State of Ohio, Plaintiff-Appellee, v. Alassane Sow, Defendant-Appellant.
No. 17AP-772 (C.P.C. No. 16CR-3087)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
October 16, 2018
[Cite as State v. Sow, 2018-Ohio-4186.]
KLATT, J.
(REGULAR CALENDAR)
Rendered on October 16, 2018
On brief: Ron O‘Brien, Prosecuting Attorney, and Sheryl L. Prichard, for appellee.
On brief: April F. Campbell, for appellant.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendant-appellant, Alassane Sow, appeals from the October 12, 2017 decision of the Franklin County Court of Common Pleas denying his motion to withdraw guilty plea. For the following reasons, we affirm.
I. Factual Background
{¶ 2} On June 8, 2016, a Franklin County Grand Jury indicted Sow on two counts of vehicular assault, in violation of
{¶ 3} On September 12, 2017, two days before his sentencing hearing, Sow filed a motion to withdraw his guilty plea pursuant to
{¶ 4} On October 12, 2017 the trial court held a hearing on the motion to withdraw and the only witness was Sow. He testified that he is from Senegal but has lived in the United States since March 20, 2014. Sow then read a prepared statement to the trial court. In it, he made a new claim that was not included in his motion to withdraw. He alleged that his attorney “really didn‘t еxplain to me and understand the choice I was making [or] what effect it would have.” (Oct. 12, 2017 Tr. at 7.) He also expounded on the reasons stated in his motion. Sow indicated that he tried to get a job but was told he had to wait for at least seven years. He also would not be able to help with his father‘s trucking company because a conviction would preclude him from obtaining a commercial driver‘s license. Sow‘s attorney askеd the trial court whether he should continue as counsel due to Sow‘s statement that counsel had not properly explained something to him about the consequences of his plea. The trial court inquired of counsel‘s experience and told him to proceed.
{¶ 5} Sow further testified that after he pled guilty he spoke with his uncle, who works in the U.S. Embassy in Senegal. His uncle told him that he was at risk of not being allowed to re-enter the United States if he ever went back to Senegal. Sow also explained why he did not believe he was guilty of the crimes that he was charged with. He testified that on the day of the incident he bought shoes a size too small. After wearing them around, his feet began to hurt. He got into his car, turned it on, put it into reverse, and then tried to take his shoes off. When the car began to move, he tried to push the brake but ended up pushing his shoes onto the gas pеdal. The car backed up quickly and jumped over the curb. Sow stated that the test results showed that he did not have any alcohol in his system.
{¶ 7} Sow was sentenced to a period of community control for three years. As part of his community control, Sow was ordered to serve 90 days at the Franklin County Correction Center and to undergo drug and alcohol treatment. The trial court also imposed a 12-month driver‘s license suspension without privileges.
II. The Appeal
{¶ 8} Sow appealed, asserting the following assignment of error:
The trial court erred in denying Sow‘s motion to withdraw his plea.
{¶ 9} Sow argues the trial court erred in denying his motion to withdraw his guilty plea because (1) he presented a reasonable and legitimate basis for seeking to withdraw his plea; (2) he sufficiently demonstrated that he may not have been guilty of the crime alleged; (3) the state would not be prejudiced; (4) he was not allowed to demonstrate that his attorney did not advise him of the immigratiоn consequences as the trial court insisted that counsel continue to represent him; (5) his motion was not untimely; (6) the trial court did not strictly comply with the advisement set forth in
III. R.C. 2943.031 Advisory
{¶ 10} Prior to accepting a plea of guilty or no contest to a felony, the trial court is required to personally address the defendant and provide the following 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.
{¶ 11} If a court fails to provide the above advisement, a defendant may move to withdraw his plea.
{¶ 12} The Supreme Court of Ohio has found that a trial court accepting a guilty plea from a noncitizen “must give verbatim the warning set forth in
{¶ 14} In addition to the advisory required by
{¶ 15} Sow claimed that he did not understand the immigration consequences until his uncle explained them to him and that this conversation occurred at some point after the plea hearing. He also alleged that his attorney did not explain the consequences so that he understood the choice that he was making.
{¶ 16} Prior to accepting Sow‘s рleas, the trial court addressed Sow‘s immigration status:
THE COURT: The form indicates you are a not a United States citizen; is that correct?
MR. BECK: That‘s correct.
THE COURT: Are you a citizen of the United States?
MR. BECK: You‘re not a citizen, right?
THE DEFENDANT: No.
MR. BECK: Right.
THE DEFENDANT: But I don‘t got $7,500.
MR. BECK: No, that‘s the maximum fine. He has to tell you the absolute maximums. Now, understand he has to tell you the worst things that can happen to you.
THE DEFENDANT: Um-hmm.
MR. BECK: All right. He‘s not saying those things are going to happen, but by law he has to tell you the worst things that could possibly happen to you. Okay? Now, he needs to ask about you being a citizen.
THE DEFENDANT: No, I‘m a permanent resident.
THE COURT: Okay. I have to advise you and then this again gets into the worst things that can happen is that you may by pleading guilty to these offenses may face the consequence of deportation, exclusion from admission or denial of naturalization pursuant to the laws of the United States. Those are possible consequences.
Do you understand that?
THE DEFENDANT: Yeah.
(July 31, 2017 Tr. at 9-10.)
{¶ 17} Although the trial court did not give a verbatim recitation of the advisement required by
{¶ 18} At the hearing on the motion to withdraw his guilty plea, Sow did not explain why the trial court‘s advisory was insufficient to allow him to understand the immigration
{¶ 19} It is clear that the trial court did not find Sow‘s testimony credible. The trial court found that Sow was informed of the immigration consequences at the plea hearing and that he clearly indicated that he understood the consequences. The trial court further noted that Sow was represented by highly competent counsel, implying that he also did not give any weight to Sow‘s bare аssertion that his attorney did not “really explain” the immigration consequences to him. The United State Supreme Court recently stated that “[c]ourts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney‘s deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant‘s expressеd preferences.” Lee v. United States, __U.S. __, 137 S.Ct. 1958, 1967 (2017). The record shows that before Sow entered his guilty plea, the trial court granted at least three continuances on March 2, May 1, and June 21, 2017 due in part to immigration concerns. It seems highly unlikely that Sow‘s attorney would not have explained the immigration consequences when it was clear that it was an important consideration during the pendency of this case. Based on the totality of the circumstances, we cannot find that the trial court abused its discretion when it determined that Sow was not entitled to withdraw his plea pursuant to
IV. Crim.R. 32.1 Presentence Motion to Withdraw Guilty Plea
{¶ 20}
{¶ 21} The trial court‘s decision to grant or deny the presentence motion to withdraw is within the sound discretion of the triаl court. Id.; State v. Porter, 10th Dist. No. 11AP-514, 2012-Ohio-940, ¶ 20. Absent an abuse of discretion, a reviewing court must affirm the trial court‘s decision to grant or deny a pre-sentence motion to withdraw a plea. State v. Hairston, 10th Dist. No. 07AP-160, 2007-Ohio-5928, ¶ 25. Thus, this court will only reverse the trial court‘s decision if the trial court acted unreasonably, arbitrarily or unconscionably. Xie at 527.
{¶ 22} In reviewing a trial court‘s decision on a presentence motion to withdraw guilty plea, this court weighs several nonexhaustive factors. These include: (1) whеther the prosecution would be prejudiced if the plea were withdrawn; (2) whether the defendant was represented by highly competent counsel; (3) whether the defendant received a full
A. Potential Prejudice to the Prosecution
{¶ 23} The record does not indicate that there would be any prejudice to the state if he was allowed to withdraw his plea. Thus, this factor weighs in favor of Sow.
B. Highly Competent Counsel
{¶ 24} Sow alleged that his attorney did not really explain the immigration consequences and that he was prejudiced because of it. Trial counsel did express concern about proceeding with the hearing after Sow made his allegation as they were now adverse. This implies that counsel believed he had properly advised Sow. The trial сourt found that
C. Crim.R. 11 Hearing
{¶ 25} The third factor considers whether the trial court complied with the requirements of
D. Receipt of a Full Hearing on the Motion to Withdraw
{¶ 26} This factor test asks whether Sow received a full hearing on his motion to withdraw his guilty plea. The record indicates that the trial court conducted a hearing on Sow‘s motion on October 17, 2017. On appeal, Sow contends that he did not receive a full hearing because he was not given the opportunity to demonstrate that his attorney was deficient. We disagree. The trial court gave Sow the opportunity to make a lengthy statement to explain why he should be allowed to withdraw his plea without interruption from the court or counsel. Although Sow did at one point state that his attorney had not explained the consequences of his plea, he prоvided no specifics. He had the opportunity to explain what his attorney failed to tell him. He did not avail himself of that opportunity. We conclude that Sow had a full opportunity to be heard on his motion. The fourth factor weighs against Sow.
E. Full and Fair Consideration of the Motion
{¶ 27} The fifth factor looks to whether the trial court fully and fairly considered Sow‘s motion to withdraw guilty plea. After Sow finished testifying, the trial court discussed its reasons for denying Sow‘s motion. The trial court went through these factors and made its findings. Sow now contends that the trial court did not ensure that his attorney gave
F. Reasonable Time
{¶ 28} In the sixth factor, we are to consider whether Sow made his motion within a reasonable time. Sow moved to withdraw his plea on September 12, 2017, one and one-half months after he had entered the plea on July 31, 2017. The trial court found that this was not within a reasonable time beсause it was two days before the sentencing hearing. Sow argues that this was not a significant delay. We agree and find this to be a reasonable time. Thus, the sixth factor weighs in favor of Sow.
G. Specific Reasons for Withdrawal
{¶ 29} The seventh factor asks whether Sow set forth in his motion specific reasons for the withdrawal. In his written motion to withdraw, Sow stated that he did not understand the immigration consequences of his plea and that he believed that he was not guilty of the charges agаinst him. At the hearing, Sow also stated that he has trouble finding a job and that he would not be able to get a commercial driver‘s license due to the driver‘s license suspension. We conclude that Sow did provide specific reasons for seeking withdrawal of his plea, and, even if his specific reasons ultimately lack merit, the seventh factor nonetheless weighs in favor of Sow.
H. Whether Defendant Understood the Charges and Possible Penalties
{¶ 30} The eighth factor asks whether Sow understood the nature of the charges and the possible penalties. At the
{¶ 31} In the final factor, we examine whether Sow had possible defenses to the charges against him. Sow did not deny that he hit two people with his car. He stated that he was not under the influencе of alcohol or a controlled substance at the time of the incident. He contends that his shoes got pushed onto the gas pedal when he tried to apply the brake pedal after the car started to move. The trial court found that this was not a valid defense. We agree. Sow was charged with recklessly causing serious physical harm to two people while operating a motor vehicle. The fact that Sow was not under the influence of any substance does not negate that he was reckless in his actions. Thus, we conclude the ninth factor weighs against Sow.
{¶ 32} In summation, the majority of the nine factors weigh against Sow‘s motion. Moreover, a trial court appropriately assesses a defendant‘s credibility in considering the defendant‘s asserted reasons for wanting to withdraw his plea. State v. Ganguly, 10th Dist. No. 14AP-383, 2015-Ohio-845, ¶ 23. Here, Sow‘s primary reason for wanting to withdraw his plea was that he did not understand the immigration consequences of his guilty plea. The trial court is in the best position to consider the credibility of Sow‘s arguments, and the trial court concluded that he did not present a reasonable and legitimate basis for the withdrawal of his plea. Having reviewed the record and weighed the nine factors in the balancing test, we conclude the trial court did not abuse its discretion in denying Sow‘s motion to withdraw his guilty plea. Accordingly, we overrule Sow‘s sole assignment of error.
{¶ 33} For the foregoing reasons, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER and HORTON, JJ., concur.
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