609 N.E.2d 207 | Ohio Ct. App. | 1992
Defendant-appellant appeals from convictions on drug counts and violence specifications rendered by the Cuyahoga County Court of Common Pleas. Appellant appeals his guilty pleas arguing that he did not make knowing, intelligent and voluntary pleas. On review, we find error and reverse the judgment of the trial court pertaining to sentencing and remand for resentencing.
At the time of the pleas, the court thoroughly explained the rights and the consequences and benefit of the plea agreement to appellant pursuant to Crim.R. 11.
Appellant Odubanjo was a non-U.S. citizen from Nigeria. He testified that he came to this country to complete his schooling and received a bachelor degree in accounting from Rust College in Mississippi. Appellant had been living in the United States for nine years at the time of his plea bargaining — and was working as a nursing assistant at a nursing home.
On July 21, 1989, pursuant to a plea-bargain agreement involving the state of Ohio, appellant and his co-defendant common-law wife, appellant entered guilty pleas to counts one, four, six, eight, ten, eleven and twelve of the indictment. Pursuant to the agreement, counts two, three, five, seven, and nine were nolled by the state of Ohio. On July 28, 1990, appellant was sentenced on the guilty-plea counts.
Appellant's pro se motion for a delayed appeal was granted on September 5, 1990. This appeal follows.
Appellant argues in his first assignment of error that he was denied his due process of law. Specifically, appellant argues that his convictions were the result of an uninformed guilty plea.
This assignment of error is not well taken.
Crim.R. 11(C)(2) sets out the procedures that a trial court must follow before it can accept a guilty plea. When a trial court or appellate court is reviewing a plea submitted by a defendant, its focus should be on whether the dictates of Crim.R. 11 have been followed. Crim.R. 11 provides in pertinent part:
"C. Pleas of guilty and no contest in felony cases.
"* * *
"(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and:
"(a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation.
"(b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence.
"(c) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself."
Furthermore, in reviewing the record on appeal, the appellate court should inquire as to whether the defendant voluntarily and knowingly waived his constitutional rights. As the United States Supreme Court stated in Boykin v. Alabama (1969),
In the case sub judice, the record indicates that the trial judge explained all the constitutional rights appellant was entitled to pursuant to Crim.R. 11. In reviewing the colloquy between the trial court and appellant and the statements made by the court as to appellant's understanding of his rights, we find that appellant was informed of his constitutional rights pursuant to Crim.R. 11. *333
In reviewing appellant's contention that he was prejudiced in his guilty pleas because he was not advised of the possibility of his deportation pursuant to R.C.
R.C.
"`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.'"
Prior to the legislative enactment of R.C.
In Arvanitis, defendant was a Greek national who had immigrated to the United States in 1955. In 1974, Arvanitis was indicted on a charge that he unlawfully sold a narcotic drug. Defendant pleaded not guilty. With the benefit of counsel, defendant withdrew his plea of not guilty and entered a plea of guilty to the lesser offense of possession of narcotics. Defendant was sentenced to prison and served one year of his sentence.
After defendant was released on parole, the Immigration and Naturalization Service conducted deportation hearings. Nine years after he was deported, Arvanitis sought to withdraw his guilty plea, arguing that he was not informed by counsel that his guilty plea could result in deportation.
The Ohio Court of Appeals in Arvanitis found the issue one of first impression and looked to federal courts and other state court decisions to make its determination. The Arvanitis court, quoting the Supreme Court in Hill v. Lockhart (1985),
"`The longstanding test for determining the validity of a guilty plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." * * * Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice "was within the range of competence demanded of *334
attorneys in criminal cases." * * * [A] defendant who pleads guilty upon the advice of counsel "may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [v. Richardson (1970),
"The federal courts have consistently held that actual knowledge of the collateral consequences of a guilty plea is not a prerequisite to the entry of a knowing and intelligent plea; and, therefore, the defendant's ignorance of the possibility of deportation does not render a guilty plea involuntary. UnitedStates v. Campbell [(11th Cir. 1985)] supra [
Reviewing the facts of its own case in Arvanitis, the appeals court concluded that:
"Based on the facts of this case, we are not disposed to announce a hard and fast rule as to whether counsel's failure to inform an alien defendant of deportation consequences of a guilty plea is `a substantial violation of any of defense counsel's essential duties to his client' so as to render counsel's assistance ineffective under State v. Lytle [(1976)],supra [
In the case sub judice, since we cannot hold the court accountable for the advisement required in R.C.
A review of the transcript of the plea bargain reveals that defense counsel asked the court to take into consideration in its sentencing the fact that after appellant finished serving the imposed sentence he would be deported:
"I think it's quite clear that upon finishing his sentence that the Court imposes here he will be deported back to Nigeria, and as a result of the conduct he's engaged in, he likely would not see his family again, he will not see his children again, he will lose the companionship of his family and *335 perhaps that is as harsh a consequence, perhaps more harsh a consequence than any sentence the Court might impose."
We can presume then that this issue had been discussed by defense counsel with appellant. Assuming, arguendo, that such a discussion did not take place, appellant cannot show substantial prejudice by an alleged omission to inform him of the deportation consequences of a guilty plea. Arvanitis, supra.
In conclusion, appellant's Assignment of Error I is not well taken. The court substantially complied with Crim.R. 11 in its colloquy concerning appellant's constitutional rights. The court was not responsible under the dictates of R.C.
Accordingly, Assignment of Error I is overruled.
Appellant argues in his second assignment of error that the trial court erred in its imposition of sentence. Specifically, appellant argues that his sentence of eight to twenty-five years for aggravated trafficking in drugs was statutorily impermissible.
This assignment of error is well taken.
Under R.C.
Appellee state argues that the trial court's sentence was entirely proper pursuant to State v. Smith (1989),
In State v. Arnold (1991),
Therefore, appellant's sentence on count six is vacated and the cause is remanded to the trial court for imposition of a new sentence to reflect an indefinite term of four, five, six or seven years to twenty-five years as prescribed in R.C.
Accordingly, the trial court is affirmed in part, reversed in part and the cause remanded for resentencing.
Judgment affirmed in part,reversed in part,and cause remanded.
NAHRA and FRANCIS E. SWEENEY, JJ., concur. *337