Opinion
No. 78720, 78721.
Decided December 6, 2001.
Criminal appeals from Common Pleas Court Case Nos. CR-380126 and CR-381201.
For plaintiff-appellee: William D. Mason, Esq., Cuyahoga County Prosecutor, BY: Perry M. Kendall, Jr., Esq., Assistant County Prosecutor, The Justice Center 8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113.
For defendant-appellant: David L. Doughten, Esq., 4403 St. Clair Avenue, Cleveland, Ohio 44103.
JOURNAL ENTRY and OPINION
Defendant-appellant, Fahed Kutkut, appeals from the trial court's denial of his post-sentence motion to withdraw a guilty plea. Because we find that the trial court properly denied appellant's motion to withdraw his previously entered pleas of guilty to the offenses of aggravated assault and attempted robbery, we affirm the trial court's denial of the appellant's motion.
Appellant was indicted on August 23, 1999 and September 27, 1999 in two separate cases which were later consolidated for the purposes of a plea hearing and sentencing. The first indictment, in case number 380126 charged appellant with felonious assault in violation of R.C. 2903.11. The second indictment, case number 381201, alleged one count of robbery in violation of R.C. 2911.02. On November 23, 1999, the appellant entered into a plea agreement with the state by which he would enter pleas of guilty to the lesser included offenses of aggravated assault and attempted robbery, respectively.
On December 22, 1999, the appellant was sentenced to one year imprisonment at Lorain Correctional Institution on each of the counts. The two sentences were imposed concurrently, but were suspended and the appellant was placed on two years probation.
The appellant filed a motion to withdraw guilty plea as well as a petition to vacate or set aside sentence on May 10, 2000. The motions were occasioned by Immigration and Naturalization Services (INS) deportation proceedings to which the appellant had been subjected. Although the appellant stated in his motion that the defendant is requesting to withdraw his plea based upon the fact that he is being deported, the deportation proceedings had actually been initiated on February 20, 1998, more than eighteen months prior to the appellant's first indictment. On January 11, 2000, the INS did file Additional Charges of Deportability against the appellant under Section 237(a)(2)(A)(ii) (iii) based on the fact that he had been convicted of two crimes involving moral turpitude which did not arise out of a single scheme of criminal misconduct and that he had been convicted of a crime of violence which was an aggravated felony.
The initial notice of deportation proceedings of February 20, 1998 alleged the following bases for deportation:
The Service alleges that you:
1. You are not a citizen or national of the United States;
2. You are a native of Kuwait and a citizen of Jordan;
3. You entered the United States on March 29, 1995 in New York, New York as a non immigrant (sic) visitor with authorization to remain in the United States for a temporary period not exceed (sic) September 28, 1995;
4. You have failed to depart within the time period specified. (Emphasis added.)
On June 7, 2000, the trial court denied the motion to vacate the guilty plea and the petition to vacate or set aside sentence without a hearing. On October 27, 2000, this court provisionally granted appellant's motion for leave to file a delayed appeal and to consolidate the cases on appeal. The appellant presents two assignments of error for this court's review. The first assignment of error states:
I. THE TRIAL COURT ERRED BY ACCEPTING AN INVALID PLEA OF GUILTY.
Appellant initially maintains that his motion to withdraw his plea of guilty should have been granted and his conviction vacated on the grounds that, at the time the guilty plea was entered, the trial court failed to advise defendant-appellant of the possible immigration consequences of the plea as required pursuant to R.C. 2943.031, which states in pertinent part:
(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 or a misdemeanor other than a minor misdemeanor if the defendant previously has not been convicted of or pleaded guilty to a minor misdemeanor, 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.
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, where 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.
Upon request of the defendant, the court shall allow him additional time to consider the appropriateness of the plea in light of the advisement described in this division.
(B) The court is not required to give the advisement described in division (A) of this section if either of the following applies:
(1) The defendant enters a plea of guilty on a written form, the form includes a question asking whether the defendant is a citizen of the United States, and the defendant answers the question in the affirmative;
(2) The defendant states orally on the record that he is a citizen of the United States.
This court has previously held that, in order for R.C. 2943.031 advisements to apply, the record must affirmatively demonstrate that the defendant is not a citizen of the United States through affidavit or other documentation. State v. Thomas (Mar. 18, 1993), Cuyahoga App. Nos. 63719, 63720, unreported, State v. Isleim (Aug. 18, 1994), Cuyahoga App. No. 66201, unreported. This court has held further that there must be some showing of prejudicial effect caused by the trial court's failure to advise the defendant with respect to possible deportation before a motion to vacate a guilty plea or a plea of no contest will be granted. State v. Guild (Jan. 13, 1994), Cuyahoga App. No. 63407, unreported.
In the case sub judice, a review of the record demonstrates that, while the trial court may have failed to comply with the mandates of R.C. 2943.031 in accepting appellant's plea of guilty, appellant failed to meet the burden of proof that would entitle him to relief under the statute in that he failed to provide the trial court with an affidavit, passport or other documentation at the time of the plea to demonstrate that he was not a citizen of the United States. The fact that the issue of the appellant's illegal alien status was brought to the court's attention at the time the motion to withdraw a guilty plea was filed is not sufficient grounds upon which to invalidate the appellant's plea of guilty.
Appellant has also failed to demonstrate that he was prejudiced by the trial court's alleged failure to advise him of the deportation consequences attendant to the underlying plea. The INS deportation proceedings instituted against the appellant began prior to the plea of no contest and were based upon the expiration of the allotted time appellant was permitted to remain in this country. At the time the proceedings were instituted on February 20, 1998, the appellant had already overstayed his visa by almost two and one-half years.
The deportation proceedings were not initially based on the underlying convictions in this case. These convictions merely provided additional reasons for the deportation of the appellant. There is absolutely nothing in the record to suggest that the appellant would not have been subject to deportation if not for the fact of these convictions. Thus, appellant has failed to satisfy the burden of proof necessary for relief pursuant to R.C. 2943.031. See State v. Browley (Sept. 24, 1994), Cuyahoga App. No. 66038, unreported. This assignment of error is overruled.
The appellant's second assignment of error states:
II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S MOTION TO VACATE WITHOUT CONDUCTING A HEARING ON THAT MOTION.
Crim.R. 32.1 reads:
A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.
A hearing on a post-sentence motion to withdraw a guilty plea is not required if the facts alleged by the defendant and accepted as true by the trial court would not require the court to allow the withdrawal of the plea. State v. Wyley (Mar. 15, 2001), Cuyahoga App. No. 78315, unreported; State v. Wynn (1998), 131 Ohio App.3d 725, 728, 723 N.E.2d 627, citing State v. Blatnik (1984), 17 Ohio App.3d 201, 204, 478 N.E.2d 1016; State v. Hamed (1989), 63 Ohio App.3d 5, 7, 577 N.E.2d 1111; State v. Milton (June 1, 1995), Cuyahoga App. No. 65828, unreported.
In the instant case, the record reflects that the appellant never demonstrated or attempted to demonstrate at the time of the plea hearing that he was not a citizen of the United States through affidavit or other documentation. Thus, the appellant was not entitled to relief on the basis that the trial court failed to advise him of the possibility of deportation under R.C. 2943.031. Additionally, the fact that the appellant was already subject to deportation proceedings prior to entering the subject guilty pleas eliminated any possible prejudice arising out of the failure of the trial court to properly advise the appellant and thus precluded the appellant from being entitled to the relief requested in the motion to withdraw guilty plea. Accordingly, this assignment of error is also overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
BLACKMON, J., CONCURS. KARPINSKI, A.J., DISSENTS WITH SEPARATE DISSENTING OPINION.
I must disagree with the decision of the majority because it misreads and, therefore, misapplies R.C. 2943.031 in the case at bar. I would sustain appellant's first assignment of error because the trial court erred by refusing to vacate his plea of guilty.
A court is required to set aside a judgment of conviction and permit a defendant to withdraw a guilty plea after the imposition of sentence if a defendant meets the four requirements set forth in R.C. 2943.031(D). State v. Weber (1997), 125 Ohio App.3d 120, 707 N.E.2d 1178. This conclusion is amply supported by section (D) of R.C. 2943.031, which states in part:
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 * * * if * * * the court fails to provide the defendant the advisement described in division (A) of this section, * * * and the defendant shows that he is not a citizen of the United States and that the conviction * * * may result in his being subject to deportation, * * *. (Emphasis added.)
Reference is exclusively made to R.C. 2943.031 as written in Baldwin's Ohio Revised Code, Annotated, Title 29, West Group Publishing, 1997. Baldwin's transcription of R.C. 2943.031(D) states:
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 * * *. (Emphasis added.)
The statute as written in Page's Ohio Revised Code, Annotated, Title 29, Anderson Publishing Co., 2001, omits the crucial disjunctive language included in the Baldwin version.
In the case at bar, the majority, in reaching its decision to affirm the judgment of the trial court, concedes that the court failed to comply with the mandates of R.C. 2943.031 in accepting appellant's plea of guilty * * *. The majority then glosses over the trial court's error and finds that the court, nonetheless, could deny appellant's motion to vacate his plea because:
* * * appellant failed to meet the burden of proof that would entitle him to relief under the statute in that he failed to provide the trial court with an affidavit, passport or other documentation at the time of the plea to demonstrate that he was not a citizen of the United States. The fact that the issue of the appellant's illegal alien status was brought to the court's attention at the time the motion to withdraw a guilty plea was filed is not sufficient grounds upon which to invalidate the appellant's plea of guilty. (Emphasis in original.)
The majority misstates the timing of the evidentiary requirements set forth in R.C. 2943.031. The statute begins with the motion stage and then proceeds to describe the defendant's requirement in the present tense. Nothing in the statute requires documentation at an earlier time.
In support, the majority cites to the decisions in State v. Thomas (Mar. 18, 1993), Cuyahoga App. Nos. 63719 and 63720, unreported, 1993 Ohio App. LEXIS 1496 and State v. Browley (Sept. 24, 1994), Cuyahoga App. No. 66038, unreported, 1994 Ohio App. LEXIS 4480. Unlike appellant in the case at bar, however, neither of the defendants in Thomas or Browley ever presented evidence to the court of their non-citizenship at any time. Nor has this court required the earlier advisement in the more recent cases of State v. Felix (Apr. 17, 1997), Cuyahoga App. No. 70898, unreported, 1997 Ohio App. LEXIS 1520, and City of Euclid v. Muller (1999), 134 Ohio App.3d 737, 732 N.E.2d 410.
The requirement that defendants demonstrate they are not citizens applies only at the point when a defendant asks to withdraw a guilty plea on the basis that R.C. 2943.031 has been not followed. The majority's interpretation of the statute would result in a non-citizen defendant having to anticipate the possibility of deportation before ever being advised that such a possibility exists. At the least, the non-citizen would have to know in advance what the statute requires the state to tell him: that is, the possible consequences of deportation. The language of R.C. 2943.03, however, clearly puts the burden on the state to alert defendants to certain possible consequences if they are not citizens. Indeed, the statute expressly sets forth the exact words the court is to use:
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 context, 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.
The only two exceptions to the requirement that the court give this advisement are: (1) if the defendant is specifically asked whether the defendant is a citizen and the defendant answers yes and both the question and answer are on the same form as the defendant's written plea of guilty; and (2) if the defendant states orally on the record defendant is not a citizen. The obvious specificity of these two exceptions indicates how strictly the entire requirement is to be applied.
Flatly contradicting the majority's requirement, moreover, is section (C):
Except as provided in Division (B) [the two exceptions] of this section, the defendant shall not be required at the time of entering a plea to disclose to the court his legal status in the United States. (Emphasis added.)
In drafting R.C. 2943.031, the legislature did not intend to burden a non-citizen defendant with such an illogical set of pre-plea requirements.
In the case at bar, the state and the majority concede that: (1) the trial court did not give the advisements required by R.C. 2943.031; (2) appellant, when he filed his motion to vacate, proved that he is not a citizen of the United States; and (3) after he entered his plea on November 23, 1999 without the benefit of the statutory advisements, the INS filed Additional Charges Of Deportability on January 11, 2000. The trial court clearly abused its discretion in denying appellant's motion to withdraw his plea. I would, therefore, sustain appellant's first assignment of error.
Further, the majority's statement that a defendant cannot show prejudicial effect if he was subject to deportation before entering any plea is also misguided. Under the statute, a defendant need only show that he maybe subject to deportation. That there may be two separate bases for deportation is not the point, because we do not know what defenses a defendant might have. In the immigration hearing, defendant might, for example, raise the defense of asylum; he could show he has received labor certification or married a citizen. To meet the requirement of the statute, a defendant does not have to demonstrate that his plea is the only basis upon which he might be deported. Nor does a defendant have to describe to a trial court or an appellate court the nature of any possible defenses he may have to deportation or advise of any basis for a change of his status.
Further, the only prejudicial effect defendant must show is that the conviction * * * may result in his being subject to deportation. To require anything more than that, as the majority does, is to impose a heightened standard. Contrary to the majority's position, there is no legal authority for forcing a defendant to also show an additional prejudicial effect beyond the four requirements of R.C. 2943.031(D), or, for that matter, the manifest injustice described in Crim.R. 32.1. See Weber, supra.
I also disagree with the majority when it found no error in the lower court's refusal to conduct a hearing on the motion to vacate. A hearing on a post-sentence motion to withdraw a guilty plea is mandated if the facts alleged by the defendant and accepted as true by the trial court would require the court to allow withdrawal of the plea. City of Beachwood v. Barnes (Oct. 25, 2001), Cuyahoga App. No. 78841, unreported, 2001 Ohio App. LEXIS 4765; State v. Wynn (1998), 131 Ohio App.3d 725, 723 N.E.2d 627; Blatnik, supra; State v. Botros (Feb. 17, 2000), Cuyahoga App. No. 76738, unreported, 2000 Ohio App. LEXIS 584.
In the case at bar, appellant alleged and the trial court accepted as true that he is not a citizen of the United States. The majority also recognizes that the trial court did not give at the time of appellant's plea the advisements mandated by R.C. 2943.031 and did not hold a hearing on the motion to vacate the plea. The uncontested facts of this case, therefore, required the trial court to allow withdrawal of appellant's plea. Accordingly, I find that the trial court erred in failing to conduct a hearing on appellant's motion to withdraw his plea. I would sustain appellant's second assignment of error.
Accordingly, I would reverse the judgment of the trial court and remand for rehearing on appellant's motion to vacate his plea.