STATE OF OHIO v. ASA ASADI-OUSLEY
No. 96668
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 12, 2012
[Cite as State v. Asadi-Ousley, 2012-Ohio-106.]
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
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098
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 сourt 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 reаsons 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
{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 psyсhiatric 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
{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
{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.
{9}
{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, 2011-Ohio-2400, at ¶ 5. In Smith we held that where a defendant stipulates to competency, a trial court need not hold a hearing pursuant to
{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 аssignment 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.
{15} “The standard for reviewing whether the trial court accepted a plea in compliance with
{16} The trial court‘s duty to inform the defendant of the effect of the plea is a nonconstitutional requirement of
{17} Furthermore, a dеfendant must show prejudice before a plea will be vacated for a trial court‘s error involving
{18} In the present case, the record reveals that the trial court failed to strictly comply with
{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 purposеs and principles of felony sentencing contained in
{23} This court has recognized that we review felony sentences using the Kalish framework. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124; State v. Brunning, 8th Dist. No. 95376, 2011-Ohio-1936, at ¶ 16. In Kalish, the Ohio Supreme
{24} In the first step of our analysis, we review whether the sentence is contrary to law as required by
{25}
A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing[,] * * * tо 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 сrime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
{26}
{27} The Kalish court also noted that
{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
{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, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 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 Hеalthcare 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 aрpellant 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 hе 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
{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, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, 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 tо 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
MARY EILEEN KILBANE, P.J., and MELODY J. STEWART, J., CONCUR