State v. Arab

2021 Ohio 3378

• Court: Ohio Court of Appeals
• Decided: September 24, 2021
• Docket: L-20-1119
• Status: Published

Opinion

[Cite as State v. Arab, 2021-Ohio-3378.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-20-1119

Appellee Trial Court No. CR0201401194

v.

Ray Abou Arab DECISION AND JUDGMENT

Appellant Decided: September 24, 2021

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

Laurel A. Kendall, for appellant.

DUHART, J.

{¶ 1} This case is before the court on appeal by appellant, Ray Abou Arab, from the

June 18, 2020 judgment of the Lucas County Court of Common Pleas. For the reasons that

follow, we affirm. Assignment of Error

Did the court abuse its discretion such that a manifest injustice

occurred when it denied appellant’s Motion to Withdraw Plea without an

evidentiary hearing based on arguably ineffective performance of

interpreters, when appellant’s first language is not English, the record does

not reflect that the interpreters communicated with him directly, and he

now alleges [he] did not understand the implications of his plea?

Background

{¶ 2} On January 26, 2014, a garage located at 528 Magnolia in Toledo, Lucas

County, Ohio, as well as two apartments attached to the garage, caught fire. Two

firefighters from the Toledo Fire Department, Private Stephen Machcinski and Private

James Dickman, died while fighting the fire.

{¶ 3} Appellant was the owner of 528 Magnolia and on or about February 7, 2014,

he was charged by way of indictment with two counts of aggravated murder, in violation

of R.C. 2903.01(B) and (F), with two death penalty specifications, two counts of murder,

in violation of R.C. 2903.02(B) and R.C. 2929.02, eight counts of aggravated arson, in

violation of R.C. 2909.02(A)(1), each a felony of the first degree, and one count of

tampering with evidence, in violation of R.C. 2921.12(A)(1) and (B), a felony of the third

degree. Appellant entered pleas of not guilty to all of the charges.

{¶ 4} Although, as stated in the trial court’s judgment entry, “it was represented to

the [trial] Court that [appellant] was able to effectively communicate with defense

2. counsel throughout the entire process – [and no] language barrier present[ed] itself to the

Court during previous proceedings,” the trial court appointed certified interpreters to

assist appellant during the trial and the plea hearing as the trial court understood that

“there’s some words that give [appellant] difficulty in translation.”

{¶ 5} The matter proceeded to a jury trial on April 24, 2017. During the trial,

interpreters were present in court. On May 11, 2017, the court granted a motion by the

defense for a mistrial. On that same date, appellant withdrew his pleas of not guilty and

entered pleas of guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160,

27 L.Ed.2d 162 (1970), to two counts of involuntary manslaughter, in violation of R.C.

2903.04(A), felonies of the first degree, and two counts of aggravated arson, in violation

of R.C. 2909.02(A)(1), also felonies of the first degree.

{¶ 6} At the plea hearing, interpreters were present in court. When appellant’s

attorneys were asked by the court if they had an opportunity to review the plea form with

appellant, appellant’s attorney represented to the court that they “used the interpreter,

who has been sworn throughout the course of [the] trial and remains under oath, to certify

that his assistance has been accurate and that the defendant has no questions about the

plea form, the substance of this proceeding *** as well as the other notifications in the

arson registration requirement ***.”

{¶ 7} The court went over the plea form with appellant and appellant responded to

the court’s questions in English. During this exchange, the court repeatedly questioned

appellant as to whether there were any language barriers, to which appellant consistently

3. responded in the negative. The court also informed appellant that “[i]f there are any

words that *** you need to have explained in a different way or explained in your birth

language, then go ahead and stop the Court and ask the question of your translator. I’ll

have the translator speak back to me what was requested.”

{¶ 8} After the court explained to appellant the plea and the consequences thereof,

including the arson registration requirements, the court accepted the plea, found appellant

guilty and immediately proceeded to sentencing. The judge merged the aggravated arson

counts into the involuntary manslaughter counts and sentenced appellant to serve two

consecutive ten year sentences for the involuntary manslaughter counts.

{¶ 9} Appellant did not file a direct appeal of this sentence, nor did appellant file

any motion for postconviction relief.

{¶ 10} On April 7, 2020, appellant filed a pro se “Motion for Judicial Release” in

which he requested to withdraw his plea, arguing that that he did not understand that he

would be required to register as an arsonist for the remainder of his life and would not

have entered into the plea had he understood this. As the motion was entitled a motion

for a judicial release but the body of the motion requested that appellant be permitted to

withdraw his plea, on June 18, 2020, the trial court considered the motion both as a

request to withdraw pursuant to Crim.R. 32.1 and as a request for judicial release and

denied the motion under both theories.

{¶ 11} On July 17, 2020, appellant filed a pro se appeal to this court. Appellant

filed a pro se merit brief on August 20, 2020, and the state filed its brief on September 4,

4. 2020. On November 24, 2020, this court appointed an attorney to represent appellant for

purposes of this appeal and appellant’s pro se brief as well as the state’s brief were both

stricken. New briefs were then filed.

Analysis

{¶ 12} Appellant argues that the court abused its discretion by denying his motion

to withdraw plea without first conduct a hearing.1 He maintains that there are questions

of fact as to whether he understood the terms and conditions of the plea agreement as the

record does not show that the translation services were properly provided. As support,

appellant attached three affidavits to his appellate brief.

{¶ 13} Pursuant to Crim.R. 32.1, “[a] motion to withdraw a plea of guilty or no

contest may be made only before sentence is imposed; but to correct manifest injustice

the court after sentence may set aside the judgment of conviction and permit the

defendant to withdraw his or her plea.”

{¶ 14} As appellant’s motion was filed after sentencing, appellant is only entitled

to withdraw his plea to correct manifest injustice. The burden is on appellant to establish

manifest injustice. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph

one of the syllabus. “Manifest injustice” is defined as “a ‘clear or openly unjust act,’ and

relates to a fundamental flaw in the plea proceedings resulting in a miscarriage of

1 Appellant does not present any arguments regarding the trial court’s analysis when considering his motion as a request for judicial release. Thus, this court’s opinion is limited to the trial court’s consideration of appellant’s motion as a request to withdraw plea under Crim.R. 32.1.

5. justice.” (Citations omitted.) State v. Straley, 159 Ohio St.3d 82, 2019-Ohio-5206, 147

N.E.3d 623, ¶ 14. The term “has been variously defined, but it is clear that under such

standard, a postsentence withdrawal motion is allowable only in extraordinary cases.”

Id., quoting Smith at 264. One relevant factor which mitigates against granting the

motion is “an undue delay between the occurrence of the alleged cause for withdrawal

and the filing of the motion.” Id. at ¶ 15, quoting Smith at 264.

{¶ 15} We review the trial court’s denial of appellant’s motion under an abuse of

discretion standard. State v. Baranowski, 6th Dist. Williams No. WM-05-010, WM-05-

011, 2005-Ohio-6131, ¶ 5. “An abuse of discretion occurs when a court’s decision is

unreasonable, arbitrary or unconscionable.” State v. Bell, 6th Dist. Wood No. WD-19-

065, 2020-Ohio-3750, ¶ 20, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

{¶ 16} With respect to appellant’s contention that it was an abuse of discretion for

the trial court to deny his motion without a hearing, we note that a “trial court is not

required to hold a hearing on a postsentence motion to withdraw a plea if the facts alleged

by the defendant, even if accepted as true, do not demonstrate a reasonable likelihood that

withdrawal of the plea is necessary to correct a manifest injustice.” State v. Johnson, 6th

Dist. Lucas No. L-18-1214, 2019-Ohio-4613, ¶ 18, citing State v. Harmon, 6th Dist.

Lucas No. L-10-1195, 2011-Ohio-5035, ¶ 13.

{¶ 17} Initially, the state argues that the affidavits attached to appellant’s brief

must be stricken as they were not before the trial court. Appellant counters that the trial

6. court “opened the door” to the introduction of this additional evidence with the following

statement from the trial court’s judgment entry.

In addition, [appellant] has provided no claim based on evidence

outside of the record for the Court to consider. Since the Court finds that

there is 1) no manifest injustice to correct; 2) no evidence being provided

outside the record; and 3) no appeal or motion for post-conviction relief

being filed addressing these claims within the statutorily set time frames;

[appellant’s] claims under Crim.R. 32.1 are hereby barred by res judicata.

(Emphasis added.)

{¶ 18} “A reviewing court cannot add matter to the record before it, which was not

a part of the trial court’s proceedings, and then decide the appeal on the basis of the new

matter.” State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of

syllabus. Rather, we are “limited to what transpired in the trial court as reflected by the

record made of the proceedings.” Id. at 406. As the affidavits attached to appellant’s

brief were not before the trial court, we cannot consider them here. The trial court’s

statements do not otherwise allow us to consider these affidavits.

{¶ 19} The state also raises the general argument that statements made in

appellant’s pro se brief should be binding on appellant and that appellant should not be

permitted to make arguments contrary to statements made in his pro se brief. As we have

stricken appellant’s pro se brief, we will not consider statements made therein.

7. {¶ 20} With regard to the substance of appellant’s argument, we first find that

appellant’s motion is barred by the doctrine of res judicata. “The doctrine of res judicata

provides that ‘a final judgment of conviction bars a convicted defendant who was

represented by counsel from raising and litigating in any proceeding except an appeal

from that judgment, any defense or any claimed lack of due process that was raised or

could have been raised by the defendant at the trial, which resulted in that judgment of

conviction, or an appeal from the judgment.’” State v. Davis, 2020-Ohio-4539, 159

N.E.3d 331, ¶ 26 (6th Dist.), quoting State v. Miller, 12th Dist. Clermont No. CA2016-

08-057, 2017-Ohio-2801, ¶ 18. In the context of a Crim.R. 32.1 postsentencing motion

to withdraw a guilty plea, res judicata bars an appellant from raising claims could have

been raised on direct appeal.” Straley, 159 Ohio St.3d 82, 2019-Ohio-5206, 147 N.E.3d

623, at ¶ 23.

{¶ 21} Here, appellant’s arguments at the trial court level were based entirely upon

the record2 and, as such, were available at the time of a direct appeal. Appellant’s failure

to raise these claims on direct appeal precludes him from raising them now. See State v.

Cain, 6th Dist. Lucas No. L-20-1126, 2021-Ohio-1841, ¶ 12.

{¶ 22} We also find that appellant’s motion fails on the merits. Appellant argues

that there is a question of fact as to whether he entered into the plea and sentencing

2 While appellant attempted to add additional material on appeal, we are not permitted to consider this additional evidence.

8. agreement knowingly, intelligently, and voluntarily, as required by Crim.R. 11. In his

original motion, appellant alleged that he did not have adequate time to consider the plea

and that he did not understand the “real ramifications of the pleas,” including that he

would be required to register as an arsonist for the rest of his life. On appeal, appellant

maintains that there is a question as to whether appellant understood the plea and

sentencing proceedings as English is not his first language and the translation services

provided to him did not meet the requirements set forth in State v. Pina, 49 Ohio App.2d

394, 361 N.E.2d 262 (2d Dist.1975).

{¶ 23} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525, 527, 660

N.E.2d 450 (1996). We review the record to determine whether the plea is knowing,

intelligent and voluntary. State v. Never, 6th Dist. Lucas No. L-08-1076, 2009-Ohio-

1473, ¶ 71, citing State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992).

{¶ 24} After reviewing the record, we find appellant’s argument that he did not

understand the proceedings is not supported by the record. Appellant repeatedly denied

that there were any language barriers and declined any additional time to clarify anything

with his interpreter. Moreover, appellant conversed with the judge in English throughout

the proceeding and responded in the affirmative when asked whether he understood the

judge’s statements. Although we note that appellant once responded yes when the

9. appropriate answer was no, we do not find that one misstatement to be sufficient

evidence of manifest injustice when considered in the context of the entire transcript. 3

{¶ 25} Appellant takes issue with the fact that there is no evidence that the

interpreters translated the judge’s questions into Arabic for appellant and that the court

did not follow the procedure set forth in Pina, 49 Ohio App.2d 394, 361 N.E.2d 262. We

find it was not necessary for the interpreters to translate the judge’s questions as appellant

represented that he understood the questions as spoken in English. Further, the facts in

Pina were significantly different than in this case. In Pina, the defendants never spoke

English in court and could not converse with their attorneys without the assistance of an

interpreter. Id. at 395-96. Additionally, the record did not contain a direct translation of

3 Appellant has pointed to the following exchange as evidence that appellant did not understand the court proceedings.

THE COURT: Mr. Abou Arab, are you currently on felony probation, parole, or community control to any other court or jurisdiction?

THE DEFENDANT: Yes, Your Honor.

[APPELLANT’S ATTORNEY] No, no.

THE COURT: So, right now, you are in custody on this matter, but you’ve had no prior convictions?

THE DEFENDANT: No.

THE COURT: You are not on probation or community control or parole for any other cases, sir?

THE DEFENDANT: No, I’m not.

10. what the defendants said in any language. Id. at 396. Unlike the defendants in Pina, here

appellant was able to converse with both the court and his attorneys in English and

appellant’s responses at the plea hearing are in the record.

{¶ 26} We therefore find that appellant has not met his burden of showing that the

withdrawal of his plea is necessary to correct a manifest injustice. Further, as appellant

has not shown a manifest injustice, we find that the trial court did not abuse its discretion

by denying appellant's motion to withdraw his plea without a hearing. Appellant’s

assignment of error is not well-taken.

{¶ 27} The judgment of the Lucas County Court of Common Pleas is affirmed.

Pursuant to App.R. 24, appellant is hereby ordered to pay the costs incurred on appeal.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Myron C. Duhart, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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