[Cite as State v. Mohamed, 2017-Ohio-9012.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

Nos. 102398 and 103602

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

SHUAIB A. HAJI MOHAMED

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-14-585924-A 

BEFORE: Stewart, P.J., Boyle, J., and S. Gallagher, J. 

RELEASED AND JOURNALIZED: December 14, 2017 
ATTORNEYS FOR APPELLANT

Mark A. Stanton 

Cuyahoga County Public Defender 

Erika B. Cunliffe 

Assistant Public Defender 

310 Lakeside Avenue, Suite 200 

Cleveland, OH 44113 

Also Listed:

Marcus S. Sidoti 

Jordan & Sidoti L.L.P. 

50 Public Square, Suite 1900 

Cleveland, OH 44113 

Joseph V. Pagano 

P.O. Box 16869 

Rocky River, OH 44116 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

Kelly N. Mason 

Assistant County Prosecutor 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, OH 44113 
MELODY J. STEWART, P.J.: 

{¶1} This appeal is before us on remand from the Ohio Supreme Court. See 

State v. Mohamed, Slip Opinion No. 2017-Ohio-7468 (“Mohamed II”). 

{¶2} A jury found defendant-appellant Shuaib A. Haji Mohamed guilty of gross 

sexual imposition, attempted gross sexual imposition, two counts of kidnapping, and one 

count of attempted rape. On direct appeal, we overruled six assignments of error, but 

reversed the conviction for kidnapping and ordered a new trial. State v. Mohamed, 8th 

Dist. Cuyahoga Nos. 102398 and 103602, 2016-Ohio-1116 (“Mohamed I”). We held 

that the jury should have been instructed on R.C. 2905.01(C)(1), which states that a 

conviction for kidnapping shall be lowered by one degree if the victim is released in a 

safe place unharmed, because the evidence showed that the victim was released in a safe 

place and suffered no physical harm. We noted case law finding that psychological harm 

is not the type of harm considered for purposes of the statutory analysis. Id. at ¶ 36. 

With there being no evidence that the victim suffered physical harm, we concluded that 

the defense was ineffective for failing to seek a jury instruction and that the trial court 

committed plain error by not giving the instruction for the jury to consider. Id. at ¶ 37. 

Because the reversal on the kidnapping count1

 required a new trial, we found it mooted 

consideration of Mohamed’s eighth assignment of error that the court erred by ordering 

 1

 There were actually two counts of kidnapping that would have been affected by our 

decision. 
consecutive service of the sentences imposed for kidnapping and attempted rape. Id. at ¶ 

46. 

{¶3} The Supreme Court reversed in Mohamed II. It held that the word “harm” 

under R.C. 2905.01(C)(1) is not limited to physical harm, therefore psychological harm is 

contemplated by the statute. Mohamed II, at ¶ 13-15. It then concluded that trial 

counsel’s failure to request a safe-place-unharmed instruction was trial strategy. Id. at ¶ 

25. It also found that the trial court did not commit plain error by failing to provide the 

jury instruction on its own initiative. Id. at ¶ 28. It reinstated the conviction for 

kidnapping and remanded the case to this court for consideration of Mohamed’s eighth 

assignment of error relating to consecutive sentences. Id. at ¶ 30. 

{¶4} In his eighth of assignment of error, Mohamed complains that the court erred 

by ordering consecutive service of the ten-year sentence for kidnapping and the five-year 

sentence for attempted rape. Mohamed concedes that the court made the required 

findings in support of consecutive sentences, but argues that (1) the court erred by 

considering “six arrests involving alcohol” to be a criminal record, and (2) the length of 

his sentence is disproportionate to his conduct given that both the state and the victim 

agreed prior to sentencing that they would recommend a five-year sentence in exchange 

for Mohamed waiving his right to appeal. 

{¶5} To order consecutive service of sentences, the court must make three separate 

findings under R.C. 2929.14(C)(4). The first two findings are common to all consecutive 

sentences — that (1) consecutive service is necessary to protect the public from future 
crime or to punish the offender, and (2) that consecutive sentences are not 

disproportionate to the seriousness of the offender’s conduct and to the danger the 

offender poses to the public. See R.C. 2929.14(C)(4). The third finding varies from 

case-to-case: (a) the offender committed one or more of the multiple offenses while the 

offender was awaiting trial or sentencing, was under a sanction imposed pursuant to 

section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under postrelease 

control for a prior offense; (b) at least two of the multiple offenses were committed as 

part of one or more courses of conduct, and the harm caused by two or more of the 

multiple offenses committed was so great or unusual that no single prison term for any of 

the offenses committed as part of any of the courses of conduct adequately reflects the 

seriousness of the offender’s conduct; or (c) the offender’s history of criminal conduct 

demonstrates that consecutive sentences are necessary to protect the public from future 

crime by the offender. 

{¶6} Mohamed argues that the record does not support a finding that his history of 

criminal conduct demonstrates that consecutive sentences are necessary to protect the 

public from future crime that he might commit. He maintains that when defense counsel 

told the court that Mohamed had “no criminal background whatsoever,” the court took 

issue with that statement, telling Mohamed that “in fact, you do have a criminal record. 

One[,] two, three, four, five, six arrests involving alcohol; some of them involving 

driving. That it’s clear that, you know, you’re a danger to the community.” This record 

of arrests caused the court to conclude that Mohamed was a “danger to the community.” 
Tr. at 1290. Mohamed argues that alcohol-related arrests do not make him a danger to 

the public. 

{¶7} Mohamed fails to recognize that the court did not impose consecutive 

sentences because of his history of criminal conduct — it imposed consecutive sentences 

because at least two of the multiple offenses were committed as part of one or more 

courses of conduct, and the harm caused by two or more of the multiple offenses 

committed was so great or unusual that no single prison term for any of the offenses 

committed as part of any of the courses of conduct adequately reflects the seriousness of 

Mohamed’s conduct. The court clearly stated this on the record: “The harm occasioned 

on the victim is so great and unusual, in this case, and I heard all the facts of the case. 

That a single term would not adequately punish you.” Mohamed’s argument about his 

alcohol-related arrests is irrelevant to the court’s actual findings. 

{¶8} Mohamed next claims that a 15-year sentence is “clearly disproportionate to 

sentences imposed on similarly situated offenders.” This argument erroneously conflates 

the proportionality requirement of R.C. 2929.14(C)(4) with sentencing consistency under 

R.C. 2929.11(B) (a sentence should be “consistent with sentences imposed for similar 

crimes committed by similar offenders.”). See State v. Carson, 8th Dist. Cuyahoga No. 

102424, 2015-Ohio-4183, ¶ 7. “R.C. 2929.14(C)(4) does not direct the trial court to 

compare sentences between similarly situated offenders in making the required 

proportionality analysis.” State v. Dennison, 10th Dist. Franklin No. 14AP-486, 

2015-Ohio-1135, ¶ 20. 
{¶9} Finally, Mohamed argues that his 15-year sentence failed to take into account 

the state’s willingness to accept a far lower sentence: a pretrial offer by the state would 

have had Mohamed plead guilty to a fourth-degree gross sexual imposition and 

third-degree count of abduction with “a presumption of probation” and a post-trial offer 

would have had Mohamed agree to waive his appellate rights in exchange for a five-year 

sentence. 

{¶10} The court had no obligation to sentence Mohamed consistent with the terms 

of a pretrial plea offer because he rejected the offer. State v. Rahab, 150 Ohio St.3d 152, 

2017-Ohio-1401, 80 N.E.3d 431, ¶ 15. In addition, the court made it clear to Mohamed 

before trial that any sentence it imposed if Mohamed were to be tried and found guilty 

would be based on additional details about the case. Mohamed thus has no argument that 

the court was somehow bound to sentence him within the parameters of a rejected plea 

offer. State v. Paul, 8th Dist. Cuyahoga No. 79596, 2002 Ohio App. LEXIS 551, 40 

(Feb. 14, 2002) (“It would be counterintuitive to think that the court is somehow bound to 

the sentence limits discussed in the plea negotiations, even though [the plea offer] had 

been rejected by the accused.”). 

{¶11} There was no agreement to a post-trial sentencing offer to recommend a 

five-year sentence. At sentencing, defense counsel told the court that he and the state 

discussed potential sentences with the hope that the victim would agree to a 

recommended sentence. Defense counsel told the court that those discussions resulted in 

the state agreeing to recommend a five-year sentence. The state agreed that it discussed 
a post-trial sentencing deal in which Mohamed would accept a five-year sentence and 

waive his right to appeal so that the victim would not have to go through another trial. 

The state told the court that the victim was “okay” with the offer. That offer, however, 

was rejected by the victim when she submitted a letter asking the court to impose the 

“max sentence” on Mohamed. The court noted that the victim’s decision to submit a 

letter in which she asked the court to impose the maximum sentence “clearly indicated 

what she felt about the case and there’s clearly been no agreement with respect to a 

recommended sentence.” The court had no obligation to sentence Mohamed consistent 

with the terms of a post-trial agreement that did not exist. 

{¶12} Judgment affirmed. 

It is ordered that appellee recover of appellant the 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. 

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

the Rules of Appellate Procedure. 

______________________________________________ 

MELODY J. STEWART, PRESIDING JUDGE 

MARY J. BOYLE, J., and 

SEAN C. GALLAGHER, J., CONCUR