STATE OF OHIO, Aрpellee v. ROSA SALTOS BRAVO (fka ROSA L. CARDENAS), Appellant
C.A. No. 27881
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
January 25, 2017
2017-Ohio-272
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2004 03 1017
DECISION AND JOURNAL ENTRY
Dated: January 25, 2017
{¶1} Appellant Rosa Bravo (fka Cardenas) appeals her conviction in the Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} Bravo is an Ecuadorian national, living in the United States of America. In April 2004, Bravo was indicted on one count of tampering with records, one count of possessing criminal tools, and one count of forgery, all of which implicated the use of a fraudulent social security card to obtain an Ohio driver‘s license. With the assistance of a Spanish interpreter, she pleaded guilty to the charges of possessing criminal tools аnd forgery, which were both felonies of the fifth degree. The State dismissed the records tampering charge. The trial court sentenced Bravo, who was again assisted by a Spanish interpreter, to two years of community control, which was to commence on June 29, 2004. The sentencing entry was served on the
{¶3} In May 2015, Bravo filed a motion to reopen the proceedings and vacate her conviction. She effeсtively sought to withdraw her guilty plea on the basis that it was not knowingly, voluntarily, and intelligently entered because, due in part to the ineffective assistance of counsel at the plea hearing, she did not understand the immigration ramifications of her plea. The State opposed the motion. The trial court denied Bravo‘s motion without analysis. Bravo appealed, raising five assignments of error for review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN DENYING THE APPELLANT‘S MOTION TO WITHDRAW HER GUILTY PLEA AND VACATE HER CONVICTION PURSUANT TO OHIO CRIMINAL RULE 32.1 AS THE APPELLANT ESTABLISHED THAT SHE WAS DEPRIVED OF HER RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL[.]
{¶4} Bravo argues that the trial court erred by denying her motion to withdraw her guilty plea pursuant to
{¶5} In this assignment of error, Bravo does not challenge the trial court‘s denial of her motion to withdraw her guilty plea on the basis of
{¶6}
{¶7} The crux of Bravo‘s argument is that her plea was not constitutionally valid because trial counsel was ineffective for failing to advise her regarding the immigration ramifications of entering a guilty plea. This Court has held that “‘[a] guilty plea is not voluntary if it is the result of ineffective assistance of counsel.‘” State v. Liu, 9th Dist. Summit No. 24112, 2008-Ohio-6793, ¶ 22, quoting State v. Banks, 9th Dist. Lorain No. 01CA007958, 2002-Ohio-4858, ¶ 16. “The
{¶8} This Court uses a two-step process as set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), to determine whether a defendant‘s right to the effective assistance of counsel has been violated.
First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made еrrors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment . Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id.
{¶9} This Court has stated:
When the Strickland test is applied to guilty pleas, the defendant must first show that counsel‘s performance was deficient. State v. Xie, 62 Ohio St.3d 521, 524 (1992); Strickland, 466 U.S. at 687. Next, the defendant must show that there is a reasonable probability that but for counsel‘s errors, he would not have pleaded guilty. Xie, 62 Ohio St.3d at 524, quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). “[T]he mere fact that, if not for thе alleged ineffective assistance, the defendant would not have entered the guilty plea, is not sufficient to establish the necessary connection between the ineffective assistance and the plea; instead, the ineffective assistance will only be found to have affected the validity of the plea when it precluded the defendant from entering the plea knowingly and voluntarily.” State v. Doak, 7th Dist. Columbiana Nos. 03CO15 and 03CO31, 2004-Ohio-1548, ¶ 55, quoting State v. Whiteman, 11th Dist. Portage No. 2001-P-0096, 2003-Ohio-2229, ¶ 24.
State v. Gegia, 157 Ohio App.3d 112, 2004-Ohio-2124, ¶ 17 (9th Dist.).
{¶10} The Ohio
“[a]lthough we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing in one. In particular, a court need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel‘s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.”
Id., quoting Strickland, 466 U.S. at 697.
{¶11} In addressing the first prong of Strickland, the United States Supreme Court held that an attorney‘s performance is deficient when he has failed, at a minimum, to advise a noncitizen defendant-client that “pending criminal charges may carry a risk of adverse immigration consequences.” Padilla v. Kentucky, 559 U.S. 356, 369 (2010). Moreover, an attorney‘s performance is deficient when his advice regarding deportation issues which are readily determinable is incorrect. Id. Later, the United States Supreme Court considered whether Padilla applied retroactively. Chaidez v. United States, 133 S.Ct. 1103 (2013). Concluding that Padilla enunciated a new rule, the Chaidez court held that it did not have retroactive effect. Id. at 1105. Accordingly, “defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding.” Id. at 1113.
{¶12} Bravo premises her ineffective assistance of counsel claim solely on counsel‘s failure to advise her regarding immigration issues arising out of her guilty plea. Because her conviction became final in 2004, prior to the United States Supreme Court‘s opinion in Padilla, Bravo cannot rely on it to establish counsel‘s deficient performance merely because he did not advise her that there may be adverse immigration consequences if she were to plead guilty. Chaidez, 133 S.Ct. at 1113. As she failed to allege any other conduct by trial counsel that was deficient, she had not established the ineffective assistance of counsel. Accordingly, this Court concludes that the trial court did not err by denying her motion to withdraw her guilty plea pursuant to
{¶13} To the extent that Bravo asks that we apply the reasoning and holding in Mezo v. Holder, 615 F.3d 616 (6th Cir.2010), we decline. Mezo addressed the application of the equitable tolling doctrine to permit the Board of Immigration Appeals to reopen her appeal for the reason that she received ineffective assistance of counsel in conjunction with hearings before an immigration judge. Id. at 620. Mezo was not subjected to criminal charges or criminal proceedings. Accordingly, it has no applicability to the issues raised in this assignment of error.
ASSIGNMENT OF ERROR II
THE COURT FAILED TO GIVE THE VERBATIM ADVISEMENT REQUIRED UNDER
ORC 2943.031 [.]
{¶15} Bravo argues that the trial court erred by denying her motion to withdraw her guilty plea because the trial court failed to provide her with the statutory advisement as required in
{¶16} As a general matter, the decision to grant or deny a motion to withdraw a guilty plea lies within the sound discretion of the trial court. State v. Smith, 49 Ohio St.2d 261, 264 (1977). An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, this Court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶17} “[T]he extent of the trial court‘s exercise of discretion on a motion to withdrаw a plea is determined by the particular provisions that govern the motion under which the defendant is proceeding and the caselaw interpreting those provisions.” Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, at ¶ 33. The high court continued:
Thus, for example, when a defendant who is a United States citizen files a typical
Crim.R. 32.1 motion to withdraw a plea after sentencing, the trial court‘s exercise of discretion is governed by the manifest-injustice standard of that rule. Similarly, when a defendant‘s motion to withdraw is premised onR.C. 2943.031(D) , the standards within that rule guide the trial court‘s exercise of discretion.
Id.
{¶18} In this case, Bravo argues that the trial court failed to comply with the mandates of
Except as provided in division (B) of this section, prior to accepting a plea of guilty or a plea of no contest to an indictment, information, or complaint charging a felony or a misdemeanor other than a minor misdemeanor if the defendant previously has not been convicted of or pleaded guilty to a minor 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.”
Upon request of the defendant, the court shall allow him additional time to consider the appropriateness of the plea in light of the advisement described in this division.
{¶19}
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 [October 2, 1989], 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.
{¶20} At the plea hearing, the trial court judge determined that Bravo had been in the United States for six years and that she was an Ecuadorean national. After engaging in a colloquy with Bravo regarding the constitutional rights she would be waiving by pleading guilty, the judge further advised her:
Now, also, if you‘re not a citizen of this country, a conviction of this offense to which you‘re pleading guilty may have the consequences of deportation, exclusion of admission to the United States, or denial of the naturalization process.
Do you understand that also?
Bravo, through an interpreter, asserted that she understood.
{¶21} Bravo relies on Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, for the propositiоn that the trial court‘s failure to give the
A trial court accepting a guilty or no contest plea from a defendant who is not a citizen of the United States must give verbatim the warning set forth in
R.C. 2943.031(A) , informing the defendant that conviction of the offense for which the plea is entered “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.”
Francis at paragraph one of the syllabus.
{¶22} The Francis court, however, rejected the requirement for strict compliance with the statutory language, adopting instead a substantial compliance requirement, as follows:
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 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 substantially complied withR.C. 2943.031(A) .
Id. at paragraph two of the syllabus.
{¶23} The Francis court reasoned that “the
{¶24} In this case, Bravo had the services of a Spanish-language interpreter. Although the trial court did not recite the advisement verbatim, it nearly did so. A comparison of the statutory language and the trial court‘s advisement indicates no substantive difference that would have prevented Bravo, under the totality of the circumstances, from understanding the implications of her plea relative to the immigration consequences. This Court concludes that the trial court substantially complied with mandates of
{¶25} Moreover, the trial court inquired into the interpreter‘s qualifications, determining that she was from the International Institute and that she had experience in the criminal courts. The trial court further asked Bravo and her defense counsel whether they accepted that person as Bravo‘s interpreter for purposes of the criminal proceedings. Both defense counsel and Bravo asserted that they did. The trial court repeatedly inquired of Bravo whether she understood the court‘s colloquy, including the nature of the charges, possible penalties, her constitutional rights, as well as the
{¶26} To the extent that Bravo argues deficiency of the statutory advisement based on trial counsel‘s ineffective assistance, we decline to address it beyond our discussion in the first assignment of error, as it is beyond the scope of this captiоned assignment of error. State v. Miller, 9th Dist. Summit No. 27048, 2015-Ohio-279, ¶ 18.
{¶27} The second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE COURT ERRED IN DISMISSING THE APPELLANT‘S MOTION FOR POST CONVICTION RELIEF WITHOUT FIRST HOLDING AN EVIDENTIARY HEARING DESPITE THE APPELLANT PROVIDING COMPELLING EVIDENCE THAT SHE WAS DENIED DUE PROCESS AND THE EFFECTIVE ASSISTANCE OF COUNSEL[.]
{¶28} Bravo asserts in her recitation of this assignment of error that the trial court erred by dismissing her motion for postconviction relief without a hearing. She argues in the substance of her brief, however, that the trial court erred by denying her post-sentencing motion to withdraw her guilty plea without first holding a hearing. This Court disagrees.
{¶29} Although Bravo refers to a petition for postconviction relief in her assignment of error, she is actually arguing about a motion to withdraw her plea. See State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993 (recognizing a petition for postconviction relief and a motion to withdraw a plea as independent forms of relief). Accordingly, we constrain our discussion to the bases for relief sought in the trial court. Specifically, Bravo sought to withdraw her plea pursuant to
{¶30} This Court reviews the trial court‘s judgment regarding a motion to withdraw a guilty plea, whether premised on
{¶31} In this case, Bravo appended evidentiary materials to her motion to withdraw her plea. Significantly, she appended the entire transcript from her change of plea hearing from which the trial court could determine whether or not the trial court judge had complied with the mandates of
{¶32} Based on a review of the record, this Court cannot say that the trial court abused its discretion by failing to hold an oral evidentiary hearing on Bravo‘s motion to withdraw her guilty plea. The court had before it a transcript of the plea hearing from which it could determine whether the trial court had provided the
ASSIGNMENT OF ERROR IV
THE COURT ERRED IN FAILING TO SWEAR IN THE INTERPRETER, VERIFYING THE INTERPRETER‘S CREDENTIALS, AND ESTABLISHING THAT THE INTERPRETER WAS FLUENT IN BOTH THE ENGLISH AND THE
SPANISH LANGUAGES PRIOR TO USING THE INTERPRETER FOR INTERPRETATION DURING THE HEARING[.]
{¶33} Bravo argues that the trial court erred by failing to swear in the interpreter, verify the interpreter‘s credentials, and establish that the interpreter was competent to interpret during the change of plea hearing. Although this Court is troubled by the manner in which the trial court handled the interpreter issues, we may not address the merits of Bravo‘s arguments because they are barred by the doctrine of res judicata.2
{¶34} As an initial matter, we emphasize the importance of the trial court‘s actions to ensure that a defendant, whose lack of understanding and inability to communicate in English renders her incompetent, receives the meaningful services of an interpreter. The inability or limited ability to understand English implicates issues of a defendant‘s competence to stand trial or enter a plea. See State v. Pina, 49 Ohio App.2d 394, 400-401 (2d Dist.1975). Moreovеr, “[t]he failure to ensure that non-English speaking defendants are given the same opportunity as others to be present, to speak in their defense and to understand what is taking place, in whatever language they possess, reaches constitutional proportions.” Id. at 401. The constitutional rights implicated include due process, equal protection, confrontation, and the effective assistance of counsel. Columbus v. Lopez-Antonio, 153 Ohio Misc.2d 4, 6-7, 2009-Ohio-4892, ¶ 3-4 (M.C.); see also Pina, supra. The legislature attempted to preserve a non-English speaking criminal defendant‘s constitutional rights through enactment of requirements for appointing qualifiеd interpreters.
{¶35} At the time Bravo pleaded guilty in June 2004, the version of
(A)(1) Whenever because of a hearing, speech, or other impairment a party to or witness in a legal proceeding cannot readily understand or communicate, the court shall appoint a qualified interpreter to assist such person. * * *
(B) Before entering upon official duties, the interpreter shall take an oath that the interpreter will make a true interpretation of the proceedings to the party or witness, and that the interpreter will truly repeat the statements made by such party or witness tо the court, to the best of the interpreter‘s ability.
* * *
{¶36} Although there was limited guidance for a court in determining whether an interpreter was “qualified,”
{¶37} In addition, in 1975, the Pina court provided the following guidance to assist the trial court in an effort to ensure that a non-English speaking defendant‘s right to due process is maintained:
If a witness does not understand English, an interpreter will be sworn to interpret the oath to him and his testimony to the court. 56 Ohio Jurisprudence
2d 516, Witnesses, Section 86; 172 A.L.R. 923. An interpreter is considered and must be sworn as any other witness. While the manner of eliciting the testimony of the witness through an interpreter is within the discretion of the trial court, the proper method is not to address the question to the interpreter but to the witness. The question is then repeated by the interpreter without any remarks of his own, and the answers must be repeated literally by the interpreter in the first person. The interpreter should give the answer, and the whole answer of the witness, adding nothing to it. 58 American Jurisprudence 309, Witnesses, Section 556. The
interpreter as well as the witness is subject to cross-examination on the terms and expression used. 58 American Jurisprudence 365, Witnesses, Section 662. To the same effect is 98 Corpus Juris Secundum 27, Witnesses, Section 326. While considerable latitude exists as to the method of translation[,] and refusal of the court to obtain a full translation of the answers of the witness may not necessarily constitute a fatal error, when a plea of guilty is accepted in a criminal case it is our opinion that it is prejudicial error not tо require a translation and record of what the defendant says or to accept the conclusion of the interpreter that the message of the court has been conveyed, the defendant understands and pleads guilty. Under the latter perfunctory method, there is no way by which the court can personally address the defendant and possibility that the court can find or be factually assured that the defendant understands and knowingly waives and pleads guilty. * * * Further, in a criminal case the defendant is entitled to hear the proceedings in a language he can understand. 15 Ohio Jurisprudence 2d 641, Criminal Law, Section 267; 15A Ohio Jurisprudence 2d 331, Criminal Practice and Procedure, Section 279. How this is accomplished is within the discretion of the trial judge; however, it must be accomplished.
Pina, 49 Ohio App.2d at 398-399.
{¶38} Since that time, the Supreme Court of Ohio has adopted
{¶39} In this case, the trial сourt did not appoint Bravo‘s interpreter. Instead,
{¶40} The doctrine of res judicata precludes a party from relitigating any issue that was, or should have been, litigated in a prior action between the parties. State v. Zhao, 9th Dist. Lorain No. 03CA008386, 2004-Ohio-3245, ¶ 7, citing State v. Meek, 9th Dist. Lorain No. 03CA008315, 2004-Ohio-1981. The doctrine of res judicata is applicable regarding challenges to the use of interpreters. See State v. Ibrahim, 10th Dist. Franklin No. 14AP-355, 2014-Ohio-5307, ¶ 12. Here, as in Ibrahim, Bravo alleges errors relating to the qualifications, certification, and swearing in of the interpreter. As these issues could have been raised and fully litigated on dirеct appeal, they are barred by the doctrine of res judicata. The fourth assignment of error is overruled.
ASSIGNMENT OF ERROR V
THE COURT FAILED TO GIVE THE DEFENDANT THE FULL WARNING REGARDING POST-RELEASE CONTROL. THE JUDGE SHOULD HAVE ADVISED THE DEFENDANT THAT SHE COULD HAVE RECEIVED “UPTO THREE-YEARS POST-RELEASE CONTROL” AT THE DISCRETION OF THE ADULT PAROLE BOARD AND FAILED TO DO SO[.] [sic]
{¶41} Bravo alludes to an error in the imposition of post-release control in further support of her argument that she was denied due process. This Court finds the argument misplaced.
{¶42} The issue of post-release control arises when the trial court sentences a criminal defendant to a term of imprisonment. See
III.
{¶43} Bravo‘s assignments of error are overruled. The judgment of the Summit
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
FARHAD SETHNA, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.