State v. YanezState v. Yanez
{¶ 1} The defendant-appellant, Antonio Yanez, appeals from the judgment of the trial court overruling his postsentence motion to withdraw his plea of guilty to two counts of aggravated vehicular assault. He contends that his guilty plea was not knowingly, understandingly, and intelligently entered, because the trial court, before accepting his plea, failed to personally advise him, as required by
{¶ 2} On November 7, 2002, with a court-appointed counsel and an interpreter, Yanez, who is not a citizen of the United States, entered a plea of guilty to two counts of aggravated vehicular assault, in violation of
{¶ 3} After he was sentenced, Yanez‘s family retained new counsel. Six days after the trial court entered Yanez‘s judgment of conviction, his newly retained counsel moved to vacate his guilty plea. At a hearing on his motion, Yanez contended that although he had made it known that he was not a citizen of the United States, the trial court, before accepting his guilty plea, did not personally inform him, as required by
The Immigration-Consequences Warning of R.C. 2943.031
{¶ 4}
{¶ 5} ‘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.‘” (Emphasis added.)
{¶ 6}
{¶ 7} The immigration-consequences warning required by
{¶ 8} There is no federal statute comparable to
{¶ 9} On December 5, 2001, Yanez moved to vacate his plea “pursuant to
{¶ 10} At the hearing, the trial court requested that the prosecution obtain an opinion from its appellate division on whether the requirements of
Substantive Right to Be Informed of the Immigration Consequences
{¶ 11} The first question is whether the immigration-consequences warning is a substantive right, and if so, whether the remedy found in
{¶ 12} Ordinarily, a motion to vacate a guilty plea is to be resolved under
{¶ 13} Where the trial court fails to address the noncitizen defendant personally about the immigration consequences that could result from his guilty plea, or to determine whether he understands the warning,
{¶ 14} Unlike a ruling on a motion made pursuant to
{¶ 15} A procedural rule like
{¶ 16} The need to provide the
{¶ 17} Because
What Level of Compliance Is Required?
{¶ 18} The record of the proceedings below reveals that the trial court did not personally address Yanez and give him the immigratiоn-consequences warning. Despite the trial court‘s failure to personally inform Yanez of the warning, the record includes a written plea form, signed by Yanez and by his attorney, enumerating the
{¶ 19} Although the trial court in its colloquy through the interpreter personally informed Yanez of his constitutional and other rights listed in
{¶ 20} “THE COURT: And I want to ask him if the [pleа] form was read to him?
{¶ 21} “THE INTERPRETER: Yes.
{¶ 22} “THE COURT: And if he understood it?
{¶ 23} “THE INTERPRETER: Yes.
{¶ 24} “THE COURT: And he signed it of his own free will?
{¶ 25} “THE INTERPRETER: Yes.
{¶ 26} “THE COURT: Signing this of his own free will?
{¶ 27} “THE INTERPRETER: Yes.”
{¶ 28} As the state argued at the hearing on Yanez‘s motion in the trial court, the trial court substantially complied with the statute when Yanez, through an interpreter, stated that he had read the plea form that contained a version of the immigration-consequences warning. But Yanez contends that the General Assembly intended that the trial court personally address the defendant when providing the statutory advisement. We agree.
{¶ 29} The principal gоal of statutory interpretation is to give effect to the intent of the legislature. See Bailey v. Republic Engineered Steels, Inc. (2001), 91 Ohio St.3d 38, 39, 741 N.E.2d 121. The court must first look to the language of the statute. If the language unambiguously and distinctly expresses the sense of the legislative body, it must be applied as written. Id.; see, also, State v. Smorgala (1990), 50 Ohio St.3d 222, 223, 553 N.E.2d 672. The General Assembly has put the three required warnings—deportation, exclusion from the United States, and denial of naturalization—in quotation marks. We find no other criminal statute in which the General Assembly has used quotation marks to designate the trial court‘s colloquy with a defendant. See, also, State v. Quran, 2002-Ohio-4917, 2002 WL 31087704, at ¶ 21. The use of quotation marks and the command to the trial court that it “address the defendant personally” and “provide * * * the advisement” indicate a clear intent by the General Assembly that each warning should be given to ensure that a person pleading guilty or no contest knows exactly what immigration consequences his plea may have. It is an acknowledgement that, at least to some defendants, the collateral consequences of a plea, namely deportation, exclusion from admission to the United States, and denial of naturalization, may well be a more serious sanction than the imposition of a prison term. See, e.g., Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. at 322-323, 121 S.Ct. 2271, 150 L.Ed.2d 347; see, also, Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L.Rev. at 700. The words of the statute, bracketed by quotation marks, do not permit any other interpretаtion.
{¶ 30}
{¶ 31} When dealing, however, with the nonconstitutional warnings of
{¶ 32} We hold that the statutory right to receive the immigration-consequences warning is similar to the nonconstitutional warnings enumerated in
{¶ 33} We do not agree with the rationale advanced by the Eighth Appellate District in State v. Quran, 2002-Ohio-4917, 2002 WL 31087704, at ¶ 23. The court rejected the state‘s substantial-compliance argument and found no compliance with
{¶ 34} Similarly, most other jurisdictions that have enacted a statute similar to
{¶ 35} We likewise hold that substantial compliance is the better rule to determine if the defendant knowingly entered his guilty plea, particularly in those cases where the defendant‘s claim comes after a lengthy lapse of time when witnesses or evidence are no longer available. See, e.g., State v. Mason, 2002-Ohio-930, 2002 WL 242662, at ¶ 2; see, also Commonwealth v. Rzepphiewski (2000), 431 Mass. 48, 725 N.E.2d 210.
Is a Warning on the Written Plea Form Substantial Compliance?
{¶ 36} The record is clear that thе trial court did not personally address Yanez, give him the warnings, and ensure that he understood the prospect of deportation, exclusion, or denial of naturalization. The state, however, contended at trial that Yanez‘s signature on the plea form that specified the immigration consequences substantially complied with
{¶ 37} The Supreme Court has held that the trial court‘s failure to inform the defendant of postrelease control under
{¶ 38} We have held that a trial court‘s failure to advise the defendant of the maximum sentence—a
{¶ 39} Yanez‘s cryptic answers translated and relayed by the interpreter in response to the trial court‘s questions about the plea form did not furnish a fair understanding оf the prospect of his deportation, exclusion, or denial of naturalization as the result of his guilty plea. Although Yanez responded “yes” to the court when asked if the plea form had been read to him, the record does not reflect whether the interpreter read the form to Yanez in open court or whether it was even read to him on the same day he entered his guilty plea. At all times while Yanez was the object of this ritual, his court-apрointed counsel said nothing. Therefore, we hold that there was no substantial compliance with
{¶ 40} We are not suggesting that only the trial court has the power to read the warning to a defendant who does not speak or read English. The statute is satisfied if the interpreter reads the warning in open court under the court‘s supervision. The degree of a defendant‘s knowledge of English will determine the extent to which the trial court itself must go to meaningfully inform him of the consequences of his plea.
{¶ 41} There is also a role for defense counsel to play in this inquiry. The ABA Standards for Criminal Justice state that “[t]o the extent possible, defense counsel should determine and advise the defendant, sufficiently in advance of the entry of any plea, as to the possible collateral consequences that might ensue from entry of the contemplated plea.” ABA Standards for Criminal Justice: Pleas of Guilty (1999), Section 14-3.2(f); see, also, Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. at 323, 121 S.Ct. 2271, 150 L.Ed.2d 347, fn. 50; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.
{¶ 42} In fеderal courts under certain circumstances, it has been held that the collateral consequence of deportation, if agreed to by the defendant, may justify a more lenient sentence as a departure from the federal sentencing guidelines. See United States v. Arefin (C.A.6, July 6, 2000), No. 99-3448, 2000 WL 977303, fn. 3. The strategy is the same in Ohio trial courts, as competent counsel may successfully use the prospect of the defendant‘s deportation as a bargaining chip with the prosecution for reduction of the offense charged in return for a negotiated guilty plea. When unaware of the immigration consequences of a plea, defense counsel puts the defendant at risk of an actual sentence—incarcera-
{¶ 43} The consequence of deportation is not minimal, but it is most probably inevitable for the defеndant. Unless the defendant is aware of the risk of deportation, he cannot appreciate whether it is in his best interest to waive his rights by entering a guilty plea. If vacation of a guilty plea is subject to the test of substantial compliance, the failure of 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.
{¶ 44} Here, because the record does not establish that the trial court substantially complied with
{¶ 45} Therefore, the judgment of the trial court denying Yanez‘s motion to withdraw his guilty plea is reversed. See
Judgment reversed and cause remanded.
Sundermann, J., concurs.
Painter, P.J., concurs separately.
Painter, Presiding Judge, concurring separately.
{¶ 46} The result is correct, and most of the analysis, but I beliеve that the trial court must strictly comply with
{¶ 47} To comply with the statute, the language should be read verbatim to the defendant by the court at the plea hearing. Then, the court should question the defendant to determine that the defendant understands the warning. The best practice would also include having the language verbatim in the plea form. When an interpreter is involved, the court must read the statutory language, have the interpreter translate it to the defendant, and then question the defendant (through the interpreter) to determine that the defendant understands.
{¶ 48} The Ohio Supreme Court has stated, rеgarding another statute, “If we were to ignore this statute, * * * no clear and unambiguous statute would be safe