State v. OluchState v. Oluch
Rendered on August 11, 2011
Ron O‘Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellant.
S. Adele Shank, for appellee.
APPEAL from the Franklin County Court of Common Pleas.
BRYANT, P.J.
{¶1} Plaintiff-appellant, the State of Ohio, appeals from a judgment of the Franklin County Court of Common Pleas granting the motion to withdraw guilty pleas of defendant-appellee, Wilson T. Oluch. The state assigns a single error:
THE TRIAL COURT ABUSED ITS DISCRETION IN SUSTAINING DEFENDANT‘S MOTION TO WITHDRAW GUILTY PLEAS.
Because the trial court did not abuse its discretion in sustaining defendant‘s motion to withdraw his guilty pleas, we affirm.
{¶2} On February 2, 2002, the Franklin County Grand Jury indicted defendant on one count of kidnapping, in violation of
{¶3} On June 29, 2005, defendant filed a motion to withdraw his guilty plеas. Defendant, who is a Kenyan national, argued the trial court failed to comply with
{¶4} Defendant timely appealed from the trial court‘s denial of his motion to withdraw guilty pleas. In a decision dated October 18, 2007, this court determined that in view of the trial court‘s not strictly complying with
{¶5} On April 18, 2008, the trial court conducted a hearing pursuant to this court‘s remand where both defendant and his trial counsel testified, and the state presented defendаnt‘s visa application form as a supplemental exhibit. Following the hearing, the trial court asked both parties to submit proposed findings of fact and conclusions of law. The trial court adopted defendant‘s findings of facts and conclusions of law and granted defendant‘s motion to withdraw his guilty pleas. The state apрealed, seeking leave to appeal in the event it lacked an appeal of right.
II. Leave to Appeal
{¶6}
{¶7} The state may appeal “any other decision” of the trial court, but only if the state first obtains leave from the appellate court.
{¶8} We grant the state‘s motion for leave to appeal so that we may address the issues arising out of the hearing this court ordered on remand and to resolve any uncertainty about substantial compliance with
III. Assignment of Error
{¶9} The state‘s single assignment of error asserts the trial court abused its discretion when it sustained defendant‘s motion to withdraw his guilty pleas. The trial court sustained defendant‘s motion on two grounds: (1) the trial court failed to substantially comply with
{¶10}
{¶11} If the trial court fails “to provide the defendant the advisement described” in
{¶12} The Ohio Supreme Court in State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, held 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
{¶13} Substantial compliance with
{¶14} The state points to three reasons it believes the trial court abused its discretion in granting defendant‘s motion to withdraw his guilty pleas: (1) the trial court misapplied the substantial compliance test and wrongly concluded defendant proved the trial court‘s failure under
{¶15} The state argues that, despite the trial court‘s failure to strictly comply with the language of
{¶16} The state first contends that because defendant knew his guilty pleas could result in deportation, defendant, as a matter of “common sense,” should have known the same action that subjected him to deportation logically would exclude him from admission and deny him naturalization. Neither the plea proceedings nor the proceedings on remand support the state‘s argument.
{¶17} During the plea colloquy, the trial court informed defendant only “that by pleading guilty, this could jeopardize [his] status here in this country.” Ouch at ¶14. In response to the court‘s inquiry, defendant‘s trial counsel specifically noted on the record that dеfendant had concerns about being allowed to stay in the country and wanted counsel to negotiate a recommendation to that effect as part of his plea bargain. Defense counsel also stated he informed defendant that the court, as a state entity, did not have authority over whether defendant could remain in the country. Id. The trial court corroborated defense counsel‘s statement, advising defendant it had “no authority over it, no.” Id. Neither counsel nor the court mentioned to defendant either exclusion from admission to the United States or denial of naturalization. Further, the plea form bearing defendant‘s signaturе does not mention any possible adverse immigration consequences to defendant‘s guilty pleas.
{¶19} Despite defendant‘s evidence, the state urges us to construe the evidence differently and conclude that defendant‘s testimony was disingenuous. The state asserts defendant‘s primary concern at the time of the plea proceeding was his return to Kenya to be with his family. As a result, the state contends, defendant should not be allowed to argue now that he would not have entered his guilty pleas had he a more complete warning of the adverse immigration consequences. To bolster its argument, the state points to defendant‘s visa application, including its questions directed to whether the applicant has ever been convicted of a crime. The state asserts the evidence, viewed under the totality of the circumstances, meant defendant must have subjectively understood that if he could be deported, he also would be subject to exclusion from admission and denial of naturalization.
{¶21} The state also notes defendant never asked about the possibility of exclusion from admission and denial of naturalization, appearing to suggest defendant‘s failure to inquire indicates defendant subjectively understood the potential consequences of his guilty plea. To the extent the state so argues, it places the burden on the wrong party. A defendant does not have the responsibility to ask the trial court to fully inform him or her of rights under the statute. Rather, the purpose of
B. Burden of Proof
{¶23} The state next argues the trial court improperly equated the evidence necessary to justify a hearing on a motion to withdraw a guilty plea with the evidence necessary to establish relief. The state notes the trial court “cited this Court‘s decision in State v. Ouch, 10th Dist. No. 06AP-488, 2006-Ohio-6949, ¶¶28-30, for the proposition that defendant‘s testimony that he would not have pleaded guilty had the trial court strictly complied with
{¶24} Ouch determined the affidavit in that case warranted a hearing. Such a hearing would allow the trial court to determine if it found credible the assertions in Ouch‘s affidavit. Had the affidavit, even if believed, been insufficient to warrant relief, we would have had no reason to remand for a hearing. On the other hand, because the affidavit, if believed, would support Ouch‘s motion, the hearing gave the trial court the opportunity to determine, when Ouch testified at the hearing, the weight to attach to Ouch‘s contention that he would not have pleaded guilty had he known the consequences flowing from the plea.
C. Mandate on Remand
{¶26} Lastly, the state argues the trial court exceeded this court‘s mandate on remand. Our prior decision partially instructed the trial court on remand to determine whether defendant‘s trial counsel was ineffective in not objecting to the trial court‘s failure to strictly comply with
{¶27} We need not address the merits of the state‘s argument because defendant presented alternative grounds for relief in moving to withdraw his pleas. Having already concluded defendant was entitled to relief based on the trial court‘s failure to substantially comply with
IV. Disposition
{¶28} Accordingly, we grant the state‘s motion for leave to appeal. Because, however, the trial court did not abuse its discretion when it sustained defendant‘s motion to withdraw his guilty pleas based on the trial court‘s failure to substantially comply with
Motion granted; judgment affirmed.
BROWN and DORRIAN, JJ., concur.
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