State v. FonsecaState v. Fonseca
Appellant, Juan A. Fonseca, brings this appeal from a judgment of the Mentor Municipal Court in which the court accepted his guilty plea and found him guilty of petty theft,
On October 17, 1996, appellant was charged with forgery,
Appellant entered a plea of guilty to petty theft,
On October 25, 1996, appellant filed a motion to vacate his guilty plea, which was overruled by the trial court on that same day. Appellant filed his notice of appeal on November 12, 1996. The trial court did not enter a judgment of conviction setting forth the plea and the sentence until January 9, 1997. Pursuant to this court’s judgment entry filed on March 24, 1997, appellant’s notice of appeal is being considered a premature appeal of this matter. 1 Appellant now asserts the following sole assignment of error 2 :
“[Appellant] was denied due process of law in violation of [
Appellant’s basic assertion is that the trial court failed to comply with the requirements of
“(A) Procedure upon initial appearance. When a defendant first appears before a judge or magistrate, the judge or magistrate shall permit the accused or his counsel to read the complaint or a copy thereof, and shall inform the defendant:
“(1) Of the nature of the charge against him;
“(2) That he has a right to counsel and the right to a reasonable continuance in the proceedings to secure counsel, and, pursuant to
“(3) That he need make no statement and any statement made may be used against him;
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*234 “(5) Of his right, where appropriate, to jury trial and the necessity to make demand therefor in petty offense cases.
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“In misdemeanor cases the defendant may be called upon to plead at the initial appearance. Where the defendant enters a plea the procedure established by
Failure by the trial court to inform the accused of his rights as required by
In the case at bar, the trial court read the charges, the maximum penalties involved, and the underlying facts of each offense to appellant, but after doing so, the court realized that appellant did not understand English very well. After learning this, the court did not assure that the charges were explained to appellant in Spanish so that he could understand .the nature of the charge. Further, the court never informed appellant that (1) he had a right to counsel, (2) he was not required to make any statement, and (3) he was required to request a jury trial in a petty offense case. Thus, the requirements of
Furthermore, the court asked appellant how he wished to plead, and he pleaded guilty. Therefore, the court was required to demonstrate compliance with the requirements of
‘When a defendant not represented by counsel is brought before a court and called upon to plead, the judge or magistrate shall cause him to be informed and shall determine that he understands all of the following:
“(1) He has a right to retain counsel even if he intends to plead guilty, and has a right to a reasonable continuance in the proceedings to secure counsel.
“(2) He has a right to counsel, and the right to a reasonable continuance in the proceeding to secure counsel, and, pursuant to
U * * *
“(4) He need make no statement at any point in the proceeding, but any statement made can and may be used against him.”
In the present case, appellant was not represented by counsel at the time that he entered his guilty plea. None of the applicable requirements of
Further,
“In misdemeanor cases involving petty offenses the court may refuse to accept a plea of guilty or no contest, and shall not accept such plea without first informing the defendant of the effect of the pleas of guilty, no contest, and not guilty.”
Pursuant to
In the case
sub judice,
no such meaningful dialogue occurred. In
State v. Pina
(1975),
This is precisely what occurred in the case sub judice. Appellant did not understand English and some unidentified person acted as appellant’s interpreter. 3 The following colloquy occurred:
“[THE] COURT: You got anybody here that understands English better than you?
“UNKNOWN PERSON: I do, sir.
“THE COURT: Well, why don’t you just come up here. Are you charged with something too or are you his friend?
“UNKNOWN PERSON: (Inaudible.)
“THE COURT: Well, you can come on up here.
“Sounds to me like he better enter a ‘not guilty’ plea, seeing as he can go to jail big time.
“UNKNOWN PERSON: He said he’s guilty.”
*236 The court then accepted appellant’s guilty plea and stated that appellant’s sentence would be thirty days, and the unknown person replied “[h]e says, ‘okay.’ ” Thus, the court accepted the word of an unknown person rather than the response of appellant, which was specifically prohibited in Pina. Additionally, there is no record of the exact content of appellant’s responses to the court’s questions. Further, the record does not demonstrate that appellant understood the court’s description of the charges, since they were never translated to him. Therefore, based upon appellant’s demonstrated lack of understanding of English, we conclude that appellant’s plea was not knowingly made and his plea is also vacated on that ground.
Consequently, it is clear that there was a complete lack of compliance with the mandates of
For the foregoing reasons, appellant’s assignment of error is well taken. Accordingly, appellant’s plea is vacated. The judgment of the Mentor Municipal Court is reversed, and this matter is remanded to the trial court for proceedings consistent with this opinion.
Judgment reversed and cause remanded.
Notes
. Upon a review of the record, the only portion of appellant's sentence that has been stayed is the fine.
. Appellee has failed to file a brief in this matter.
. In an affidavit accompanying appellant’s motion to vacate his plea, appellant stated that the individual who attempted to translate was of "Puerto Rican [descent.]”