State v. FrancisState v. Francis
Lead Opinion
{¶ 1} This appeal involves
I
Facts and Case History
{¶ 2} Appellant Andrea Marie Francis was indicted in 1993 on one count of theft and one count of trafficking in food stamps. In March 1993, under a plea agreement, she pleaded guilty to grand theft, a fourth-degree felony, and the second count was nolled. The trial court sentenced appellant to one year of incarceration, suspended the sentence, placed appellant on probation, and ordered restitution. Appellant did not appeal and, apparently, satisfactorily completed her probation.
{¶ 3} On August 7, 2002, appellant moved the trial court under
{¶ 4} At appellant’s 1993 plea hearing, the following exchange occurred:
{¶ 5} “THE COURT: Where were you born?
{¶ 6} “ * * *
{¶ 7} “THE DEFENDANT: Jamaica.
{¶ 8} “THE COURT: Are you a citizen?
{¶ 9} “THE DEFENDANT: No. I’m trying to become one.
{¶ 10} “THE COURT: Do you understand that if you enter a guilty plea to the felony that it would affect your rights in this country?
{¶ 11} “THE DEFENDANT: Yes.
{¶ 12} “THE COURT: Have you gone over that with your lawyer?
{¶ 13} “THE DEFENDANT: Yes.”
{¶ 15} In December 2002, the trial court denied appellant’s
{¶ 16} The Eighth District Court of Appeals affirmed, focusing on the fact that appellant had filed her
II
{¶ 17}
{¶ 18} “(A) 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:
{¶ 19} “ ‘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.’ ”
{¶ 21}
{¶ 22} “Upon motion of the defendant, the court shall set aside the judgment and permit the defendant to withdraw a plea of guilty * * * and enter a plea of not guilty * * * 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.”
{¶ 23} Furthermore,
{¶ 24} “In the absence of a record that the court provided the advisement described in division (A) of this section and if the advisement is required by that division, the defendant shall be presumed not to have received the advisement.”
{¶ 25} Along with Ohio, at least 17 states and the District of Columbia require through statute or court rule that trial judges advise criminal defendants entering into plea agreements of the immigration-related consequences of the plea. See Immigration & Naturalization Serv. v. St. Cyr (2001),
{¶ 26} In most circumstances, motions to withdraw guilty or no-contest pleas are subject to the standards of
{¶ 27} In light of the above, we must agree with those courts that have determined that, through
{¶ 28}
{¶ 29} Within that framework,
{¶ 30} Although the
{¶ 31} Appellant’s motion focuses on the alleged failure to give the
{¶ 32} An appellate court reviews a trial court’s decision on a motion to withdraw a plea under an abuse-of-discretion standard. See State v. Smith (1977),
{¶ 33} At the same time, the extent of the trial court’s exercise of discretion on a motion to withdraw a plea is determined by the particular provisions that govern the motion under which the defendant is proceeding and the caselaw interpreting those provisions. Thus, for example, when a defendant who is a United States citizen files a typical
{¶ 34} Some courts have found that when the defendant satisfies the provisions of
{¶ 35} This court has stated that a motion under
{¶ 36} In Garmendia, at ¶ 12, the Second District Court of Appeals observed that a defendant is not automatically entitled to relief under
Ill
Timeliness
{¶ 37} Because the court of appeals in this case reasoned that the untimeliness of appellant’s motion in and of- itself justified the trial court’s denial of it, appellant’s arguments center on the issue of whether timeliness should enter into a trial court’s consideration as a relevant factor when ruling on an
{¶ 38} In making timeliness a factor in a trial court’s consideration, the court of appeals relied on this court’s statement in State v. Bush,
{¶ 39} Appellee argues that the Bush/Smith observation applies to appellant’s motion even though the manifest-injustice standard of
{¶ 40} We reject appellant’s argument that timeliness of the motion cannot ever be a factor in an
{¶ 41} However, at the same time, we also do not accept the court of appeals’ determination that, as a matter of law, untimeliness here was a sufficient factor in
{¶ 42} Depending on the particular facts, untimeliness will sometimes be an important factor in reaching a decision on a motion to withdraw. On the other hand, in some cases even a considerable delay in filing the motion to withdraw will not be a factor supporting denial of the motion, such as when the immigration-related consequences of the plea and resulting conviction did not become evident for some time after the plea was entered. This is not a situation that requires a bright-line rule. As one of many factors underlying the trial court’s exercise of discretion in considering the motion to withdraw, timeliness of the motion will be of different importance in each case, depending on the specific facts.
{¶ 43} Because of the way we view the timeliness issue, we do not accept the court of appeals’ conclusion that the timing of the motion alone justifies the trial court’s denial of it. One option at this point would be to simply end our review and remand this matter to the court of appeals for further consideration. However, based on our review of the record of this case, we find it necessary to examine other issues implicated by this appeal. Our further review also reveals deficiencies in the trial court’s consideration of appellant’s motion that underscore our determination not to accept the court of appeals’ conclusion regarding the untimeliness of the motion. As will be explained below, these deficiencies require us to remand this matter to the trial court rather than to the court of appeals.
IV
Substantial Compliance
{¶ 44} A primary factor in a trial court’s decision whether an
{¶ 45} A criminal defendant’s right to be informed of a specific nonconstitutional feature of a plea, pursuant to
{¶ 46} We recognize that
{¶ 47} In State v. Malcolm (2001),
{¶ 48} We hold 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 verbatim recital of the language in
V
Failure to Hold a Hearing/Failure to Explain Reasoning
{¶ 49} The next logical step in our review of the denial of the motion would seem to be to review the trial court’s determination whether
{¶ 50} There is no specific requirement to hold a hearing in this situation. However, it sometimes is difficult for an appellate court to review a trial court’s ruling on a motion to withdraw a plea to determine whether an abuse of discretion occurred when no hearing was held.
{¶ 51} In State v. Xie,
{¶ 53} The record reveals other possible concerns. Appellee urges that appellant failed to show that she was not a citizen of the United States at the time she moved to withdraw her plea, thereby failing to fulfill that condition for
{¶ 54} Within the trial-court record transmitted to this court appears an affidavit signed by appellant dated October 30, 2002, stating that she is a citizen of Jamaica and a permanent resident of the United States. Even though it appears among the record filings, this affidavit has no file stamp, which suggests that it was never officially made a part of the record. If the affidavit was never officially made a part of the record, it is possible that the trial court might have denied her motion based on the failure to file the affidavit, relying on cases such as Almingdad. It would be speculative to comment on the propriety of that line of cases in these circumstances because we have no way of knowing whether this issue played any part in the trial court’s bare ruling. We point out this discrepancy not for any substantive value but merely as an additional feature that supports our decision to remand this cause to the trial court for a more thorough review.
{¶ 55} Appellee also cites a line of Eighth Appellate District cases requiring a defendant proceeding under
{¶ 56} We are not establishing a rule that requires a hearing and a written opinion in every case. We stress that, as 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. In light of these shortcomings, we remand this matter to the trial court for further proceedings.
{¶ 57} For the foregoing reasons, we agree with the court of appeals’ conclusion that timeliness of the motion can be a factor in a trial court’s consideration of an
Judgment reversed and cause remanded.
Notes
. We suggest that this court’s Rules Advisory Committee consider whether
Concurrence Opinion
concurring in judgment only.
{¶ 58} I concur with the majority’s holding to the extent that it reverses the judgment of the court of appeals that held that appellant’s motion to withdraw her plea was untimely as a matter of law. However, I disagree with the following two conclusions: (1) timeliness of a motion to withdraw may be a factor in a trial court’s consideration of a motion filed pursuant to
{¶ 59} The majority holds that “[t]imeliness of the motion is just one of many factors that the trial court should take into account when exercising its discretion in considering whether to grant [a motion filed pursuant to
{¶ 60} The trial court is limited to considering four enumerated criteria when confronted with a motion to withdraw a plea filed pursuant to
{¶ 61}
{¶ 62} Thus, a trial court confronted with an
{¶ 63} The majority disregards this clear statutory mandate when it holds that a trial court has the discretion to consider the timeliness of an
{¶ 64} The majority then seeks to support its disregard of the plain language of the statute with reference to the state’s interest in maintaining the finality of convictions. While the state’s interest in finality is undeniable, we should not use the protection of that interest as a justification for disregarding the plain language of a statute.
{¶ 65} The majority also likens a motion to withdraw a plea under
{¶ 66}
{¶ 67} Furthermore,
{¶ 68} These differences demonstrate that the General Assembly intended
II. Substantial Compliance
{¶ 69} I further disagree with the majority’s conclusion that trial courts need only substantially comply with
{¶ 70} As the majority recognizes, “
{¶ 71} The majority states that precedent supports application of a substantial-compliance standard. However, in State v. Pless (1996),
{¶ 72} The requirements set forth in
{¶ 74} Use of the word “shall” and placement of the required advisement in quotation marks demonstrate that the General Assembly intended the trial court to give, verbatim, the warning in
{¶ 75} When trial courts take the time to simply follow the clear direction of a statute, cases such as this do not clutter court dockets.
{¶ 76} In this case, the trial court failed to recite verbatim the
{¶ 77} Because the trial court failed to strictly comply with
Pfeifer, J., concurs in the foregoing opinion.
.
Concurrence in Part
concurring in part and dissenting in part.
{¶ 78} I concur with those portions of the majority opinion that “require a criminal defendant who seeks to withdraw a plea to do so in a timely fashion rather than delaying for an unreasonable length of time,” and I also concur with the majority’s adoption of a substantial-compliance standard for evaluating a motion to withdraw a plea filed pursuant to
{¶ 79} In my view, the timeliness of an offender’s motion to withdraw is material to the determination of whether to grant the motion. The majority is correct in its assessment that without a timeliness consideration, felony convictions are subject to being vacated years after the matter has been resolved and we tread into the area of stale or lost evidence and witnesses who are unavailable or deceased or who have faded recollection.
{¶ 80} I also agree with the majority that substantial compliance is the proper standard to be applied in considering these types of cases. Substantial compli
{¶ 81} “The trial judge did not recant [sic, recite] the precise verbiage of
{¶ 82} The court stated in a footnote:
{¶ 83} “In the past, substantial compliance with
{¶ 84} The court continued:
{¶ 85} “In United States v. Brogan (C.A.6, 1975),
{¶ 86} “ ‘We believe that we have not yet reached the state where Courts will require the parroting of any rule; nor should we encourage a defendant to trifle with the court.’ ” Stewart,
{¶ 87} There is no reason to deviate from this standard based on the facts of this case. The record reflects that Francis had counsel at the plea hearing who explained the consequences of her plea and the effect on her status in the United States at that time, that Francis understood the consequences of her plea, that the trial court separately cautioned her about the plea’s effect on her status in the United States, and that Francis entered her plea knowingly, voluntarily, and intelligently. Under these facts, we can infer that she knew at the plea hearing that it would affect her rights in this country. A nine-year unexplained delay in filing a motion to withdraw a guilty plea is unreasonable.
{¶ 88} Regarding a remand to the trial court for a hearing on the motion to withdraw, the majority first indicates that no such hearing is required but states that a hearing would be beneficial for appellate review. In my view, the evidence