State v. Mohamed

Appeal from the Licking County Court of Common Pleas, Case No. 2019 CR 00718

For Plaintiff-Appellee:

WILLIAM C. HAYES

LICKING COUNTY PROSECUTOR

PAULA M. SAWYERS

ASSISTANT PROSECUTING ATTORNEY

For Defendant-Appellant:

JAMES A. ANZELMO

JUDGES: Hon. Craig R. Baldwin, P.J. Hon. W. Scott Gwin, J. Hon. Patricia A. Delaney, J.

OPINION

Delaney, J.

{¶1} Defendant-Appellant Mohamed A. Mohamed appeals his conviction and sentence for Tampering with Evidence and Vandalism by the Licking County Court of Common Pleas. Plaintiff-Appellee is the State of Ohio.

FACTS AND PROCEDURAL HISTORY

Rear End Accident with a Car and a Building

{¶2} On March 13, 2019, Defendant-Appellant Mohamed A. Mohamed was involved in a minor rear end traffic accident with another car, which caused minimal damage to Mohamed's vehicle and the other car. Witnesses observed Mohamed and the other driver exchange information, and the other driver appeared to take photos of the damage with his cell phone. The other driver then left the scene.

{¶3} After the other driver left the scene, police officers responded to the report of an accident around 12565 National Road in Pataskala, Licking County, Ohio. The officers spoke to Mohamed who informed them that a car had rear ended him and then took off. The officers noted that Mohamed's vehicle appeared to have struck more than just another vehicle due to the heavy rear end damage.

{¶4} Shortly thereafter, the police officers were notified that Mohamed had backed his vehicle into a building located at 12565 National Road approximately three times and then left the scene. Officers were able to obtain the photos taken by the other driver in the original accident, which showed only minor damage to Mohamed's car after the original accident. There was substantial damage to the building amounting to $7, 200 for exterior repair and debris removal. Mohamed admitted to being in the area of the damaged building.

Licking County Municipal Court Proceedings

{¶5} On March 13, 2019, Mohamed was arrested and charged with the first-degree misdemeanor offense of hit/skip involving realty in violation of R.C. 4549.03. He entered a plea of not guilty to the charge in the Licking County Municipal Court. The matter was set for a jury trial.

{¶6} Mohamed entered a change of plea to guilty. On May 23, 2019, the Licking County Municipal Court held a change of plea hearing where it accepted the plea and moved directly to sentencing. It imposed a sentence of 120 days incarceration with 119 days suspended and one day jail time credit; one year probation; 100 hours of community service; and six months driver's license suspension. (Judgment Entry, May 23, 2019, Licking County Municipal Court, Case No. 19 TRD 2559). The municipal court ordered that restitution be held in abeyance for further review and hearing.

{¶7} The continued hearing was held on June 18, 2019. Mohamed did not appear for the hearing. The municipal court found the State presented testimony and documents in support of "restitution amount net of insurance coverage." It ordered restitution in the amount of $1, 000 to be paid through adult probation. (Judgment Entry, June 18, 2019, Licking County Municipal Court, Case No. 19 TRD 2559).

Common Pleas Proceedings

{¶8} On September 12, 2019, Mohamed was indicted by the Licking County Grand Jury on one count of tampering with evidence, a third-degree felony in violation of R.C. 2921.12(A)(1), and one count of vandalism, a fifth-degree felony in violation of R.C. 2909.05(B)(1)(a) based on the events that occurred on March 13, 2019. Mohamed entered a not guilty plea to the charges.

Motion to Dismiss

{¶9} Mohamed filed a Motion to Dismiss on January 6, 2020. In his motion, he argued the felony charges should be dismissed because Mohamed already plead and was found guilty by the Licking County Municipal Court to the charge of hit/skip involving realty, which arose out of the same incident and set of facts. The State, Mohamed alleged, failed to expressly reserve the right to bring further charges against him when he entered his plea and was found guilty by the Licking County Municipal Court. Mohamed had a reasonable belief at the time of his plea that it would have the effect of terminating the incident and no further charges would be brought. In support of his argument, Mohamed cited to State v. Carpenter, 68 Ohio St.3d 59, 623 N.E.2d 66 (1993), for the proposition that when a court accepts a negotiated plea, the State is precluded from prosecuting the defendant for additional charges unless the State expressly reserves the right to file additional charges on the record at the time of the defendant's plea. In support of his motion, he submitted as exhibits the Licking County Sheriff Department's crash report, the Licking County Sheriff Department's field case report, and a copy of the Licking County Municipal Court docket for Case No. 19 TRD 2559.

{¶10} The State filed its response to the Motion to Dismiss on January 23, 2020. It argued the holding in State v. Carpenter was inapplicable to the matter because the record in the Licking County Municipal Court proceedings did not show that Mohamed changed his plea based on a negotiated plea agreement with the State. It provided the trial court with exhibits from the municipal court proceedings, including the video of the Mohamed's change of plea hearing and the filed entries related to Mohamed's change of plea. The State argued the facts in State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d 542, were on point with the circumstances of Mohamed's plea. There was no evidence that any promises were made to Mohamed that his change of plea to guilty in the municipal court proceedings would preclude subsequent felony charges. Further, after applying the "same elements test" to the three charges resulting from the incident, double jeopardy did not bar prosecution.

{¶11} The trial court denied the Motion to Dismiss on February 4, 2020. It found the State did not reserve the right to pursue further charges, but Mohamed did not bargain for a release from further charges resulting out of the incident. The trial court further applied the same elements test to the charges of hit/skip involving realty, tampering with evidence, and vandalism. It found no similar elements between the three charges, and none were the lesser-included offenses of the others.

Change of Plea and Sentencing

{¶12} On June 9, 2020, Mohamed changed his plea to no contest to the charges of tampering and vandalism. The Admission of No Contest filed on June 9, 2020 stated in pertinent part: "Defendant will file appeal of denial of motion to suppress and no additional charges stemming from this incident." A change of plea hearing was held where the trial court accepted Mohamed's change of plea to no contest and found him guilty of the charges. The sentencing hearing was deferred for the completion of a presentence investigation.

{¶13} The sentencing hearing was held on August 4, 2020 with the Sentencing Entry journalized the same day. At the sentencing hearing, Mohamed requested the trial court impose community control sanctions, rather than a jail term. The trial court found that Mohamed did not complete his presentence investigation packet. It also found that Mohamed had been charged with theft in March 2019, had two drunk driving charges, and incurred a charge of theft while released on bond in the present case. The trial court sentenced Mohamed to 15 months in prison for tampering with evidence and 12 months in prison for vandalism, to be served concurrently. While the damages to the building were estimated at $7, 200, the State asked for $1, 000 in restitution, which was the amount of the insurance deductible. Mohamed argued that restitution was ordered in the municipal court case, but he did not know the amount. The trial court ordered Mohamed pay $7, 200 in restitution.

Anders

{¶14} A Notice of Appeal was filed on September 2, 2020. Original appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, rehearing den., 388 U.S. 924. By judgment entry filed March 4, 2021, this Court found a meritorious issue existed as to whether the trial court erred in overruling Mohamed's motion to dismiss the indictment based on double jeopardy grounds. We allowed appellate counsel to withdraw and ordered the trial court to appoint replacement appellate counsel.

{¶15} It is from this factual and procedural history that Mohamed now appeals.

ASSIGNMENTS OF ERROR

{¶16} Mohamed raises three Assignments of Error:

{¶17} "I. THE TRIAL COURT ERRED BY DENYING MOHAMED'S MOTION TO DISMISS THE FELONY CHARGES OF VANDALISM AND TAMPERING WITH EVIDENCE BECAUSE THE CONVICTIONS FOR THOSE CHARGES VIOLATED THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND BECAUSE MOHAMED WAS PREVIOUSLY CONVICTED, PURSUANT TO A PLEA BARGAIN, OF A CHARGE STEMMING FROM THE INCIDENT GIVING RISE TO THE FELONY CHARGES.

{¶18} "II. THE TRIAL COURT ERRED WHEN IT SENTENCED MOHAMED TO PRISON, INSTEAD OF COMMUNITY CONTROL, IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO CONSTITUTION.

{¶19} "III. THE TRIAL COURT UNLAWFULLY ORDERED MOHAMED TO PAY RESTITUTION, IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE TO THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION."

ANALYSIS

I. Double Jeopardy

{¶20} In his first Assignment of Error, Mohamed contends the trial court erred in denying his motion to dismiss the tampering with evidence and vandalism charges as being in violation of his double jeopardy protections. We disagree.