784 N.E.2d 143 | Ohio Ct. App. | 2003
Lead Opinion
{¶ 2} The record reflects that on June 27, 1990, a grand jury indicted Tabbaa, a native of Jordan, for theft, a fourth degree felony, in connection with his failure to return two chain saws which he had rented from ABC Rental. On October 19, 1990, he pled guilty to this charge and thereafter, on November 13, 1990, the court sentenced him to a six-month term of imprisonment, but suspended it and placed him on probation for one year.
{¶ 3} On December 19, 1990, Tabbaa filed a motion for leave to file a delayed appeal, which our court denied on January 11, 1991, due to his failure to comply with App.R. 5(A). Thereafter, on January 15, 1992, an immigration judge ordered him deported to Jordan; the deportation order, however, did not indicate the basis for that order.
{¶ 4} More than eleven and one-half years later, on May 8, 2002, Tabbaa filed a motion, which, although captioned "Motion for Post-Conviction Relief and to Withdraw Defendant's Guilty Plea Pursuant to Rule 32.1," stated he sought relief afforded by R.C.
{¶ 5} "The trial court erred when it denied appellant's motion to vacate his guilty plea."
{¶ 6} Tabbaa maintains that the court should have permitted him to withdraw his guilty plea because he claims the court failed to provide him the advisement required by R.C.
{¶ 7} R.C.
{¶ 8} "(A) Except as provided in division (B) of this section, prior to accepting a plea of guilty or a plea of no contest to an indictment, information, or complaint charging 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.
{¶ 9} "`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.'
{¶ 10} "* * *.
{¶ 11} "(D) 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 section, 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 being subject to deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States."1
{¶ 12} Here, Tabbaa captioned his motion as a "Motion for Post-Conviction Relief and to Withdraw Defendant's Guilty Plea Pursuant to Rule 32.1"; a review of the content of the motion indicates, however, that he sought relief not under the postconviction relief statute, but under R.C.
{¶ 13} The record reflects the following colloquy at Tabbaa's plea hearing: *356
{¶ 14} "MR. BOLDT: Your honor, if I may. One other item that may be of importance to the Court. He is here on a school visa, and I advised him fully of his rights.
{¶ 15} "THE COURT: Okay. Yes, sir. Thank you for that.
{¶ 16} "You are not a citizen of the United States?
{¶ 17} "THE DEFENDANT: No, sir.
{¶ 18} "THE COURT: You are visiting here as an alien student, is that it?
{¶ 19} "THE DEFENDANT: Yes, sir.
{¶ 20} "THE COURT: Now, you know that when you enter this plea, you are found guilty, and I will let the Immigration Department know, and they may cancel whatever visa rights you have, and send you back.
{¶ 21} "Now, where are you from, Palestine or —
{¶ 22} "THE DEFENDANT: Jordan.
{¶ 23} "THE COURT: Jordan. By entering this plea, you lose — you stand to lose — I don't know what they will do. I have no control over them. But, I mean, there is that possibility that they will cancel your visa and send you home. Did you know that?
{¶ 24} "THE DEFENDANT: Yes. Sir.
{¶ 25} "THE COURT: You understand that?
{¶ 26} "THE DEFENDANT: Yes, sir." (Tr. 8-9)
{¶ 27} The advisement provided by the court here falls short of what is prescribed by the statute, because the court only informed Tabbaa that his visa may be revoked and that the Immigration Department may "send [him] back," without advising him that a conviction may also result in exclusion from admission to the United States or denial of naturalization.
{¶ 28} Although the court failed to provide a complete advisement as required by the statute, we nonetheless conclude the court acted properly when it denied Tabbaa's motion to withdraw his plea. We base this determination on the eleven and one-half year delay between his plea and his application seeking to vacate his plea.
{¶ 29} We begin our analysis with the recognition that neither Crim.R. 32.1 nor R.C.
{¶ 30} Regarding Crim.R. 32.1, however, although the Supreme Court of Ohio, in State v. Bush,
{¶ 31} Applying the timeliness standard for Crim.R. 32.1 reiterated in Bush, therefore, we conclude that the protracted delay in Tabbaa's Crim.R. 32.1 motion, for which he did not offer any explanation or justification, adversely affected his credibility and militated against the granting of his motion. Therefore, the trial court acted within its discretion in denying it.
{¶ 32} Turning now to a review of Tabbaa's claim under the procedure prescribed by R.C.
{¶ 33} "The General Assembly will not be presumed to have intended to enact a law producing unreasonable or absurd consequences. It is the duty of the courts, if the language of a statute fairly permits or unless restrained by the clear language thereof, so to construe the statute as to avoid such a result." See, also, State v. Parks (1983),
{¶ 34} Similarly, we note that R.C.
{¶ 35} Here, without any time limitation, a defendant could wait until the state's evidence against him became stale, or witnesses died, or any other circumstances prejudicial to the state transpired, before seeking to withdraw a guilty plea, thereby imposing, among others, an unreasonable obligation on the state to maintain evidence and witness lists on all cases, ad infinitum. This cannot be within the contemplation of R.C.
{¶ 36} Accordingly, because of the eleven and one-half year delay between the occurrence of the alleged cause for withdrawal of his guilty plea, namely, the court's failure to provide a complete immigration advisement at the 1990 plea hearing, and his application under the procedure of R.C.
{¶ 37} Based on our evaluation of Tabbaa's claim of defective immigration advisement under the criteria of both Crim.R. 32.1 and R.C.
COLLEEN CONWAY COONEY, P.J., CONCURS WITH SEPARATE CONCURRING OPINION; DIANE KARPINSKI, J., DISSENTS WITH SEPARATE DISSENTING OPINION.
Concurrence Opinion
{¶ 38} I concur with the majority opinion and write separately to raise one other basis for affirming the trial court's decision. It is important to note that the fact of Tabbaa's noncitizenship is contained in the record at his plea hearing in 1990. Therefore, the issue raised herein was reviewable on direct appeal unlike the scenario presented inState v. Felix (Apr. 17, 1997), Cuyahoga App. No. 70898 (Evidence of Felix's noncitizenship was outside the record and therefore the court could not review the issue on direct appeal.) I would, therefore, find that res judicata bars the instant challenge to his 1990 plea.
{¶ 39} As the Ohio Supreme Court held in State v. Perry (1967),
{¶ 40} "Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raisedor could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment." (Emphasis in original). *359
{¶ 41} In the instant case, Tabbaa failed to perfect an appeal of his conviction. Following Perry, the doctrine of res judicata bars his challenge of his guilty plea because the issues he raises now could have been fully litigated on direct appeal in 1991 or through delayed appeal in 1992 or 1993.
{¶ 42} I recognize that not every case presents a scenario for the application of res judicata. As the dissent points out, some offenses were not deportable until after 1996. In those cases, the presentation of competent, reliable, and material evidence outside the record may defeat the application of res judicata, but such evidence de hors the record must demonstrate that the defendant could not have appealed the claim based on information in the trial record.
{¶ 43} The dissent states that "adding a vague time limitation would be contrary to the legislative intent and mandate an unjust and unreasonable result." However, the unreasonable and unjust result would be allowing Tabbaa to withdraw his plea ten years after he was ordered deported and nearly twelve years after his plea was entered.
Dissenting Opinion
{¶ 44} I respectfully dissent regarding Tabbaa's motion to withdraw his plea pursuant to R.C.
{¶ 45} The case law is quite settled that the trial court has no discretion regarding whether to grant a motion to withdraw a guilty plea if the statutory conditions are met. State v. Yuen, Franklin App. No. 01AP-1410, 2002-Ohio-5083; State v. Mason, Greene App. No. 2001-CA-113, 2002-Ohio-930; State v. Weber,
{¶ 46} In State v. Yuen the Tenth Appellate District comprehensively addressed the question of timeliness and found no basis to this argument. In a lengthy discussion of R.C.
{¶ 47} The majority acknowledges there is no time limit in
{¶ 48} In Yuen, the Tenth Appellate District compared
{¶ 49} The Tenth District explained the appellate task of statutory construction: "`Our main consideration in construing a statute is the legislative intent based on a review of the language used. In the review of statutes to discern the legislature's intent, "it is the duty of the courts to give a statute the interpretation its language calls for where this can reasonably be done, and the general rule is that no intent may be imputed to the Legislature in the enactment of a law, other than such as is supported by the language of the law itself." * * * This duty is based on the presumption that the legislature knows the meaning of words and chooses the specific words contained in a statute to express its intent. Consequently, a court may not use words not in the statute to add or limit the expressed legislative intent. * * *' In re Adoption ofKoszycki (1999),
{¶ 50} The majority cites to R.C.
{¶ 51} A cursory overview of the immigration laws, moreover, indicates that there is sound basis for not restricting the time during which a defendant can ask to withdraw a plea. Prior to 1996, certain crimes were not deportable offenses. *361 Congress lowered the bar for deportation by expanding the class of state law crimes subject to deportation. Congress also made this change retroactive on the basis that deportation was not deemed a criminal procedure. Mason, supra, at ¶ 9. If a time restriction is imposed on defendants, as the majority wants, then those defendants who pled guilty to a crime subsequently classified as subject to deportation would have no recourse years later. That result is clearly not the legislative intent of this statute.
{¶ 52} To understand the reason for this unique statute, one must understand the effect of deportation. As the Second Appellate District observed, "deportation may result in loss of all that makes life worth living, Ng Fung Ho v. White (1922),
{¶ 53} There are other reasons why it is unreasonable to restrict the time for an accused to withdraw a guilty plea under this statute. Anyone who wishes to be naturalized must reside in this country for a continuous period of time. Those who leave this country and return must begin that time period again. Thus the time frame for naturalization can be lengthy. Similarly, believing they can return, persons may leave the country for any number of reasons and then later discover that their reentry is barred.
{¶ 54} By not establishing any time limitations, the statute clearly intends to allow the accused time to discover the adverse consequences of their pleas. The accused need time to discover consequences not explained by the court. Thus there is a sound reason for the statute not limiting the time to file a motion to withdraw a plea. Similarly, the statute does not require the accused to explain when the consequences were first discovered.
{¶ 55} Nor does the statute authorize an appeal solely from the failure to give the required advisement. The appeal, here, is taken from the denial of the
{¶ 56} In a very comprehensive analysis, the Tenth District explained the special nature of R.C.
{¶ 57} The court concluded that "* * * R.C.
{¶ 58} The statute not only confers substantive rights that cannot be further restricted but also mandates a procedure that begins with a motion. The appeal of a denial of a
{¶ 59} On this point, the statute is like Crim.R. 32.1. Under neither Crim.R. 32.1 nor R.C.
{¶ 60} Finally, the majority fails to appreciate that the legislature clearly placed the responsibility on the court to advise non-citizens of the adverse *363 consequences of their plea. To say that the state should not have to bear the burden that results from the court's failure to comply with the statute is to ignore the clear and unambiguous role assigned to the court. The statute clearly shifts the consequences to the state, and properly so because it is the state that has failed in its mandated duty to advise the accused.
{¶ 61} The statute sets forth a simple mechanism to prevent the predicament the majority speculates on. The statute permits the court to ask in writing whether the defendant is a citizen, if the court asks in that same writing for the defendant's plea. The statute also specifies what statement is to be read to the defendant. State v. Quran, Cuyahoga App. No. 80201, 2002-Ohio-4917. This requirement of the court is not onerous. Indeed, reading such a document in open court can provide a solid foundation5 for the personal dialogue also required. There is no reason, therefore, for the appellate court to change the plain meaning of this statute by imposing an additional requirement on the defendant.
