[Cite as State v. Mohamed, 2017-Ohio-9012.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                 Nos. 102398 and 103602




                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                         SHUAIB A. HAJI MOHAMED
                                                      DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-14-585924-A

        BEFORE:          Stewart, P.J., Boyle, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: December 14, 2017
ATTORNEYS FOR APPELLANT

Mark A. Stanton
Cuyahoga County Public Defender

Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113

Also Listed:

Marcus S. Sidoti
Jordan & Sidoti L.L.P.
50 Public Square, Suite 1900
Cleveland, OH 44113

Joseph V. Pagano
P.O. Box 16869
Rocky River, OH 44116


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

Kelly N. Mason
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

       {¶1} This appeal is before us on remand from the Ohio Supreme Court. See

State v. Mohamed, Slip Opinion No. 2017-Ohio-7468 (“Mohamed II”).

       {¶2} A jury found defendant-appellant Shuaib A. Haji Mohamed guilty of gross

sexual imposition, attempted gross sexual imposition, two counts of kidnapping, and one

count of attempted rape. On direct appeal, we overruled six assignments of error, but

reversed the conviction for kidnapping and ordered a new trial. State v. Mohamed, 8th

Dist. Cuyahoga Nos. 102398 and 103602, 2016-Ohio-1116 (“Mohamed I”). We held

that the jury should have been instructed on R.C. 2905.01(C)(1), which states that a

conviction for kidnapping shall be lowered by one degree if the victim is released in a

safe place unharmed, because the evidence showed that the victim was released in a safe

place and suffered no physical harm. We noted case law finding that psychological harm

is not the type of harm considered for purposes of the statutory analysis. Id. at ¶ 36.

With there being no evidence that the victim suffered physical harm, we concluded that

the defense was ineffective for failing to seek a jury instruction and that the trial court

committed plain error by not giving the instruction for the jury to consider. Id. at ¶ 37.

Because the reversal on the kidnapping count1 required a new trial, we found it mooted

consideration of Mohamed’s eighth assignment of error that the court erred by ordering


            There were actually two counts of kidnapping that would have been affected by our
       1


decision.
consecutive service of the sentences imposed for kidnapping and attempted rape. Id. at ¶

46.

       {¶3} The Supreme Court reversed in Mohamed II. It held that the word “harm”

under R.C. 2905.01(C)(1) is not limited to physical harm, therefore psychological harm is

contemplated by the statute. Mohamed II, at ¶ 13-15. It then concluded that trial

counsel’s failure to request a safe-place-unharmed instruction was trial strategy. Id. at ¶

25. It also found that the trial court did not commit plain error by failing to provide the

jury instruction on its own initiative.    Id. at ¶ 28.   It reinstated the conviction for

kidnapping and remanded the case to this court for consideration of Mohamed’s eighth

assignment of error relating to consecutive sentences. Id. at ¶ 30.

       {¶4} In his eighth of assignment of error, Mohamed complains that the court erred

by ordering consecutive service of the ten-year sentence for kidnapping and the five-year

sentence for attempted rape.     Mohamed concedes that the court made the required

findings in support of consecutive sentences, but argues that (1) the court erred by

considering “six arrests involving alcohol” to be a criminal record, and (2) the length of

his sentence is disproportionate to his conduct given that both the state and the victim

agreed prior to sentencing that they would recommend a five-year sentence in exchange

for Mohamed waiving his right to appeal.

       {¶5} To order consecutive service of sentences, the court must make three separate

findings under R.C. 2929.14(C)(4). The first two findings are common to all consecutive

sentences — that (1) consecutive service is necessary to protect the public from future
crime or to punish the offender, and (2) that consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public. See R.C. 2929.14(C)(4). The third finding varies from

case-to-case: (a) the offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed pursuant to

section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under postrelease

control for a prior offense; (b) at least two of the multiple offenses were committed as

part of one or more courses of conduct, and the harm caused by two or more of the

multiple offenses committed was so great or unusual that no single prison term for any of

the offenses committed as part of any of the courses of conduct adequately reflects the

seriousness of the offender’s conduct; or (c) the offender’s history of criminal conduct

demonstrates that consecutive sentences are necessary to protect the public from future

crime by the offender.

      {¶6} Mohamed argues that the record does not support a finding that his history of

criminal conduct demonstrates that consecutive sentences are necessary to protect the

public from future crime that he might commit. He maintains that when defense counsel

told the court that Mohamed had “no criminal background whatsoever,” the court took

issue with that statement, telling Mohamed that “in fact, you do have a criminal record.

One[,] two, three, four, five, six arrests involving alcohol; some of them involving

driving. That it’s clear that, you know, you’re a danger to the community.” This record

of arrests caused the court to conclude that Mohamed was a “danger to the community.”
Tr. at 1290. Mohamed argues that alcohol-related arrests do not make him a danger to

the public.

       {¶7} Mohamed fails to recognize that the court did not impose consecutive

sentences because of his history of criminal conduct — it imposed consecutive sentences

because at least two of the multiple offenses were committed as part of one or more

courses of conduct, and the harm caused by two or more of the multiple offenses

committed was so great or unusual that no single prison term for any of the offenses

committed as part of any of the courses of conduct adequately reflects the seriousness of

Mohamed’s conduct. The court clearly stated this on the record: “The harm occasioned

on the victim is so great and unusual, in this case, and I heard all the facts of the case.

That a single term would not adequately punish you.” Mohamed’s argument about his

alcohol-related arrests is irrelevant to the court’s actual findings.

       {¶8} Mohamed next claims that a 15-year sentence is “clearly disproportionate to

sentences imposed on similarly situated offenders.” This argument erroneously conflates

the proportionality requirement of R.C. 2929.14(C)(4) with sentencing consistency under

R.C. 2929.11(B) (a sentence should be “consistent with sentences imposed for similar

crimes committed by similar offenders.”). See State v. Carson, 8th Dist. Cuyahoga No.

102424, 2015-Ohio-4183, ¶ 7. “R.C. 2929.14(C)(4) does not direct the trial court to

compare sentences between similarly situated offenders in making the required

proportionality analysis.”     State v. Dennison, 10th Dist. Franklin No. 14AP-486,

2015-Ohio-1135, ¶ 20.
       {¶9} Finally, Mohamed argues that his 15-year sentence failed to take into account

the state’s willingness to accept a far lower sentence: a pretrial offer by the state would

have had Mohamed plead guilty to a fourth-degree gross sexual imposition and

third-degree count of abduction with “a presumption of probation” and a post-trial offer

would have had Mohamed agree to waive his appellate rights in exchange for a five-year

sentence.

       {¶10} The court had no obligation to sentence Mohamed consistent with the terms

of a pretrial plea offer because he rejected the offer. State v. Rahab, 150 Ohio St.3d 152,

2017-Ohio-1401, 80 N.E.3d 431, ¶ 15. In addition, the court made it clear to Mohamed

before trial that any sentence it imposed if Mohamed were to be tried and found guilty

would be based on additional details about the case. Mohamed thus has no argument that

the court was somehow bound to sentence him within the parameters of a rejected plea

offer. State v. Paul, 8th Dist. Cuyahoga No. 79596, 2002 Ohio App. LEXIS 551, 40

(Feb. 14, 2002) (“It would be counterintuitive to think that the court is somehow bound to

the sentence limits discussed in the plea negotiations, even though [the plea offer] had

been rejected by the accused.”).

       {¶11} There was no agreement to a post-trial sentencing offer to recommend a

five-year sentence. At sentencing, defense counsel told the court that he and the state

discussed potential sentences with the hope that the victim would agree to a

recommended sentence. Defense counsel told the court that those discussions resulted in

the state agreeing to recommend a five-year sentence. The state agreed that it discussed
a post-trial sentencing deal in which Mohamed would accept a five-year sentence and

waive his right to appeal so that the victim would not have to go through another trial.

The state told the court that the victim was “okay” with the offer. That offer, however,

was rejected by the victim when she submitted a letter asking the court to impose the

“max sentence” on Mohamed. The court noted that the victim’s decision to submit a

letter in which she asked the court to impose the maximum sentence “clearly indicated

what she felt about the case and there’s clearly been no agreement with respect to a

recommended sentence.” The court had no obligation to sentence Mohamed consistent

with the terms of a post-trial agreement that did not exist.

       {¶12} Judgment affirmed.

       It is ordered that appellee recover of appellant the costs herein taxed.

       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.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, PRESIDING JUDGE

MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR
