STATE OF OHIO, PLAINTIFF-APPELLEE, v. RICARDO ALONZO, DEFENDANT-APPELLANT.
CASE NO. 13-15-26
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
January 19, 2016
[Cite as State v. Alonzo, 2016-Ohio-160.]
Appeal from Tiffin-Fostoria Municipal Court Trial Court No. 02 TRC 4452 Judgment Affirmed
Margaret W. Wong for Appellant
Richard H. Palau for Appellee
{¶1} Defendant-appellant Ricardo Alonzo appeals the June 26, 2015 judgment of the Tiffin-Fostoria Municipal Court overruling his motion to withdraw his no contest pleas. Alonzo assigns as error the trial court‘s finding that he was given the proper advisement pursuant to
Facts and Procedural History
{¶2} Alonzo is a citizen of Mexico residing in Fremont, Ohio. On December 2, 2002, Alonzo appeared before the Tiffin Municipal Court and entered no contest pleas to one count of DUI, one count of Unlawful BAC, one count of No Operator‘s License, and one count of Open Container. The record indicates that a Spanish-speaking interpreter assisted Alonzo with entering his pleas. Upon accepting his pleas and finding him guilty, the trial court sentenced Alonzo to thirty days in jail for the DUI offense, giving him four days credit for time served and suspending the remaining twenty-six days. Alonzo was also placed on one year of probation and ordered to pay court costs.
{¶3} Nearly thirteen years later, on June 26, 2015, Alonzo filed a motion to withdraw his no contest pleas pursuant to
{¶4} The trial court subsequently issued a judgment entry overruling Alonzo‘s motion to withdraw his no contest pleas. Specifically, the trial court reviewed the record of the prior proceedings and found that it fully complied with
{¶6} Alonzo subsequently filed this appeal, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED IN DENYING DEFENDANT/APPELLANT‘S MOTION TO WITHDRAW HIS GUILTY PLEA [SIC] PURSUANT TO
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED IN DENYING DEFENDANT/APPELLANT‘S MOTION TO WITHDRAW HIS GUILTY PLEA [SIC] PURSUANT TO
Discussion
{¶7} Alonzo‘s assignments of error both address the trial court‘s denial of his motion to withdraw his no contest pleas. Because these assignments of error are intertwined, we shall address them together.
Standard of Review
{¶8} Criminal Rule 32.1 post-sentence motions to withdraw guilty pleas are subject to a manifest injustice standard. State v. Oluoch, 10th Dist. Franklin No. 07AP-45, 2007-Ohio-5560, ¶ 9, citing State v. Xie, 62 Ohio St.3d 521, 526 (1992). In general, manifest injustice relates to a fundamental flaw in the proceedings that results in a miscarriage of justice or is inconsistent with the demands of due
{¶9} However, the manifest injustice standard does not apply to plea withdrawal motions filed pursuant to
{¶10} The same abuse of discretion standard of review applies to the trial court‘s decision on a motion filed pursuant to
The Trial Court‘s Ruling on the Motion to Withdraw
{¶11} Alonzo argues that the trial court erred in overruling his motion to vacate his pleas because he never received the advisement required by
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.
{¶13} Section 2943.031(D) of the Revised Code specifies the remedy for a trial court‘s failure to advise as required under
{¶14} Section 2943.031(D) of the Revised Code reads in relevant part as follows:
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 deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.
{¶15} Under
{¶16} On appeal, Alonzo claims the record reflects that he was not given the advisement under
{¶17} The record on appeal contains the transcription of two proceedings held on December 2, 2002. The first was held in the morning of December 2, 2002 during which the trial court simultaneously advised multiple defendants of various rights including the advisement under
{¶18} Even though Alonzo is not identified in the transcript of the morning proceeding as one of the defendants present, there are other indicia in the record establishing Alonzo‘s presence at the proceeding. Specifically, the record indicates that Alonzo was placed in jail following the arrest for his DUI related charges at approximately 4:00 a.m. on Friday, November 29, 2002, and that he
{¶19} Even assuming arguendo that the record supports Alonzo‘s claim that the advisement was not given to him, the withdrawal of the plea is not automatic simply because the court failed to give the
{¶20} “The concept of ‘timeliness’ discussed in Francis involves more than just the numerical calculation of the number of years between entering the plea and the motion to withdraw the plea. As Francis noted, subsumed within timeliness is the prejudice to the state in terms of stale evidence and unavailability of witnesses.” State v. Lovano, 8th Dist. Cuyahoga No. 100578, 2014-Ohio-3418, ¶ 13. In the instant case, Alonzo waited nearly thirteen years after entering his pleas in this case, with three intervening “criminal offenses” in 2004, 2005, and 2010, before deciding to withdraw his pleas in the 2002 DUI case. To counter the untimeliness issue, Alonzo claims that he “only recently became aware that his no contest plea could lead him to be detained by ICE and be deported” in June of 2015. (Doc. No. 6 at 6). Thus, Alonzo asserts this demonstrates that he is now prejudiced as a result of entering his no contest pleas in the 2002 case and by not
{¶21} The record reflects that Alonzo did not support his motion to withdraw with documentation affirmatively demonstrating that the 2002 conviction resulting from his no contest pleas has caused him to suffer prejudice. Alonzo has not produced any documentation demonstrating the issuance of a notice of detainment, let alone a notice of deportation proceedings or that a deportation order was issued against him. Nor has he attached an affidavit averring that he will be deported, excluded, or denied citizenship, or that he has received notice that deportation proceedings are pending, or that his 2002 DUI conviction, as opposed to his 2004, 2005, or 2010 criminal cases, is the proximate cause of the purported deportation proceedings. Instead, Alonzo has simply made unsupported assertions in his motion to withdraw claiming he had been detained by ICE and faced the possibility of deportation.1
{¶22} Moreover, ” ‘an undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under
{¶23} For all these reasons, we conclude that the trial court did not abuse its discretion in overruling Alonzo‘s motion on the basis that he failed to demonstrate he was entitled to vacate his plea under
Failure to Conduct an Evidentiary Hearing
{¶24} Finally, we address the issue of the trial court‘s failure to hold a hearing. In Francis, which addressed an appeal from the trial court‘s denial of the defendant‘s motion to withdraw pursuant to
[A]s a general rule, in the absence of specific requirements to the contrary, decisions as to whether to hold a hearing and as to whether to explain reasons for a ruling are matters entrusted to the sound discretion of the trial court. Sometimes, a trial court‘s explanation of the reasons underlying the decision to deny the motion will illuminate why a hearing was not necessary. 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. We simply find that, in this case, the combination of a failure to hold a hearing and a failure to explain the reasoning are so significant that appellate review is impossible and that further proceedings by the trial court are necessary.
{¶25} For all these reasons, the judgment is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
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