2020 Ohio 5496
Ohio Ct. App.2020Background
- In 1998 Jose Hernandez (a non‑citizen) pled guilty to repeatedly raping his stepdaughter and received an agreed sentence of 5–25 years.
- The trial court did not orally give the R.C. 2943.031(A) immigration advisement at the plea hearing.
- Hernandez signed a written plea form that asked whether he was a U.S. citizen (he answered “No”) and recited the R.C. 2943.031(A) advisement; defense counsel and the prosecutor also discussed deportation at the plea hearing.
- ODRC and parole‑board records from 1998 and 2001 indicated a detainer and anticipated deportation; a 2013 parole entry inconsistently suggested deportation might be unlikely.
- Hernandez moved in July 2019 under R.C. 2943.031(D) to withdraw his guilty plea, alleging lack of advisement; the state conceded the statutory elements but argued the motion was untimely and prejudicial; the trial court denied the motion.
- The First District affirmed, holding timeliness under State v. Francis must be considered and Hernandez’s 21‑year delay (plus evidence he knew of deportation earlier) rendered the motion untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in denying Hernandez’s R.C. 2943.031(D) motion to withdraw his plea where no oral R.C. 2943.031(A) advisement was given | State: statutory elements conceded; motion nonetheless untimely and defendant showed no prejudice warranting relief | Hernandez: no advisement was given so relief should be automatic; any delay was due to counsel and not him | Court: Affirmed denial. Under State v. Francis timeliness is a valid factor even when no oral advisement was given; Hernandez knew of deportation earlier, waited ~21 years, and failed to justify delay, so motion was untimely |
Key Cases Cited
- State v. Francis, 104 Ohio St.3d 490 (Ohio 2004) (timeliness is a factor courts must consider on R.C. 2943.031(D) motions; abuse‑of‑discretion review)
- State v. Kona, 148 Ohio St.3d 539 (Ohio 2016) (addressed R.C. 2943.031 advising requirement in different procedural posture; did not resolve timeliness issue)
- State v. Walker, 78 N.E.3d 922 (Ohio Ct. App. 2017) (joins decisions treating timeliness as relevant even where no oral advisement was given)