CITY OF CLEVELAND v. KRZYSTOF DOBROWSKI
No. 96113
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 23, 2011
2011-Ohio-6071
Criminal Appeal from the Cleveland Municipal Court, Case No. 87 CRB 002268
BEFORE: Stewart, P.J., Cooney, J., and S. Gallagher, J.
ATTORNEY FOR APPELLANT
Gary H. Levine
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, OH 44103
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry
Interim Law Director
City of Cleveland
By: Victor R. Perez
Chief Prosecutor
Jacqueline C. Greene
Certified Legal Intern
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶ 1} This cause came to be heard upon the accelerated calendar pursuant to
{¶ 3} The record in this matter is incomplete since very few dоcuments and no transcript have been filed detailing the proceedings leading to Dobrowski‘s conviction. The unavailability of these materials makes meaningful appellate review difficult at best. Nevertheless, we refer to a certified copy оf the Cleveland Municipal Court‘s journal entry in Case No. 87 CRB 002268, along with a notarized case disposition sheet, to recount the relevant facts in the underlying case.
{¶ 4} On February 11, 1987, Dobrowski was arrested and charged with domestic violence. The charge was later amended to menacing, a misdemeanor of the fourth degree. He entered his guilty/no contest plea in the Cleveland Municipal Court on the day of his arrest and was sentenced to ten days in the workhouse along with probation. Dobrowski subsequently filed a motion to expunge his conviction, and on April 7, 1999, this motion was denied with a journal entry indicating that he was “not eligible for expungement.” On March 25, 2010, he filed a motion to vacate guilty/no contest plea that was denied by the trial court on October 19, 2010 and is the subject of this aрpeal.
{¶ 6} The city argues that since Dobrowski did not raise the issue of lack of counsel in his motion to vacate, he has not preserved the matter for appeal.
{¶ 7} Upon review of the record, we find that Dobrowski did indeed fail to raise the issue of lack of counsel before the trial court. And contrary to the assertion made in his brief that the affidavit attached to his motion to vacate plea indicates that he was unrepresented, the affidavit merely states that he was not told by an attorney or judge about the effect of his plea on his immigration status, and does not allege that he was unrepresented. He has, therefore, waived all but plain error.
{¶ 8} Plain error exists when there is a deviation from a legal rule, the error is obvious on the face of the record, and the error affects a substantial right. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, at ¶16.
{¶ 9} A criminal defendant has a right to assistance of counsel pursuant to the Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution, but may forego this right via a waiver that is voluntary, knowing, and intelligent. Cleveland v. English, 175 Ohio App.3d 458, 2008-Ohio-321, 887 N.E.2d 1205, ¶10. “There is a strong presumption against waiver of the fundamental constitutional right of counsel.” Id. at ¶12.
{¶ 11} As previously mentioned, there are scant records of Dobrowski‘s 24-year old conviction and no transcript of the proceedings. More importantly, in his affidavit, Dobrowski alleges that he was uninformed, not unrepresented. He, therefore, fails to make a prima facie showing that he was without counsel when entering his plea. Accordingly, his first assignment of error is overruled.
{¶ 12} In his second assignment of error, Dobrowski asserts that his plea is constitutionally invalid since it was not entered knowingly and intelligently. His affidavit asserts that at the time of his plea, he had limited skills in reading and speaking English since he had emigrated from Poland in 1979, and this prohibited him from understanding the nature of the charges when his plea was entered. He specifically argues that, because he was not told of the consequences that a guilty plea would have on
{¶ 13} The city points out that Dobrowski supports his arguments by referencing
{¶ 14} “[T]o correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.”
{¶ 15} Irrespective of whether a post-sentence motion to withdraw a guilty plea is premised upon the failure to advise of possible deportatiоn or
{¶ 16}
{¶ 17} In State v. Garcia, 10th Dist. No. 08AP-224, 2008-Ohio-6421, ¶ 5, the “defendant filed a motion to withdraw his guilty plea, asserting the plea was not entered knowingly, intelligently, and voluntarily *** and contended he was not advised of the possible deportation consequences ***.” In this instance, the court ruled that “[b]ecause the statute was not effective at the time defendant entered his plea, the trial court‘s failure to comply with the statute does not provide grounds for defendant to withdraw his guilty plea.” Id. at ¶ 9. Similarly, Dobrowski entered his plea on February 21, 1987, prior to the effective date of the statute. Therefore,
{¶ 19} More than 23 years have elapsed since Dobrowski entered his guilty plea; moreover his attempt to expunge his conviction took place approximately 11 years ago. Dobrowski has therefore known of the impact of his plea and finding of guilt for quite some time.
{¶ 20} Both the Ohio and the United States Constitutions require that a defendant entering a guilty plea do so knowingly, intelligently, and voluntarily. State v. Ortiz, 8th Dist. No. 91626, 2009-Ohio-2877, citing State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d 450. In State v. Arvanitis (1986), 36 Ohio App.3d 213, 218, 522 N.E.2d 1089, the appellant complained that his plea was involuntary since counsel failed to inform him оf the possibility of deportation. First, the reviewing court noted that at that particular time, “federal courts [held] that a defendant‘s misunderstanding or lack of knowledge of deportation consequences, without more, is insufficient to require the allowancе of a post-sentence withdrawal of a guilty plea.” Id. at 214. The court stated the “factors for trial courts to consider when deciding whether to permit withdrawal of a guilty plea in cases involving immigration consequences [include] “‘the strength of
{¶ 21} In this instance, Dobrowski has not alleged innocence and there is no indication that either counsel or the court influenced Dobrowski‘s plea. He alleges that he was confused and lacked understanding as to the implications a guilty plea would have on his immigration status, but this fact alone is not legally sufficient to establish involuntariness. Dobrowski does not meet his burden of affirmatively proving manifest injustice. His second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cleveland Municipal 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
COLLEEN CONWAY COONEY, J., CONCURS IN JUDGMENT ONLY;
SEAN C. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION
SEAN C. GALLAGHER, J., DISSENTING:
{¶ 22} I respectfully dissent. I would not only find the trial court abused its discretion, but I would also find plain error. I would not find that Dobrowski waived this issue. I would reverse the trial court‘s decision denying Dobrowski‘s request to withdraw his plea.
{¶ 23} I agree with the majority that Dobrowski failed to use the magic word “counsel” in his motion to vacate, but it is clear that the lack of counsel and the absence of a valid waiver are the true grounds for his request. I believe his affidavit sufficiеntly states a prima facie case and places the city on notice, effectively shifting the burden to the city to demonstrate there was not a constitutional infirmity. State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024.
{¶ 24} Here, the record is woefully lacking in any documentation showing that Dobrowski was either represented or effectively waived any representation.
{¶ 25} The majority is correct that
{¶ 26} While I do not believe this record supports the view that Dobrowski waived his сlaim, even the law in existence prior to