STATE OF OHIO v. FAED ABUKHALIL
No. 97129
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 12, 2012
[Cite as State v. Abukhalil, 2012-Ohio-1639.]
BEFORE: Stewart, P.J., Sweeney, J., and Cooney, J.
JOURNAL ENTRY AND OPINION; RELEASED AND JOURNALIZED: April 12, 2012; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-434694
Kim K. Alabasi
5368 St. Clair Avenue
Cleveland, OH 44103
Wayne F. Benos
6675 Oakwood Drive
Independence, OH 44131
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Kristen L. Sobieski
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
{¶1} Defendant-appellant, Faed Abukhalil, appeals from the trial court‘s denial of his emergency motion to withdraw guilty plea and vacate judgment from his conviction for criminal simulation. He also asserts that the trial court abused its discretion in denying his request for a hearing on the motion. For the following reasons, we affirm.
{¶2} Abukhalil, a noncitizen of the United States, was indicted for one felony count of criminal simulation in March 2003. The record reveals that in August 2003, he entered a guilty plea to an amended indictment that rеduced the offense charged to a first degree misdemeanor, resulting in a suspended sentence and probation. In December 2003, the Immigration and Naturalization Services (“INS“) commenced removal proceedings because Abukhalil had been convicted of two previous offenses in addition tо this one. In April 2004, he was ordered to be removed from the country and placed under an order of supervision, but was allowed to remain free subject to conditions.
{¶3} On May 16, 2011, Abukhalil filed his emergency motion to withdraw guilty plea and vacate judgment pursuant to
{¶4} Abukhalil first argues that because the court did not substantially comply with the requisite immigration advisements pursuant to
{¶5} An appellate court reviews the trial court‘s decision on a motion to withdraw a guilty plea pursuant to
{¶6}
Upon motion of the defendant, the court shall set aside the judgment and permit the defendant to withdraw a plea of guilty * * *, if, after the effective date of this section,1 the court fails to provide the defendant the advisement described in division (A) of this sеction, 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 deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.
{¶7} While
The Francis court went on to state that:
The more time that passes between the defendant‘s plea and the filing of the motion to withdraw it, the more probable it is that evidence will become stale and that witnesses will be unavailable. The state has an interest in maintaining the finality of a conviction that has been considered a closed case for a long period of time. It is certainly reasonable to require a criminal defendant who seeks to withdraw a plea to do so in a timely fashion rather than delaying for an unreаsonable length of time.
{¶8}
[T]he 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 * * * 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.
See, e.g., State v. Voskoboynikov, 8th Dist. No. 92423, 2009-Ohio-4882, ¶ 32 (“[A]t the plea hearing, the trial court must advise the non-citizen defendant of thrеe separate consequences that might result from a guilty plea: 1) deportation; 2) exclusion from
{¶9} If a trial court has not substantially complied with
[I]f some warning of immigration-related consequences was givеn at the time a non-citizen defendant‘s plea was accepted, but the warning was not a verbatim recital of the language in
R.C. 2943.031(A) , 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 substantiаlly complied withR.C. 2943.031(A) .
Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, at ¶ 48. Substantial compliance is met when “under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving.” Tejeda at ¶ 9.
{¶10} After Abukhalil was indicted, journal entries indicate that he was required to surrender his passport, his green card, and was also оrdered to provide the trial court with “immigration services/homeland security information” to meet the conditions of his bond. At his plea and sentencing hearing, the trial court inquired of Abukhalil if he was a United States citizen, and he responded that he was not. The above documents combined
{¶11} Abukhalil establishes the possibility of deportation with an affidavit and exhibits attached to his motion. The record contains a document from INS addressed to Abukhalil stating thаt: “[y]ou are deportable for the reasons stated below * * * [o]n the basis of the foregoing, it is charged that you are subject to removal from the United States pursuant to the following provisions of law * * *.” In his affidavit, Abukhalil alleges that “he was ordered removed/deported from the United States on April 12, 2004.”
{¶12} The trial сourt‘s complete advisement to Abukhalil concerning potential consequences of deportation, exclusion of United States admission, or denial of naturalization consisted of a single question: “Since you are not a United States citizen, do you further understand that your plea of guilty to this case will be reported to INS?” Abukhalil responded affirmatively and, shortly thereafter, entered a plea of guilty.
{¶13} In Voskoboynikov, 8th Dist. No. 92423, 2009-Ohio-4882, “the trial court informed appellant that he ‘could’ be ‘sanctioned’ by the immigration authorities ‘up to’ possible ‘deportation.’ In spite of the statute‘s mandate, no other consequence wаs stated.” Id. at ¶ 33. This court found the advisement to be “insufficient for purposes of the statute.” Id. at ¶ 34.
{¶14} In State v. Oluch, 10th Dist. No. 10AP-1038, 2011-Ohio-3998, ¶ 17, “[d]uring the plea colloquy, the trial court informed defendant only ‘that by pleading guilty, this could jeopardize [his] status here in this country.‘” Id. at ¶ 17, quoting Statev. Ouch, 10th Dist. No. 06AP-488, 2006-Ohio-6949, ¶ 14. The reviewing court ruled that by sustaining the defendant‘s motion to withdraw his guilty plea, “the trial court did not abuse its discretion in determining defendant did not subjectively understand all of the consequences of his guilty pleas and would not have entered the pleas had the trial court properly advised him.” Id. at ¶ 22.
{¶15} In State v. Contreras, 6th Dist. No. H-10-024, 2011-Ohio-4736, ¶ 16, the court stated that because the “trial court made little or no mention of the
{¶16} In the instant case, the trial court‘s advisement did not substantially comply with
{¶17} In State v. Villafuerte, 8th Dist. No. 90367, 2008-Ohio-5587, the defendant entered a guilty plea and became aware of deportation proceedings that were initiated against him approximately four months later. The defendant delayed in moving to vacate his guilty plea for “almost eleven years after he was convicted and ten years after he became aware of the deportation proceedings.” Villafuerte at ¶ 16. This court found the delay in filing his motion to vacate to be untimely and unreasonable because it imposed “an unreasonable obligation on the State to maintain evidence, and the State [had] an interest in maintaining the finаlity of a conviction * * *.” Id. at ¶ 18.
{¶19} Irrespective of whether Abukhalil had a subjective understanding of the implications of his plea, or that thе trial court‘s advisement did not substantially comply with
{¶20} For his second assignment of error, Abukhalil challenges the denial of his motion to withdraw plea and vacate conviction pursuant to
{¶22} In Sibai, the appellant did not file a motion to withdraw his plea for over nine years after entering his plea, but did file the motion approximately 12 to 18 months upon receiving notification that he was to be deported. Id. at ¶ 10. This court found that “[u]nder these circumstances, ‘where the immigrаtion-related consequences of the plea and resulting conviction did not become evident for some time after the plea was entered,’ we do not conclude that the mere fact over nine years has elapsed from the date of his plea to constitute grounds for denying his motion tо vacate.” Id. at ¶ 12. See also State v. Colthirst, 8th Dist. No. 84286, 2004-Ohio-6118 (motion to withdraw filed three
{¶23} Again, Abukhalil‘s failure to provide any reason to explain the delay in filing the motion to withdraw his plea precludes the relief that he requests pursuant to
{¶24} Abukhalil argues thirdly that the court erred in denying his motion to withdraw his plea by not following the Supreme Court‘s mandаte in Padilla v. Kentucky, 559 U.S. ___, 130 S.Ct. 1473, 1483, 176 L.Ed.2d 284 (2010). He contends that Padilla stands for the proposition that failure of counsel to advise a non-citizen client of immigration-related consequences of a guilty plea provides an independent basis for withdrawing his plea because it constitutes a violation of his Sixth Amendment right to counsel. However, Abukhalil‘s constitutional analysis is misplaced in this instance.
{¶25} Padilla involved a defense attorney who gave Padilla “false assurance that his conviction would not result in his removal from this country.” Padilla at 1483. Abukhalil does not assert that he was misinformed by his trial counsel, so Padilla has negligible application under the circumstances presented because it рertains to an ineffective assistance of counsel analysis. Here, the relevant facts that are dispositive of this appeal involve the untimeliness of Abukhalil‘s motion to withdraw.
{¶27} In his final аssigned error, Abukhalil complains that it was an abuse of discretion to deny his motion to withdraw without a hearing as requested. The decision whether to hold a hearing or to explain reasons for a ruling on a motion to withdraw a plea “are matters entrusted to the sound discretion of the trial court.” Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, at ¶ 56. “[U]nlеss it is clear that denial of the motion is warranted, a trial court should hold a hearing.” Id. at ¶ 51, citing State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), paragraph one of the syllabus. “Sometimes, the record will reveal the reasons for denial with sufficient clarity to show that it was not error to fail to hold a hearing or to specify the reasons for denial.” Id. at ¶ 56.
{¶28} In this instance, the record indicates that Abukhalil never addressed in his motion, his affidavit, or his appellate brief the above-mentioned timeliness issue that militates against withdrawing the plea. Therefore, the trial court did not abuse its
{¶29} 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 issue out of this court directing the Cuyahoga County Court of Common Pleas 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
JAMES J. SWEENEY, J., and
COLLEEN CONWAY COONEY, J., CONCUR