State v. Dari
2013 Ohio 4189
Ohio Ct. App.2013Background
- Khalil Dari was indicted on 21 counts involving trafficking and possession of synthetic drugs and other controlled substances, plus a gun-under-disability (HWUD) charge.
- Plea agreement: Dari pleaded guilty to an amended trafficking count (third-degree felony for a reduced weight) and HWUD; remaining counts were dismissed.
- The trial court ordered a presentence investigation report, reviewed it, and heard allocution from Dari and his counsel before sentencing.
- At sentencing the court referenced facts in the presentence report and its perception that Dari sold synthetic drugs (including “bath salts”) at his Sunoco station and had a gun on site; the court expressed strong disapproval of such sales to the community.
- The court imposed concurrent 30-month prison terms (within statutory maximum for a third-degree felony) and gave credit for time served; Dari appealed asserting the court relied on improper/unchallenged facts and denied an opportunity to rebut new information.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court relied on improper or clearly erroneous facts in sentencing | State: Court may consider presentence report and underlying police file facts when sentencing after a plea | Dari: Court based sentence on crimes not charged/convicted (e.g., "bath salts" trafficking) and on a belief he committed more serious offenses | Held: Court may consider underlying facts from presentence report even if plea reduced charges; sentencing was within statutory range and not contrary to law |
| Whether Dari was denied opportunity to rebut new information relied on at sentencing | State: Dari was afforded allocution and counsel spoke; court relied on presentence report and known criminal history, not new undisclosed facts | Dari: Court introduced/relied on new factual characterizations (bath salts, place frequented by teens) and did not let him respond to those characterizations | Held: Defendant had allocution; information was not new (was in presentence report/police file); no requirement to permit further comment after sentence pronounced |
Key Cases Cited
- Defiance v. Cannon, 70 Ohio App.3d 821 (1991) (allocution satisfied where defendant and counsel know each has a right to speak before sentence)
- State v. Bowser, 186 Ohio App.3d 162 (2010) (trial court may consider underlying facts despite plea bargain when imposing sentence)
- State v. Yates, 195 Ohio App.3d 33 (2011) (distinguishing reliance on new, undisclosed information at sentencing)