STATE OF OHIO, PLAINTIFF-APPELLEE vs. ENGER TEJEDA, DEFENDANT-APPELLANT
No. 96518
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 29, 2011
2011-Ohio-4960
BEFORE: Celebrezze, P.J., Rocco, J., and Keough, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-371948; RELEASED AND JOURNALIZED: September 29, 2011
Guy D. Rutherford
614 West Superior Avenue
Suite 940
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Kristen L. Sobieski
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶ 1} Appellant, Enger Tejeda, appeals the denial of his motion to withdraw his 1999 guilty plea to one count of attempted drug possession. He argues that he was not properly advised of the possible immigration consequences before pleading guilty. After a thorough review of the record and law, we affirm.
{¶ 2} Appellant immigrated to the United States from the Dominican Republic in 1994. In 1998, he was charged with drug possession, drug trafficking, and possession of criminal tools — stemming from his arrest with five small bags of heroin. A plea deal was reached where appellant agreed to plead guilty to one count of attempted possession of drugs, and the remaining counts would be dismissed. On July 1, 1999, appellant
{¶ 3} Then, in 2006, appellant was again arrested and charged with drug possession. He pleaded guilty to drug possession in 2007 and was sentenced to community control. He received notice of deportation proceedings against him on July 15, 2010.
{¶ 4} Appellant filed a motion to withdraw his 1999 plea arguing that he was improperly advised of the consequences of his plea and asserting that had he been properly informed, he would have gone to trial. The state opposed the motion and a hearing was held. The trial court determined, based on all the facts and circumstances of the case, that appellant subjectively understood the consequences of his plea and that it was the second drug conviction that caused him to be subjected to deportation proceedings, and the motion was denied. Appellant then timely filed the instant appeal.
I. Law and Analysis
{¶ 5} Appellant assigns one error, which states: “The trial court erred in denying [appellant‘s] motion to vacate his criminal plea pursuant to
A. Withdrawal of Plea Based on Collateral Immigration Consequences
{¶ 7}
{¶ 8} The statute then goes on to provide a remedy for defective advisements, stating, “[u]pon motion of the defendant, the court shall set aside the judgment and permit the defendant to withdraw a plea of guilty * * * and enter a plea of not guilty * * * if * * * [(1)] the court fails to provide the defendant the advisement * * *, [(2)] the advisement is required by that division, and [(3)] the defendant shows that he is not a citizen of the United States and [(4)] 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
{¶ 9} The Ohio Supreme Court, in Francis, found this advisement mandatory, but determined some amount of flexibility was required and held that whether a trial court fulfilled this duty should be reviewed for substantial compliance. Id. at paragraph three of the syllabus. “Substantial compliance denotes that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving. In addition, substantial compliance requires the defendant to show that prejudice resulted from the lack of compliance. The test of prejudice queries whether the plea would have been made despite the trial court‘s failure to substantially comply.” (Internal citations omitted.) State v. Zuniga, Lake App. Nos. 2003-P-0082 and 2004-P-0002, 2005-Ohio-2078, ¶37.
{¶ 10} The Francis court further held that this court reviews the decision of the trial court in granting or accepting a motion to withdraw a plea based on
{¶ 11} Appellant‘s
{¶ 12} Addressing a similar argument, the Francis court specified a number of factors it used in deciding the issue. These included timeliness, prejudice, whether the
a. Applicability of Advisement
{¶ 13} Appellant has satisfied the required elements in
{¶ 14} The prejudice suffered by the state faced with the task of presenting a case against the movant must also be considered 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. It is certainly reasonable to require a criminal defendant who seeks to withdraw a plea to do so in a timely fashion rather than delaying for an unreasonable length of time.” Francis at ¶40.
{¶ 15} The state asserts that it would be materially prejudiced by allowing appellant to withdraw his plea because drugs seized during his arrest have been destroyed pursuant to department policy. The destruction of the actual drugs in this case does not preclude conviction, however, because the state still has laboratory records of the quantity and identity of the substance seized from appellant. During the hearing on appellant‘s motion, the state hesitantly admitted that the laboratory technician who tested the drugs is likely still available to testify. Therefore, trial is not impossible, although the state‘s case is compromised by a significant passage of time.
{¶ 16} This court and others have held that such delays are not, standing alone, sufficient grounds to deny a motion based on
{¶ 17} Appellant did not learn of deportation proceedings against him until shortly before filing his motion to withdraw his plea in 2010. Therefore, his motion is not untimely according to prior case law.
c. Prejudice
{¶ 18} Generally, to prevail on a postsentence
{¶ 19} In Naoum, supra, this court found that giving two of the three advisements was not substantial compliance, even though Naoum waited ten years to seek withdrawal of his plea. However, this court went on to analyze the prejudice to the state and the movant. Naoum was not informed of the possibility that he could be denied naturalization, and that is what occurred. When he applied to become a naturalized citizen, his application was denied based on the prior conviction. Based on all the facts and circumstances in the case, this court determined that the trial court did not substantially comply with the mandate in
II. Conclusion
{¶ 21} The prejudice to the state, the significant benefit received by appellant as part of the plea, and the fact that appellant was not subject to removal proceedings until he received a second drug-related conviction provides substantial evidence that the trial court did not abuse its discretion in denying appellant‘s motion to withdraw his guilty plea after a full hearing. The trial court found that appellant was informed of the possibility of deportation and that those proceedings did not commence until after a second drug conviction. The trial court did not abuse its discretion in so holding.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
KENNETH A. ROCCO, J., and
KATHLEEN ANN KEOUGH, J., CONCUR