[Cite as State v. Jabbaar, 2013-Ohio-1655.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 98218 

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

ALI JABBAAR

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-551246 

BEFORE: Boyle, P.J., Celebrezze, J., and Keough, J. 

RELEASED AND JOURNALIZED: April 25, 2013
ATTORNEY FOR APPELLANT 

Russell S. Bensing 

1350 Standard Building 

1370 Ontario Street 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Brent C. Kirvel 

Assistant County Prosecutor 

The Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY J. BOYLE, P.J.: 

{¶1} Defendant-appellant, Ali Jabbaar, appeals his conviction, raising a single 

assignment of error: 

The Defendant’s plea was not knowingly, voluntarily, and intelligently 

entered, in derogation of Defendant’s right to due process, but was entered 

as the result of coercion by the trial court. 

{¶2} We affirm. 

Procedural History and Facts

{¶3} In June 2011, Jabbaar was indicted on one count of kidnapping, with a 

sexual motivation specification, and three counts of rape, each with sexually violent 

predator specifications. All of the counts also carried one- and three-year firearm 

specifications. Jabbaar pleaded not guilty to all of the offenses, and the matter was set 

for trial. 

{¶4} Four days prior to the trial, a pretrial was held where the trial judge had the 

state’s formal plea offer placed on the record. Jabbaar’s sole assignment of error is 

based on the trial judge’s participation at this pretrial; accordingly, we set forth in detail 

what occurred at this pretrial. 

{¶5} Defense counsel first provided a status of the case, indicating that he had 

conveyed the state’s plea offer to Jabbaar but that Jabbaar “wants to go to trial.” 

{¶6} The trial judge then requested the prosecutor to outline the evidence of the 

state’s case. The prosecutor told the court that a portion of the incident that led to 

Jabbaar’s arrest was caught on videotape. According to the prosecutor, the video 
reflected a man, later identified by the victim as Jabbaar, confronting the victim at the 

rapid station in East Cleveland. Jabbaar is then seen “marching” the victim out of the 

front doors of the rapid station and then out of view of the camera. According to the 

victim, Jabbaar escorted her at gunpoint outside of the rapid station to a nearby house 

where he vaginally and orally raped her. Following the rapes, Jabbaar let the victim go. 

{¶7} The prosecutor further stated that on the same evening of this offense, 

Jabbaar’s grandfather had reported Jabbaar missing, “perhaps emotionally distraught,” 

and that Jabbaar had taken his 9 mm handgun. Jabbaar was arrested later that same 

evening and was found with his grandfather’s handgun. 

{¶8} Following the prosecutor’s summary of the evidence of its case, the trial 

court engaged in a colloquy with the prosecutor regarding the potential sentence for the 

charges. The prosecutor informed the judge that the rape and kidnapping counts would 

not merge, to which the judge responded: “So he’s looking at ten years on Count 1 

kidnapping plus three years for the gun? * * * Tens years on the rape. * * * So he’s 

looking at 33 years on the first case alone.” After the prosecutor reminded the judge of 

the sexually violent predator specifications, the court stated, “[s]o he’s looking at 

potential life in prison.” 

{¶9} The prosecutor then indicated that the state was willing to offer a plea to 

kidnapping and one count of rape with a three-year firearm specification and a sexual 

motivation specification, “capping essentially as a possible 23 * * *.” The trial court 

interrupted, stating: “And, of course, it could be much less.” 
{¶10} The defense counsel then interjected, stating the following: 

With respect to the court’s last comment about potentially being much less, 

we — the Court was gracious enough and patient enough previously at 

pretrial to go over this case [in chambers]. And, of course, there’s no 

promise of any potential sentence. But if we resolve the case in a manner 

that has been offered by the State of Ohio, the Court gave us sort of a view 

inside your mind as to how to view these kind of cases. 

{¶11} The trial court responded to the defense counsel and then directly addressed 

Jabbaar as follows: 

Okay. If convicted you’re very probably looking at potential life in prison. 

 * * * That puts the court in a tough spot. 

If you plea, on the other hand, take responsibility, you could do far less 

time. However, the stranger rapes, abduction at gunpoint by a stranger to, 

you know, a location where she’s carried off to, it’s such a serious offense 

that you’d also have to do a substantial period of time in a state penal 

institution. But there’s a huge difference between 15 years and life, or 13 

years and life. Do you understand? 

{¶12} After Jabbaar responded, “yes,” the trial court further inquired if Jabbaar 

knew “that there is, apparently, DNA that links you to this crime.” The trial judge then 

recited some additional evidence that the state was prepared to offer, including the 

firearm recovered from Jabbaar, the videotape, and the victim’s testimony, and then 

inquired, “Have you considered a plea?” Jabbaar indicated that he had but would rather 

“fight it.” 
{¶13} The trial judge asked Jabbaar if he had any explanation for the DNA 

recovered from the victim. Upon Jabbaar’s acknowledgment that he had no recollection 

of the event, the trial court inquired into Jabbaar’s mental condition, and then stated, 

“Look, you know, it seems to me that you certainly should consider a plea.” 

{¶14} The trial judge then discussed a letter that he had received from Jabbaar 

regarding his speedy trial rights and some other “requests” of the court. Noting the 

importance of the matter, the trial judge asked Jabbaar what other requests he had via his 

letter. Jabbaar indicated that the letter had a request for a haircut that was taken care of 

last week. The trial judge then expressed the following: 

So you’re telling me that despite the fact that you could be sentenced to a 

state penal institution for up to life on this offense, despite the fact that your 

DNA has been recovered from the victim’s person in her body that you 

wish to go to trial without any explanation for your DNA being there? 

{¶15} At this point, Jabbaar indicated a change of heart, stating that “[a]s of this 

moment, as I sit here, things are looking more obstruct.” 

{¶16} Upon the trial court requesting clarification as to Jabbaar’s response, 

Jabbaar stated the following: “More, more real. I’m not sure if I want to go to trial now 

or if I want to take a plea. My grandfather is the only person I have in my corner and I 

haven’t had a chance to speak with him.” Jabbaar then explained why he had not spoken 

with his grandfather: “I haven’t had the opportunity to use the phone since I’ve been 
presented with this recent deal. I’ve only * * * I just got recollection of this deal last 

night before I have not had any notice of taking a plea deal.” 

{¶17} At this point, the prosecutor interrupted, indicating that the state has been 

“gracious enough” to make an offer to resolve the case today. And that if Jabbaar did 

not want to take the deal that day, the state was prepared to go to trial on Monday. 

{¶18} Jabbaar expressed confusion to the plea offer, indicating that, “I have not 

had the opportunity to have any type of deal presented before this. * * *[T]his is just a 

load dropped on me overnight.” 

{¶19} The trial court then addressed all the parties, stating: 

Here’s my thought. And, [prosecutor], in fairness to this guy, I’m telling 

him the range is going to be between 13 and 15. That’s a lot of time. 

And you’re going to do time if you plea. Do I have a problem if he takes 

until Monday? I don’t. And I would encourage the State the keep the 

plea bargain offer. 

But I can’t make them do that. Okay? So I’m just going to tell you this. 

We’ll leave it set for trial on Monday, and if there’s a plea, there’s a plea. 

If there’s not a plea, we’ll go to trial. 

But, look, you know, you have been in a position where you have been 

under indictment on this case * * * the offense occurred in May. This is 

hardly new information. * * * You know you’ve been looking at a potential 

life in prison for a period time now. And, therefore, you know, you need 

to make a decision. 

I have absolutely no problem trying the case. You’re presumed innocent. 

You have an excellent attorney. You can try the case. You can remain 

silent. You do have civilian clothes. We did get you a haircut. I’m 

convinced after a review of the record there is no speedy trial issue 

whatsoever. He has two files. 
So, again, I can’t tell the State what to do. I think you should have some 

more time. If you want to talk to your people. If you want to talk to your 

attorney, talk to your attorney. If the plea is still open Monday, it’s open 

Monday. If you feel you can’t go forward, I will give you until that time. 

That’s all I can tell you. Do you have any questions you want to ask me? 

{¶20} After Jabbaar indicated that he had no further questions, the matter 

adjourned until the following Monday, at which time the trial court engaged in an 

extensive plea colloquy with Jabbaar, advising him of his constitutional rights and fully 

complying with Crim.R. 11. Specifically, the trial court stated the following: 

You’ve been indicted but you’re presumed innocent. You have a right to a 

jury trial or bench trial, at which time the State has the burden of proving 

you guilty beyond a reasonable doubt. You have no burden of going 

forward here today. 

You have an excellent attorney who will remain with you throughout these 

proceedings. He could try this case either to a jury or to a judge. Again, 

the State has the burden of proving you guilty beyond a reasonable doubt. 

Now, at the time of the trial, your attorney may confront your accusers, call 

witnesses, use the subpoena power of the Court. For your part, you may 

testify or remain silent. No one may comment on your failure to testify or 

compel you to testify or prevent you from testifying. No one can mention 

your prior criminal record if you do not testify. 

{¶21} The trial court then reassured Jabbaar that it would bifurcate the sexually 

violent predator specification from the rape counts so that the jury would not be aware of 

Jabbaar’s prior conviction and that the matter would be tried to the bench. After 

explaining this to Jabbaar, the trial court emphasized the following again: 
So if you choose to try this case, the Court would extend that consideration 

to you because I think it’s important. You need to know that. You could 

try this case to a jury of your peers and they would not know you have a 

prior conviction. 

{¶22} Following this discussion, the trial court informed Jabbaar of the maximum 

penalties involved in pleading guilty, including that he would be labeled a Tier III sexual 

offender and subject to a mandatory term of five years of postrelease control. 

{¶23} Jabbaar ultimately pleaded guilty to the amended indictment, namely, one 

count of kidnapping, with a three-year firearm specification and sexual motivation 

specification, and one count of rape. The trial court sentenced Jabbaar to a total term of 

13 years in prison. This appeal now follows. 

Guilty Plea

{¶24} In his single assignment of error, Jabbaar argues that his plea was not 

voluntary; instead, he argues that the trial judge coerced the plea through his participation 

in the process. Specifically, Jabbaar argues that the trial judge’s discussion of the 

evidence and the penalties attached to the counts coupled with his direct recommendation 

that Jabbaar “should consider a plea” had a coercive effect that rendered Jabbaar’s plea 

involuntary. 

{¶25} A defendant’s plea must be knowingly, intelligently, and voluntarily made. 

State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). The enforcement of a 
plea that does not satisfy all three of these criteria is unconstitutional under both the 

United States Constitution and the Ohio Constitution. Id. 

{¶26} Although strongly discouraged by the Ohio Supreme Court, a trial judge’s 

participation in plea negotiations does not render a defendant’s plea invalid per se under 

the Ohio and United States Constitutions. State v. Byrd, 63 Ohio St.2d 288, 293-294, 

407 N.E.2d 1384 (1980). Instead, “a trial judge’s participation in the plea bargaining 

process must be carefully scrutinized to determine if the judge’s intervention affected the 

voluntariness of the defendant’s guilty plea.” Id. at 293. Ordinarily, a plea should be 

found involuntary and unconstitutional “if the judge’s active conduct could lead a 

defendant to believe he cannot get a fair trial because the judge thinks that a trial is a 

futile exercise or that the judge would be biased against him at trial.” Id. at 293-294. 

{¶27} Since the United States Supreme Court’s decision in Missouri v. Frye, __ 

U.S. __, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), however, it is important for a record to 

be established that a defendant is aware of a plea deal if one is presented to the defendant 

— something that may necessarily involve the participation of the trial judge by placing 

the plea deal on the record. 

{¶28} Nonetheless, consistent with the Ohio Supreme Court’s admonishment in 

Byrd, the role of the trial judge in any plea negotiation should be limited. We agree with 

Jabbaar that the discussion of the evidence to be presented at trial should be left to the 

prosecutor and defense counsel, and that it is the defense counsel’s role — not the judge’s 

— to explain the evidence to a defendant, give his opinion of the strength of the state’s 
case and the likelihood of conviction, and to tell the defendant that it would be better to 

plead than to go to trial. To the extent that Jabbaar implies that the trial judge performed 

in the function as Jabbaar’s defense counsel, the detailed description of what occurred at 

the pretrial above negates such a claim. 

{¶29} But we recognize that the trial judge’s participation in this case is not the 

preferred practice and that, in some instances, the trial judge’s comments raise concern. 

These comments, however, must not be considered in isolation. “Instead, we consider 

the record in its entirety to determine the voluntariness of the guilty plea.” State v. 

Finroy, 10th Dist. No. 09AP-795, 2010-Ohio-2067, ¶ 7. After carefully scrutinizing the 

trial judge’s participation and considering the totality of the record, we cannot say that the 

trial judge’s involvement coerced Jabbaar’s plea. The trial judge’s comments taken in 

their entirety do not reveal a belief by the trial judge that a trial would be futile or that the 

judge would be biased against Jabbaar at trial. 

{¶30} As Jabbaar even concedes, the trial judge’s involvement in this case is 

qualitatively different than the trial court’s involvement in Byrd. In Byrd, the trial judge 

solicited private meetings with the defendant’s mother and sister and encouraged them to 

pressure Byrd to enter a guilty plea, indicating to them that Byrd would mostly likely get 

“the chair” if he went to trial. After speaking with his relatives, Byrd met with the judge 

in chambers, along with a sheriff’s deputy, a probation officer, and an assistant 

prosecutor, where Byrd was neither provided counsel nor advised to obtain counsel. The 

trial judge then negotiated a plea bargain with the prosecutor, and, thereafter, informed 
Byrd that it was a “pretty good deal.” Id. at 290. The trial judge also enlisted the aid of 

the deputy sheriff, a friend of Byrd’s family, in convincing Byrd to plead guilty. 

{¶31} The Ohio Supreme Court concluded that the trial court judge’s conduct, i.e., 

placing intense pressure on Byrd to accept the plea deal, in all probability led the 

defendant to believe that he would not receive a fair trial and that proceeding to trial was 

futile. Id. at 294. The court further noted that the effect of this pressure was further 

exacerbated by two other factors: (1) Byrd’s methadone addiction, “twice noted by the 

judge, could easily have amplified the coercive effect of the judge’s conduct”; and (2) 

Byrd never had the opportunity to consult with an attorney regarding the judge’s remarks. 

Id.

{¶32} Unlike the situation in Byrd, Jabbaar was represented during all of the 

proceedings by counsel, who actively participated on Jabbaar’s behalf. Further, the trial 

judge in this case did not coerce or negotiate a plea agreement for Jabbaar. Indeed, the 

record reveals that the trial judge insisted on Jabbaar taking additional time to consider 

the plea offer even after Jabbaar expressed a possible change of heart in going to trial. 

This is not a situation where the trial judge exerted pressure and his influence to induce a 

plea. Rather, the trial judge specifically instructed Jabbaar to take time to consider the 

plea deal, acknowledging that Jabbaar faced “a lot of time” if he pleaded guilty to the 

charges. The trial judge further addressed and resolved Jabbaar’s stated concerns for 

having a fair trial, emphasizing that he had “absolutely no problem trying the case.” 
{¶33} As for the trial judge telling Jabbaar that he “should consider” the plea 

bargain, this is not the same as telling him “to take” the plea bargain. This comment 

must also be considered in the context of the entire proceedings, including the trial court’s 

stated belief that Jabbaar should have additional time to think about the plea and that he 

could proceed to trial the following Monday if there was no plea. See State v. Bizzell, 2d 

Dist. No. 18055, 2000 Ohio App. LEXIS 4464 (Sept. 29, 2000) (rejecting defendant’s 

claim that his plea was involuntary and noting that the trial court reminded the defendant 

that he could abandon his agreement and proceed to trial). 

{¶34} We likewise find no fault in the trial judge’s discussion of the possible 

sentence that Jabbaar faced if convicted on the counts of the indictment. There is no 

prohibition against a trial judge discussing the different penalties associated with the plea 

as opposed to the penalties if convicted of all the counts of the indictment. As this court 

has previously recognized, “when the trial court labors to make sure that a defendant 

understands the charges against him and the possible penalties, this assurance does not 

amount to an infringement on the constitutional right to a voluntary plea.” State v. 

Carmicle, 8th Dist. No. 75001, 1999 Ohio App. LEXIS 5211, *6 (Nov. 4, 1999). 

{¶35} Finally, our review is not limited to the pretrial discussion held on February 

23, 2012; we must also consider the change of plea hearing held four days later. The 

trial judge did not accept Jabbaar’s guilty plea until he fully advised him of his 

constitutional rights and complied with Crim.R. 11. The trial judge further reassured 

Jabbaar that he would bifurcate the sexually violent predator specification from the rape 
counts so that the jury would not be aware of Jabbaar’s prior conviction. The trial 

judge’s detailed colloquy, coupled with his emphasis that Jabbaar would receive a fair 

trial, eliminates any doubt as to the voluntariness of Jabbaar’s plea. Based on our review 

of the entire record, we simply cannot say that it was coerced. 

{¶36} The sole assignment of error is overruled. 

{¶37} Judgment affirmed. 

It is ordered that appellee recover of appellant 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. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 

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

the Rules of Appellate Procedure. 

 

 

MARY J. BOYLE, PRESIDING JUDGE 

FRANK D. CELEBREZZE, JR., J., CONCURS IN JUDGMENT ONLY; 

KATHLEEN ANN KEOUGH, J., DISSENTS WITH SEPARATE OPINION 

KATHLEEN ANN KEOUGH, J., DISSENTING: 

{¶38} Respectfully, I dissent. 
{¶39} The parties agreed at oral argument that this was an unscheduled pretrial 

called by the judge. In fact, defense counsel told the judge that “[w]e were just surprised 

yesterday that we should be here today.” After telling Jabbaar that “there’s a huge 

difference between 15 years and life, or 13 years and life,” the judge asked him if he 

understood that there was DNA evidence that linked him to the crime, “along with the 

gun that was recovered. Along with a witness who identifies you. Along with the 

videotape.” When Jabbaar responded affirmatively, the judge asked him if he had 

considered a plea. After Jabbaar told the judge that he would “rather fight it,” the judge 

questioned that decision, asking him, “Have you some explanation for your DNA being 

recovered from the victim when she went to the hospital”? When Jabbaar said no, and 

told the judge that he could not remember the incident, the judge told him, “Look, you 

know it seems to me that you certainly should consider a plea.” Then, after discussing 

Jabbaar’s pretrial haircut, the judge again questioned his decision to go to trial in light of 

the evidence against him: 

So you’re telling me that despite the fact that you could be sentenced to a 

state penal institution for up to life on this offense, despite the fact that your 

DNA has been recovered from the victim’s person in her body, that you 

wish to go to trial without any explanation for your DNA being there? 

Later, when the prosecutor told the judge that “when I walk out of this courtroom, these 

counts are not open,” the judge — addressing the prosecutor by his first name — 

encouraged him to keep the plea bargain offer open until trial. 

{¶40} Reading this record as a whole, I would find the judge’s statements so 

coercive as to render Jabbaar’s plea involuntary. After engaging in a discussion of the 
evidence against him, the court first asked Jabbaar if he had considered a plea and then 

later directly told him that he “certainly should” consider a plea. When Jabbaar said he 

wanted to go to trial, the judge twice questioned his decision, each time reminding him of 

the evidence against him. The judge also informed Jabbaar that he faced life in prison if 

he were convicted at trial, but advised him of the much lesser sentence that would be 

imposed if he were to plead guilty. Furthermore, the judge encouraged the prosecutor by 

first name, thereby implying a level of familiarity between the judge and prosecutor, to 

keep the plea offer open until trial, despite the prosecutor’s advisement that the offer 

would be withdrawn after the pretrial if it was not accepted at that moment. And, as the 

majority concedes, the record reflects that the trial judge “insisted” that Jabbaar take 

additional time to consider the plea offer. Even then, after telling Jabbaar, that “if there’s 

no plea, we’ll go to trial,” the judge reminded him that “the DNA evidence in this case, is 

generally speaking, Mr. Jabbaar, very highly regarded by juries.” These statements, 

taken together, undoubtedly conveyed to Jabbaar that “the judge had joined with the 

prosecution in deciding that the appellant was guilty.” State v. Byrd, 63 Ohio St.2d 294, 

407 N.E.2d 1384 (1980). 

{¶41} Despite the majority’s conclusion that the trial judge merely “discussed” 

with Jabbaar the potential penalties that could be imposed after trial versus the penalties 

under the plea bargain offered by the state, the record reflects that the court did much 

more. The judge not only told Jabbaar that he was facing life in prison, he specifically 

told him there was “a huge difference between 15 years and life, or 13 years and life,” and 
that he “certainly should” consider a plea. The judge also twice questioned Jabbaar’s 

decision to go to trial despite the evidence against him and “the fact that you could be 

sentenced to a state penal institution for up to life on this offense.” 

{¶42} The fact that the trial judge’s involvement in this case was “qualitatively 

different” than the court’s involvement in Byrd does not demonstrate that there was no 

coercion. A trial judge’s conduct need not be as egregious as that in Byrd to constitute 

coercion. Likewise, the judge’s compliance with Crim.R. 11 at the plea hearing is 

irrelevant to a finding of coercion. The damage was done by that point; the plea had 

already been coerced. 

{¶43} I recognize that the judge’s attempt to encourage Jabbaar to accept the plea 

deal was apparently well-meaning given the evidence against him and the potential for a 

long prison term if he were convicted of all the charges at trial. Nevertheless, I would 

find that the court’s statements at the suddenly-called pretrial undoubtedly conveyed to 

Jabbaar that the judge believed he was guilty and trial would be “a futile exercise,” thus 

coercing his plea. Byrd, 68 Ohio St.2d at 293, 407 N.E.2d 1384. 

{¶44} Accordingly, I would vacate Jabbaar’s conviction because his plea was not 

knowingly, voluntarily, and intelligently made.