State v. Ghussin

2016 Ohio 4578

• Court: Ohio Court of Appeals
• Decided: June 24, 2016
• Docket: 2015-CA-48
• Status: Published

Opinion

[Cite as State v. Ghussin, 2016-Ohio-4578.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

STATE OF OHIO : : Appellate Case No. 2015-CA-48 Plaintiff-Appellee : : Trial Court Case No. 14-CR-642 v. : : (Criminal Appeal from JESSE D. GHUSSIN : Common Pleas Court) : Defendant-Appellant : :

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OPINION

Rendered on the 24th day of June, 2016.

ELIZABETH ELLIS, Atty. Reg. No. 0074332, Greene County Prosecutor’s Office, 55 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee

ENRIQUE G. RIVERA-CEREZO, Atty. Reg. No. 0085053, Law Office Joseph C. Lucas, LLC, 61 North Dixie Drive, Suite B, Vandalia, Ohio 45377 Attorney for Defendant-Appellant

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FAIN, J.

{¶ 1} Defendant-appellant Jesse D. Ghussin appeals from his conviction and 18- -2-

month sentence for Robbery, in violation of R.C. 2911.02(A)(3), a felony of the third-

degree, following a negotiated plea of guilty. Assigned counsel has filed a brief under

the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),

indicating that he could find no potential assignments of error having arguable merit.

Neither can we. Accordingly, the judgment of the trial court is Affirmed.

I. The Offense

{¶ 2} On October 31, 2014, a Wal-Mart employee was handing out Halloween

candy to customers at the store entrance. Ghussin approached the employee, and

attempted to take the entire bucket of candy. When the employee told Ghussin that he

could only have one piece, Ghussin punched the employee on the left ear and fled. A

medic was called, and the employee was transported to a hospital “for hearing loss.”1

There is no indication that the employee sustained any permanent injury.

II. The Course of Proceedings

{¶ 3} Ghussin was charged by indictment with Robbery, in violation of R.C.

2911.02(A)(2), a felony of the second degree. Ghussin moved for a mental evaluation

of his competency to stand trial, and his sanity at the time of the offense. The trial court

sustained the motion. Ghussin was evaluated by Jordan B. Bell, Ph.D., of the Forensic

Psychiatry Center for Western Ohio. Ghussin later moved for a second competency and

sanity evaluation, which the trial court ordered. The second evaluation was performed

by Scott T. Kidd, Psy.D., of David H. Roush, Psy.D. and Associates. Both Bell and Kidd

1 The “Official Version of the Offense,” from the pre-sentence investigation report. -3-

recognized that Ghussin was mentally ill, with a diagnosis of Schizophrenia and Bipolar

Affect Disorder, but they both found that Ghussin was competent to stand trial, and did

not meet the legal definition of insanity at the time of the offense. Both Bell and Kidd, in

their reports, found that Ghussin was able to understand, and to participate intelligently

in, plea negotiations. The trial court found Ghussin competent to stand trial.

{¶ 4} Ghussin entered into a plea agreement with the State, wherein Ghussin was

allowed to plead guilty to the lesser offense of Robbery, in violation of R.C. 2911.02(A)(3),

a felony of the third degree, and the State agreed to recommend community control

sanctions, with mental health assessment. The trial court conducted a proper plea

colloquy, in accordance with Crim.R. 11. As part of the colloquy, the trial court explained

to Ghussin that it was not bound by the State’s recommendation as to the sentence, but

could impose any authorized sentence it deemed appropriate.

{¶ 5} The trial court imposed a prison sentence of 18 months, with a jail-time credit

of 251 days. No fine was imposed, and no restitution was ordered. Costs were

assessed against Ghussin. The trial court approved intensive program prison and

transitional control. From his conviction and sentence, Ghussin appeals.

{¶ 6} Ghussin’s assigned appellate counsel has filed an Anders brief, indicating

that he could find no potential assignments of error having arguable merit. By entry

dated March 7, 2016, we afforded Ghussin the opportunity to file his own, pro se brief.

He has not done so.

III. We Find No Potential Assignments of Error Having Arguable Merit

{¶ 7} In his brief, counsel identifies two potential assignments of error, but -4-

concludes that neither has arguable merit. The first of these is that Ghussin did not

understand the rights he waived by pleading guilty. We have reviewed the plea

transcript. It demonstrates a plea hearing in compliance with Crim.R. 11( C). From the

transcript, it appears that Ghussin was lucid, was properly involved in the hearing, and

had no apparent misunderstandings or confusion. We agree with counsel that this

potential assignment of error has no arguable merit.

{¶ 8} Counsel next identifies as a potential assignment of error that Ghussin should

not have been sentenced to prison. The possible prison terms for Ghussin’s offense are:

9, 12, 18, 24, 30, or 36 months. The term imposed, 18 months, is in the middle of that

range. The trial court recited that it had considered the purposes and principles of

sentencing and the seriousness and recidivism factors set forth in R.C. 2929.11 and

2929.12, respectively; it also found that “a prison term is consistent with the purposes and

principles of sentencing,” that Ghussin “is not amenable to an available community control

sanction,” that community control sanctions would demean the seriousness of Ghussin’s

conduct and its impact on the victim, that a prison sentence is commensurate with the

seriousness of his conduct and its impact on the victim, and that a prison sentence does

not place an unnecessary burden on governmental resources. The trial court also noted

that the pre-sentence investigation report reflected misdemeanor convictions, about a

year previously in New York, for assault and for stalking (causing fear of material harm to

health, safety, or property). The trial court also referred to a fight Ghussin had got into

with another inmate while in jail on this charge, to which Ghussin’s trial counsel had

referred earlier in the sentencing hearing. Based upon our review of the sentencing

transcript and the pre-sentence investigation report, we agree with counsel that this -5-

{¶ 9} Pursuant to our duty under Anders v. California, we have independently

reviewed the entire record. We have found no potential assignments of error having

arguable merit.

IV. Conclusion

{¶ 10} No potential assignments of error with arguable merit having been found,

the judgment of the trial court is Affirmed.

HALL and WELBAUM, JJ., concur.

Copies mailed to:

Elizabeth Ellis Enrique G. Rivera-Cerezo Jesse D. Ghussin Hon. Michael A. Buckwalter