

provisionally qualified interpreter, or to the ability of the interpreter to effectively interact

with appellant, we apply a plain-error standard of review. State v. Barrie,

,

, ¶ 31 (10th Dist.), citing State v. Noor, 10th Dist. No. 13AP–165, 2014- Delaware County, Case No. 19CAC120065 14

Ohio-3397,

, ¶ 72, internal citation omitted; see also, State v. Esqueda,

10th Dist. Franklin No. 96APA01–118 (September 30, 1996), State v. Rosa ,

,

(8th Dist. 1988), State v. Rivera ,

,

(11th Dist. 1994). Plain error under Crim.R. 52(B) consists of an obvious error

or defect in the trial proceedings that affects a substantial right. State v. Lindsey,

,

(2000). Pursuant to Crim.R. 52(B), “plain errors or defects

affecting substantial rights may be noticed although they were not brought to the attention

of the court.” The rule places several limitations on a reviewing court's determination to

correct an error despite the absence of timely objection at trial: (1) “there must be an error,

i.e., a deviation from a legal rule,” (2) “the error must be plain,” that is, an error that

constitutes “an ‘obvious’ defect in the trial proceedings,” and (3) the error must have

affected “substantial rights” such that “the trial court's error must have affected the

outcome of the trial.” State v. Dunn, 5th Dist. No. 2008-CA-00137,

,

, internal citation omitted. The decision to correct a plain error is discretionary

and should be made “with the utmost caution, under exceptional circumstances and only

to prevent a manifest miscarriage of justice.” State v. Long,

,

(1978), paragraph three of the syllabus.

{¶35} Appellant does not allege any wrongdoing by the interpreter. His

assignment of error is premised solely upon the trial court’s failure to follow the

procedures outlined in R.C. 2311.14 and Sup.R. 88. This argument is insufficient to

describe plain error. In State v. Newcomb, 10th Dist. Franklin No. 03AP-404, 2004-Ohio-

4099, at ¶ 24-25, the Tenth District Court of Appeals noted that if no evidence exists as

to impropriety or mistakes or falsehoods by the interpreter, an appellant fails to show plain Delaware County, Case No. 19CAC120065 15

error where the trial court did not properly swear the interpreter or evaluate his or her

qualifications:

The alleged failure to administer the oath does not constitute

plain error. There is no evidence in the record or presented by

appellant that the interpreter failed to either make a truthful

interpretation of the proceedings to appellant or truly repeat the

statements made by appellant to the court, to the best of the

interpreter's ability. As such, any alleged error in failing to administer

the oath to the interpreter does not affect the fairness, integrity, or

public reputation of appellant's plea. As such, plain error is not

present.

Also, the alleged failure to qualify the interpreter as an expert

witness does not constitute plain error. There is no evidence which

indicates the interpreter was not qualified to interpret American sign

language. As such, the fact the interpreter was not qualified as an

expert witness does not undermine or call into question the fairness,

integrity, or public reputation of appellant's plea.

{¶36} Simply asserting procedural error in the appointment of an interpreter is not

enough. State v. Cedeno-Guerrero, 8th Dist. Cuyahoga No. 108097,

[appellant failed to assert or establish interpreter was not qualified, or lacked

appropriate credentials or certifications, or did not adequately translate proceedings, or

that appellant misunderstood translations, and thus failed to overcome his burden of

showing obvious error in the proceedings]. Appellant has not pointed to any evidence or Delaware County, Case No. 19CAC120065 16

raised any argument that the interpreter was not properly qualified or lacked veracity or

fidelity. See,

.

{¶37} Upon our review of the record, we conclude that the trial court did not err in

accepting appellant’s guilty plea and did not commit plain error in appointing the

interpreter. Appellant’s first and second assignments of error are therefore overruled.

III.

{¶38} In his third assignment of error, appellant argues he received ineffective

assistance of counsel because defense trial counsel failed to object or inquire as to the

interpreter’s oath and qualifications. We disagree.

{¶39} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently.

See, Strickland v. Washington,

,

,

(1984). In

assessing such claims, “a court must indulge a strong presumption that counsel's conduct

falls within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’ ”

,

, citing Michel v.

Louisiana,

,

,

(1955). “There are countless

ways to provide effective assistance in any given case. Even the best criminal defense

attorneys would not defend a particular client in the same way.” Strickland,

,

. The question is whether counsel acted “outside the wide range of

professionally competent assistance.”

,

.

{¶40} Even if a defendant shows that counsel was incompetent, the

defendant must then satisfy the second prong of the Strickland test. Under this “actual Delaware County, Case No. 19CAC120065 17

prejudice” prong, the defendant must show that “there is a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding would have been

different.” Strickland,

,

.

{¶41} Appellant’s failure to demonstrate prejudice in his first and second

assignments of error is also fatal to his third. Upon our review of the record, appellant

fails to demonstrate he was prejudiced by the alleged deficiencies in trial counsel's

performance. The record is devoid of any evidence to support a finding the interpreter did

not give a truthful interpretation of the proceedings, or that the interpreter was not qualified

to interpret during the proceedings. Newcomb, supra,

; State v.

Rivera,

,

(11th Dist. 1994).

{¶42} Appellant also summarily argues that counsel should not have waived the

requirement that the trial court address the constitutional rights appellant waived by

entering the guilty plea, but does not point to any deficiencies or how they influenced the

outcome. We find no reasonable probability that, but for trial counsel's alleged errors, the

result of the trial would have been different.

{¶43} Appellant’s third assignment of error is therefore overruled. Delaware County, Case No. 19CAC120065 18

CONCLUSION

{¶44} Appellant’s three assignments of error are overruled and the judgment of

the Delaware Municipal Court is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Baldwin, J., concur.