[Cite as State v. Almosawi, 2012-Ohio-3385.]

 IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO 

STATE OF OHIO : 

Plaintiff-Appellee : C.A. CASE NO. 24633 

v. : T.C. NO. 07CR3644 

MAHDI ALMOSAWI : (Criminal appeal from 

 Common Pleas Court) 

Defendant-Appellant : 

 : 

 . . . . . . . . . . 

O P I N I O N

Rendered on the 27th day of July , 2012. 

 . . . . . . . . . . 

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W. 

Third Street, 5th Floor, Dayton, Ohio 45422 

Attorney for Plaintiff-Appellee 

SHAWN P. HOOKS, Atty. Reg. No. 0079100, 131 N. Ludlow Street, Suite 630, Dayton, 

Ohio 45420 

Attorney for Defendant-Appellant 

 . . . . . . . . . . 

FROELICH, J. 

{¶ 1} Mahdi Al-Mosawi appeals from a judgment of the Montgomery 

County Court of Common Pleas, which corrected an improperly imposed sentence for 
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postrelease control. For the reasons discussed below, the judgment of the trial court will be 

affirmed. 

{¶ 2} In 2008, Al-Mosawi was convicted, on his guilty plea, of two counts of 

attempted murder. His guilty pleas were entered after his trial began. He appealed from his 

conviction, and we affirmed the trial court’s judgment and sentence. State v. Al-Mosawi, 2d 

Dist. Montgomery No. 22890, 2010-Ohio-111. He also appealed, unsuccessfully, from a 

decision of the trial court overruling his petition to vacate or set aside his sentence pursuant 

to R.C. 2953.21. State v. Al-Mosawi, 2d Dist. Montgomery No. 23873, 2010-Ohio-5382. 

{¶ 3} On March 24, 2011, the State filed a motion seeking to correct the judgment 

entry of conviction with respect to the imposition of postrelease control and a motion 

requesting that Al-Mosawi appear for resentencing via video conferencing equipment, as 

permitted by R.C. 2929.191(C). The trial court scheduled a hearing and ordered that 

Al-Mosawi appear by video conferencing. Al-Mosawi’s attorney appeared in court for the 

hearing. 

{¶ 4} Two weeks before the hearing, Al-Mosawi filed a request for an interpreter, 

because his “primary” language is Arabic. The trial court overruled the request for an 

interpreter, noting that Al-Mosawi had participated in and understood prior proceedings 

before the court without the need for an interpreter. Following the hearing, the trial court 

filed a nunc pro tunc entry correcting its prior sentence of postrelease control, informing 

Al-Mosawi that he would be subject to five years of postrelease control on each count after 

his release from prison. 

{¶ 5} Al-Mosawi appeals from the trial court’s nunc pro tunc termination entry, 
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raising three assignment of error. 

{¶ 6} Al-Mosawi’s first assignment of error states: 

The trial court abused its discretion when it conducted the hearing 

without an interpreter in spite of Mr. Al-Mosawi’s request when the 

record was clear that he could not understand the proceedings. 

{¶ 7} Al-Mosawi contends that “it was apparent from [his] testimony at the 

hearing that he did not understand what was taking place,” contrary to the trial court’s 

conclusion, based on observing him at various court proceedings, that he did not need an 

interpreter. He notes that “he repeatedly stated that he did not understand what was 

happening.” 

{¶ 8} In a criminal case, the defendant is entitled to hear the proceedings in a 

language that he can understand. State v. Castro, 2d Dist. Montgomery No. 14398, 1995 

WL 558782, * 4 (Sept. 20, 1995), citing State v. Pina, 49 Ohio App.2d. 394, 399, 361 N.E.2d 

262 (2d Dist.1975). Moreover, R.C. 2311.14(A) requires that a trial court appoint an 

interpreter for legal proceedings whenever a participant in the proceeding “cannot readily 

understand or communicate” as a result of an impediment. See, also, Crim.R. 11(C). 

{¶ 9} The trial court has broad discretion in determining whether a criminal 

defendant requires the assistance of an interpreter. State v. Saah, 67 Ohio App.3d 86, 95, 585 

N.E.2d 999 (8th Dist. 1990). Therefore, this court will not reverse the trial court’s decision 

in this regard absent a showing that the trial court abused its discretion by acting 

unreasonably, unconscionably, or arbitrarily. Id., citing, State v. Apanovitch, 33 Ohio St.3d 

19, 22, 514 N.E.2d 394 (1987). 
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The decision regarding whether a defendant is entitled to a court 

appointed language interpreter is initially based on the trial court’s assessment 

of the defendant’s apparent ability to comprehend the English language and 

communicate therein. See, State v. Quinones (Oct. 14, 1982), Cuyahoga App. 

No. CR-59478, unreported, citing Perovich v. United States (1907), 205 U.S. 

86 and Suarez v. Desist (1962), 309 F.2d 709. * * * [A]n imperfect grasp of 

the English language may be sufficient as long as the defendant has the ability 

to understand and communicate in English. See, Perovich, supra; Saah, supra; 

State v. Davis (May 7, 1981), Cuyahoga App. No. 42672, 42737, 42738, 

unreported. 

Castro at * 4. 

{¶ 10} In this case, the trial court responded to Al-Mosawi’s request for an 

interpreter as follows: 

* * * I denied your request for an interpreter. You have never had any 

difficulty understanding English while you’re [sic] been here in court. And, in 

fact, during your trial when I ordered that there be an interpreter present for 

you, the interpreter did not interpret. I repeatedly asked you if you were 

understanding what was happening and whether you needed the interpreter 

and you responded that you understood everything. At your sentencing, you 

spoke in English yourself, very clearly and very understandably. 

In addition, sir, at your Motion to Suppress, I determined that you 

understood English, that you had no difficulty understanding English, 
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particularly as it related to the statement that you made to the police. 

You have proceeded with your own appeals in this matter, in filing 

your own motions in English. And I have determined that, sir, you are not 

entitled to an interpreter if one is not needed. I have determined that it is not 

needed, sir, and I’ve overruled your request. 

{¶ 11} It is apparent from this exchange that the trial court was very familiar with 

Al-Mosawi’s language abilities and had a substantial history on which to base its conclusion 

that he did not need an interpreter. 

{¶ 12} Moreover, in Al-Mosawi’s direct appeal, we commented on his language 

abilities as follows: 

Although Al-Mosawi can speak and understand English to some 

extent, at his competency hearing, suppression hearing, trial, plea proceeding, 

and sentencing, the trial court qualified an English-Arabic interpreter (not 

always the same at each hearing) and swore in the interpreter. The 

proceedings are recorded in the record as video records. In the proceedings we 

have watched in the video format (we have reviewed the entirety of the written 

transcripts of the proceedings), which includes the entire trial, plea and 

sentencing proceedings, the interpreter appears to be constantly interpreting 

the proceedings for Al-Mosawi, who does not appear to have any difficulty 

following the interpretation. In the plea hearing, when Al-Mosawi responds 

to the trial court’s questions, he does so directly, in English. At the sentencing 

hearing, when the time came for Al-Mosawi to address the trial court, he did 
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so directly, in English, in so much length that the trial court had to gently 

nudge him back to material matters at one point. (The trial court did not, 

however, cut him off at the sentencing hearing; Al-Mosawi was allowed to 

speak until he decided that he was done.) 

State v. Al-Mosawi, 2d Dist. Montgomery No. 22890, 2010-Ohio-111, ¶ 16. 

{¶ 13} Although there is some contradiction between our account and the trial 

court’s about the extent to which Al-Mosawi relied on the interpreter during his trial, the plea 

hearing, and the sentencing hearing, it is undisputed that he had been able to interact directly 

with the court and had made lengthy statements to the court, in English. In light of these 

circumstances, we cannot conclude that the trial court abused its discretion in finding that 

Al-Mosawi did not need an interpreter to understand the resentencing related to postrelease 

control. 

{¶ 14} The first assignment of error is overruled. 

{¶ 15} Al-Mosawi’s second assignment of error states: 

Mr. Al-Mosawi’s Sixth Amendment rights and rights guaranteed under 

Article I, Section 10 of the Ohio Constitution were violated when the 

court conducted the hearing via video conferencing over Mr. Al-Mosawi’s 

objection. 

{¶ 16} Al-Mosawi contends that his resentencing hearing related to postrelease 

control was a “critical stage” of the proceedings, and that his constitutional rights were 

violated when the trial court ordered that the resentencing be conducted via video 

conferencing, because “a fair and just hearing” could not be had in his absence. 
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{¶ 17} A trial court must apply the procedures contained in R.C. 2929.191 to 

remedy any postrelease control error occurring in a sentence imposed on or after July 11, 

2006. State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, paragraph 

two of the syllabus. R.C. 2929.191 requires a trial court to hold a hearing before issuing a 

corrected sentencing entry. R.C. 2929.191(C) provides, in pertinent part, as follows: 

 Before a court holds a hearing pursuant to this division, the court shall 

provide notice of the date, time, place, and purpose of the hearing to the 

offender who is the subject of the hearing, the prosecuting attorney of the 

county, and the department of rehabilitation and correction. The offender has 

the right to be physically present at the hearing, except that, upon the court’s 

own motion or the motion of the offender or the prosecuting attorney, the 

court may permit the offender to appear at the hearing by video conferencing 

equipment if available and compatible. An appearance by video conferencing 

equipment pursuant to this division has the same force and effect as if the 

offender were physically present at the hearing. * * * 

{¶ 18} A criminal defendant has a fundamental right to be present at all critical 

stages of his criminal trial. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 

864, ¶ 100; Sixth and Fourteenth Amendments to the United States Constitution; Ohio 

Constitution, Article I, Section 10. “However, a criminal defendant’s absence ‘does not 

necessarily result in prejudicial or constitutional error.’ State v. Davis, 116 Ohio St.3d 404, 

880 N.E.2d 31, 2008-Ohio-2, ¶ 90. See also State v. Reed, 10th Dist. No. 09AP-1164, 

2010-Ohio-5819, ¶ 13.” State v. Morton, 10th Dist. Franklin No. 10AP-562, 
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2011-Ohio-1488, ¶ 18. The presence of a defendant is a condition of due process to the 

extent that a fair and just hearing would be thwarted by his absence. Id., citing Davis at ¶ 90 

and Snyder v. Massachusetts, 291 U.S. 97, 107-108, 54 S.Ct. 330, 333, 78 L.Ed. 674(1934); 

see also State v. Morris, 10th Dist. Franklin No. 10AP-512, 2011-Ohio-5484, ¶15. Therefore, 

a defendant’s absence in violation of Crim.R. 43(A) can constitute harmless error where he 

suffered no prejudice, even though such absence was improper. Morton at ¶ 18; Morris at ¶ 

15. 

{¶ 19} In this case, any error in regard to Al-Mosawi’s physical presence at the 

hearing was clearly harmless. The five-year term of postrelease control ordered by the court 

was mandatory. Al-Mosawi spoke with his attorney privately before the court went on the 

record to reimpose postrelease control, and Al-Mosawi did not ask to speak with counsel 

again in response to anything that transpired at the hearing. Counsel addressed the court on 

Al-Mosawi’s behalf with regard to sentencing, and Al-Mosawi was also allowed to address 

the court. 

{¶ 20} Although Al-Mosawi suggests that the videoconferencing exacerbated his 

language difficulties, the trial court flatly rejected his claim that he had any trouble 

understanding the proceedings, and there is nothing in the record to suggest that 

videoconferencing did, in fact, make the proceedings more difficult for Al-Mosawi to 

understand. Nothing in the record indicates that any additional information could have been 

submitted on Al-Mosawi’s behalf or that his physical presence at the hearing would have 

affected the outcome. 

{¶ 21} The second assignment of error is overruled. 
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{¶ 22} Al-Mosawi’s third assignment of error states: 

The trial court erred when it deprived Mr. Al-Mosawi the opportunity to 

address the error in sentencing him to PRC on each count of attempted 

murder when the two counts are allied offenses of similar import.

{¶ 23} Al-Mosawi recognizes that our “limited remand” required the trial court to 

revisit only the issue of postrelease control, but he argues that such limited action was “not 

sufficient,” because the trial court failed to merge allied offenses in his original sentence, and 

therefore improperly imposed two mandatory terms of postrelease control for those offenses. 

{¶ 24} Even assuming, for the sake of argument, that Al-Mosawi’s sentences were 

allied offenses of similar import, the trial court’s failure to merge them at the time of 

sentencing resulted, at most, in a voidable sentence, not a void sentence. State v. Parson, 2d 

Dist. Montgomery No 24641, 2012-Ohio-730, ¶ 9. Arguments challenging a voidable 

sentence must be raised on direct appeal. Id. at ¶ 10, citing State v. Simpkins, 117 Ohio 

St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 30. The doctrine of res judicata bars any 

argument challenging a voidable sentence that could have been raised on direct appeal, but 

was not. Id. 

{¶ 25} Moreover, R.C. 2967.28(F)(4)(c) provides that, “[i]f an offender is subject 

to more than one period of post-release control, the period of post-release control for all of 

the sentences shall be the period of post-release control that expires last, as determined by the 

parole board or court. Periods of post-release control shall be served concurrently and shall 

not be imposed consecutively to each other.” Thus, there was no practical effect of the 

imposition of two identical terms of postrelease control, and no prejudice to Al-Mosawi. 
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{¶ 26} The third assignment of error is overruled. 

{¶ 27} The judgment of the trial court will be affirmed. 

 . . . . . . . . . . 

GRADY, P.J. and HALL, J., concur. 

Copies mailed to: 

R. Lynn Nothstine 

Shawn P. Hooks 

Hon. Mary Katherine Huffman