State v. Yanez

Ohio, Appellee, STATE YANEZ, Appellant. 2002-Ohio-7076.]

[Cite Ohio, Appeals District, County. First Hamilton

No. C-020098.

Decided Dec. Allen, Michael K. County Seta, Hamilton Attorney, and Prosecuting Emma Prosecuting Attorney, Assistant for appellee.

Marilyn Zayas-Davis, appellant. for

Gorman, Judge. of judgment from the appeals Antonio defendant-appellant, his motion withdraw overruling postsentence trial court that his was guilty plea assault. He contends vehicular aggravated two counts of court, entered, intelligently because understanding^, not knowingly, him, required by advise personally faded to accepting 2943.03(A), country, and denial of the risk We following agree. conviction. naturalization interpret- and an court-appointed with a counsel On November

2}{¶ States, to two er, Yanez, entered a citizen of the United who assault, 2903.08(A)(1). in violation vehicular aggravated counts ten-year term ordered a three-year prison him a trial court sentenced $17,863. of restitution in the sum suspension and driver’s-license sentenced, days counsel. family retained new Six he was Yanez’s After conviction, newly of his retained judgmеnt the trial court after entered motion, At a his Yanez plea. hearing to vacate on guilty counsel moved his it a made known that he was not citizen of although contended that he had not States, court, did accepting guilty plea, personally United 2943.03(A), of him, prospect deportation, of required by inform as R.C. motion, exclusion, of The trial court overruled Yanez’s and denial naturalization. voluntarily guilty entered his intelligently had concluding knowingly, that he plea. of 2943.031 Warning R.C. Immigration-Consequences

The 2943.031(A)states, guilty plea of or a accepting to “[P]rior * * * * * * the court shall charging felony to an indictment of no contest advisement personally, provide following address the defendant court, be and determine that that shall entered in record of defendant understands the advisement. defendant are you hereby not States advised you ‘If are a citizen United

5}{¶ (or contest, no you pleading guilty to which are that conviction offensе from may consequences applicable) when have States, or naturalization the laws pursuant to the United denial of admission ” added.) (Emphasis the United States.’ 2943.031(D)1 defendant, continues, motion “Upon 6}{¶ to withdraw a judgment permit set shall aside 2943.031(D) typographical printed Page’s Annotated contains as Revised Code 1. R.C. insanity only guilty by reason of after plead can error in that it states that guilty or no by contest and enter a of not or not reason if, section, insanity, after the effective date of this the court fails to provide the (A) section, defendant the advisement described in division this the advisement division, required and the defendant shows that he is not a citizen of the United States and that the conviction of pleaded the offense which he guilty or no contest may being subject result deportation, exclusion States, admission to the United or denial of naturalization pursuant to the laws of added.) the United (Emphasis States.” immigration-consequences warning required by R.C. or substantially

the same the same that required by jurisdic statute in other tions, California, Connecticut, including Columbia, Florida, the District of Geor Hawaii, gia, Massachusetts, Minnesota, Maryland, Montana, Mexico, New New York, Carolina, Island, Texas, North Oregon, Rhode Washington, and Wisconsin. See Immigration & Naturalization Serv. v. St. Cyr U.S.

S.Ct. fn. L.Ed.2d 48. The Immigration and Naturalization Act provides, in part, relevant that any alien who is convicted of a felony any time 1227(a)(2)(A), after admission is deportable. See Section Title U.S.Code. First enacted California in warnings response are to Congressional measures limiting potential deportation relief for convicted felons removing authority of the United States Attorney grant General discretionary deportation. waivers to 8, U.S.Code; see, See Section 1228 et seq., also, Title State v. Jamison 105 Wash.App. 1010; see, 20 P.3d generally, McKinney, Right of the Alien to be Informed of Deportation Consequences 195, 21 Diego San L.Rev. 214-215. There is no federal statute comparable to R.C. 2943.031. Absent statutory authority, federal uniformly that, itself, courts hold the defendant’s ignorance of the collateral consequences of a guilty plea, including deportation, does render a guilty plea involuntary. See United States v. Santelises (C.A.2, 1975), 703, 704; 509 F.2d United States v. Gavilan (C.A.5, 1985), 226, 761 F.2d (C .A.11, 1985), United States v. Campbell 764, 768; see, 778 F.2d generally, Holmes, Chin & Effective Assistance Counsel and Consequences Guilty Pleas 87 Cornell L.Rev. 697. But defendants, for Ohio noncitizen Assembly’s General enactment of R.C. 2943.031 has transformed the otherwise collateral consequences of a guilty plea into consequences. direct

withdrawing guilty plea, omitting a guilty underlying words "not or.” The act refers to plea guilty ‍​​‌​‌​​​​​‌‌​​​​​‌​​‌‌‌‌​​‌‌‌‌‌​‌​‌‌​​‌‌​‌​‌​‌​‌‍95, a guilty by either of not insanity. or not reason of Section Sub.S.B. No. 143 Laws, I, 80885, 2002-Ohio-4789, Ohio Shurney, Part 531-532. See Lakewood v. 8th Dist. No. 2002 WL fn. 3. 514 to His Plea Motion Vacate to 5, 2001, “pursuant Yanez to vacate his plea moved On December motion, however, upon was basеd The substance of his

Crim.R. 32.1.” entire 2943.031, involuntarily made because plea that his was claiming R.C. the motion as parties argued to the statute. Both comply court had failed with 32.1. to and not one made under Crim.R. pursuant R.C. 2943.031 one made 2002-Ohio-4789, Shurney, v. 8th Dist. No. WL Lakewood ¶ 11. that the obtain an requested prosecution At the hearing, requirements on of R.C. 2943.031

opinion appellate from its division whether request, to this plea hearing. respond at the When the state failed were met hearing trial cоurt a on the matter. Yanez January on conducted had not The complied. his contention that trial court state again repeated hand, that the with the substantially complied on the other court had argued, interpreter, plea an that he had read the through statute when stated warning. of the The paraphrase immigration-consequences form that contained voluntarily knowingly, intelligently, noted that Yanez had and entered trial court handwritten, then, entry, one-sentence denied the motion. and Immigration Consequences Informed of the Right Substantive Be is question immigration-consequences first whether so, if in right, remedy is a substantive and whether found R.C. 2943.031(D) independent manifest-injustice procedural is standard appeal 32.1. state’s brief on does not address Yanez’s remedy Crim.R. Instead, on our relying under R.C. 2943.031. decision State Hill argument argues it that a Crim.R. 32.1 Ohio N.E.2d actually of an motion to vacate a lieu postjudgment appeal 2953.21 Accord State petition postconviction governed by seq. for relief et But, Idowu, C-010646, 2002-Ohio-3302, 1st Dist. 2002 WL 1393653. after No. brief, relief as Supreme postconviction had filed its held the state challenge judgment pursuant to a of conviction R.C. 2953.21 an collateral 32.1, Bush, remedy but see State v. Ohio independent exclusive Crim.R. 235, 2002-Ohio-3993, 773 N.E.2d syllabus, by implication, St.3d Yuen, 01AP-1410, 2002-0hio-5083, Dist. 2943.031. See State v. 10th No. ¶ at 26 29-31. Ordinarily, is to be resolved under a motion vacate {¶ injustice 32.1, that “to manifest after provides Crim.R. which correct permit and the defendant to may judgment sentence set conviction aside his or her The defendant has the burden of manifest plea.” proving withdraw injustice, and the resolution of the motion is addressed the sound discretion of (1977), 402, 261, the trial court. See State v. Smith 49 Ohio St.2d 3 O.O.3d 1324, syllabus. N.E.2d one paragraphs and two Where the trial court fails to address the noncitizen person- ally immigration consequences about that could from his guilty result or plea, 2943.031(D) to determine whether he understands warning, R.C. a provides parallel which the remedy court “shall aside” judgment set and permit defendant to withdraw the guilty plea. The defendant’s is to burden establish court, only that the trial accepting the guilty was aware that the a 2943.031(A) defendant was noncitizen but failed to with comply R.C. personally addressing the defendant giving the three immigration warnings. a on ruling Unlike pursuant 32.1, motion made ruling 14} Crim.R.

{¶ on based 2943.01 not reviewed on a standard of abuse of discretion. R.C. not grant 2943.031 does the trial court the discretion to determine whether the guilty plea Instead, should be vacated. it mandates that the plea be vacated in the absence of the immigration-consequences Yuen, warning. See v. State 10th 01AP-1410, 2002-Ohio-5083, 31124023, Dist. No. at 32. A procedural 32.1, rule like Crim.R. made pursuant

{¶ the Mod Amendment, 5(B), IV, ern Courts Section Constitution, Article Ohio establishes only procedural right. If a statute, conflict exists between a rule and a the rule will control matters of procedure, abridge, enlarge, but rule cannot modify or (1981), right. substantive v. 452, 454, State Slatter 66 Ohiо St.2d 20 O.O.3d 383, 423 100. In N.E.2d State Holdridge (1967), ex rel. v. Indus. Comm. 11 Ohio 162, 621, St.2d 40 O.O.2d 228 N.E.2d the Supreme provided following formula: “It is doubtful if a perfect definition of ‘substantive law or ‘procedural However, or remedial law could be devised. agree authorities that, terms, general law duties, substantive is that which creates rights, and obligations, procedural while or prescribes remedial law methods enforcement or obtaining 132, redress.” See Krause 31 Ohio St.2d 736; see, also, 60 O.O.2d N.E.2d State v. Weber 125 Ohio Cuyahoga Falls Bowers St.3d 9 OBR syllabus. N.E.2d The need to provide the R.C. 2943.031(D) the requirement of R.C. that the trial court a guilty plea vacate

for noncompliance are interdependent. Together they confer a right substantive that was not available to defendants before the Assembly General enacted the They statute inextricably are intertwined with the defendant’s expected right be informed of the ‍​​‌​‌​​​​​‌‌​​​​​‌​​‌‌‌‌​​‌‌‌‌‌​‌​‌‌​​‌‌​‌​‌​‌​‌‍risks of deportation, exclusion, and denial of naturalization before he enters a plea. Vacation of the judgment conviction is the essence of the defendant’s insistence he be warned as the Assembly 2943.031(D) General intended. right, As a substantive to R.C. pursuant made motion Neither does by Crim.R. 32.1. superseded setting sound discretion exercising its a trial court prevent 2943.031 2943.031(F). 32.1. See pursuant to Crim.R. plea aside it over remedy, prevails a substantive provides Because R.C. 2943.031 {¶ 17} manifest-injustice subject to a remedy Crim.R. 32.1 and procedural the District’s decision Appellate the Tenth In we fоllow holding, so standard. Mason, See, also, State v. Weber, 707 N.E.2d 1178. State v. ¶ 43; 242662, at State v. 2001-CA-113, 2002-Ohio-930, 2002 WL No. 2d Dist. 2002-0hio-4917, at 21. Yanez Quran, No. 8th Dist. by trial court and addressed the right to be personally had a substantive plea guilty. his entering warning immigration-consequences receive 2943.031(A) court should have words Indeed, very sets out addressing defendant. employed Required? Is Compliance Level of

What that the trial court did not reveals proceedings of the below The record {¶ 18} warning. immigration-consequences him give address Yanеz personally warning, of the inform Yanez personally the trial court’s failure Despite form, attorney, Yanez and his plea signed a written record includes 11(C) waiving by acknowledged he was rights he enumerating the Crim.R. immigration-consequences form also recited entering guilty plea. 2943.031(A) in R.C. as marks quotation found within portion _ (initial) a of the United States of “I x citizen am am follows: States, a a citizen of the United I if I am not America. understand offense(s) the conse- guilty may I am have plеading to which conviction or denial of from admission to the United States quence States.” to the laws United pursuant naturalization through interpreter person- colloquy court in its Although the trial {¶ 19} 11(C), in Crim.R. constitutional and other listed ally informed Yanez immigration concerning understanding of its remarks extent in the form was contained written of R.C. consequences follows: him if the form was read [plea] I want to ask “THE COURT: And

{¶ 20} him? n Yes. “THE INTERPRETER:

{¶ 21} And if it? “THE COURT: he understood {¶ 22} INTERPRETER: Yes. “THE {¶ 23} free will? signed And he it of own “THE COURT:

{¶ 24} Yes. “THE INTERPRETER: {¶ 25} “THE this own COURT: of his free will? Signing “THE INTERPRETER: Yes.” court, As arguеd hearing the state at the on Yanez’s motion substantially complied through with the statute when an he

interpreter, stated that had read the form that contained a version of the immigration-consequences But that General warning. Yanez contends the As- sembly intended that the trial court personally address the defendant when providing the We statutory agree. advisement. of principal goal statutory interpretation is to effect give to 29}

{¶ Steels, the intent of legislature. the Bailey Republic Engineered Inc. (2001), 91 Ohio St.3d 741 N.E.2d 121. The court must first look to the language of the If language distinctly statute. unambiguously expresses and Id.; legislative see, sense of the it must body, applied also, be as written. (1990), 223, State v. Smorgala 222, 50 Ohio St.3d 553 N.E.2d 672. The General Assembly put has required the three warnings deportation, exclusion from the — States, United and denial of naturalization —in quotation marks. We find no other criminal statute in which General Assembly quotation has used marks to also, designate colloquy See, the trial court’s awith defendant. State v. Quran, 2002-Ohio-4917, 31087704, 21. quotation at The use of marks and the command to the trial court that it personally” “address the defendant and * * * “provide the advisement” indicate a clear intent the General Assembly each be given should ensure that a person pleading or no contest what exactly knows immigration ‍​​‌​‌​​​​​‌‌​​​​​‌​​‌‌‌‌​​‌‌‌‌‌​‌​‌‌​​‌‌​‌​‌​‌​‌‍consequences have. It may that, acknowledgement defendants, an at least some collateral cоnse quences of a namely deportation, admission United States, naturalization, and denial of may well abe more serious sanction than the imposition See, a prison e.g., of term. Immigration & Serv. v. Naturalization St. 322-323, Cyr, 2271, 533 121 347; see, also, U.S. S.Ct. 150 L.Ed.2d Chin& Holmes, Effective of Pleas, Assistance Counsel the Consequences Guilty of 87 L.Rev. statute, Cornell at 700. The words of quotation bracketed marks, permit any do not interpretation. other 11(C)(2) similarly Crim.R. requires trial court to “first

{¶ addres[s] personally” and tо inform him and statutory constitutional rights he is waiving accepting plea of guilty or no contest. In order for a court to reviewing determine the of propriety guilty plea, must record show the trial court personally addressed meaningfully the defendant and in formed him that he was certain waiving rights: constitutional the privilege against self-incrimination, compulsory trial, jury to a right right accusers, confront the right compulsory process Boykin witnesses. See 518 274; see, 242-243, 1709, 238, 89 23 L.Ed.2d (1969), S.Ct. 395 U.S.

v. Alabama 397, 115, 473, N.E.2d 20 O.O.3d 423 alsо, (1981), 66 Ohio St.2d v. Ballard State syllabus. one paragraph however, warnings with the nonconstitutional dealing, When sentence, eligibility 11(C)(2) maximum possible the charge,

Crim.R. —nature only “substantially trial court need community or control—the probation for (1981), 475, 20 v. Ballard Ohio St.2d rule. See State comply” with the 51 Ohio St.2d 115, citing v. Stewart 423 N.E.2d O.O.3d see, also, State v. Thomas O.O.3d N.E.2d totality compliance means that under “Substantial implications subjectively understands the circumstances Nero 56 Ohio St.3d State v. waiving.” and the he is N.E.2d 474. immigratiоn-conse- statutory right that the receive We hold warnings the nonconstitutional enumerated is similar to quences warning 11(C)(2). standard of warnings, substantial-compliance with those As Crim.R. warnings and gave each of the three whether the trial court scrutiny determines might immigration consequences what that defendant knew ensured the ¶ Mason, the compliance of trial See, also, at 45. The substantial have. State 2943.031(E). on the See R.C. affirmatively demonstrated record. court must be Appеllate the Eighth rationale advanced agree do not with the We {¶ 33} ¶ 2002-Ohio-4917, at The court Quran, 2002 23. in WL District State v. compliance found no argument and rejected substantial-compliance the state’s wording use court not the exact where the trial did with R.C. in literally In light the difficulties deportation. and failed to mention statute 2943.031(A)to not a defendant who does communicating quoted the text language the probably speak trial court that does read speak English or Surely, achieved. defendant, consistently cannot be compliance absolute open if it in court under the court’s interpreter reads the statute is satisfied the that the court that the defendant receives way, In trial ensures supervision. own that the meaningful in in a manner and defendant warning open States, from the United or deportation, prospect understands the This definition guilty. very if is pleads of naturalization he denial compliance. substantial similar have statute jurisdiсtions most that enacted Similarly, other

{¶ 34} is for the trial court practice recognize although 2943.031 that better verbatim, unnecessary. example, For compliance warning literal to read statute, statute, that a requires like Ohio’s deportation-warning Connecticut’s guilty plea of a immigration consequences potential warned of three defendant be lj. approving In marks. within Conn.Gen.Stat.Ann. quotation identified 54— 519 plea preceded by warning only that informed the of his risk of exclusion, deportation naturalization, omitting but mention of denial of Connecticut Supreme “only Court held that compliance substantial with the required statute validate a defendant’s State v. plea.” Malcolm 257 Conn. 778 Similarly, A.2d 134. where trial court men- only tioned that the defendant sent original could be back to his country, complied with substantially deportation-advisement Texas’s statute. See Garcia v. (Tex.App.1994), State 813. S.W.2d likewise We hold that substantial is the cоmpliance better rule to if determine knowingly entered in plea, particularly those cases where the defendant’s claim comes after a lapse of lengthy time when See, or Mason, witnesses evidence are no longer e.g., available. 2002- ¶ Ohio-930, 2; see, at also WL Commonwealth v. Rzepphiewski 431 Mass. 725 N.E.2d 210. Is a on the Form Warning Written Plea Substantial Compliance? record is clear that trial court not personally did address him give warnings, and ensure he the prоspect understood exclusion, state, however, or denial of naturalization. The contended signature at that Yanez’s on the form that specified immigration consequences substantially complied with R.C. 2943.031. Supreme has held failure court’s to inform the

defendant of control postrelease under R.C. 2967.28 as part of sentence is not reversible error if an explanation of those appears the written form sentencing entry. v. Telb Ohio Woods St.3d see, also, Lattimore, C-010488, State v. 1st Dist. No. 2002-Ohio- WL holding The court’s on a based substantial- compliance analysis and is distinguishable. Unlike deportation warning 2943.031, R.C. postrelease-control sentencing the requires only statute that the court of “[njotify the offender” the for potential further supervision by the state. 2929.19(B)(3)(c). There is no requirement, ‍​​‌​‌​​​​​‌‌​​​​​‌​​‌‌‌‌​​‌‌‌‌‌​‌​‌‌​​‌‌​‌​‌​‌​‌‍2943.031, as in R.C. that the court personally address the defendant and inform him of the immigration consequences entering plea of a of guilty. that We have held a trial court’s failure to the

{¶ advise defendant of the 11(C)(2) maximum sentence —a Crim.R. nonconstitutional right though he —even signed a of written that penalties, recited the was not substantial 11(C). compliance (1978), with Crim.R. v. 64, See State Wilson 55 Ohio App.2d 9 223, 273; see, also, O.O.3d 379 N.E.2d Cleveland v. Chebib 143 Ohio A trial court’s to obligation address the personally and to inform him of specified these is in Crim.R. 520

11(C)(2). immigration consequences informed the direct right A be of similar to the is dialogue the court and between guilty plea by meaningful аof not this 2943.081(A); satisfy requirement. do written statements by R.C. required Assembly’s that meaningless the General intent would To hold otherwise render warning. give the personally” “shall the defendant the trial court address Mason, 2002-Ohio-930, v. see, also, 2943.031(A); ¶at 44. relayed by interpreter the cryptic answers translated a fair form did not furnish to trial about the questions the court’s

response exclusion, or denial of natural- deportation, of his prospect understanding “yes” Yanez plea. Although responded of his guilty izаtion as result the him, not read to the record does if the form had been court when asked Yanez in court or whether open read the form to interpreter the reflect whether At all times day guilty plea. him on same he entered even to the it was read ritual, nothing. counsel object court-appointed Yanez this said while was the Therefore, compliance that substantial with R.C. hold there was no we 2943.031(A). has the to read power not court suggesting only We are The English. or read statute warning speak to a defendant who does under court’s interpreter open if reads the

satisfied knowledge English will determine degree of a defendant’s supervision. inform him of go meaningfully itself must extent to which the trial court of his consequences plea. in this play inquiry. also a for counsel There is role defense possible, defense “[t]o ABA for Criminal Justice state that the extent Standards defendant, sufficiently advance of the and advise cоunsel should determine consequences ensue any might as collateral entry possible for plea.” ABA Standards Criminal Justice: entry contemplated & Naturalization 3.2(f); also, Immigration see, Section Guilty Pleas 14— fn. v. St. 150 L.Ed.2d Cyr, Serv. S.Ct. U.S. Washington 80 L.Ed.2d 674. Strickland 466 U.S. S.Ct. circumstances, it has been held that the In courts under certain federal defendant, justify if agreed may consequence collateral sentencing guidelines. as from the federal departure more lenient sentence (C.A.6, 2000), 99-3448, No. See United States Arefin July WL courts, may competent in Ohio trial counsel strategy fn. 3. The same bargaining chip as a successfully deportation of the defendant’s prospect use offense in return for charged for prosecution with reduction consequences of immigration unaware of the negotiated plea. When of an sentence —incarcera- defendant at risk actual puts defense counsel tion and deportation “consistent with imposed sentеnces for similar crimes —not 2929.11(B) committed similar offenders.” R.C. minimal, The consequence deportation probably but it is most

inevitable for the defendant. Unless the defendant is aware of the risk of deportation, he cannot appreciate whether it inis his best interest to waive his rights by If entering guilty plea. vacation of a guilty plea subject is to the test of substantial compliance, the failure counsel to inform his client of the consequences may well be critical to the defendant’s understanding of his rights and the voluntariness of his guilty plea. Here, because the record does not

{¶ establish that the trial court 44} substantially complied with R.C. in accepting plea guilty, it was error for court to overrule Yanez’s motion to vacate his plea. The assignment of error is sustained. Therefore, the judgment of the trial court denying

{¶ Yanez’s motion withdraw 2943.031(D). reversed. See R.C. This case is remanded to the ‍​​‌​‌​​​​​‌‌​​​​​‌​​‌‌‌‌​​‌‌‌‌‌​‌​‌‌​​‌‌​‌​‌​‌​‌‍trial court for trial or for further proceеdings consistent with the law and this opinion.

Judgment reversed and cause remanded. J., SUNDERMANN, COnCUTS.

Painter, concurs P.J., separately. Presiding Judge, concurring separately. Painter, correct, The result is and most of analysis, I but believe that the trial court strictly must comply with R.C. 2943.031. legislature actually has written a clear statute. It put specific quoted language the court must provide to a clear, defendant. When the language is case, which is always we should take advantage of that luxury. We should enforce it as why written — is it so difficult to comply with a legislative clear mandate? To comply statute, with the the language should be read verbatim to the court Then, at the hearing. the court question should the defendant to determine that the defendant understands the warning. The best practice would also include having the language verbatim in form. involved, When an interpreter the court must read statutory language, have the interpreter defendant, translate it and thеn question the defen- dant (through the interpreter) to determine the defendant understands. stated, The Ohio Supreme Court has statute, regarding another “If we * * * statute, were to ignore this no clear and unambiguous statute would be safe Eighth in the colleagues Our interpretation.”2 compliance’ from a ‘substantial holding that the trial must language when quoted that Appellate District I agree. with R.C. 2943.031.3 strictly comply al., INN, Appellants, et

THE INC. HOUSE ISLAND COMPANIES, a.k.a. State Automobile AUTO INSURANCE STATE al., Appellees. Company, et Insurance Mutual Inn, House Inc. v. State Auto Ins. as The Island [Cite Cos., 2002-Ohio-7107.] 150 Ohio Ohio, Appeals District, County. Ottawa

Sixth

No. OT-02-022. 20, 2002.

Decided Dec. 766. St.3d 2. v. Pless State 80701, 2002-Ohio-4917, Quran, 2002 WL 31087704. 8th Dist. No.

Case Details

Case Name: State v. Yanez

Court Name: Ohio Court of Appeals

Date Published: Dec 20, 2002

Citation: 782 N.E.2d 146

Docket Number: Appeal No. C-020098, Trial No. B-0106862.

Court Abbreviation: Ohio Ct. App.