State v. Gaspareno

2016 Ohio 990

• Court: Ohio Court of Appeals
• Decided: March 14, 2016
• Docket: 9-15-15
• Status: Published

Opinion

[Cite as State v. Gaspareno, 2016-Ohio-990.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 9-15-15

v.

CRISTINO GASPARENO, OPINION

DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court Trial Court No. 14-CR-535

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

Date of Decision: March 14, 2016

APPEARANCES:

Brian G. Jones for Appellant

Denise M. Martin for Appellee Case No. 9-15-15

ROGERS, J.

{¶1} Defendant-Appellant, Cristino Gaspareno, appeals the judgment of the

Court of Common Pleas of Marion County convicting him of one count of

trafficking in heroin and sentencing him to 12 months in prison. On appeal,

Gaspareno argues that the trial court erred by (1) considering statements made by

Gaspareno’s co-defendants, Sandra Luiz Vera Sanchez and Manuel Guerra,

contained in their sealed presentence investigations (“PSI”) for the purposes of

sentencing Gaspareno; (2) failing to inform Gaspareno that the trial court was not

bound by any sentencing agreement between the State and Gaspareno; (3)

imposing a mandatory three-year period of post-release control; and (4) failing to

properly qualify the court interpreter, Pedro Coe. For the reasons that follow, we

affirm in part, reverse in part, and remand for further proceedings.

{¶2} On November 25, 2014, a felony complaint was filed in the Marion

Municipal Court against Gaspareno1, charging him with one count of complicity to

trafficking in heroin with a specification in violation of R.C. 2923.03,

2925.03(A)(1), and 2925.03(C)(6), a felony of the first degree. The Marion

County Grand Jury returned a two count joint indictment against Guerra,

Gaspareno, and Sanchez on December 3, 2014.2 Gaspareno was charged with the

1 The original complaint and the later indictment charged “Cristinoher Gaspareno.” At a later date, the State was permitted to amend the complaint and indictment to correct the spelling error to Cristino. 2 The first count charged Guerra solely, thus we will not discuss it.

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same exact crime. Additionally, two separate forfeiture specifications were filed.

The forfeiture specifications sought the forfeiture of a 2002 Buick Rendezvous

and $4,675 in cash. As a result of the indictment, the State moved to transfer the

case to the Court of Common Pleas of Marion County, which was granted on

December 4, 2014. Gaspareno entered a plea of not guilty.

{¶3} The State filed a bill of particulars on December 29, 2014, where it

alleged that Gaspareno and his co-defendants met up with two confidential

informants and sold the informants 26.3 grams of black tar heroin in exchange for

$1,600.

{¶4} The court held a pretrial on December 29, 2014. Present in the

courtroom were the judge, prosecutor, all three co-defendants with separate

defense counsel3, and Coe. At the onset, Coe indicated that he would be

performing interpreter services for all three co-defendants during the pretrial.

After introducing all three cases on the record, the trial court stated, “Also present

with the Defendants is certified interpreter Pedro Coe who has performed - -

providing interpretation services for the Defendants today.” Dec. 29, 2014 Hrg.,

p. 2. Coe was then sworn in by the court.

{¶5} After introducing Coe, the trial court addressed all three co-defendants

and explained that Coe would be providing interpreter services throughout all the

3 Brian Jones representing Gaspareno; David Lowther representing Guerra; and Jon Doyle representing Sanchez.

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court proceedings. The trial court asked each co-defendant if he or she

understood. Coe stated that Sanchez “nods her head in affirmative.” Id. at p. 3.

Mr. Guerra stated, “Um-hum.” Id. The record is silent as to whether Gaspareno

gave any audible or visual indication as to his understanding of Coe’s role.

{¶6} Throughout the hearing, the court discussed procedural issues such as

discovery and whether the cases would be tried together. While the court and all

counsel were discussing a letter allegedly written by Guerra to Sanchez, the

following exchange occurred.

Lowther: From what I’ve received I’ve not seen anything that would I guess - - okay - -

Coe: They stated that that - -

Lowther: No. No. No.

Doyle: I don’t want them saying anything. I don’t want my client saying anything. Unless you run it by me.

Court: Right. Right. If there’s something they want to communicate to their attorney we can allow ya [sic] to communicate that to their attorney. I don’t want you to communicate it out in open Court.

Coe: Okay. No problem.

***

Court: Just so we’re clear, you know, I assume you’re still interpreting here. I kind of - -

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Coe: I stopped, you know, after what you said you know, “Hold on”. Do you guys want me to keep saying - -

Court: No, I want you to - - I want you to con - -

Coe: Okay. Usually what I do I tell them everything that is said as if they would be, you know, their native language and they would know what is going on in the room.

Court: No, right. You should be - - everything that is said here in the courtroom you should be commun - -

Coe: I’m just saying - - okay. Okay. I just stopped for a couple minutes because you said that - -

Court: But - - but if they wanna say something I don’t want you saying out in Court what the Defendants have to say.

Coe: No problem. Okay. Okay. Okay, Your Honor.

Court: Now, the – the other issue that - - the other issue and I think Mr. Jones raises it here. As an interpreter all you’re doing is repeating what is said. You know you’re not sharing any information that any individuals have said, you know, with anyone. You know, it would be inappropriate for you to share with anyone other than an individual Defendant’s counsel anything that Defendant has told you or any conversation that’s taken place between an attorney and the client. It’d also be inappropriate to share anything you overheard from any of the attorneys. Do you have any issue with any of that, Mr. Coe?

Coe: No, Your Honor, may I say I usually - - best way for me to say I had almost like a priest and a confessionary. I can the saint or I can tell - - (inaudible) - - but I can’t tell both. So I cannot tell any of them something I heard from the other person.

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Court: Okay. And you can’t tell the Prosecutor either.

Coe: No. No. Nobody. I mean, it dies with me.

Id. at p. 15, 17-18.

{¶7} Additional objections were raised by different counsel regarding

Coe’s ability to remain objective. In vouching for Coe, the court noted that Coe

had served as an interpreter for approximately the last ten years or so without any

problems. Coe responded that he would perform his job objectively. The court

and counsel concluded the hearing by discussing other details of the case,

including potential trial dates that worked for everyone. During this discussion,

the following exchange occurred.

Court: If we have multiple Defendants, we will have a separate interpreter for each Defendant during trial.

Lowther: For each, okay.

Court: For pretrial I didn’t think that was necessary. You know, for the Suppression hearing, I’ll need at least two interpreters because if we have any Defendant testifying we’re gonna need a separate interpreter for that testifying Defendant. So we’ll have to arrange for two interpreters at least for the Suppression Hearing.

Lowther: And that could come into play at trial as well.

Court: The trial, we’ll need three. We’ll need one for every Defendant.

Id. at p. 32.

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{¶8} The court held another pretrial on January 27, 2015. Present in the

courtroom were the judge, prosecutor, all three co-defendants with separate

counsel, and Coe, serving as the interpreter. The trial court reminded Coe that he

was still under oath, and Coe acknowledged the same. At the onset, the court

asked Coe, “Are you still interpreting for them?”, and Coe replied, “Yeah.” Jan.

27, 2015 Hrg., p. 2.

{¶9} At this hearing, the court tried to clear up some issues with the case.

The court, prosecutor, and counsel for the co-defendants engaged in a lengthy

discussion regarding a translation of the letter written by Guerra to Sanchez. The

prosecutor and Jones conceded that the letter was not of any significance to

Gaspareno, although Jones stated that he might be able to use the letter to

Gaspareno’s advantage.

{¶10} The only significant part of the pretrial that concerned Gaspareno

was that Jones raised an issue regarding bench notes from a Bureau of Criminal

Investigations lab technician. The court ordered that the State provide those notes

to Jones. The pretrial concluded after a new trial date was chosen.

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{¶11} Negotiations continued between Gaspareno and the State, and,

ultimately, Gaspareno agreed to plead guilty to a lesser charge of trafficking in

heroin in violation of R.C. 2925.03(A)(1) & (C)(6), a felony of the fifth degree.4

{¶12} A change of plea hearing was held on February 10, 2015. Present in

the courtroom were the judge, prosecutor, Gaspareno and his counsel, and Coe

serving as the interpreter. At the beginning of the hearing, the trial court stated,

“Mr. Coe is [sic] previously been qualified and appointed as an interpreter in this

case.” Feb. 10, 2015 Hrg., p. 1. Coe was then sworn in by the court. When asked

if he had any questions regarding Coe’s service, Gaspareno replied that he did not.

{¶13} Next, the State indicated that Gaspareno would be pleading guilty to

an amended charge of trafficking in heroin. Specifically, references to the weight

and the crime being committed within the vicinity of a juvenile would be removed.

The State recommended that Gaspareno be placed on community control for a two

year period.

{¶14} The court proceeded to engage in a colloquy with Gaspareno. The

record notes that, “Thereupon, all questions directed to [Gaspareno] by the

Court were translated to [Gaspareno] by Mr. Coe, answered by [Gaspareno,]

and relayed back to the Court through the Interpreter, Mr. Coe.” (Emphasis

4 We note that the Entry of Guilty Plea form has the case caption as “The State of Ohio v. Cristinoher Gaspareno.” (Docket No. 36, p. 1). We find that this is a simple clerical error and has no bearing on the case.

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sic.) Id. at p. 6. Gaspareno indicated that he understood that he was to ask the

court to clarify anything that seemed confusing. Gaspareno stated that he could

not read or write English, could read and write some Spanish, but very little,

although he indicated that he could understand spoken Spanish. Gaspareno told

the court that he understood Coe’s interpretations.

{¶15} Gaspareno indicated that he had time to talk with his attorney and

that his attorney had advised him of his constitutional rights, the nature of the

offense, and the consequences of pleading guilty. He also stated that he was

satisfied with this advice.

{¶16} The court asked the State to present what the evidence would have

shown had the case gone to trial. Specifically, the State said that “[Gaspareno]

was aware that the Heroin was to be sold to the Confidential Informants that day

but was not aware of the amount of the Heroin that was sold.” Id. at p. 8. The

court asked the State what was the specific allegations as to Gaspareno’s

participation, and the State responded, “That when they left the residence in

Columbus, Ohio that [Gaspareno] knew that there would be Heroin sold to two

confideni - - or excuse me, to two individuals in Waldo, Ohio. That he

participated in the sale of that. That although he may not have arranged that - -[.]”

Id. at p. 8-9. The State was briefly interrupted but continued.

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Prosecutor: - - that he may not have arranged that sale by phone but that he knew the purpose of going to Marion, Ohio, or excuse me, Marion County, was for the sale of Heroin. That he was a part of that and my understanding for the confidential - - from the confidential informants is when these sales take place there is more than one individual that’s always present. There’s always another man along for the buy. That thee [sic] Defendant, Mr. Gaspareno, again, knew the heroin was to be sold and that he acted, I guess, as a - - a second, if you will, in the transaction.

Court: Sounds like the allegation is is [sic] that he’s there providing additional security. Is that it?

Prosecutor: That would be correct.

Court: Okay. Any disagreement with those facts, Mr. Jones?

Jones: No, sir.

Id. at p. 9.

{¶17} The court asked Gaspareno if he understood that he was pleading to

knowingly assisting another person in selling heroin, and Gaspareno replied that

he understood. The court explained that his plea could result in a possible prison

sentence of up to 12 months and a fine of up to $2,500, and Gaspareno stated that

he understood. The court told Gaspareno that he could be placed on a term of

post-release control for up to three years, and he said he understood. The court

also explained the other possible penalties, and Gaspareno indicated he

understood. The court told Gaspareno that he could have a trial instead of

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pleading guilty and that the State would have to prove the case beyond a

reasonable doubt, and he stated he understood. The court explained the rest of

Gaspareno’s constitutional rights, and he said he understood. Then, the following

exchange occurred.

Court: Do you also understand that upon a plea of guilty I could proceed immediately to sentencing and that sentencing is up to me?

Coe: Yes.

Court: Have any promises or threats been made to you to get you to plead guilty?

Coe: No.

Id. at p. 13. Gaspareno stated that he was pleading guilty voluntarily and that he

signed the Entry of Guilty Plea form after it was read to him and that he

understood the contents of the form.

{¶18} Jones stated that he was satisfied with the conclusion that Gaspareno

was entering the plea voluntarily, that Gaspareno fully understood his rights, the

nature of the offense, and the consequences of pleading guilty. Jones said that he

had the full opportunity to communicate with Gaspareno with the assistance of

Coe, an interpreter.

{¶19} The court asked Gaspareno if he had any questions about what was

covered at the hearing so far, and he stated that he had no questions.

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{¶20} The court accepted Gaspareno’s plea as being knowingly,

voluntarily, and intelligently entered. Next, the court referred the matter to the

Probation Department to conduct a PSI. Finally, Gaspareno did not declare an

interest in any of the property subject to the forfeiture specifications.

{¶21} The Entry of Guilty Plea form was filed on February 11, 2015. By

signing, Gaspareno acknowledged, among other things, that “[his] constitutional

and statutory rights [were] explained to [him] by the Judge and by [his] attorney.

[He had] reviewed the facts and law of [his] case with [his] attorney.” (Docket

No. 36, p. 1). Gaspareno’s signature appears twice on the form as well as that of

his counsel Jones.

{¶22} A sentencing hearing was held on March 5, 2015. Present in the

courtroom were the judge, prosecutor, Gaspareno and his counsel, and Coe,

serving as the interpreter. At the onset of the hearing, the court stated, “Also

present is certified Court Interpreter, Mr. Pedro Coe.” Mar. 5, 2015 Hrg., p. 1.

Then, Coe was sworn in by the court. The court asked Gaspareno if he was “able

to understand the proceedings with the assistance of the interpreter?” Id. The

record is silent as to whether Gaspareno gave either an audible or visual response.

The next portion of the transcript states, “Thereupon, all questions directed to

[Gaspareno] by the Court were translated to [Gaspareno] by Mr. Coe,

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answered by [Gaspareno], and relayed back to the Court through

Interpreter, Mr. Coe.” (Emphasis sic.) Id.

{¶23} The State recommended that Gaspareno be placed on community

control sanctions and that $414 of the $4,675 forfeiture specification be

surrendered as a drug fine, noting that Gaspareno claimed no interest in the $4,261

remaining from the original total. The first forfeiture specification, involving the

car, was dismissed. The State also moved to amend the property in the second

forfeiture specification from $4,675 to $4,261.

{¶24} Jones argued that the court should impose the joint recommendation

of the State and the defense and impose community control sanctions. He also

stated that the money seized from Gaspareno should be applied to either a fine or

court costs.

{¶25} The trial court stated that it had considered the purposes and

principles of sentencing, the PSI, and the record. As to recidivism factors, the

court noted that it was hard to tell how those factors weighed since no one was

able to positively confirm Gaspareno’s identity. Thus, it was impossible to tell if

Gaspareno had a criminal record. The court stated that Gaspareno indicated that

he had been deported twice and that this factored adversely as to recidivism. As to

seriousness factors, the trial court found the crime to be very serious, noting that

the amount of heroin sold was “Felony 2 levels of Heroin[.]” Id. at p. 5.

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{¶26} The trial court also stated that it appeared the drug transaction was

part of both organized criminal activity and criminal activity for hire. The court

explained,

[Gaspareno,] by his own statement, had made contact with the co- Defendant from - - you know, [Gaspareno] had received contact information while in Mexico, contacted [Guerra] then from Arizona, came to Columbus, was here for about eight days prior to thee [sic] transaction. Reasonable inference would be that [Gaspareno] was bringing the drugs up from Mexico. That also seems to cooberated [sic] by thee [sic] statements in the co-Defendants PSI which it, you know, appears that thee [sic] drugs were given from Defendant Gaspareno to Defendant Guerra and then sold by Defendant Guerra. I was gonna say then the sale then was to a Confidential Operative, as I understand it.

Id. at p. 5-6.

{¶27} Because the trial court found that Gaspareno’s conduct equated to

organized criminal activity, the court stated that it had the discretion to impose a

prison term pursuant to R.C. 2929.13(B)(1)(b)(ix). Thereafter, the court sentenced

Gaspareno to 12 months in prison with 102 days credited. It advised Gaspareno

that he may be placed on post-release control for up to three years. The court

forfeited Gaspareno’s interest in the amount of $4,261 pertaining to the second

forfeiture specification. Instead of a fine, the court ordered Gaspareno pay court

costs and that the $414 taken off of Gaspareno’s person was to be used to pay said

costs.

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{¶28} After the court was finished, Jones stated that Gaspareno objected to

the prison term and asked for the appointment of appellate counsel. Jones was

immediately appointed appellate counsel.

{¶29} A judgment entry of sentencing was filed on March 6, 2015. In the

entry, it indicated that “[Gaspareno] appeared in Court with his attorney and a

Court certified Spanish language interpreter, Pedro Koe [sic] for a sentencing

hearing.” (Docket No. 44, p. 1). The entry mirrored the sentence imposed at the

hearing except in one aspect. The entry imposed a mandatory period of three

years of post-release control, which was contrary to the discretionary language

used at the hearing.

{¶30} Gaspareno filed this timely appeal, presenting the following

assignments of error for our review.

Assignment of Error No. I

THE TRIAL COURT ERRED BY CONSIDERING EVIDENCE DE HORS THE RECORD; RESULTING IN THE IMPOSITION OF A SENTENCE THAT IS UNSUPPORTED BY THE RECORD AND CONTRARY TO LAW AND FURTHER RESULTING IN A VIOLATION OF THE APPELLANT’S RIGHT TO DUE PROCESS AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND ART. I, SEC. 16 OF THE OHIO CONSTITUTION AND RIGHT TO CONFRONT WITNESSES AGAINST HIM AS GUARANTEED BY THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND ART. I, SEC. 10 OF THE OHIO

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CONSTITUTION. (TR., FEB. 10, 2015, PASSIM; TR., MAR. 5, 2015, PASSIM). [EMPHASIS SIC.]

Assignment of Error No. II

THE APPELLANT’S PLEA WAS NOT KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY ENTERED PURSUANT TO CRIM. R. 11(C) AND BOYKIN V. ALABAMA, 395 U.S. 238, 242, 89 S.CT. 1709 (1969) BECAUSE THE TRIAL COURT FAILED TO INFORM THE APPELLANT THE IMPOSITION OF SENTENCE WAS AT THE DISCRETION OF THE TRIAL COURT REGARDLESS OF THE TERMS OF THE NEGOTIATED PLEA. (TR., FEB. 10, 2015, P. 9-15). [EMPHASIS SIC.]

Assignment of Error No. III

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN IMPOSING A MANDATORY THREE-YEAR PERIOD OF POST-RELEASE CONTROL. (TR., FEB. 10, 2015, P. 10; TR., MAR. 5, 2015, P. 6; JE OF SENTENCING, MAR. 5, 2015, P. 2).

Assignment of Error No. IV

THE TRIAL COURT’S FAILURE TO PROPERLY QUALIFY THE INTERPRETER VIOLATED THE APPELLANT’S RIGHT TO DUE PROCESS AND MEANINGFUL PARTICIPATION AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND ART. I, SEC. 16 OF THE OHIO CONSTITUTION; TO BE INFORMED OF THE NATURE OF THE CHARGE AGAINST HIM AND ASSISTED BY COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND ART. I, SEC. 10. OF THE OHIO CONSTITUTION; AND TO ENTER A VOLUNTARY, KNOWING, AND INTELLIGENT PLEA PURSUANT TO CRIM. R. 11(C) AND BOYKIN V. ALABAMA, 395 U.S. 238, 242, 89 S.CT. 1709 (1969). (TR., DEC. 29, 2014,

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PASSIM; TR., JAN. 27, 2015, PASSIM; TR., FEB. 10, 2015, PASSIM; TR., MAR. 5, 2015, PASSIM). [EMPHASIS SIC.]

{¶31} In his first assignment of error, Gaspareno argues that the trial court

erred in sentencing him to a one year prison term based on hearsay statements

contained in his co-defendants’ pre-sentence investigations. We agree.

{¶32} “Trial courts have full discretion to impose any sentence within the

statutory range.” State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶

9, citing State v. Saldana, 3d Dist. Putnam No. 12–12–09, 2013–Ohio–1122, ¶ 20.

“A trial court’s sentence will not be disturbed on appeal absent a defendant’s

showing by clear and convincing evidence that the sentence is unsupported by the

record or otherwise contrary to law.” State v. Barrera, 3d Dist. Putnam No. 12–

12–01, 2012–Ohio–3196, ¶ 20. Clear and convincing evidence is that “which will

produce in the mind of the trier of facts a firm belief or conviction as to the facts

sought to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph

three of the syllabus. “An appellate court should not, however, substitute its

judgment for that of the trial court because the trial court is in a better position to

judge the defendant’s chances of recidivism and determine the effects of the crime

on the victim.” Noble at ¶ 9, citing State v. Watkins, 3d Dist. Auglaize No. 2-04-

08, 2004–Ohio–4809, ¶ 16.

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{¶33} A person convicted of a felony of the fifth degree must be sentenced

to a community control sanction of at least one year if the requirements of R.C.

2929.13(B)(1)(a) are met. R.C. 2929.13(B)(1)(a) provides,

Except as provided in division (B)(1)(b) of this section, if an offender is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense, the court shall sentence the offender to a community control sanction of at least one year’s duration if all of the following apply:

The offender previously has not been convicted of or pleaded guilty to a felony offense.

The most serious charge against the offender at the time of sentencing is a felony of the fourth or fifth degree.

If the court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, the department, within the forty-five-day period specified in that division, provided the court with the names of, contact information for, and program details of one or more community control sanctions of at least one year's duration that are available for persons sentenced by the court.

The offender previously has not been convicted of or pleaded guilty to a misdemeanor offense of violence that the offender committed within two years prior to the offense for which sentence is being imposed.

{¶34} However, a trial court has the discretion to impose a prison term for a

person convicted of a felony of the fifth degree if one of eleven factors is present.

R.C. 2929.13(B)(1)(b). The relevant factor in this case is if “[t]he offender

committed the offense for hire or as part of an organized criminal activity.” R.C.

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2929.13(B)(1)(b)(ix). The sentencing statute provides that a person convicted of a

felony of the fifth degree can be sentenced to a prison term of six to twelve

months. R.C. 2929.14(A)(5).

{¶35} It is well established that the rules of evidence do not apply to

sentencing hearings. See State v. Cook, 83 Ohio St.3d 404, 425 (1998). “Courts

have historically been permitted to consider hearsay evidence, evidence of an

offender’s criminal history, the facts concerning charges dismissed, and even

offenses for which charges were not filed, but were addressed in the presentence

investigation (“PSI”).” State v. Ropp, 3d Dist. Union No. 14-13-21, 2014-Ohio-

2462, ¶ 4, citing State v. Bowsher, 186 Ohio App.3d 162, 2010-Ohio-951 (2d

Dist.).

{¶36} Crim.R. 32.2 requires that courts order a presentence investigation

and report before imposing community control sanctions in a felony case. PSIs

are additionally governed by R.C. 2951.03. It reads, in part,

No person who has been convicted of or pleaded guilty to a felony shall be placed under a community control sanction until a written presentence investigation report has been considered by the court. If a court orders the preparation of a presentence investigation report pursuant to this section * * *, the officer making the report shall inquire into the circumstances of the offense and the criminal record, social history, and present condition of the defendant, all information available regarding any prior adjudications of the defendant as a delinquent child and regarding the dispositions made relative to those adjudications, and any other matters specified in Criminal Rule 32.2. * * *

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R.C. 2951.03(A)(1).

{¶37} If a PSI is ordered, R.C. 2951.03 gives several rights to a defendant

and his or her counsel. Specifically, defendant and/or defendant’s counsel is

entitled: (1) to read the report subject to a few restrictions; (2) to comment on the

report and possibly introduce evidence that is relevant to any factual inaccuracies

contained in the report; and (3) to comment upon an oral or written summary of

the report performed by the court if the court determines that certain pieces of the

report cannot be disclosed to the defendant or defendant’s counsel. R.C.

2951.03(B)(1)-(3).

{¶38} PSIs and the contents of an oral or written summary of a PSI are

considered confidential information. R.C. 2951.03(D)(1). Moreover,

The court, an appellate court, authorized probation officers, investigators, and court personnel, the defendant, the defendant’s counsel, the prosecutor who is handling the prosecution of the case against the defendant, and authorized personnel of an institution to which the defendant is committed may inspect, receive copies of, retain copies of, and use a presentence investigation report or a written or oral summary of a presentence investigation only for the purposes of or only as authorized by Criminal Rule 32.2 or this section, division (F)(1) of section 2953.08, section 2947.06, or another section of the Revised Code.

Id.

{¶39} Gaspareno was convicted of a felony of the fifth degree, which could

result in a prison term of six to twelve months. Although Gaspareno’s sentence

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falls within the statutory guideline, Gaspareno was not convicted of a violent

felony. Thus, Gaspareno should have been sentenced to a community control

sanction if the requirements in R.C. 2929.13(B)(1)(a) were met. Yet, the trial

court did not expressly consider this subsection, but rather found that it possessed

the discretion to impose a prison sentence because Gaspareno committed the

offense for hire or as part of an organized criminal activity, pursuant to R.C.

2929.13(B)(1)(b)(ix). In reaching its decision, the trial court stated,

It’s also indication [sic] that this is a part of both organized criminal activity and criminal activity for hire. Thee [sic] Defendant, by his own statement, had made contact with the co-Defendant from - - you know, he had received contact information while in Mexico, contacted the Defendant then from Arizona, came to Columbus, was here for about eight days prior to thee [sic] transaction. Reasonable inference would be that the Defendant was bringing the drugs up from Mexico. That also seems to [be] cooberated [sic] by thee [sic] statements in the co-Defendants [sic] PSI which it, you know, appears that thee [sic] drugs were given from Defendant Gaspareno to Defendant Guerra and then sold by Defendant Guerra. I was gonna say then the sale then was to a Confidential Operative, as I understand it.

Mar. 5, 2015 Hrg., p. 5-6. The court provided no other reasons justifying its

decision.

{¶40} Gaspareno argues that the trial court erred by considering the

statements made by the co-defendants in their separate PSIs. Specifically, he

argues that without the hearsay statements there was no evidence to suggest that

he participated in a crime for hire or in an organized criminal activity.

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{¶41} It is clear that the statements contained in Guerra and Sanchez’s PSIs

are hearsay. Generally, hearsay is admissible in sentencing because the rules of

evidence do not apply at a sentencing hearing. Further, hearsay statements

contained in a defendant’s PSI may be considered when imposing a sentence upon

that particular defendant. State v. Siefker, 3d Dist. Putnam No. 12-10-14, 2011-

Ohio-1867, ¶ 20. The question here, however, is whether a court can consider

statements made in two co-defendants’ PSIs (Guerra and Sanchez) for the

purposes of imposing a sentence upon a third co-defendant (Gaspareno).

{¶42} The State approaches this question with the concept that essentially

all hearsay is hearsay and that hearsay can be used for the purposes of sentencing.

In support, the State cites State v. Mescher, 3d Dist. Shelby No. 17-86-17, 1987

WL 17252 (Sept. 16, 1987). In Mescher, the owner of a local bar was convicted

of selling beer to a juvenile. Id. at *1. At sentencing, the court based its decision

on the fact that it had heard testimony in other cases involving juveniles drinking

beer at the defendant’s bar. Id. Ultimately, this court upheld the defendant’s

sentence after discussing the historical acceptance of hearsay statements being

used at sentencing. Thus, the State urges us to follow Mescher and affirm.

{¶43} There is one key fact that distinguishes Mescher from this case. In

this case, the contested hearsay appeared in two separate co-defendants’ PSIs. As

Gaspareno points out, the information contained in a PSI is only made available to

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certain parties. Absent from this statutory list are co-defendants or their counsel.

Thus, neither Gaspareno nor his counsel would have been able to read, examine,

or otherwise see the PSIs filed in Guerra and Sanchez’s cases. The information

contained in those PSIs is confidential. Importantly, the information used by the

court in Mescher was not confidential, but was of public record.

{¶44} Moreover, by considering the statements in the co-defendants’ PSIs,

the court has denied Gaspareno of the rights that he would have been entitled to if

the PSI were his. R.C. 2951.03(B)(1) requires that a defendant and/or the

defendant’s counsel be given an opportunity to read the defendant’s PSI so that

they may have an opportunity to prepare a defense as to any factual inaccuracies in

the report. Nowhere in the record does it indicate that Gaspareno or his counsel

was given an opportunity to review the co-defendants’ PSIs. More importantly,

there could never be an opportunity for Gaspareno or his counsel to review the

PSIs given their confidential nature. Thus, the court erred when it considered the

statements made by co-defendants Guerra and Sanchez in their PSIs for the

purposes of sentencing Gaspareno.

{¶45} Further, the error committed was not harmless because once the

hearsay statements are removed from the equation, the only remaining evidence is

the trial court’s own speculation of what happened in the case. In his PSI,

Gaspareno never claimed that he acted as a drug mule. The State never accused

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Gaspareno as being the person responsible for supplying the heroin. Rather, the

State’s theory was that Gaspareno was serving as security. The indictment does

not contain any language alleging that Gaspareno was a drug mule. All there is

left is the court’s speculation. Such speculation is insufficient to support a finding

that Gaspareno engaged in a crime for hire or organized criminal activity.

{¶46} Accordingly, we sustain Gaspareno’s first assignment of error.5

{¶47} In his second assignment of error, Gaspareno argues that his guilty

plea was not entered knowingly, voluntarily, or intelligently. Specifically,

Gaspareno argues that the trial court was required to inform him that the trial court

was not bound to follow the joint recommendation of the State and the defense

regarding sentencing. We disagree.

{¶48} Crim.R. 11(C)(2) imposes several requirements a trial court must

perform before accepting a defendant’s guilty plea in a felony case. Specifically,

the court must do the following:

5 Although it is not clear from the record on appeal, it appears that Gaspareno has served his 12 month prison sentence. An order staying Gaspareno’s sentence was never issued. He was sentenced in March 2015 and was given credit for 102 days served in jail. This means that Gaspareno would have been released sometime in late November or early December of 2015. If that is the case, the trial court would lack the authority to resentence Gaspareno. See State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, ¶ 18 (“* * * when the entirety of a prison sanction has been served, the defendant’s expectation in finality in his sentence becomes paramount, and his sentence for that crime may no longer be modified”); State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, ¶ 24. Since we cannot see, based on the record before us, that Gaspareno has indeed served his sentence in full, the trial court will need to determine whether it retains the authority to resentence Gaspareno.

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(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.

(b) Informing the defendant and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.

(c) Informing defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilty beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.

Crim.R. 11(C)(2)(a)-(c).

{¶49} “The rule is intended to ensure that guilty pleas are entered

knowingly, intelligently, and voluntarily.” State v. Phillips, 3d Dist. Van Wert

No. 15-12-02, 2012-Ohio-5950, ¶ 24, citing State v. Windle, 4th Dist. Hocking No.

03CA16, 2004-Ohio-6827, ¶7. “ ‘Criminal Rule 11(C)(2) clearly and distinctly

mandates that the trial judge, before accepting a guilty plea in a felony case,

inform the defendant of his rights as expressed in the rule and determine that he

understands these rights and that he is making his guilty plea voluntarily.’ ” State

v. Stewart, 51 Ohio St.2d 86, 88 (1977), quoting State v. Younger, 46 Ohio App.2d

269 (8th Dist.1975), syllabus. Failure to ensure that a plea is entered knowingly,

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intelligently, and voluntarily renders its enforcement unconstitutional. State v.

Engle, 74 Ohio St.3d 525, 527 (1996).

{¶50} An appellate court’s review of a Crim.R. 11(C)(2) colloquy is

contingent on whether the defendant complains of either a failure to inform him of

a constitutional right or a failure to inform him of a non-constitutional right. State

v. Thomas, 3d Dist. Mercer No. 10-10-17, 2011-Ohio-4337, ¶ 20-21. If the appeal

concerns constitutional rights, then we review the colloquy to ensure that the trial

court strictly complied with Crim.R. 11(C)(2). State v. Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, ¶ 18. On the other hand, if the appeal concerns non-

constitutional rights, then we review the colloquy to ensure that the trial court

substantially complied with Crim.R. 11(C)(2). State v. Griggs, 103 Ohio St.3d 85,

2004-Ohio-4415, ¶ 11-12. “Substantial compliance means that under the totality

of the circumstances, the defendant subjectively understands the implication of his

plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108 (1990).

“Furthermore, a defendant who challenges his guilty plea on the basis that the

advisement for the nonconstitutional rights did not substantially comply with

Crim.R. 11(C)(2)(a)(b) must also show a prejudicial effect, meaning the plea

would not have been otherwise entered.” State v. Anderson, 7th Dist. Mahoning

No. 11MA125, 2012-Ohio-2759, ¶ 14, citing Veney at ¶ 15, citing Nero at 108; see

also Thomas at ¶ 21. In this case, Gaspareno argues that the trial court failed to

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sufficiently notify him that the trial court could depart from the joint sentencing

recommendation and that it had the discretion to impose whatever sentence the

court deemed necessary, subject to certain statutory limitations.

{¶51} Gaspareno’s complaint fails to implicate any of the constitutional

rights enumerated in Crim.R. 11(C)(2)(c). See Veney at ¶ 19. In Veney, the

Supreme Court of Ohio found that Crim.R. 11(C) encompasses five constitutional

rights: (1) the right to a jury trial; (2) the right to confront one’s accusers; (3) the

privilege against self-incrimination; (4) the right to use the compulsory process to

obtain witnesses; and (5) the right to require the state to prove the defendant’s

guilt beyond a reasonable doubt. Id., citing Boykin v. Alabama, 395 U.S. 238,

243, 89 S.Ct. 1709, 23 L.Ed. 2d 274 (1969); State v. Ballard, 66 Ohio St.2d 473

(1981), paragraph one of the syllabus.

{¶52} Further, it appears that Gaspareno’s complaint does not invoke a

non-constitutional right. See Anderson at ¶ 14. In Anderson, the Seventh District

Court of Appeals, in interpreting Crim.R. 11(C), stated that there are four non-

constitutional rights that a defendant must be informed of: (1) the nature of the

charges; (2) the maximum penalty involved, including an advisement on post-

release control, if applicable; (3) whether the defendant is eligible for probation or

community control sanctions; and (4) that after the defendant enters his plea of

guilty or no contest, the trial court may proceed directly to sentencing. Id., citing

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Crim.R. 11(C)(2)(a)(b); Veney at ¶ 10-13; State v. Sarkozy, 117 Ohio St.3d 86,

2008-Ohio-509, ¶ 19-26.

{¶53} Since Gaspareno’s complaint has not traditionally been considered a

non-constitutional right, the question becomes should we recognize such a right

here. This court has already addressed this particular question and found that a

“trial court is under no obligation to inform the defendant that it will not follow

the sentencing recommendation.” State v. Graham, 3d Dist. Union No. 14-04-28,

2005-Ohio-1431, ¶ 11; see also State v. Coats, 3d Dist. Mercer Nos. 10-09-04, 10-

09-05, 2009-Ohio-3534, ¶ 21. Thus, although it may be the preferred practice to

inform the defendant that the trial court is not bound by the sentencing

recommendation, such is not required. Coats at ¶ 21.

{¶54} Further, even if the trial court would have been required to warn

Gaspareno that it was not bound by any sentencing recommendation, we find that

the court still substantially complied with the requirements of Crim.R. 11.

Specifically, the trial court advised Gaspareno of the possible maximum sentence,

one year in prison and a fine of up to $2,500, for the crime to which he was

pleading. Gaspareno indicated that he was aware of this sentence. Moreover, the

court asked Gaspareno if he understood “that upon a plea of guilty I could proceed

immediately to sentencing and that sentencing is up to me?” Feb. 10, 2015 Hrg.,

p. 13. Gaspareno replied, “Yes.” Id. Finally, the trial court asked Gaspareno,

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“Have any promises or threats been made to you to get you to plead guilty?” Id.

Gaspareno replied, “No.” Id. Such inquiries were sufficient to substantially

comply with Crim.R. 11. See State v. Crable, 7th Dist. Belmont No. 04 BE 17,

2004-Ohio-6812, ¶14.

{¶55} This court has been consistent with its position to not read a

requirement into a statute that is not present in the statutory language. See State v.

Blanton, 3d Dist. Marion No. 9-15-07, 2015-Ohio-4620, ¶ 34; State v. Faber, 3d

Dist. Seneca No. 13-15-01, 2015-Ohio-3720, ¶ 36. Although the Criminal Rules

of Procedure are not statutes, the same interpretation rules apply. State v. Athon,

1st Dist. Hamilton Nos. C-110236, C-110237, C-110238, C-110239, C-110290,

2012-Ohio-765, ¶ 7, reversed on other grounds, 136 Ohio St.3d 43, 2013-Ohio-

1956; State v. Edgeworth, 6th Dist. Lucas No. 7947, 1975 WL 182372, *5 (Nov.

14, 1975). “Where the language of a statute is plain and unambiguous and

conveys a clear and definite meaning, there is no need to apply rules of statutory

interpretation.” State v. Taylor, 114 Ohio App.3d 416, 422 (2d Dist.1996).

{¶56} The language in Crim.R. 11(C) is clear and unambiguous; it does not

require a trial court to inform the defendant that the trial court has the discretion to

impose a sentence that is different than that recommended by a plea agreement as

we have previously found in Graham. In this case, the trial court was not required

to inform Gaspareno that the trial court had the discretion to sentence him to any

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sentence other than that recommended by the State and defense. Additionally, the

trial court complied with all the other requirements of Crim.R. 11. The trial court

informed Gaspareno of all the constitutional rights he waived as a result of

pleading guilty and of all the non-constitutional rights. Thus, Gaspareno’s

argument lacks merit.

{¶57} Accordingly, we overrule Gaspareno’s second assignment of error.

{¶58} In his third assignment of error, Gaspareno argues that the trial court

erred by imposing a mandatory three year period of post-release control. We

agree.

{¶59} The State concedes that the trial court so erred. We have reviewed

the record and find that, while the trial court notified Gaspareno that he could be

subjected to a period of post-release control of up to three years at the sentencing

hearing, the entry sentencing Gaspareno mistakenly imposed a mandatory three

year period of post-release control. Thus, we vacate Gaspareno’s sentence,

regarding post-release control, and remand the case to the trial court so that it may

correct the sentencing entry. See State ex rel. Womack v. Marsh, 128 Ohio St.3d

303, 2011-Ohio-229, ¶ 14 (“Because appellant was notified of the proper term of

postrelease control at his sentencing hearing and the error was merely clerical in

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nature, [the judge] was authorized to correct the mistake by nunc pro tunc entry

without holding a new sentencing hearing.”).

{¶60} Accordingly, we sustain Gaspareno’s third assignment of error.

{¶61} In his fourth assignment of error, Gaspareno argues that the trial

court failed to properly qualify the interpreter, Coe. As a result, Gaspareno argues

that he was never informed of the nature of the charge against him and that his

plea was not entered voluntarily, knowingly, and intelligently. We disagree.

{¶62} Gaspareno failed to object to Coe’s qualifications at any point during

any of the proceedings. Accordingly, he has waived all but plain error. State v.

Bump, 3d Dist. Logan No. 8-12-04, 2013-Ohio-1006, ¶ 81. To have plain error

under Crim.R. 52(B), the error must be an “obvious” defect in the trial

proceedings that affected the defendant’s “substantial rights.” State v. Barnes, 94

Ohio St.3d 21, 27 (2002). Plain error is to be used “with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.”

Id. Further, plain error only exists where “but for the error, the outcome of the

trial would clearly have been otherwise.” State v. Biros, 78 Ohio St.3d 426, 431

(1997).

{¶63} Sup.R. 88 states that,

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A court shall appoint a foreign language interpreter in a case or court function in either of the following situations:

(1) A party * * * who is limited English proficient or non-English speaking request a foreign language interpreter and the court determines the services of the interpreter are necessary for the meaningful participation of the party * * *;

(2) Absent a request from a party * * * for a foreign language interpreter, the court concludes the party * * * is limited English proficient or non-English speaking and determines the services of the interpreter are necessary for the meaningful participation of the party * * *.6

Sup.R. 88 also provides a hierarchy for preferred interpreter candidates: (1) a

Supreme Court of Ohio certified foreign language interpreter; (2) a provisionally

qualified foreign language interpreter; (3) a language-skilled foreign language

interpreter; and (4) telephonic interpreter. See Sup.R. 88(D)(1)-(4). Further, “To

ensure the accuracy and quality of interpretation, a court shall appoint two or more

foreign language interpreters * * * for a case or court function involving multiple

parties, witnesses, or jurors requiring the services of an interpreter.”7 Sup.R.

88(F)(2). Finally, “A court shall administer an oath or affirmation to a foreign

language interpreter appointed pursuant to division (A) of this rule * * * in

accordance with Evid.R. 604.” Sup.R. 88(I).

6 R.C. 2311.14(A)(1) provides for a similar requirement. It also requires the same oath to be given that is required under Sup.R. 88(I). 7 Gaspareno does not argue that the failure to have separate interpreters for each co-defendant during each pre-trial constituted plain error, thus we will not consider that argument.

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{¶64} In the case before us, the only instance of the court qualifying the

interpreter is when the court first introduced Coe on the record. At the December

29, 2014 hearing, the trial court was stating who all was present and said, “Also

present with the Defendants is certified interpreter Pedro Coe who has performed

- - providing interpretation services for the Defendants today.” Dec. 29, 2014

Hrg., p. 2. Had Gaspareno objected to Coe’s qualifications, either he or the court

would have had the opportunity to question Coe regarding his qualifications.

Since Gaspareno failed to do so, no information exists in the record to show that

Coe was unqualified to serve as an interpreter. Finally, Gaspareno has not

presented evidence to suggest that any of Coe’s interpretations were inaccurate.

Thus, Gaspareno has failed to overcome his burden of showing an obvious error in

the proceedings in this regard.

{¶65} Gaspareno also argues that plain error is present because Coe

stopped interpreting during the first pre-trial. At the December 29, 2014 hearing,

Coe was in the act of interpreting for the defendants when the following exchange

occurred:

Lowther: From what I’ve received I’ve not seen anything that would I guess - - okay - -

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Doyle: I don’t want them saying anything. I don’t want my client saying anything. Unless you run it by me.

Court: Right. Right. If there’s something they want to communicate to their attorney we can allow ya [sic] to communicate that to their attorney. I don’t want you to communicate it out in open Court.

Id. at p. 15. For approximately one and a half pages of the pre-trial transcript, Coe

was not interpreting for the defendants. The content of that portion surrounded the

letter written by Guerra to Sanchez and who would be interpreting the letter.

Gaspareno’s counsel did indicate his opinion during this exchange regarding

whether Coe should be the one to translate the letter. After the court was made

aware that Coe was no longer interpreting, the court instructed Coe to not stop

interpreting for any reason.

{¶66} Assuming that this was an obvious mistake, Gaspareno has failed to

show how his substantial rights were affected. Most importantly, the concern

raised by Gaspareno’s attorney was addressed by the court and his attorney again,

shortly after Coe was instructed to continue interpreting. Thus, any error was

corrected.

{¶67} Finally, Gaspareno argues that his plea was not entered knowingly,

intelligently, or voluntarily based on the ineffectiveness of the interpreter. As we

stated in more detail supra, Gaspareno entered his plea knowingly, intelligently,

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and voluntarily. Further, any argument that Coe’s ineffectiveness caused

Gaspareno to enter into a plea that was neither knowingly, intelligently, or

voluntarily inherently involves the argument that the court failed to properly

qualify Coe. Again, we found supra that Gaspareno failed to prove that Coe was

not properly qualified by the court.

{¶68} Accordingly, we overrule Gaspareno’s fourth assignment of error.

{¶69} Having found error prejudicial to Gaspareno, in some of the

particulars assigned and argued, we affirm, in part, reverse, in part, the judgment

of the trial court, and remand the matter for further proceedings consistent with

this opinion.

Judgment Affirmed, in Part, Reversed, in Part, and Cause Remanded

SHAW, P.J., concurs in Judgment Only. WILLAMOWSKI, J., concurs.

/jlr

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