Stаte of Ohio, Plaintiff-Appellee, v. Roger E. Toyloy, Defendant-Appellant.
No. 14AP-463
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
April 28, 2015
[Cite as State v. Toyloy, 2015-Ohio-1618.]
(M.C. No. 2013CRB-18954) (REGULAR CALENDAR)
Rendered on April 28, 2015
Michael T. Shannon, Whitehall City Attorney, and Kylie Keitch, for appellee.
Eric J. Allen, for appellant.
APPEAL from the Franklin County Municipal Court
BRUNNER, J.
{¶ 1} Defendant-appellant, Roger E. Toyloy, appeals from a decision of the Franklin County Municipal Court which denied his post-sentence motion to withdraw his guilty plea. We find plain error in that the trial court considered matters outside the record in determining whether Toyloy had checked the box that he was a United States citizen that appeared on the plea form. At the hearing on Toyloy‘s motion to withdraw his guilty plea, the trial court elicited, admitted and relied on unsworn, uncross-examined testimony from Toyloy‘s former counsel, whom the court called post-hearing on thе telephone not in Toyloy‘s presence in order to gather facts to render a decision. We find that this was plain error that (1) made it impossible to determine whether, under
{¶ 2} Appellant has raised as his sole assignment оf error that the trial court abused its discretion in denying his motion to withdraw his guilty plea, arguing he received ineffective assistance from his prior counsel at the original plea hearing. Appellant‘s new counsel for both the plea withdrawal hearing and also on appeal failed to object to the trial court‘s plain error and did not raise such plain error on appeal. We find that the plain error we recognize from our review of the record requires us to remand this matter to the trial court for further proceedings consistent with this decision. Accordingly, appellant‘s assignment of error is moot.
I. FACTS AND PROCEDURAL HISTORY
{¶ 3} On August 7, 2013, pursuant to a warrant stemming from alleged domestic abuse of his wife on August 3, 2013, Toyloy was arrested and charged with domеstic violence and assault. On August 21, 2013, the assault charge was dismissed, and he pled guilty to domestic violence. The trial court sentenced him to eight days in jail, a fine of $250, and two years of community control.
{¶ 4} The trial court‘s entry specifically recognized its right to impose a jail term of up to 172 days if Toyloy violated the terms of his community control. Thus, when Toyloy performed sub-оptimally on community control and it was revoked, he began on March 4, 2014 serving 100 days in jail. While Toyloy was jailed, United States Immigrations and Customs Enforcement (“ICE“) served Toyloy with a petition for removal in which it announced its intention to deport Toyloy to his native country of Jamaica. As a result, on May 20, 2014, Toyloy filed a motion to withdraw his guilty plea based on the claim that neither the trial court nor his original counsel had advised him of the effect his guilty plea could have on his immigration status.
{¶ 5} The city of Whitehall opposed Toyloy‘s motion on May 28, 2014 and, on June 4, 2014, the trial court held a hearing on Toyloy‘s motion. Though the city did not withdraw its opposition to Toyloy‘s motion, it also did not appear at the hearing and thereby presented no witnesses. Toyloy‘s counsel at the hearing was a different attorney than at the time of the plea for which he was incarcerated. At the start of the hearing, the
[The Court]: The Court has been in contact with the prosecuting attorney for the City of Whitehall, Mr. Glenn Willer. Mr. Willer expressed his objection to the application to withdraw the plea but indicated that he would be satisfied for the Court to go ahead and conduct this hearing and would be satisfied with the ruling of the Court, and; specifically, waived his right to be present and participate.
(Tr. 4.)
{¶ 6} At the hearing, Toyloy testified on direct examination by his new counsel along with being questioned extensively by the trial court. The city of Whitehall did not appear at the hearing to conduct cross-examination of any witnesses. Toyloy explained that he was born in Jamaica in 1969 and had immigrated to the United States at age 12. He had never become a United States citizen but had a resident alien card. He said that he had this card on his person at the time of his arrest and that it wаs taken and subsequently returned by deputies. He also testified that he told the persons involved in booking him that he was born in Jamaica.
{¶ 7} Toyloy was further questioned by his attorney and also by the court about his guilty plea. He said that shortly before his guilty plea, his former attorney approached him and said that if Toyloy were to plead guilty, the assault charge would be dismissed and hе would be given probation. Toyloy said his counsel presented him with a form entitled “WAIVER OF TRIAL BY JURY.” He denied checking the box on the form beside the statement, “I am a citizen of the United States” and denied understanding the form, but admitted to signing it.
{¶ 8} Toyloy also called the victim as a witness on his behalf at the hearing. She testified that Toyloy was proud of being Jamaican, would never have denied it, аnd, in fact, had the Jamaican flag tattooed on his arm. No one, she said, at the time of Toyloy‘s sentencing, asked about his citizenship or told him he could be deported. Then, the trial court also questioned this witness:
[The Court]: Were you present during whatever discussions [Toyloy] might have had with his attorney, prior to entering the plea?
[The Witness]: No, Your Honor, I was not; however, I did sрeak with Colin McNamee, who was here and who represented him that day. And I spoke with him after Eric Allen [Toyloy‘s counsel in the motion to withdraw his guilty plea and current counsel] came into your quarters - - or your chambers today, where we had asked to hold this over until 1:00. I spoke with [McNamee] and he clearly identified on the telephone with me, in the presence of Mr. Allen, that he had no idea that [Toyloy] was an alien. [The Court]: So your testimony that nobody asked [Toyloy] about it at the time is based on what somebody else told you?
[The Witness]: No. I am saying that while I was here in the courtroom that it was not asked. And I will just say for the record - -
[The Court]: * * * I understand why you‘re here and what you want, but I think you better listen to the questions and answer them instead of giving me somе other information.
The question was: Were you present with Mr. Toyloy during discussions with his attorney that took place out of this room?
[The Witness]: No.
[The Court]: Were you sitting at the table with [Toyloy] at such time - - or whenever this form was executed?
[The Witness]: No.
[The Court]: You had no knowledge of whether or not he discussed that with his attorney before executing this form?
[The Witness]: Not before.
(Tr. 17-18.)
{¶ 9} As the hearing ended, the trial court decided to call a fact witness of its own:
[The Court]: * * * What I‘m going to do with this case is I‘m going to get a hold of [Toyloy‘s former counsel], and I will hear what he has to say over the phone. You won‘t be here to hear that. I kind of wish you had brought him in here today if he would have helped your case, because then we could get it all cleared at one time. If he says to me that he checked that
mark [on the form] without inquiring of Mr. Toyloy as to his citizenship, then I‘m going to let [Toyloy] off the hook. Mr. Allen: Okay.
[The Court]: But if he says he didn‘t check that mark, then I‘m going to conclude that Mr. Toyloy did, and whether it was by accident or not by accident the conduct of the Court in accepting the plea without making that disclosure is going to be consistent with the law, because I‘m not required to make that disclosure if somebody tells me they‘re a citizen. So that‘s where I‘m going to go with this, and you‘ll probably know within a day or two.
Mr. Allen: Okay.
(Tr. 20-21.)
{¶ 10} On June 5, 2014, the trial court denied Toyloy‘s motion. In doing so, it stated:
Mr. Toyloy testified that if he had known that his resident alien status would be in jeopardy, he would not have entered a guilty plea in this case. Mr. Toyloy presented a second witness who testified that Mr. Toyloy was never asked if he was a citizen, but upon questioning by the court it became obvious that she had no direct knowledge of discussions between Mr. Toyloy and his counsel.
In light of the memorandum in support of [Toyloy‘s] motion [to withdraw his guilty plea], which asserts ineffective assistance of trial counsel for not inquiring as to Mr. Toyloy‘s nationality, the court continued investigation of this matter by contacting trial counsel. Although this action was taken off the record, the phone conversation with trial counsel took place in the presence of current counsel for Mr. Toyloy. As a result of that conversation, the court is of the opinion that Mr. Toyloy testified untruthfully and that trial counsel did, in fact, ask Mr. Toyloy if he was a United States citizen. Receiving an affirmativе response, trial counsel checked the appropriate box and Mr. Toyloy affixed his signature immediately to the right of the affirmative statement of citizenship.
There has been no manifest injustice here; for reasons known only to himself, Mr. Toyloy gave inaccurate information regarding his citizenship to his counsel and subsequently to the court. Relying on this information, thе court did not
provide Mr. Toyloy with the alien advisement which otherwise would have been required by statute.
(Entry and Order.) This appeal now follows.
II. ASSIGNMENT OF ERROR
{¶ 11} Toyloy advances a single assignment of error for our review:
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT‘S REQUEST TO WITHDRAW HIS GUILTY PLEA.
III. DISCUSSION
{¶ 12} Criminal defendants who are not United States citizens are permitted to withdraw a guilty plea in two distinct ways: (1) upon the finding that they were not given the warning required by
{¶ 13} There is no dispute in the record that the trial court did not warn Toyloy of the consequences to his plea as is required by
{¶ 14} It was a question of fact whether the trial court was required to read to Toyloy at the time of his plea the warning contained in
{¶ 15} Pursuant to
{¶ 16} If the trial court was required to permit plea withdrawal pursuant to
{¶ 17} We find plain error in that the trial court questioned Toyloy‘s former counsel outside of the hearing to learn for itself what Toyloy‘s prior counsel‘s testimony was regarding who had checked the box and whether counsel had asked Toylоy about his citizenship. Toyloy had already testified that he did not check the box indicating he was a United States citizen and that he did not know who checked it. He also testified that he had his “green card” on his person at the time he was arrested and that he told persons involved in booking him that he was a Jamaican citizen. Toyloy‘s witness, the victim of the underlying offense, testified that Toyloy tells everyone that he “is very proud of his nationality” and sports a tattoo of the Jamaican flag on his arm. (Tr. 15.) With the city not attending the motion hearing, the trial court asked numerous questions of the witnesses. Toyloy‘s testimony, Toyloy‘s witness’ testimony, and the plea form itself were the sum total of the evidence available to the court and subject to evaluation according to the court‘s discretion as both finder of fact and judge. Based on this evidence, the court
{¶ 18} The record and transcript of the plea withdrawal hearing show that the court went beyond the evidence on the record at the hearing and adduced additiоnal evidence through what amounted to post-hearing, off-the-record testimony from Toyloy‘s former attorney. Thereafter, the trial court not only relied on such off-the-record testimony, but made it the linchpin of its decision denying Toyloy‘s motion to withdraw his plea, applying it using both the statutory (“alien advisement“) analysis and
{¶ 19} “A plain error is one that is ‘obvious and prejudicial although neither objected to nor affirmatively waived which, if permitted, would have a material adverse affect on the character and public confidence in judicial proceedings.’ ” Isquick v. Dale Adams Ents., Inc., 9th Dist. No. 20839, 2002-Ohio-3988, ¶ 23, citing, Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209 (1982). Plain errors affecting substantial rights may be noticed although they were not brought to the attention of the trial court.
{¶ 20} Even though the record indicates that Toyloy‘s (plea withdrawal hearing) counsel was present during the telephone call the trial court held with Toyloy‘s former
{¶ 21} Because we find plain error, the trial court must conduct a new hearing devoid of the plain error we notice in hearing Toyloy‘s motion to withdraw his guilty plea. Because we have found plain error in the trial court‘s proceedings, we find appellant‘s assignment of error to be moot and decline to address it.
IV. CONCLUSION
{¶ 22} Having found plain error occurred in the plea withdrawal hearing held by the trial court, appellant‘s single assignment of error is moot, and we reverse the judgment of the Franklin County Muniсipal Court. The matter of Toyloy‘s motion to withdraw his guilty plea is remanded to the trial court for further proceedings consistent with this decision.
Judgment reversed and cause remanded with instructions.
BROWN, P.J., and LUPER SCHUSTER, J., concur.