2005 Ohio 1657 | Ohio Ct. App. | 2005
{¶ 3} Appellant's plea hearing was held on January 28, 2003. At that hearing, the trial court informed appellant of the rights he was waiving by entering a plea. (01/28/03 Tr. 1-9). The trial court then addressed appellant's lack of United States citizenship.1 (01/28/03 Tr. 10). Appellant proceeded to enter a guilty plea to three of the four counts. The remaining count was dismissed.
{¶ 4} Appellant's sentencing hearing was held on April 10, 2003. Once again, the trial court addressed appellant's lack of citizenship. (04/10/03 Tr. 6). After discussing the effects of appellant's lack of citizenship, the court asked if appellant still wished to proceed to sentencing. (04/10/03 Tr. 7). Appellant responded in the affirmative. (04/10/03 Tr. 7). The trial court then sentenced appellant to a one-year sentence on each count to be served concurrently.
{¶ 5} The three counts against Salvatore Lucente were dismissed on April 10, 2003. The judgment entry dismissing the case states the following:
{¶ 6} "Pursuant to the Rule 11 agreement the State of Ohio moves to dismiss the indictment filed on June 20, 2002. This agreement was made in concurrence with State of Ohio v. Nino Lucente. Case No. 02 CR 640.
{¶ 7} "For good cause, motion sustained." (04/10/03 J.E.).
{¶ 8} On September 12, 2003, appellant filed a motion to withdraw the guilty plea based upon R.C.
{¶ 10} Prior to addressing whether the trial court adequately advised appellant of R.C.
{¶ 11} The Tenth Appellate District has held that a motion to withdraw a plea for failure to comply with R.C.
{¶ 12} In Bush, the Ohio Supreme Court was asked to determine whether a motion to withdraw a guilty plea filed after the time for appeal had expired must be considered a motion for post-conviction relief under R.C.
{¶ 13} Applying the Supreme Court's reasoning, the Yuen court explained that a R.C.
{¶ 14} We find the Tenth District's reasoning logical. Accordingly, res judicata does not bar appellant's appeal; the state's argument fails.
{¶ 15} Thus, our analysis now turns to the merits of the appeal; whether appellant's guilty plea was entered into knowingly, intelligently, and voluntarily. In other words, whether the trial court's R.C.
{¶ 16} Before a guilty or no contest plea is accepted by the trial court, the trial court must address the defendant personally, and, in accordance with Crim.R. 11(C) for a felony or in accordance with Crim.R. 11(D) for a misdemeanor, inform the defendant of the rights he is waiving by entering a plea. When the trial court is informed by the defendant that he is not a United States citizen, the trial court, in addition to the requirements in Crim.R. 11, must also inform the defendant, in accordance with R.C.
{¶ 17} R.C.
{¶ 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.'
{¶ 20} "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.
{¶ 21} "(B) The court is not required to give the advisement described in division (A) of this section if either of the following applies:
{¶ 22} "(1) The defendant enters a plea of guilty on a written form, the form includes a question asking whether the defendant is a citizen of the United States, and the defendant answers that question in the affirmative;
{¶ 23} "(2) The defendant states orally on the record that he is a citizen of the United States.
{¶ 24} "(C) Except as provided in division (B) of this section, the defendant shall not be required at the time of entering a plea to disclose to the court his legal status in the United States.
{¶ 25} "(D) 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."
{¶ 26} The clear and unambiguous language of subsection (D) of the statute requires the trial court to set aside a conviction and allow the defendant to withdraw his guilty plea if the following four requirements are met: "(1) the court failed to provide the advisement described in the statute, (2) the advisement was required to be given, (3) the defendant is not a citizen of the United States, and (4) the offense to which the defendant pled guilty may result in the defendant being subject to deportation, exclusion, or denial of naturalization under federal immigration laws." State v. Weber, (1997)
{¶ 27} In the instant case, it is clear that the advisement was required to be given. The trial court, prior to accepting the plea, asked appellant if he was a United States citizen. Appellant responded that he was not. Additionally, in a signed plea agreement that was filed with the trial court, appellant indicated that he was not a United States citizen. Furthermore, it is undisputed that a guilty plea on the offense, trafficking in drugs, may result in deportation. Thus, the issue to be decided by this court is whether the advisement was given in accordance with R.C.
{¶ 28} Appellant contends that the trial court did not strictly, or in the alternative, substantially comply with R.C.
{¶ 29} "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 R.C.
{¶ 30} Accordingly, the determination is whether the trial court substantially complied with R.C.
{¶ 31} "THE COURT: I understand there's an issue as to your citizenship, and it has been represented that — at least the inquiry made by the Prosecutor, he does not believe there's any risk of deportation as a result of this plea to a felony. I have indicated my willingness to permit your counsel to expend a certain amount of money — for the record, up to $500 — to get any opinion from an attorney who specializes in that type of work as to whether or not that is a possibility in this case. And if that is a possibility in this case, if you came back here and asked me to withdraw your plea of guilty and proceed to trial with the rights that we've just gone over, I would permit you to withdraw that plea. Any questions in that regard?
{¶ 32} "THE DEFENDANT: No, sir.
{¶ 33} "THE COURT: Did I adequately cover that?
{¶ 34} "MR. LIMBIAN [defense counsel]: I think so, Your Honor." (01/28/03 Tr. 10).2
{¶ 35} The statute specifies that a defendant must be advised that a conviction could result in deportation, exclusion from admission, or denial of naturalization. The purpose of the deportation advisement is to not only inform a defendant that deportation is a possible consequence of the guilty plea, but also to ensure that a defendant is willing to accept that possible consequence.
{¶ 36} In the above colloquy, the trial court advised appellant that deportation could be a possible consequence of the guilty plea. However, after making that statement, it then added that it would allow him to withdraw his guilty plea if deportation was a possibility. This statement did not ensure that appellant was willing to accept that possible consequence of deportation. Rather, it negated the possible consequence of deportation by assuring appellant that he could withdraw his guilty plea if that consequence came to fruition.
{¶ 37} As such, we cannot conclude that appellant subjectively understood the consequences of his plea. The reliance a defendant may place on the above type of statement leads us to the conclusion that the plea might not have otherwise been made had the trial court not made the statement. Consequently, the trial court's discussion with appellant did not substantially comply with R.C.
{¶ 38} The state contends that even if the above colloquy does not substantially comply with R.C.
{¶ 39} Despite the state's insistence, the written advisement alone is not sufficient to constitute substantial compliance. In Yanez, the First District explained that a written statement does not satisfy the requirement to personally address the defendant. Yanez, 2002-Ohio-7076, at ¶ 38. The Yanez court analogized this right with Crim.R. 11(C) and the court's obligation under that rule to personally address a defendant and to inform him of the rights specified in that rule. Id. The court reasoned that since written statements do not satisfy Crim.R. 11(C) they will not satisfy R.C.
{¶ 40} Akin to the above argument, the state contends that the trial court's statements during sentencing can constitute substantial compliance with R.C.
{¶ 41} "THE COURT: Certainly you were advised at the time of your plea the possibility of deportation —
{¶ 42} "THE DEFENDANT: Yes.
{¶ 43} "THE COURT: — when pleading guilty to a felony. Attorney Limbian has recited for the record in your presence the opinion of an attorney as relates to this plea. Now, the alternative, of course, and I believe this was stated on the record, is that if you would be deported, the Court would permit you to withdraw your plea of guilty. If your plea of guilty was withdrawn, this case, in all likelihood, would proceed to trial and then a jury would have an opportunity to — or the prosecutor would have the obligation to prove the case with all the rights that we talked about at the time your plea was entered. I don't know what INS will do: nobody in this room does. You know the possibility exists, perhaps the probability, based upon the letter at least, that you will be deported. Knowing all of that, do you still wish to proceed to sentence this morning?
{¶ 44} "THE DEFENDANT: Yes." (04/10/03 Tr. 6-7).
{¶ 45} The specific language of R.C.
{¶ 46} Next, the state then argues the timeliness factor, i.e. that vacating the plea would amount to injustice when considering the amount of time that had passed (5 months after imposition of the sentence) and the plea agreement that had occurred in appellant's brother's (Salvatore Lucente) case.
{¶ 47} As aforementioned, timeliness is a factor for consideration when determining whether to allow a defendant to withdraw a guilty plea after sentencing. Francis,
{¶ 48} Likewise, while we do recognize that Salvatore Lucente's (appellant's brother) and appellant's plea agreements were based upon the dismissal of the charges against Salvatore Lucente (04/10/03 J.E. Case No. 02CR640A — Salvatore's case), this argument must also fail. The plea agreement did not negate the duty of the trial court to substantially comply with R.C.
{¶ 49} That said, we acknowledge that requiring the trial court to withdraw appellant's guilty plea thwarts the agreement that the state had with both Salvatore and appellant. Accordingly, since the plea agreement between the state and appellant is no longer valid, then dismissal of the charges against Salvatore are subject to reindictment (provided that the statute of limitations has not run).
{¶ 50} Thus, when considering all of the above, we hold that the trial court did not substantially comply with R.C.
{¶ 51} In Francis, the trial court did not hold a hearing on the motion to withdraw and did not give an explanatory opinion as to why it was denying the motion to withdraw. Factually this is similar to the case at hand. However, there are some distinguishing factors. First, as already stated above, the time between the acceptance of the plea and the motion to withdraw in Francis was ten years. In the matter at hand it was four/five months. Next, in Francis, unlike in the instant matter, there was no statement by the trial court that it would allow the defendant to withdraw the plea if deportation was a possibility. Furthermore, inFrancis, the Court specifically stated that it was "not establishing a rule that requires a hearing and a written opinion in every case." Id., at ¶ 56.
{¶ 52} Thus, given the differences between this case and Francis, it would be fruitless to remand the case to the trial court for a determination of whether it substantially complied with R.C.
{¶ 53} For the foregoing reasons, the judgment of the trial court is hereby reversed, the plea is vacated and the case is remanded for further proceedings according to law and consistent with this Court's Opinion.
Donofrio, P.J., concurs.
Waite, J., concurs.
