State v. Bakhshi , 2014 Ohio 1268 ( 2014 )

[Cite as State v. Bakhshi, 2014-Ohio-1268.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25585
v. : T.C. NO. 12CRB6319
JAY P. BAKHSHI : (Criminal appeal from
Municipal Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 28th day of March , 2014.
..........
AMY B. MUSTO, Atty. Reg. No. 0071514, Assistant City Prosecutor, 335 W. Third Street,
Room 372, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P. O. Box 341021, Beavercreek,
Ohio 45434
Attorney for Defendant-Appellant
..........
FROELICH, P.J.
{¶ 1} Jay Bakhshi was found guilty after a jury trial in the Dayton
Municipal Court of gambling, in violation of R.C. 2915.02(A)(2). The trial court sentenced
him to 180 days in jail, all of which were suspended, and one year of non-reporting
community control, with a condition that Bakhshi complete 500 hours of community service
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within approximately 15 weeks. The court imposed a $1,000 fine and ordered him to pay
court costs, including jury costs.
{¶ 2} Bakhshi appeals from his conviction, claiming that his conviction was based
on insufficient evidence and was against the manifest weight of the evidence, that he was
denied effective assistance of counsel, that he was the victim of selective prosecution, and
that the trial court abused its discretion at sentencing. For the following reasons, the portion
of the trial court’s sentence that required community service as a condition of community
control will be reversed, and the matter will be remanded for resentencing on that condition;
in all other respects, the trial court’s judgment will be affirmed.
I. Factual and Procedural History
{¶ 3} The State’s evidence at trial established the following facts.
{¶ 4} Bakhshi’s friend, co-defendant Thomas Boscarino, rented the IUE-CWA
Union Hall on Woodman Avenue in Dayton to hold a fundraising event for Boscarino’s
adult son, Nikolaos, on July 28, 2012. Nikolaos had been involved in a physical altercation
with police officers, resulting in legal and medical expenses. Boscarino did not rent the
facility for use by a non-profit charitable organization, as recognized by the IRS.
{¶ 5} On the day of the event (July 28), the Dayton Police Department received a
complaint that Boscarino would be holding an event involving illegal gambling and illegal
liquor sales at the IUE Hall. Lieutenant Stivers called Sergeant Gary Lowe, who then
contacted Detective Raymond St. Clair and asked him (St. Clair) to contact Detectives
Thomas Oney and Doug George to see if they would conduct an undercover investigation.
Detectives Oney and George agreed to participate in the investigation, and they reported to
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work at 8:00 p.m. Detective Oney briefly conducted surveillance of the IUE Hall while
Detective George investigated whether the IUE Hall had a valid liquor permit for that day.
{¶ 6} At approximately 10:00 p.m., Detectives Oney and George went to the IUE
Hall, in plain clothes, to enter the facility. Outside was a sign advertising, “Sat 28 July 5
PM to MID, $15 donation, all you can eat pizza and beer.” The detectives paid the requested
$15 donation and were provided an orange wristband and cup. Upon entering, they went to
the bar area near the kitchen, where the detectives obtained beer (for no additional cost) and
Detective George got a shot of Jack Daniel’s for $2. The detectives then got pizza from
another table.
{¶ 7} The detectives noticed people playing cards on the other side of the IUE
Hall. They went over and saw that the individuals were playing Texas Hold ‘Em, a
“standard poker game.” Bakhshi was the dealer for the table. As the games were played,
people placed bets with poker chips in accordance to Texas Hold ‘Em rules. Once the hand
was completed, Bakhski raked in the chips and counted them. Bakhshi took a small
percentage of the chips from the table, placed them in a small plastic container that was
sitting on a seat to his left, and then gave the remainder of the “pot” to the winning player.
The detectives recognized that the amount taken by Bakhshi was a “cut,” a portion retained
by the “house” as profit for whoever is operating the game.
{¶ 8} After watching a few hands, Detective Oney went back to the kitchen area
and purchased $25 of poker chips. Oney received black and white poker chips, which were
worth $1 (white) and $5 (black). When a seat opened up at Bakhshi’s table, Oney began to
play. He asked Bakhshi what the cut was, and Bakhshi indicated it was about ten percent,
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meaning the house would retain ten percent of the value of the pot once the hand was
completed. After losing all of his chips, Oney returned to the bar area and purchased
another $25 worth of chips.
{¶ 9} Play at the table stopped when Boscarino stepped onto a small stage and
gave a short speech. During his talk, Boscarino indicated that there were two Dayton police
officers at the event. Oney testified that people started staring at him and Detective George.
{¶ 10} After Boscarino’s speech concluded, Detective Oney contacted his
supervisor and informed him that his and Detective George’s identities had been
compromised, that beer was being sold, and that Texas Hold ‘Em was being played with a
cut. Players resumed playing poker, and Detective George purchased $40 worth of poker
chips from Bakhshi and sat down to play. At this time, Bakhshi brought out a sign
describing the game and method of donation. Bakhshi also began asking the players if it
were alright if they contributed a ten percent donation. Detective Oney also resumed
playing until uniformed officers and other detectives arrived.
{¶ 11} When uniformed police officers arrived, the IUE Hall was “locked down”
and Detective George identified some of the people that he observed engaging in illegal
activity. Numerous items were collected pursuant to a search warrant. Those items
included poker chips, cards, kegs of beer, bottles of liquor, a television, a computer,
invoices, flyers, money totaling $2,561.25, a vial of Miller Lite beer and a vial of Jack
Daniel’s, cups, and wrist bands.
{¶ 12} Bakhshi was arrested and charged by complaint with gambling. Upon
motions by Bakhshi and the State, the case was consolidated with those of his five
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co-defendants.1 (The case of one co-defendant was later severed due to scheduling issues.)
After a jury trial on November 8 and 9, 2012, Bakhshi was convicted of gambling, in
violation of R.C. 2915.02(A)(2). The court held a sentencing hearing on January 3, 2013, at
which time it imposed a suspended 180-day jail term, one year of non-reporting community
control (with the condition that he complete 500 hours of community service), a $1,000 fine,
and court costs. The trial court’s judgment entry, filed on January 7, 2013, included an
additional condition that the 500 hours of community service be performed by April 19,
2013.
{¶ 13} Bakhshi appeals from his conviction, raising five assignments of error.
II. Sufficiency and Manifest Weight of the Evidence
{¶ 14} Bakhshi’s first and second assignments of error claim that his conviction
was based on insufficient evidence and was against the manifest weight of the evidence.
{¶ 15} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to the
jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery No.
22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d
541 (1997). When reviewing whether the State has presented sufficient evidence to support
a conviction, the relevant inquiry is whether any rational finder of fact, after viewing the
evidence in a light most favorable to the State, could have found the essential elements of
the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 430, 683
N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal unless “reasonable
1
Bakhshi was tried jointly with Thomas Boscarino, Kenneth Wise, Ryan Hilgeman, and Demitria Boscarino.
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minds could not reach the conclusion reached by the trier-of-fact.” Id.{¶ 16} In contrast, “a weight of the evidence argument challenges the believability
of the evidence and asks which of the competing inferences suggested by the evidence is
more believable or persuasive.” Wilson at ¶ 12; see Eastley v. Volkman, 132 Ohio St.3d
328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (“ ‘manifest weight of the evidence’ refers to a
greater amount of credible evidence and relates to persuasion”). When evaluating whether a
conviction is against the manifest weight of the evidence, the appellate court must review the
entire record, weigh the evidence and all reasonable inferences, consider witness credibility,
and determine whether, in resolving conflicts in the evidence, the trier of fact “clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, citing State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 17} Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder’s decisions whether, and to what extent, to credit the testimony of particular
witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22,
1997). However, we may determine which of several competing inferences suggested by
the evidence should be preferred. Id. The fact that the evidence is subject to different
interpretations does not render the conviction against the manifest weight of the evidence.
Wilson at ¶ 14. A judgment of conviction should be reversed as being against the manifest
weight of the evidence only in exceptional circumstances. Martin, 20 Ohio App.3d at 175,
485 N.E.2d 717.
{¶ 18} Bakhshi was convicted of gambling, in violation of R.C. 2915.02(A)(2).
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That statute provides that no person shall “[e]stablish, promote, or operate or knowingly
engage in conduct that facilitates any game of chance conducted for profit or any scheme of
chance.” R.C. 2915.01(E) defines “game of chance conducted for profit” to mean “any
game of chance designed to produce income for the person who conducts or operates the
game of chance, but does not include bingo.” “Game of chance” means “poker, craps,
roulette, or other game in which a player gives anything of value in the hope of gain, the
outcome of which is determined largely by chance, but does not include bingo.” R.C.
2915.01(D). For purposes of R.C. 2915.02(A)(2), a person facilitates a game of chance
conducted for profit if the person in any way knowingly aids in the conduct or operation of
any such game, including, without limitation, playing any such game. R.C. 2915.02(B).
{¶ 19} R.C. 2915.02(D) provides an exception to gambling conducted by
non-profit charitable organizations, as recognized by the IRS, under certain circumstances;
however, the evidence at trial established that the fundraising event was not conducted by a
non-profit charitable organization and that this exception does not apply.
{¶ 20} Bakhshi argues that his conviction for gambling should be reversed for three
reasons. First, he asserts Texas Hold ‘Em is not a “game of chance.” R.C. 2915.01(D)
defines poker as a “game of chance,” and both Detective Oney and Detective George (and
defense witness Roger Wells) testified that Texas Hold ‘Em is a form of poker. Although
there was some evidence that skillful bluffing plays a role in winning poker hands, the State
provided sufficient evidence that the card game at issue was a “game of chance,” i.e., a form
of poker, and the jury did not lose its way in reaching that conclusion.
{¶ 21} Second, Bakhshi claims that there was no evidence that he was going to
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personally profit from the fundraiser, because any profits from the fundraiser would go to
Boscarino’s son.
{¶ 22} Upon review of the record, the State presented evidence that the Texas
Hold ‘Em table was a “game of chance conducted for profit,” i.e., it was “designed to
produce income for the person who conducts or operates the game of chance.” See R.C.
2915.01(E). Detectives Oney and George testified that ten percent of the poker pot went to
the “house” at the end of each hand. Bakhshi was the dealer at the table, and at the end of
each hand, Bakhshi raked in the chips, took a ten percent cut, and provided the remaining
chips to the winner of the hand. The evidence established that the poker table was designed
to produce income for the organizer of the fundraiser, Boscarino, and that Bakhshi engaged
in the conduct that facilitated the poker playing by being the dealer for the table. The facts
that Bakhshi did not personally profit from the table or that Boscarino intended to use those
profits to help his son financially do not compel the conclusion that Bakhshi’s conviction
was based on insufficient evidence or was against the manifest weight of the evidence.
{¶ 23} Third, Bakhshi asserts that R.C. 2915.02(D) was not intended to apply to the
July 28 event, as a one-time fundraiser. He emphasizes the 1973 Legislative Service
Committee’s commentary that “[t]his section is aimed at suppressing the business of
gambling, and prohibits gambling for profit, as well as various peripheral activities which
support it. It does not prohibit gambling (other than bookmaking) which is not conducted
for profit.” The comments note that the prohibitions in R.C. 2915.02 reach “not only the
bookie, the casino operator, and the manager of a floating crap game, but also the clerk of
the handbook, the dealer, and the person who places a bet with a bookie or plays an illicit
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game or scheme.”
{¶ 24} Additional comments by the Legislative Service Committee further
illustrate, however, that the reach of R.C. 2915.02 extends beyond gambling business
operations. It reads, in part:
The penny-ante poker game in one’s own home with friends, the dime-a-hole
Saturday golf match, and the office football pool are not prohibited, unless
some profit is taken other than the gain accruing to a winner. If a nominal
charge is made for admission or for a seat in the game, or a small percentage
of the pot or pool is taken, or the house takes an edge in the odds, then profit
enters the picture.
(Emphasis added.)
{¶ 25} The evidence at trial reveals that Boscarino organized the July 28, 2012
event to be a fundraiser for his son’s legal and medical expenses. Although there is no
evidence that Boscarino conducted similar gambling operations on an ongoing basis, the
Texas Hold ‘Em table fell within the scope of R.C. 2915.02 when a percentage of the pot
was taken by Bakhshi, the dealer, at the poker table.
{¶ 26} Bakhshi’s gambling conviction was based on sufficient evidence and was
not against the manifest weight of the evidence. The first and second assignments of error
are overruled.
III. Ineffective Assistance of Counsel: Speedy Trial
{¶ 27} In his third assignment of error, Bakhshi states that he “was deprived of
effective assistance of counsel.” Bakhshi claims that his trial counsel rendered ineffective
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assistance when he failed to file a motion to dismiss on speedy trial grounds.
{¶ 28} We review alleged instances of ineffective assistance of trial counsel under
the two prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42
Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases, trial counsel is entitled to
a strong presumption that his or her conduct falls within the wide range of reasonable
assistance. Strickland at 688. To reverse a conviction based on ineffective assistance of
counsel, it must be demonstrated that trial counsel’s conduct fell below an objective standard
of reasonableness and that his or her errors were serious enough to create a reasonable
probability that, but for the errors, the result of the trial would have been different. Id.{¶ 29} The right to a speedy trial is guaranteed by the United States and Ohio
Constitutions. State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989). Ohio’s
speedy trial statute, R.C. 2945.71, “was implemented to incorporate the constitutional
protection of the right to a speedy trial” provided in the United States and Ohio
Constitutions. Brecksville v. Cook, 75 Ohio St.3d 53, 55, 661 N.E.2d 706 (1996). As such,
that statute must be strictly construed against the State. Id.{¶ 30} A defendant can establish a prima facie case for a speedy trial violation by
demonstrating that the trial was held past the time limit set by statute for the crime with
which the defendant is charged. State v. Gray, 2d Dist. Montgomery No. 20980,
2007-Ohio-4549, ¶ 15. “If the defendant can make this showing, the burden shifts to the
State to establish that some exception[s] applied to toll the time and to make the trial timely.
If the State does not meet its burden, the defendant must be discharged. R.C. 2945.73.”
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Id.{¶ 31} Bakhshi was charged with a first-degree misdemeanor. A person charged
with a first-degree misdemeanor or another misdemeanor for which the penalty is
imprisonment for more than 60 days must be brought to trial within 90 days after the
person’s arrest or service or summons. R.C. 2945.71(B)(2). When the accused is held in
jail in lieu of bail on the pending charge, each day is counted as three days. R.C.
2945.71(E). However, Bakhshi was released on bond the same day that he was arrested.
Accordingly, the triple-count provision is inapplicable in this case.
{¶ 32} The time within which a defendant must be brought to trial may be
extended for the reasons specifically enumerated in R.C. 2945.72. State v. Brewer, 2d Dist.
Montgomery Nos. 22159, 22160, 2008-Ohio-2715, ¶ 37, citing State v. Palmer, 84 Ohio
St.3d 103, 702 N.E.2d 72 (1998). Permissible reasons for extending the trial date include
“[a]ny period of delay necessitated by reason of a * * * motion * * * made or instituted by
the accused” and “[t]he period of any continuance granted on the accused’s own motion, and
the period of any reasonable continuance granted other than upon the accused’s own
motion[.]” R.C. 2945.72(E) and (H).
{¶ 33} Bakhshi was arrested on July 29, 2012, and the trial was originally scheduled
for September 13, 2012. The trial date was reset by the court, sua sponte, to October 17,
2012, due to (1) an older case that took precedence and went forward with a jury on
September 13, and (2) the parties made the court aware that the consolidated cases would
require a three-day trial, instead of the two days that are normally required.
{¶ 34} The case was again continued on October 2, 2012, when the trial court
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granted the State’s motion for a continuance because laboratory results were still pending.
Bakhshi subsequently filed a memorandum opposing the State’s motion. He noted that he
did not have an opportunity to respond to the State’s motion, and he argued that the basis for
the State’s motion was unsubstantiated. Bakhshi stated that there was no documentation
from the Miami Valley Regional Crime Lab supporting the State’s reason for the
continuance, and the discovery received from the State did not include a Crime Lab request
form. Upon reconsideration on October 11, the trial court found the State’s request to be
reasonable and again granted the continuance. The trial court rescheduled the trial date for
November 8, 2012.
{¶ 35} Bakhshi claims that his speedy trial rights were violated when the trial court
granted, over his objection, the State’s October 2, 2012 motion for a continuance due to a
back-up at the laboratory. The State responds that Bakhshi’s speedy trial time was extended
by several tolling events, including Bakhshi’s request for discovery, his motion to
consolidate his case with those of his co-defendants, his request for a bill of particulars, the
trial court’s sua sponte continuance of the September trial date, and the State’s request for a
continuance due to a delay in obtaining laboratory results.
{¶ 36} We agree with the State that Bakhshi’s speedy trial rights were not violated
when he was brought to trial on November 8, 2012. Bakhshi filed several motions that
tolled the speedy trial time. For example, he filed a demand for discovery on August 3,
2012, and a motion for a bill of particulars on August 14, 2012. A defendant’s demand for
discovery or a bill of particulars is a tolling event, pursuant to R.C. 2945.72(E). State v.
Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d 159; State v. Dankworth, 172 Ohio
13App.3d 159, 2007-Ohio-2588, 873 N.E.2d 902, ¶ 45 (2d Dist.). The State did not respond
to the bill of particulars until October 12, 2012, and it is unclear when the State responded to
the demand for discovery. Even assuming that the State’s response to the request for a bill
of particulars was unreasonably slow, a two-week tolling of Bakhshi’s speedy time – the
time needed for his trial to be timely – would not have been unreasonable.
{¶ 37} In addition, prior to the expiration of Bakhshi’s speedy trial time, the State
moved for – and the trial court granted – a continuance of the trial date on the ground that
“[t]he Lab is backed up and results are not yet available.” We find no fault with the trial
court’s conclusion that a continuance for purposes of awaiting laboratory results was
“reasonable and for good cause,” or with a 13-day delay of the trial date (from October 26 to
November 8) on that basis. Given this conclusion, we need not address the other alleged
bases for tolling the speedy trial time.
{¶ 38} In summary, Bakhshi’s right to a speedy trial was not violated when he was
brought to trial on November 8, 2012. Consequently, his trial counsel did not provide
ineffective assistance when counsel failed to move for a dismissal on speedy trial grounds.
{¶ 39} Bakhshi’s third assignment of error is overruled.
IV. Selective Prosecution
{¶ 40} In his fourth assignment of error, Bakhshi claims that he was subject to
selective prosecution. His complaint appears to be more one of targeted enforcement, rather
than constitutionally-prohibited selective prosecution.
{¶ 41} In general, the decision whether to prosecute a criminal offense is left to the
discretion of the prosecutor. State v. Turner, 192 Ohio App.3d 323, 330, 2011-Ohio-393,
14
949 N.E.2d 57 (2d Dist.), citing United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct.
1480, 134 L.Ed.2d 687 (1996). The prosecutor’s decision is entitled to a “strong
presumption of regularity,” and a defendant must do more than simply show that others who
are similarly situated were not prosecuted. Id., citing Cleveland v. Trzebuckowski, 85 Ohio
St.3d 524, 533, 709 N.E.2d 1148 (1999). A defendant claiming selective prosecution
“‘bears the heavy burden of establishing, at least prima facie, (1) that, while
others similarly situated have not generally been proceeded against because of
conduct of the type forming the basis of the charge against him, he has been
singled out for prosecution, and (2) that the government’s discriminatory
selection of him for prosecution has been invidious or in bad faith, i.e., based
upon such impermissible considerations as race, religion, or the desire to
prevent his exercise of constitutional rights.’” State v. Flynt (1980), 63 Ohio
St.2d 132, 134, 17 O.O.3d 81, 407 N.E.2d 15, quoting United States v.
Berrios (C.A.2, 1974), 501 F.2d 1207, 1211.
State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 44.
{¶ 42} Bakhshi asserts that the July 28 fundraising event was targeted by the
police, because the purpose of the event was to raise money for Boscarino’s son, Nikolaos,
who had accumulated legal and medical expenses arising out of an altercation with a police
officer at Taggart’s bar in Dayton.
{¶ 43} Sergeant Lowe testified that he was called by Lieutenant Stivers because
Stivers’s confidential informant had reported a fundraiser for the Boscarino defense. The
primary concern was illegal alcohol sales and gambling. Stivers also told Lowe that there
15
was a court order that a video of Nikolaos’s arrest not be shown, so “if it was shown then
that would be another violation.” The record does not reflect the identity of Stivers’s
confidential informant, and it is unclear whether there was a filed court order precluding the
showing of the arrest video.
{¶ 44} The record does not support Bakhshi’s claim of selective prosecution or
targeted enforcement (even assuming the latter is prohibited). Bakhshi does not attempt to
identify other individuals who held a similar event, with illegal gambling and distribution of
alcohol through “donations”, but were not prosecuted. Nor is there any evidence that the
prosecution was based on any constitutionally impermissible consideration. In addition, the
testimony of Oney, George, St. Clair, and Lowe at trial reflects that none of the police
officers who conducted the investigation of Boscarino’s fundraiser was involved in the
events regarding Nikolaos at Taggart’s, and none of the officers had a close association with
the officer who was allegedly injured by Nikolaos. We can glean nothing from the record
that the decisions to arrest and prosecute Bakhshi were acts of intentional and purposeful
discrimination.
{¶ 45} Bakhshi’s fourth assignment of error is overruled.
IV. Sentencing
{¶ 46} Bakhshi’s fifth assignment of error claims that the trial court abused its
discretion in sentencing him. He states that he is a business man without a history of
“persistent criminal activity,” that the event was a one-time event, that his intent was simply
to help his friend, Boscarino, and that he did not commit the worst form of the offense.
Bakhshi claims that his sentence was excessive under the circumstances.
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{¶ 47} When sentencing for a misdemeanor offense, the trial court is guided by the
“overriding purposes of misdemeanor sentencing,” which are to protect the public from
future crime by the offender and others and to punish the offender. R.C. 2929.21(A); State
v. Collins, 2d Dist. Greene No. 2012-CA-2, 2012-Ohio-4969, ¶ 9. “To achieve those
purposes, the sentencing court [must] consider the impact of the offense upon the victim and
the need for changing the offender’s behavior, rehabilitating the offender, and making
restitution to the victim of the offense, the public, or the victim and the public.” R.C.
2929.21(A). The sentence imposed must be “reasonably calculated to achieve the two
overriding purposes of misdemeanor sentencing * * *, commensurate with and not
demeaning to the seriousness of the offender’s conduct and its impact upon the victim, and
consistent with sentences imposed for similar offenses committed by similar offenders.”
R.C. 2929.21(B); Collins at ¶ 9.
{¶ 48} “A trial court is also required to consider the nature and circumstances of
the offense, whether there was a history of persistent criminal activity or character that
reveals a substantial risk of the offender committing another offense, and numerous other
factors related to the offender and the offense. R.C. 2929.22(B). However, in
misdemeanor sentencing, there is no requirement that a trial court specifically state its
reasons for imposing the sentence that it does on the record. State v. Jackson, 2d Dist.
Montgomery No. 20819, 2005-Ohio-4521, ¶ 16, citing State v. Harpster, 5th Dist. Ashland
No. 04COA061, 2005-Ohio-1046.” Collins at ¶ 10. “If the sentence imposed is within
permissible statutory limits, a reviewing court will presume that the trial court considered the
sentencing factors in R.C. 2929.22(B), absent a showing to the contrary.” State v. Johnson,
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2d Dist. Greene No. 04-CA-126, 2005-Ohio-6826, ¶ 9.
{¶ 49} We review misdemeanor sentences for an abuse of discretion. State v.
Peagler, 2d Dist. Montgomery No. 24426, 2012-Ohio-737, ¶ 3.
{¶ 50} Pursuant to R.C. 2929.24(A)(1) and R.C. 2929.28(A)(2)(i), a trial court
may impose a sentence of up to 180 days in jail and a fine of up to $1,000 for a misdemeanor
of the first degree. R.C. 2929.27(A)(3) allows the court to impose a term of community
service of up to 500 hours for a first-degree misdemeanor. The trial court may impose a jail
term under R.C. 2929.24, suspend all or a portion of the jail term imposed, and place the
offender under a community control sanction or combination of community control
sanctions authorized under section 2929.26, 2929.27, or 2929.28 of the Revised Code. R.C.
2929.25(A)(1)(b).
{¶ 51} At sentencing, the State argued that Bakhshi “understood what he was doing
was wrong.” The prosecutor commented that Bakhshi’s “attitude” changed after
Boscarino’s speech, when Boscarino stated that police officers were present, and that
Bakhshi continued with the illegal behavior after the speech. The State argued that there
needed to be a “serious consequence” for Bakhshi’s actions.
{¶ 52} In response, defense counsel told the trial court that Bakhshi’s sole purpose
in helping with the July 28 event was to help the family of a friend. Counsel stated that
“[h]is error in judgment, if there is one, was in helping his friend and getting caught up in
that whole thing.” Counsel informed the court that Bakhshi led a law-abiding life and is a
productive member of society. When asked by the court, Bakhshi stated that he is
self-employed and that he has owned his own construction company for “going on four
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years.” Bakhshi responded affirmatively when asked if he could make a decent living.
{¶ 53} The trial court orally imposed a suspended 180-day jail term, one year of
non-reporting community control (with the condition that he complete 500 hours of
community service), a $1,000 fine, and court costs, including jury costs. The trial court’s
judgment entry, filed on January 7, 2013, reflected that sentence and included an additional
condition that the 500 hours of community service be performed by April 19, 2013.2
{¶ 54} From the record on appeal, it is difficult to reconcile the circumstances of
Bakhshi’s offense with the imposition of the maximum $1,000 fine and maximum 500-hour
community service requirement. Bakhshi was not the organizer of the event, and his
involvement was limited to being the dealer at the Texas Hold ‘Em table, an act he
performed for free on a one-time basis for his friend. Unlike his co-defendant Boscarino,
there is no evidence that Bakhshi aimed to profit from the event or had any control over how
the profits would be used. Nevertheless, given the financial implications of a gambling
offense, we cannot conclude that the trial court abused its discretion in imposing a $1,000
fine. In addition, we cannot conclude that the jail term, which was suspended in its entirety,
was unreasonable.
{¶ 55} The trial court did err when it ordered Bakhshi to complete 500 hours of
community service by April 19, 2013. The trial court sentenced Bakhshi on January 3,
2013 to 500 hours of community service. In the judgment entry filed on January 7, 2013, it
2
The trial court also did not inform Bakhshi at sentencing of the consequences of violating community control. The
judgment entry states, however, that a violation of community control may result in a longer time under the same control, a
more restrictive community control sanction, and/or a combination of community control sanctions, including up to 180 days in
jail.
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required him to complete his 500 hours of community service within 15 weeks of that date
(which comes to 33.33 hours per week for 15 weeks, or 12.5 weeks at 40 hours per week).
{¶ 56} A defendant has a right to be present at every stage of a criminal proceeding,
including sentencing. Ohio Constitution, Article I, Section 10; Crim.R. 43(A); State v.
Walker, 2d Dist. Clark Nos. 2013 CA 8, 2013 CA 9, 2014-Ohio-526, ¶ 22. The amendment
or modification of a defendant’s sentence outside of a defendant’s presence violates a
defendant’s right to notice and to due process. See State v. Haymon, 5th Dist. 2005 CA
163, 2006-Ohio-3296, ¶ 14, citing Cleveland v. Clemons, 90 Ohio App.3d 212, 628 N.E.2d
141 (8th Dist.1993). Thus, “a trial court errs when it issues a judgment entry imposing a
sentence that differs from the sentence pronounced in the defendant’s presence.” State v.
Culver, 160 Ohio App.3d 172, 2005-Ohio-1359, 826 N.E.2d 367, ¶ 70 (2d Dist.), citing
State v. Aliane, 10th Dist. Franklin No. 03AP-840, 2004-Ohio-3730, ¶ 8; see State v.
Andrasak, 194 Ohio App.3d 838, 2011-Ohio-3425, 958 N.E.2d 594 (9th Dist.) (nunc pro
tunc entry that modified “no contact” condition of community control violated defendant’s
rights under Crim.R. 43(A)).
{¶ 57} Bakhshi was not informed at his sentencing of the condition that he
complete 500 hours of community service by April 19, 2013. The addition of a specific
time limitation in the trial court’s judgment entry violated his right to notice and due
process. We therefore conclude that the trial court erred in its imposition of community
service as a condition of Bakhshi’s community control. Accordingly, the community
service condition imposed in the judgment entry is reversed, and the matter is remanded for
resentencing on this condition.
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{¶ 58} Bakhshi’s fifth assignment of error is overruled in part and sustained in part.
V. Conclusion
{¶ 59} The portion of the trial court’s judgment that required community service as
a condition of community control will be reversed, and the matter will be remanded for
resentencing on that condition. In all other respects, the trial court’s judgment will be
affirmed.
..........
FAIN, J. and HALL, J., concur.
Copies mailed to:
Amy B. Musto
Robert Alan Brenner
Hon. Carl Sims Henderson