STATE OF OHIO v. JOSE REYES
CASE NOS. CA2015-06-113, CA2015-06-114, CA2015-06-115
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
5/2/2016
2016-Ohio-2771
HENDRICKSON, J.
CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT Case Nos. 00CRB04609, 03CRB04635-A, 05CRB00166
Blake P. Somers, LLC, Sarah E. Mosher, 114 East 8th Street, Cincinnati, Ohio 45202, for defendant-appellant
HENDRICKSON, J.
{¶ 1} Defendant-appellant, Jose Reyes, appeals a decision from the Hamilton Municipal Court denying his motion to withdraw his no contest pleas. For the reasons stated below, we affirm the decision of the trial court.
{¶ 2} Reyes is a Mexican citizen and was granted permanent residency status in the United States in 1998. In 2000, Reyes pled no contest and was convicted in Hamilton Municipal Court for soliciting. Reyes was also convicted of passing bad checks in 2003 and
{¶ 3} On March 3, 2015, Reyes was contacted by immigration authorities and issued a notice to appear for removal proceedings due to his 2000, 2003, and 2005 cоnvictions. One month later, Reyes filed a motion to withdraw his no contest pleas pursuant to
{¶ 4} The trial cоurt held a hearing regarding Reyes’ motion. At the hearing, Reyes testified that the trial court did not inform him of the potential immigration consequences of a conviction during his 2000 soliciting, 2003 bad checks, and 2005 resisting arrest cases. He explained that if the trial court had informed him that his pleas could have affected his immigration status, he would not have entered no contest pleas. Reyes also acknowledged that in 2013, he consulted with an attorney who informed him that these convictions could result in deportation.
{¶ 5} After the presentation of the evidence, the trial court dеnied Reyes’ motion to withdraw his pleas. The court stated there was no indication that Reyes was given a
{¶ 6} Reyes now appeals, asserting three assignments of error. For ease of discussion, we will address the assignments of error together.
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ERRED IN CONSIDERING THE “TIMELINESS” OF MR. REYES’ MOTIONS TO WITHDRAW HIS PLEAS.
{¶ 9} Assignment of Error No. 2:
{¶ 10} EVEN IF FOUND TO BE AN APPROPRIATE FACTOR FOR CONSIDERATION, THE TRIAL COURT ERRED IN FINDING THAT “TIMELINESS” ALONE WAS A SUFFICIENT BASIS ON WHICH TO DENY MR. REYES’ MOTIONS.
{¶ 11} Assignment of Error No. 3:
{¶ 12} EVEN IF “TIMELINESS” IS FOUND TO BE AN APPROPRIATE DISPOSITIVE FACTOR, THE TRIAL COURT ERRED IN FINDING THAT MR. REYES’ MOTIONS WERE NOT TIMELY.
{¶ 13} Reyes argues the trial court erred in denying his motion to withdraw his no contest pleas solely on the basis that the motion was untimely filed. Reyes asserts three arguments: (1) the timeliness of a motion to withdraw a plea is not a factor outlined in
Standard of Review
{¶ 14} An appellate court reviews a trial сourt‘s decision on a motion to withdraw a plea filed pursuant to
R.C. 2943.031
{¶ 15}
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 seсtion, 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 bеing subject to deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.
In the absence of a record commemorating the advisement,
State v. Francis
{¶ 16} In Francis, the Ohio Supreme Court issued a plurality decision addressing the applicablе standard in ruling on a motion to withdraw a plea based on a trial court‘s alleged failure to comply with the warning required by
{¶ 17} In regards to the timeliness of the defendant‘s motion, the Supreme Court stated, “[t]imeliness * * * is just one of many many factors that the trial court should take into account” in determining whether to grant the motion. Id. at ¶ 40. Timeliness of the motion is a relevant consideration because “[t]he more time that passes between the defendant‘s plea and the filing of the motion to withdraw it, the more probable it is that evidence will become stale and that witnesses will be unavailable. The state has an interest in maintaining the finality of a conviction that has been considered a closed case for a long period of time.” Id.
{¶ 18} However, the “timeliness” of a motion does not require a bright-line rule and instead depends on the particular facts of each case. Id. at ¶ 42. For example, a motion‘s untimeliness would not be a factor to support denying the motion when “the immigration-related consequences of the plea and resulting conviction did not become evident for some time after the plea was entered.” Id. Other factors in a
{¶ 19} Ultimately, in Francis, the Supreme Court found that under the particular facts of the case before it untimeliness, as a matter of law, was not a sufficient factor to deny the motion to withdraw. Id. at ¶ 41. Specifically, untimeliness was not sufficient to deny the motion when there was a nine-year delay in filing the motion to withdraw, the trial court did not hold a hearing, and the court summarily denied the motion. Id. The Court reasoned that in light of the strong policy expressed within
Discussion
{¶ 20} Reyes and the state both agree that because there is no record commemorating whether Reyes was given a
{¶ 21} Reyes’ first contention that this district should dеpart from the Ohio Supreme Court‘s binding precedent in Francis and find that the timeliness of a motion to withdraw filed pursuant to
{¶ 22} Similarly, we are not convinced by Reyes’ argument that we should depart from Francis because the timeliness requirement “has fallen into disfavor” with the Eighth and Tenth Districts and has been limited to cases where some warning regarding immigration consequences was given at the plea hearing. Mayfield Hts. v. Grigoryan, 8th Dist. Cuyahoga No. 101498, 2015-Ohio-607; State v. Walker, 10th Dist. Franklin No. 14AP-723, 2015-Ohio-1240. As stated above, appellate courts must follow the Ohio Supreme Court‘s precedent. Baker at ¶ 40. Moreover, both Grigoryan and Walker are distinguishable from the case at bar because the issue of whether the motion was timely was not discussed in either cаse. See Parma v. Lemajic, 8th Dist. Cuyahoga No. 102620, 2015-Ohio-3888, ¶ 14 (timeliness not an issue in Grigorgyan; Francis not limited to cases where record shows some immigration consequences given at plea hearing).
{¶ 23} We also disagree with Reyes’ argument that pursuant to Francis, a trial court may not deny a
{¶ 24} However, the Supreme Court left open the possibility that based upon the particular circumstances of a case, a trial court may deny a motion to withdraw a plea filed pursuant to
{¶ 25} Based on the particular facts of the present case, we find that the trial court did not abuse its discretion in denying Reyes’ motion to withdraw his no contest pleas because the motion was untimely filed. Unlike Francis, the trial court held a hearing regarding Reyes’ motion to withdraw. At time of the hearing, Reyes’ three no contest pleas were between 10 and 15 years old. During the hearing, Reyes explained that in 2013 he met with a lawyer and learned about the potential negative consеquences his pleas could have on his immigration status. While Reyes was aware of the immigration consequences of his pleas in 2013, he waited two years to file his motion to withdraw. Reyes failed to provide any explanation regarding the delay in filing the motion, even though he was aware of the immigration consequences of his convictions. In finding the delay unreasonable, the trial court also referenced Reyes’ contact with other courts between the pleas and his motion to withdraw when Reyes was convicted of operating a vehicle under the influence, driving without a license, and driving under suspension.
{¶ 26} Additionally, Reyes’ delay in filing the motion to withdraw his no contest pleas
{¶ 27} In support of his position that a
{¶ 28} Accordingly, in ruling on a
{¶ 29} Judgment affirmed.
M. POWELL, P.J. and RINGLAND, J., concur.