Mayfield Hts. v. GrigoryanMayfield Hts. v. Grigoryan
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: February 19, 2015
Rhys B. Cartwright-Jones
42 N. Phelps Street
Youngstown, Ohio 44503-1130
ATTORNEYS FOR APPELLEE
Paul T. Murphy Co., L.P.A.
Law Director
City of Mayfield Heights
5843 Mayfield Road
Mayfield Heights, Ohio 44124
Dominic J. Vitantonio
Assistant Prosecuting Attorney
City of Mayfield Heights
6449 Wilson Mills Road
Mayfield Village, Ohio 44143
Michael E. Cicero
25 West Prospect Avenue
Republic Building, Suite 1400
Cleveland, Ohio 44115
{¶1} Defendant-appellant, Ghazaros Grigoryan, appeals from a judgment denying his motion to vacate his plea. He raises one assignment of error for our review: “The trial court erred in denying Grigoryan‘s motion to vacate his guilty plea pursuant to [
Procedural History
{¶2} Plaintiff-appellee, the city of Mayfield Heights, filed two complaints аgainst Grigoryan, in November 2011 and February 2012, charging him with theft in each case, both misdemeanors of the first degree.
{¶3} Grigoryan, represented by counsel, pleaded guilty to theft in one of the cases and to an amended charge of possession of criminal tools, also a misdemeanor of the first degree, in the other case. Both guilty pleas were reduced to written plea agreements.
{¶4} Attached tо both written plea agreements was a form titled, “Traffic and Misdemeanor Cases Only Statement of Rights.” As part of the “Statement of Rights” form, number 16 included the following:
Are you a citizen of the United States? Yes ____ No ____[.] ORC 2943.031: If you are not a citizen of the United States, you are hereby advised that conviction of the offense to which you are pleading guilty, (or no contest, when applicable), may have the consequеnces of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. Defendant_______________ Date _____________[.]
(Emphasis sic.)
{¶5} On the form in each case, Grigoryan checked “No,” that he was not a United States citizen. He also signed the form and dated it November 9, 2012, which was the wrong date; it should have been October 9, 2012.
{¶7} In March 2014, new counsel for Grigoryan filed a notice of appearance in each case, moving for “any and all audio recordings of the plea and sentencing hearings.” In May 2014, Grigoryan moved to withdraw his guilty pleas. In his motions, he argued that because there was “no transcribed or recorded record” of the proceedings, his pleas must be vacated pursuant to
{¶8} The trial court denied both motions to vacate, without a hearing and without explanation. It is from these judgments that Grigoryan appeals, contending the trial court erred in doing so.
R.C. 2943.031
{¶9}
(A) * * * [P]rior to accepting a plea of guilty or a plea of no contest to an indictment, information, or cоmplaint charging a felony or a misdemeanor * * *, the court shall address the defendant personally, provide the following advisement to the defendant that shall be entered in the record of the court, and determine that the defendant understands the advisement:
“If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”
(D) Upon motion of the defendant, the court shall set aside the judgment and permit the defendant to withdraw a plea of guilty or no contest and enter a plea of not guilty or not guilty by reason of insanity, if, after the effective date of this section, the court fails to provide the defendant the advisement described in division (A) of this section, the advisement is required by that division, and the defendant shows that he is not a citizen of the United States and that the conviction of the offense to which he pleaded guilty or no contest may result in his being subject to dеportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.
{¶11}
{¶12} To ensure compliance with the statute, a trial court accepting a plea should never assume that a defendant is a United States citizen,
but must give the
R.C. 2943.031(A) warning verbatim to every criminal defendant (other than certain defendants pleading to a minor misdemeanor) unless a defendant affirmatively has indicated either in writing or orally on the record that he or she is a citizen of the United States.
State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 20, citing
{¶13} Although the Ohio Supreme Court in Francis held that this advisement is mandatory, it determined that some amount of flexibility was required. Id. at ¶ 46. Thus, the court held that when reviewing whether a trial court fulfilled this duty, a “substantial-compliance approach” is necessary. Id. at paragraph two of the syllabus. “Substantial compliance means
Standard of Review
{¶14} While the standard of review for a postsentence motion under
[t]he General Assembly has apparently determined that due to the serious consequences of a criminal conviction on a noncitizen‘s status in this country, a trial court should give the
R.C. 2943.031(A) warning, and that failure to do so should not be subject to the manifest-injustice standard even if sеntencing has already occurred.
Francis at ¶ 26.
{¶15} The explicit language of
Analysis
{¶17} We must determine if Grigoryan established the four requirements under
{¶18} Grigoryan argues that because there is no transcript or recording of his plea hearing, the trial court erred when it denied his motions to vaсate his guilty pleas under
{¶19}
{¶20} The city counters that the trial court did advise Grigoryan, as evidenced by the writtеn plea agreement and the attached “Statement of Rights.” The city contends that because the trial court gave Grigoryan “some warning,” that it substantially complied with the statute. In support of its argument that the written advisement satisfies the “substantial compliance standard,” the city cites to Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355. In Francis, the Ohio Supreme Court held at paragraph two of the syllabus that
If some warning of immigration-related consequences was given at the time a noncitizen defendant‘s plea was accepted, but the warning was not a recital of the
R.C. 2943.031(A) verbatim statutory language, a trial court considering the defendant‘s motion to withdraw the plea underR.C. 2943.031(D) must exercise its discretion in determining whether the trial court that accepted the plea substantially complied withR.C. 2943.031(A) .
{¶21} Francis is distinguishable. In Francis, there was a transcript of the plea hearing establishing that thе trial court personally addressed the defendant and gave him “some warning,” but it did not give the warning verbatim. The issue was whether the warning was sufficient, despite the fact that it was not verbatim with the statute. The Supreme Court held that courts must determine if the trial court substantially complied with the statute when giving the warning. Id. at paragraph two of the syllabus. In this case, there is no record of the hearing at all. Thus, Francis is not applicable here.
{¶22} Accordingly, we find that the triаl court failed to give Grigoryan the required advisement under
{¶23} The city argues that in his motion to vacate, Grigoryan failed to affirmatively рrove that he is not a United States citizen, which is the third requirement under
{¶24} Pursuant to the requirements of
{¶25} Grigoryan attached a letter to his motion from an attorney, advising him that because he was not a United States citizen and because he had two convictions, he may be deported or denied naturalization. Although the letter is unauthenticated, the city does not challenge its validity. Moreover, the record before us establishes that Grigoryan is not a United States citizen because in the “Statement of Rights” attached to the written plea agreement, Grigoryan checked “no,” that he was not a United States citizen. This is not a situation where a defendant informed the court that he was a United States citizen at his plea hearing, and then later attempted to assert that he was not in order to withdraw his plea. Thus, these documents are sufficient to affirmatively establish that Grigoryan is not a citizen of the United States.
{¶26} Finally, the city contends that Grigoryan did not establish that he was prejudiced by the trial court‘s denial of his motion to withdraw his plea. Specifically, the city maintains that because Grigoryan only argued in his motion that he may be deported or denied naturalization,
{¶27} The explicit language of
{¶28} In Francis, the Ohio Supreme Court agreed that a defendant moving to withdraw his plea under
A criminal defendant‘s right to be informed of a spеcific nonconstitutional feature of a plea, pursuant to
Crim.R. 11 , prior to a trial court‘s acceptance of the defendant‘s plea is subject to review under a substantial-compliance standard. State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 12, 814 N.E.2d 51, citing State v. Nero (1990), 56 Ohio St.3d 106, 107, 564 N.E.2d 474. For our purposes, theR.C. 2943.031(A) notification is similar to the nonconstitutional notifications ofCrim.R. 11(C)(2) , such as the nature of the charges and the maximum penalty involved, and, therefore, implicates the same standard. As one of the showings that must be made to prevail on anR.C. 2943.031(D) motion, a defendant must demonstrate that he or she was prejudiced by the trial court‘s alleged failure to comply withR.C. 2943.031(A) .
Francis at ¶ 45.
{¶30} In Isleim, this court held that the defendant failed to establish that he was prejudiced by the trial court‘s failure to advise him even though the defendant‘s application for naturalization was denied. We found no prejudice to the defendant, explaining that he “could still reapply for naturalization or appeal the decision of the Immigration and Naturalization Service by filing a request for a hearing in that department.” Id. at *7. Many other Eighth District cases hold similarly. See State v. Bisono, 8th Dist. Cuyahoga No. 74446, 1999 Ohio LEXIS 3594 (Aug. 5, 1999) (no prejudice found for failing tо give the immigration advisement because defendant faced “only the possibility of deportation“); Euclid v. Khodor, 8th Dist. Cuyahoga No. 77640, 2000 Ohio App. LEXIS 5698 (Dec. 7, 2000) (no prejudice found for failing to give the immigration advisement because defendant alleged “only the possibility of
{¶31} These cases, however, were before the Supreme Court‘s decision in Francis. Although Francis did not outright overrule this “line of Eighth District cases” requiring prejudice with specificity, it certainly cast doubt on the validity of their reasoning.
{¶32} Further, when those cases were decided by this court, they were either pre-September 11, 2001, or just after it. It is no secret that September 11 affected immigration rules and policies in this country. According to one report, deportations after September 11 increased from “roughly 200,000 people in 2001 to nearly double that in 2011.” Ted Hesson, Five Ways Immigration System Changed After 9/11, (Sept. 11, 2012), available at http://abcnews.go.com/ABC_Univision/News/ways-immigration-system-changed-911/story?id=17231590 (accessed Jan. 14, 2015). There was even more impact to criminal deportations. From 2001 to 2012, criminal deportations increased nearly 400 percent, from 18,000 in 2001 to 91,000 in 2012. Id. Thus, it is imperative that trial courts give defendants the cautionary advisement under
{¶33} Further, this panel agrees with the Second Appellate District, which has explained the fourth requirement under
The emphasized words [that the trial court ”shall set aside the judgment and permit the defendant to withdraw a plea of guilty“] indicate that the trial court is without discretion in the matter, and that it is not necessary to show either that the guilty plea has resulted in deportation, exclusion from admission, or denial of naturalization, or that the plea will necessarily result in one of those consequences, but merely that it may have one of those results.
{¶34} In this case, Grigoryаn attached a letter to his motion from an attorney, advising him that because he was not a United States citizen and because he had two convictions, he “might be placed in deportation proceedings and/or denied naturalization.” This document was sufficient to establish that he was prejudiced by his two convictions pursuant to Francis.
{¶35} Accordingly, we sustain Grigoryan‘s sole assignment of error.
{¶36} Judgment reversed and rеmanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellant recover from appellee 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 Lyndhurst 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.
MARY J. BOYLE, JUDGE
MARY EILEEN KILBANE, P.J., CONCURS;
MELODY J. STEWART, J., DISSENTS (SEE SEPARATE OPINION)
MELODY J. STEWART, J., DISSENTING:
{¶37} While I agree with the majority that Grigoryan provided sufficient proof that he is not a United States citizen, and that the prejudice component only requires Grigoryan to show
{¶38} It is true that we do not have a transcript of the plea hearing in this case. But the plain language of
{¶39} Prior to taking his plea, the court gave Grigoryan a document entitled Statement of Rights. The document informed Grigoryan of all of his rights — including his right to a trial, his right not to testify against himself, and his right to confront his accusers, if he chose not to agree to a resolution of his case by a plea. The form also ensured that Grigoryan understood the charges against him, and the consequences of a plea of guilty, not guilty, or no contest. Further, and most important for purposes of this appeal, the Statement of Rights included a section that asked Grigoryan if he was a citizen of the United States, and then notified him, in accordance with
If [he was] not a citizen of the United States, [he was] hereby advised that conviction of the offense to which [he was] pleading guilty, (or no contest, when applicable), may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.
{¶40} The court provided Grigoryan with the Statement of Rights in both his native language and English, and provided him with an interpreter to go over the forms with him. Grigoryan then signed and dated this section on both forms, indicating that he understood the
{¶41} The English and native language versions of the Statement of Rights are part of the trial court record. Because the documents clearly indicate that the court did advise Grigoryan of potential immigration consequences, the presumption of non-advisement under