{¶ 3} During appellant's plea hearing, the following colloquy took place:
"THE COURT: Are you a citizen of the United States?
THE DEFENDANT: No, sir, but I am a Vietnam vet, honorable discharge. I have been in America since 1960.
THE COURT: But you are not a citizen of the United States?
THE DEFENDANT: Well, I actually just never made out any citizenship papers.
THE COURT: Where were you?
THE DEFENDANT: West Germany, originally.
THE COURT: West Germany. Do you understand that by entering into this plea to a felony in this case that you could be subject to the immigration authorities and possible deportation by *4 way of a plea in this case?
[DEFENSE Thank you, your honor. I have dis-
COUNSEL]: cussed it with my client and we are ready to proceed.
THE COURT: Okay. In summary, do you understand that by entering into this agreement you may be subject to action by immigration authorities including a possibility that you could be deported? Do you understand that?
THE DEFENDANT: Yes, sir."
{¶ 4} In January of 2005, defendant and his wife went on vacation to Costa Rica. Upon their return to the United States, defendant was detained in Houston, Texas because of his conviction in Case No. CR-348869. Defendant was allowed back into the country, however, according to his Record of Deportable/Inadmissible Alien, on April 7, 2005, he was "placed in immigration proceedings" by the federal government.
{¶ 5} Appellant sought legal counsel regarding his immigration issues and was told that nothing could be done. Eventually, he retained present counsel, who on September 11, 2007, filed a motion to withdraw appellant's guilty plea, based on the court's "failure to give the statutorily required immigration warnings under R.C.
{¶ 7} R.C.
"[P]rior to accepting a plea of guilty * * * to * * * 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:
`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.'"
{¶ 8} Additionally, R.C.
"[T]he court fails to provide the defendant the advisement described in division (A) of this section, the advisement is required by that division, *6 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."
{¶ 9} In State v. Francis,
"In most circumstances, motions to withdraw guilty or no contest pleas are subject to the standards of Crim. R. 32.1, which requires that after sentencing has occurred, a defendant must demonstrate `manifest injustice' before a trial court should permit withdrawal of the plea. However, an examination of R.C.
2943.031 in its entirety makes apparent the General Assembly's intent to free a noncitizen criminal defendant from the `manifest injustice' requirement of Crim. R. 32.1 and to substitute R.C.2943.031 (D)'s standards in its place. The General Assembly has apparently determined that due to the serious consequences of a criminal conviction on a noncitizen's status in this country, a trial court should give the R.C.2943.031 (A) warning, and that failure to do so should not be subject to the manifest-injustice standard even if sentencing has already occurred."
{¶ 10} The Francis court also concluded that "[t]aken as a whole, R.C.
Timeliness
{¶ 11} In the instant case, the state's first argument concerns the timeliness of defendant's motion. The Francis court spoke of the timeliness issue regarding *7
R.C.
{¶ 12} In the instant case, defendant pled guilty on June 25, 1997; he had notice of potential deportation proceedings first on January 27, 2005 and again on April 7, 2005; and he filed his motion to withdraw plea on September 11, 2007. Taking Francis into consideration, we hold that the time frame within which defendant filed his motion to withdraw guilty plea, in and of itself, is not reason enough to support denying the motion.
Substantial compliance
{¶ 13} We again turn to the Francis court for authority regarding defendant's second argument concerning substantial compliance with R.C.
Francis court held at 499-500:
"[I]f some warning of immigration-related consequences was given at the time a noncitizen defendant's plea was accepted, but the warning was not a recital of the verbatim R.C.
2943.031 (A) statutory language, a trial court considering the defendant's motion to withdraw the plea under R.C.2943.031 (D) must exercise *8 its discretion in determining whether the trial court that accepted the plea substantially complied with R.C.2943.031 (A). `Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving. * * * The test is whether the plea would have otherwise been made.' State v. Nero,, 56 Ohio St.3d at 108; see, also, Griggs, 564 N.E.2d 474 , 103 Ohio St.3d 85 2004 Ohio 4415,, at P12. This specific determination is another factor that plays a role in the trial court's overall decision on whether to grant the motion." 814 N.E.2d 51
{¶ 14} A review of Ohio case law shows various plea colloquies which do not constitute substantial compliance under R.C.
{¶ 15} In the instant case, defendant argues that he did not subjectively understand the implications of his plea. To support this argument, defendant points to the record to show that the court told him he could face the possibility of deportation, and failed to advise him at all regarding re-entry to, or naturalization in, the United States. Defendant submitted his affidavit to the court stating that "[a]t the time I appeared in Case No. CR 348869, based upon my previous experience, I firmly believed that the INS would take no action against me as a result of a plea of guilty; * * * At the time of my plea of guilty in Case No. CR 348869, my attorney never advised me and I was unaware of a change in the immigration laws of the United States, which made my deportation mandatory; if the court had advised me of the mandatory deportation which I would be subjected to as a result of my plea of guilty and conviction of a drug related offense in Case No. CR 348869, I would have consulted an attorney specializing in immigration matters for advice on whether or not my plea of guilty in said case would result in my deportation; if I had been aware of the immigration consequences of a plea of guilty in Case No. CR 348869, rather than my mistaken belief that nothing would occur as a result of that conviction, I would not have entered a plea of guilty, but, rather, would have maintained my plea of not guilty and gone to trial; * * *."
{¶ 16} Accordingly, we must analyze whether an immigration warning is *10 statutorily sufficient when it mentions the possibility of deportation, but fails to mention denial of re-entry and/or naturalization.
{¶ 17} The trial court noted the following at the hearing on defendant's motion to withdraw his guilty plea:
"What does the state see wrong with — how should I put it — throwing some compassion to Mr. Schlaf's situation considering he hadn't lived in Germany since 1960?
* * *
"Can we focus our resources on — here. Apparently he committed a crime. He admitted that he did. I'm not saying that — I'm not approving of that by any means.
* * *
"Shouldn't we focus our resources on those known citizens who are true threats to our stability?
* * *
"What about — well, I think the idea is that the federal government has left no discretion in this area and that often times — maybe not often times, but sometimes an injustice can be worked if there is no opportunity for discretion whatsoever.
* * *
"The State, like the Court, should be interested in being fair and one wonders whether the penalty outweighs the offense if the penalty will be exclusion from the United States on a person who was apparently in the Army during the Vietnam war and apparently served in the National Guard."
{¶ 18} The court also noted that defendant has lived in the United States since he was three years old; that he has no criminal record since pleading guilty in the *11 instant case; that he owns his own business in the Cleveland area; that he does not speak German; that he has no relatives living in Germany; and that his wife, child, and stepchildren are all United States citizens. The court found that the state would not be prejudiced if defendant's motion was granted because, although the physical evidence from defendant's two drug cases was stale, there was still testimonial evidence to present. After making these findings, the court granted defendant's motion.
{¶ 19} Many immigrants to this country must find themselves in the same situation as appellant in this case who, having come to the United States, either were drafted or fought on this country's behalf in wars such as Vietnam. Some of them became "permanent residents" by perishing in the mire of that conflict. Others, of course, survived but were wounded in perhaps subtle ways. Does a grateful nation repay such sacrifice with mandatory deportation? Based upon the record in this case, the trial court obviously took into account all the factors necessary to come to a just decision.
{¶ 20} Taking the unique facts of this case into consideration, we conclude that the court did not abuse its discretion when it found that the immigration warning at the plea hearing did not substantially comply with R.C.
Failure to reinstate both indictments
{¶ 21} In the instant case, the state argues that the trial court abused its discretion when it failed to return defendant to the position he was in prior to the *12 plea. It its November 27, 2007 journal entry granting defendant's motion, the court stated as follows: "It is the court's intention to vacate the concomitant dismissal in CR 352032, but an entry reinstating that case will only be made if the state does not appeal this ruling."
{¶ 22} The court acknowledged that it was failing to reinstate both indictments pending this appeal, and while this is somewhat unconventional, we cannot say that it amounts to an abuse of discretion.
Judgment affirmed.
It is ordered that appellee recover of said appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
*1SEAN C. GALLAGHER, P.J., and KENNETH A. ROCCO, J., CONCUR