2007 Ohio 202 | Ohio Ct. App. | 2007
{¶ 2} Appellant is Arturo B. Lopez, a Mexican citizen in the United States as an immigrant with permanent residence. According to witnesses, on July 3, 2005, while at a family function in Port Clinton, appellant enticed his wife's five-year old granddaughter into a bathroom. Once in the bathroom, appellant was alleged to have had oral genital sexual activity with the girl. At his plea hearing, appellant described this activity as "kiss[ing] her vagina."
{¶ 3} Appellant was arrested and charged with rape. Following his arrest and appointment of counsel, appellant agreed to plead on a bill of information to a violation of R.C.
{¶ 4} From this judgment, appellant now brings this appeal, setting forth the following three assignments of error:
{¶ 5} "I. Defendant's plea is invalid because the defendant's court appointed translator did not provide a verbatim English translation and instead paraphrased the translation to the trial court because the translator violated the sworn oath, because many of the rights were explained to defendant off the record, because defendant stated that he was not guilty and because the trial court failed to comply with Ohio Revised Code §
{¶ 6} "II. The trial court erred by failing to vacate the guilty plea during sentencing because defendant repeatedly expressed his intent to withdraw the guilty plea prior to sentencing.
{¶ 7} "III. The instant case must be remanded for resentencing because judicial findings were made in violation of State v. Foster and because this appeal was pending when State v. Foster was decided."
{¶ 8} Although appellant has been in the United States since approximately 1987, he was born in Mexico and his first language is Spanish. Consequently, at the plea and sentencing hearings, the court appointed an interpreter to translate.
{¶ 9} In his first assignment of error, appellant suggests that his Crim.R. 11 colloquy was inadequate because 1) his interpreter was from Columbia, not Mexico; 2) the interpreter paraphrased appellant's responses, rather than provide verbatim translation; and 3) the trial court failed to warn appellant that conviction might lead to his deportation in the language provided by R.C.
{¶ 11} With respect to the issue of verbatim translation, this was somewhat facilitated by the court which tended to address statements and questions to the translator. While there is persuasive authority that a verbatim translation is desirable, State v. Pina (1975),
{¶ 13} "(A) [P]rior to accepting a plea of guilty or a plea of no contest to an indictment, information, or complaint charging a felony * * * 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:
{¶ 14} "`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.' * * *"
{¶ 15} During the plea colloquy in this matter, the following exchange occurred between the court, appellant and the interpreter:
{¶ 16} "THE COURT: Will you explain to Mr. Lopez that because he is not a citizen of this country, that this conviction could trigger an investigation by the immigration authorities, and that they could issue a sanction as serious as ordering him deported from this country upon completion of his prison sentence. Will you ask him if he understands that?
{¶ 17} "THE DEFENDANT: Yes, I understand.
{¶ 18} "THE INTERPRETER: Yes, I understand it."
{¶ 19} While it is preferable that a court warn of the immigration consequences of a plea with the statutory language read verbatim,State v. Francis,
{¶ 20} While a warning using the statutory language would be preferable, in our view the warning offered substantially complies with the law. Accordingly, the remainder of appellant's first assignment of error is not well-taken.
{¶ 22} The record is clear. Appellant withdrew his request to withdraw his guilty plea. We cannot find error in the trial court failing to grant a motion which was not before it. Accordingly, appellant's second assignment of error is not well-taken.
{¶ 24} The state responds that appellant's view of Foster sweeps too broad a swath. According to the state, the portion of the sentencing statutes found unconstitutional in Foster are not implicated here.
{¶ 25} While the state is correct that appellant's view ofFoster is overbroad, it is incorrect that it is inapplicable. Although appellant was not burdened with consecutive or maximum sentences, because he has never before served a term in prison, R.C.
{¶ 26} Foster, at paragraph one of the syllabus; and ¶ 61 and ¶ 83, found R.C.
{¶ 27} On consideration whereof, the judgment of the Ottawa County Court of Common Pleas is affirmed, in part, and reversed, in part. This matter is remanded to said court for resentencing. Appellant and appellee are each ordered to pay one-half of the cost of this appeal pursuant to App. R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Ottawa County.
JUDGMENT AFFIRMED, IN PART, AND REVERSED, IN PART.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Arlene Singer, J.
William J. Skow, J.
George M. Glasser, J
CONCUR.
Judge George M. Glasser, retired, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.
