[Cite as State v. Almosawi, 2012-Ohio-3385.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                           :

        Plaintiff-Appellee                              :        C.A. CASE NO.         24633

v.                                                      :        T.C. NO.        07CR3644

MAHDI ALMOSAWI                                          :            (Criminal appeal from
                                                                     Common Pleas Court)
        Defendant-Appellant                             :

                                                        :

                                               ..........

                                               OPINION

                         Rendered on the         27th       day of        July      , 2012.

                                               ..........

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

SHAWN P. HOOKS, Atty. Reg. No. 0079100, 131 N. Ludlow Street, Suite 630, Dayton,
Ohio 45420
      Attorney for Defendant-Appellant

                                               ..........

FROELICH, J.

                {¶ 1} Mahdi Al-Mosawi appeals from a judgment of the Montgomery

County Court of Common Pleas, which corrected an improperly imposed sentence for
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postrelease control. For the reasons discussed below, the judgment of the trial court will be

affirmed.

       {¶ 2}     In 2008, Al-Mosawi was convicted, on his guilty plea, of two counts of

attempted murder. His guilty pleas were entered after his trial began. He appealed from his

conviction, and we affirmed the trial court’s judgment and sentence. State v. Al-Mosawi, 2d

Dist. Montgomery No. 22890, 2010-Ohio-111. He also appealed, unsuccessfully, from a

decision of the trial court overruling his petition to vacate or set aside his sentence pursuant

to R.C. 2953.21. State v. Al-Mosawi, 2d Dist. Montgomery No. 23873, 2010-Ohio-5382.

       {¶ 3}     On March 24, 2011, the State filed a motion seeking to correct the judgment

entry of conviction with respect to the imposition of postrelease control and a motion

requesting that Al-Mosawi appear for resentencing via video conferencing equipment, as

permitted by R.C. 2929.191(C).       The trial court scheduled a hearing and ordered that

Al-Mosawi appear by video conferencing. Al-Mosawi’s attorney appeared in court for the

hearing.

       {¶ 4}     Two weeks before the hearing, Al-Mosawi filed a request for an interpreter,

because his “primary” language is Arabic. The trial court overruled the request for an

interpreter, noting that Al-Mosawi had participated in and understood prior proceedings

before the court without the need for an interpreter. Following the hearing, the trial court

filed a nunc pro tunc entry correcting its prior sentence of postrelease control, informing

Al-Mosawi that he would be subject to five years of postrelease control on each count after

his release from prison.

       {¶ 5}     Al-Mosawi appeals from the trial court’s nunc pro tunc termination entry,
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raising three assignment of error.

        {¶ 6}     Al-Mosawi’s first assignment of error states:

        The trial court abused its discretion when it conducted the hearing

        without an interpreter in spite of Mr. Al-Mosawi’s request when the

        record was clear that he could not understand the proceedings.

        {¶ 7}     Al-Mosawi contends that “it was apparent from [his] testimony at the

hearing that he did not understand what was taking place,” contrary to the trial court’s

conclusion, based on observing him at various court proceedings, that he did not need an

interpreter.    He notes that “he repeatedly stated that he did not understand what was

happening.”

        {¶ 8}     In a criminal case, the defendant is entitled to hear the proceedings in a

language that he can understand. State v. Castro, 2d Dist. Montgomery No. 14398, 1995

WL 558782, * 4 (Sept. 20, 1995), citing State v. Pina, 49 Ohio App.2d. 394, 399, 361 N.E.2d

262 (2d Dist.1975).     Moreover, R.C. 2311.14(A) requires that a trial court appoint an

interpreter for legal proceedings whenever a participant in the proceeding “cannot readily

understand or communicate” as a result of an impediment. See, also, Crim.R. 11(C).

        {¶ 9}     The trial court has broad discretion in determining whether a criminal

defendant requires the assistance of an interpreter. State v. Saah, 67 Ohio App.3d 86, 95, 585

N.E.2d 999 (8th Dist. 1990). Therefore, this court will not reverse the trial court’s decision

in this regard absent a showing that the trial court abused its discretion by acting

unreasonably, unconscionably, or arbitrarily. Id., citing, State v. Apanovitch, 33 Ohio St.3d

19, 22, 514 N.E.2d 394 (1987).
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                 The decision regarding whether a defendant is entitled to a court

       appointed language interpreter is initially based on the trial court’s assessment

       of the defendant’s apparent ability to comprehend the English language and

       communicate therein. See, State v. Quinones (Oct. 14, 1982), Cuyahoga App.

       No. CR-59478, unreported, citing Perovich v. United States (1907), 205 U.S.

       86 and Suarez v. Desist (1962), 309 F.2d 709. * * * [A]n imperfect grasp of

       the English language may be sufficient as long as the defendant has the ability

       to understand and communicate in English. See, Perovich, supra; Saah, supra;

       State v. Davis (May 7, 1981), Cuyahoga App. No. 42672, 42737, 42738,

       unreported.

Castro at * 4.

       {¶ 10}     In this case, the trial court responded to Al-Mosawi’s request for an

interpreter as follows:

                 * * * I denied your request for an interpreter. You have never had any

       difficulty understanding English while you’re [sic] been here in court. And, in

       fact, during your trial when I ordered that there be an interpreter present for

       you, the interpreter did not interpret. I repeatedly asked you if you were

       understanding what was happening and whether you needed the interpreter

       and you responded that you understood everything. At your sentencing, you

       spoke in English yourself, very clearly and very understandably.

                 In addition, sir, at your Motion to Suppress, I determined that you

       understood English, that you had no difficulty understanding English,
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        particularly as it related to the statement that you made to the police.

                 You have proceeded with your own appeals in this matter, in filing

        your own motions in English. And I have determined that, sir, you are not

        entitled to an interpreter if one is not needed. I have determined that it is not

        needed, sir, and I’ve overruled your request.

        {¶ 11}    It is apparent from this exchange that the trial court was very familiar with

Al-Mosawi’s language abilities and had a substantial history on which to base its conclusion

that he did not need an interpreter.

        {¶ 12}    Moreover, in Al-Mosawi’s direct appeal, we commented on his language

abilities as follows:

                 Although Al-Mosawi can speak and understand English to some

        extent, at his competency hearing, suppression hearing, trial, plea proceeding,

        and sentencing, the trial court qualified an English-Arabic interpreter (not

        always the same at each hearing) and swore in the interpreter.               The

        proceedings are recorded in the record as video records. In the proceedings we

        have watched in the video format (we have reviewed the entirety of the written

        transcripts of the proceedings), which includes the entire trial, plea and

        sentencing proceedings, the interpreter appears to be constantly interpreting

        the proceedings for Al-Mosawi, who does not appear to have any difficulty

        following the interpretation. In the plea hearing, when Al-Mosawi responds

        to the trial court’s questions, he does so directly, in English. At the sentencing

        hearing, when the time came for Al-Mosawi to address the trial court, he did
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        so directly, in English, in so much length that the trial court had to gently

        nudge him back to material matters at one point. (The trial court did not,

        however, cut him off at the sentencing hearing; Al-Mosawi was allowed to

        speak until he decided that he was done.)

State v. Al-Mosawi, 2d Dist. Montgomery No. 22890, 2010-Ohio-111, ¶ 16.

        {¶ 13}   Although there is some contradiction between our account and the trial

court’s about the extent to which Al-Mosawi relied on the interpreter during his trial, the plea

hearing, and the sentencing hearing, it is undisputed that he had been able to interact directly

with the court and had made lengthy statements to the court, in English. In light of these

circumstances, we cannot conclude that the trial court abused its discretion in finding that

Al-Mosawi did not need an interpreter to understand the resentencing related to postrelease

control.

        {¶ 14}   The first assignment of error is overruled.

        {¶ 15}   Al-Mosawi’s second assignment of error states:

        Mr. Al-Mosawi’s Sixth Amendment rights and rights guaranteed under

        Article I, Section 10 of the Ohio Constitution were violated when the

        court conducted the hearing via video conferencing over Mr. Al-Mosawi’s

        objection.

       {¶ 16}     Al-Mosawi contends that his resentencing hearing related to postrelease

control was a “critical stage” of the proceedings, and that his constitutional rights were

violated when the trial court ordered that the resentencing be conducted via video

conferencing, because “a fair and just hearing” could not be had in his absence.
                                                                                            7

       {¶ 17}     A trial court must apply the procedures contained in R.C. 2929.191 to

remedy any postrelease control error occurring in a sentence imposed on or after July 11,

2006. State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, paragraph

two of the syllabus. R.C. 2929.191 requires a trial court to hold a hearing before issuing a

corrected sentencing entry. R.C. 2929.191(C) provides, in pertinent part, as follows:

                Before a court holds a hearing pursuant to this division, the court shall

       provide notice of the date, time, place, and purpose of the hearing to the

       offender who is the subject of the hearing, the prosecuting attorney of the

       county, and the department of rehabilitation and correction. The offender has

       the right to be physically present at the hearing, except that, upon the court’s

       own motion or the motion of the offender or the prosecuting attorney, the

       court may permit the offender to appear at the hearing by video conferencing

       equipment if available and compatible. An appearance by video conferencing

       equipment pursuant to this division has the same force and effect as if the

       offender were physically present at the hearing. * * *

       {¶ 18}     A criminal defendant has a fundamental right to be present at all critical

stages of his criminal trial. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d

864, ¶ 100; Sixth and Fourteenth Amendments to the United States Constitution; Ohio

Constitution, Article I, Section 10. “However, a criminal defendant’s absence ‘does not

necessarily result in prejudicial or constitutional error.’ State v. Davis, 116 Ohio St.3d 404,

880 N.E.2d 31, 2008-Ohio-2, ¶ 90. See also State v. Reed, 10th Dist. No. 09AP-1164,

2010-Ohio-5819, ¶ 13.”          State v. Morton, 10th Dist. Franklin           No. 10AP-562,
                                                                                            8

2011-Ohio-1488, ¶ 18. The presence of a defendant is a condition of due process to the

extent that a fair and just hearing would be thwarted by his absence. Id., citing Davis at ¶ 90

and Snyder v. Massachusetts, 291 U.S. 97, 107-108, 54 S.Ct. 330, 333, 78 L.Ed. 674(1934);

see also State v. Morris, 10th Dist. Franklin No. 10AP-512, 2011-Ohio-5484, ¶15. Therefore,

a defendant’s absence in violation of Crim.R. 43(A) can constitute harmless error where he

suffered no prejudice, even though such absence was improper. Morton at ¶ 18; Morris at ¶

15.

       {¶ 19}    In this case, any error in regard to Al-Mosawi’s physical presence at the

hearing was clearly harmless. The five-year term of postrelease control ordered by the court

was mandatory. Al-Mosawi spoke with his attorney privately before the court went on the

record to reimpose postrelease control, and Al-Mosawi did not ask to speak with counsel

again in response to anything that transpired at the hearing. Counsel addressed the court on

Al-Mosawi’s behalf with regard to sentencing, and Al-Mosawi was also allowed to address

the court.

       {¶ 20}    Although Al-Mosawi suggests that the videoconferencing exacerbated his

language difficulties, the trial court flatly rejected his claim that he had any trouble

understanding the proceedings, and there is nothing in the record to suggest that

videoconferencing did, in fact, make the proceedings more difficult for Al-Mosawi to

understand. Nothing in the record indicates that any additional information could have been

submitted on Al-Mosawi’s behalf or that his physical presence at the hearing would have

affected the outcome.

       {¶ 21}    The second assignment of error is overruled.
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       {¶ 22} Al-Mosawi’s third assignment of error states:

       The trial court erred when it deprived Mr. Al-Mosawi the opportunity to

       address the error in sentencing him to PRC on each count of attempted

       murder when the two counts are allied offenses of similar import.

       {¶ 23}    Al-Mosawi recognizes that our “limited remand” required the trial court to

revisit only the issue of postrelease control, but he argues that such limited action was “not

sufficient,” because the trial court failed to merge allied offenses in his original sentence, and

therefore improperly imposed two mandatory terms of postrelease control for those offenses.

       {¶ 24}    Even assuming, for the sake of argument, that Al-Mosawi’s sentences were

allied offenses of similar import, the trial court’s failure to merge them at the time of

sentencing resulted, at most, in a voidable sentence, not a void sentence. State v. Parson, 2d

Dist. Montgomery No 24641, 2012-Ohio-730, ¶ 9.             Arguments challenging a voidable

sentence must be raised on direct appeal. Id. at ¶ 10, citing State v. Simpkins, 117 Ohio

St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 30. The doctrine of res judicata bars any

argument challenging a voidable sentence that could have been raised on direct appeal, but

was not. Id.

       {¶ 25}    Moreover, R.C. 2967.28(F)(4)(c) provides that, “[i]f an offender is subject

to more than one period of post-release control, the period of post-release control for all of

the sentences shall be the period of post-release control that expires last, as determined by the

parole board or court. Periods of post-release control shall be served concurrently and shall

not be imposed consecutively to each other.” Thus, there was no practical effect of the

imposition of two identical terms of postrelease control, and no prejudice to Al-Mosawi.
                                                                    10

       {¶ 26} The third assignment of error is overruled.

       {¶ 27}   The judgment of the trial court will be affirmed.

                                        ..........

GRADY, P.J. and HALL, J., concur.

Copies mailed to:

R. Lynn Nothstine
Shawn P. Hooks
Hon. Mary Katherine Huffman
