State v. To
2019 Ohio 1795
Ohio Ct. App.2019Background
- In 2003 Bang To pleaded guilty to multiple cocaine offenses; plea form indicated he was not a U.S. citizen. He was sentenced and later granted judicial release; probation ended in 2010.
- In October 2017 To moved to vacate his plea under R.C. 2943.031, alleging he had not been advised of immigration consequences; his motion referenced several exhibits (transcript, journal entry, affidavit) that were not attached.
- The state opposed, noting no exhibits were attached and arguing delay and lack of prejudice showing; the trial court denied the motion to vacate in February 2018 (finding untimely and prejudicial to the state, and no demonstrated prejudice to To).
- In April 2018 To filed a Civ.R. 60(B) motion seeking relief from the denial so he could supplement the record with the allegedly omitted exhibits; counsel submitted an affidavit saying the omission was inadvertent and attaching the previously missing documents (including an affidavit of To executed October 31, 2017).
- The trial court denied the Civ.R. 60(B) motion, concluding To failed to allege operative facts entitling him to relief under Civ.R. 60(B)(1)–(5) (principally holding counsel’s negligence was imputed to To and did not establish excusable neglect). To appealed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (To) | Held |
|---|---|---|---|
| Whether Civ.R. 60(B) was a proper vehicle to seek supplementation/reconsideration of a R.C. 2943.031 motion denial | Civ.R. 60(B) inapplicable or unnecessary; criminal rules/control, and relief was untimely or meritless | Civ.R. 60(B) appropriate to supplement record and cure counsel’s inadvertent omission | Court: Civ.R. 60(B) may apply in this limited context; trial court correctly analyzed the motion under Civ.R. 60(B) |
| Whether To timely sought relief | Motion untimely given unexplained delay after the court and state flagged missing exhibits | 60(B) filed within a reasonable interval (about 2.5 months after denial); no intent to delay | Court: timeliness could have justified denial, but court affirmed on other grounds and did not need to resolve timeliness |
| Whether counsel’s failure to attach exhibits constituted excusable neglect/mistake under Civ.R. 60(B)(1) | Omission was counsel’s negligence imputable to defendant; state prejudiced; no special circumstances | Omission was inadvertence/excusable neglect; attached exhibits cure defective record and would show prejudice entitling vacatur under R.C. 2943.031 | Court: counsel’s unexplained omission and failure to cure after notice is not excusable neglect; unilateral negligence is insufficient; denial affirmed |
| Whether To alleged operative facts entitling him to relief under GTE test (meritorious claim, grounds under Civ.R. 60(B), reasonable time) | To did not present operative facts showing entitlement to Civ.R. 60(B) relief | To had a meritorious statutory claim under R.C. 2943.031 and his affidavit would show prejudice if considered | Court: To failed GTE prong requiring facts showing entitlement to relief under Civ.R. 60(B); trial court did not abuse discretion in denying without a hearing |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (ineffective-assistance/immigration-warning rule announced)
- Chaidez v. United States, 568 U.S. 342 (2013) (Padilla not retroactive to convictions finalized before Padilla)
- State v. Francis, 104 Ohio St.3d 490 (2004) (interpreting R.C. 2943.031 and adopting a multi-factor/substantial-compliance approach)
- State v. Schlee, 117 Ohio St.3d 153 (2008) (Crim.R. 57(B) permits looking to civil rules when no criminal rule applies)
- GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146 (1976) (three-part test for Civ.R. 60(B) relief)
- Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18 (1996) (movant must allege operative facts to warrant an evidentiary hearing on Civ.R. 60(B))
- Rose Chevrolet v. Adams, 36 Ohio St.3d 17 (1988) (mere allegation of excusable neglect without surrounding facts is insufficient for relief)