State v. Alonzo , 2016 Ohio 160 ( 2016 )

[Cite as State v. Alonzo, 2016-Ohio-160.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-15-26
v.
RICARDO ALONZO, OPINION
DEFENDANT-APPELLANT.
Appeal from Tiffin-Fostoria Municipal Court
Trial Court No. 02 TRC 4452
Judgment Affirmed
Date of Decision: January 19, 2016
APPEARANCES:
Margaret W. Wong for Appellant
Richard H. Palau for Appellee
Case No. 13-15-26
SHAW, P.J.
{¶1} Defendant-appellant Ricardo Alonzo appeals the June 26, 2015
judgment of the Tiffin-Fostoria Municipal Court overruling his motion to
withdraw his no contest pleas. Alonzo assigns as error the trial court’s finding that
he was given the proper advisement pursuant to R.C. 2943.031(A) for a non-
citizen upon entering his no contest pleas and the trial court’s determination of the
matter without conducting an evidentiary hearing.
Facts and Procedural History
{¶2} Alonzo is a citizen of Mexico residing in Fremont, Ohio. On
December 2, 2002, Alonzo appeared before the Tiffin Municipal Court and
entered no contest pleas to one count of DUI, one count of Unlawful BAC, one
count of No Operator’s License, and one count of Open Container. The record
indicates that a Spanish-speaking interpreter assisted Alonzo with entering his
pleas. Upon accepting his pleas and finding him guilty, the trial court sentenced
Alonzo to thirty days in jail for the DUI offense, giving him four days credit for
time served and suspending the remaining twenty-six days. Alonzo was also
placed on one year of probation and ordered to pay court costs.
{¶3} Nearly thirteen years later, on June 26, 2015, Alonzo filed a motion to
withdraw his no contest pleas pursuant to R.C. 2943.031 and Crim.R. 32.1.
Alonzo asserted the trial court failed to give him the advisement required by R.C.
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2943.031(A) regarding the deportation consequences of his no contest pleas.
Alonzo also stated that he had been detained by the Department of Homeland
Security Immigration and Customs Enforcement (“ICE”) and claimed that he was
now subject to “imminent removal from the United States.” (Doc. No. 6 at 1). In
addition, Alonzo argued that his pleas should be vacated pursuant to Crim.R. 32.1
to correct a manifest injustice.
{¶4} The trial court subsequently issued a judgment entry overruling
Alonzo’s motion to withdraw his no contest pleas. Specifically, the trial court
reviewed the record of the prior proceedings and found that it fully complied with
Crim.R. 11 when it accepted the plea. The trial court further found the record of
the December 2, 2002 proceedings demonstrated that “the admonitions contained
in Section 2943.031 [of the Revised Code] were clearly given and recorded on the
record, including the admonition that the defendant could be deported due to the
plea of guilty or no contest in this proceeding. While the Court is sympathetic to
the plight of [Alonzo], it is difficult to see how manifest injustice has resulted in
this instance, and a delay of thirteen years in attempting to remedy this matter
would appear that the instant motion is nothing more than a means of delaying the
defendant’s deportation.” (Doc. No. 7 at 3-4). Accordingly, the trial court
determined that no manifest injustice existed as set forth in Crim.R. 32.1 and that
the proper advisement was given in accordance with R.C. 2943.031.
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{¶5} Alonzo filed a motion to reconsider which was also overruled.
{¶6} Alonzo subsequently filed this appeal, asserting the following
assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED IN DENYING
DEFENDANT/APPELLANT’S MOTION TO WITHDRAW
HIS GUILTY PLEA [SIC] PURSUANT TO R.C. 2943.031
WHERE THE ADVISEMENTS REQUIRED BY R.C. 2943.031
WERE NOT GIVEN.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED IN DENYING
DEFENDANT/APPELLANT’S MOTION TO WITHDRAW
HIS GUILTY PLEA [SIC] PURSUANT TO R.C. 2943.031
WITHOUT AN EVIDENTIARY HEARING.
Discussion
{¶7} Alonzo’s assignments of error both address the trial court’s denial of
his motion to withdraw his no contest pleas. Because these assignments of error
are intertwined, we shall address them together.
Standard of Review
{¶8} Criminal Rule 32.1 post-sentence motions to withdraw guilty pleas are
subject to a manifest injustice standard. State v. Oluoch, 10th Dist. Franklin No.
07AP-45, 2007-Ohio-5560, ¶ 9, citing State v. Xie, 62 Ohio St. 3d 521, 526 (1992).
In general, manifest injustice relates to a fundamental flaw in the proceedings that
results in a miscarriage of justice or is inconsistent with the demands of due
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process. State v. Williams, 12th Dist. Warren No. CA2012–08–060, 2013-Ohio-
1387, ¶ 12. The decision whether to grant a motion to withdraw a guilty plea rests
within the sound discretion of the trial court and we will not reverse the trial
court’s decision absent an abuse of that discretion. State v. Nathan, 99 Ohio
App.3d 722, 725 (3d Dist.1995). “An abuse of discretion is more than an error in
judgment;” thus, we will only reverse the trial court if its reasoning was
“unreasonable, arbitrary, or unconscionable.” State v. Maney, 3d Dist. Defiance
Nos. 4-12-16, 4-12-17, 2013-Ohio-2261, ¶ 17, citing State v. Adams, 62 Ohio
St.2d 151, 157-158 (1980).
{¶9} However, the manifest injustice standard does not apply to plea
withdrawal motions filed pursuant to R.C. 2943.031(D). State v. Francis, 104
Ohio St. 3d 490, 2004-Ohio-6894, ¶ 26. “R.C. 2943.031(D)’s explicit language
mandates that a trial court set aside a judgment of conviction and allow a
defendant to withdraw his guilty plea if the defendant satisfies four requirements.
Showing manifest injustice is not included as one of the requirements.” State v.
Weber, 125 Ohio App. 3d 120, 129 (10th Dist.1997). The four requirements to be
demonstrated are: (1) the court failed to provide the defendant with the advisement
contained in R.C. 2943.031(A); (2) the advisement was required; (3) the defendant
is not a United States citizen; and (4) the offense to which the defendant pled
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guilty may result in deportation under the immigration laws of the federal
government. Id. at 126.
{¶10} The same abuse of discretion standard of review applies to the trial
court’s decision on a motion filed pursuant to R.C. 2943.031(D). Francis at ¶ 32.
However, “when a defendant’s motion to withdraw is premised on R.C.
2943.031(D), the standards within that rule guide the trial court’s exercise of
discretion.” Id. at ¶ 33; see also Oluoch at ¶ 25. To clarify, the exercise of
discretion “applies to the trial court’s decision on whether the R.C. 2943.031(D)
elements have been established (along with the factors of timeliness and prejudice
* * *), not generally to the trial court’s discretion once the statutory provisions
have been met.” Francis at ¶ 34. “[A] defendant seeking relief under R.C.
2943.031(D) must make his or her case before the trial court under the terms of
that statute, * * * the trial court must exercise its discretion in determining whether
the statutory conditions are met, and * * * an appellate court reviews a trial court’s
decision on the motion under an abuse-of-discretion standard in light of R.C.
2943.031(D).” Id. at ¶ 36.
The Trial Court’s Ruling on the Motion to Withdraw
{¶11} Alonzo argues that the trial court erred in overruling his motion to
vacate his pleas because he never received the advisement required by R.C.
2943.031(A).
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{¶12} Section 2943.031(A) of the Revised Code requires a trial court to
give the following advisement to defendants entering either a guilty plea or a plea
of no contest, unless the defendant indicates that he is a citizen, in accordance with
R.C. 2943.031(B):
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.
{¶13} Section 2943.031(D) of the Revised Code specifies the remedy for a
trial court’s failure to advise as required under R.C. 2943.031(A). State v. Yuen,
10th Dist. No. 01AP-1410, 2002-Ohio-5083, ¶ 18. “Under R.C. 2943.031(D), a
defendant who has not received the advisement required by R.C. 2943.031(A) may
move to set aside the judgment and withdraw his guilty plea. This motion and an
appeal from the denial of the motion provide the exclusive remedies for an alleged
violation of R.C. 2943.031(A).” State ex rel. White v. Suster, 101 Ohio St. 3d 212,
2004–Ohio–719, ¶ 7.
{¶14} Section 2943.031(D) of the Revised Code reads in relevant part as
follows:
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, if, after the effective date of this section, the
court fails to provide the defendant the advisement described in
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division (A) of this section, the advisement is required by that
division, and the defendant shows that he is not a citizen of the
United States and 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 United States, or
denial of naturalization pursuant to the laws of the United
States.
{¶15} Under R.C. 2943.031(E), the absence of a record showing that the
court gave the advisement required by R.C. 2943.031(A) creates a presumption
that the advisement was not given. Mayfield Hts. v. Grigoryan, 8th Dist.
Cuyahoga No. 101498, 2015–Ohio–607, ¶ 19.
{¶16} On appeal, Alonzo claims the record reflects that he was not given
the advisement under R.C. 2943.031(A) when he entered his no contest pleas. In
support of his motion to withdraw, Alonzo attached a handwritten “declaration”
which appears to be penned by someone else and indicates that it was read to
Alonzo in his native language Spanish prior to him signing it. This “declaration”
states that Alonzo is a citizen of Mexico and claims that during his 2002 no
contest plea proceeding the trial court was aware he was not a U.S. citizen and
failed to explain to him “the consequences of DUI would result in deportation,
exclusion to admission to the US and denial of naturalization.” (Doc. No. 6, Ex.
A). Alonzo’s “declaration” further states that in 2004, 2005, and 2010, he “had
three criminal offenses” and he did not remember being specifically advised of the
adverse consequences to his immigration status in the proceedings in those cases.
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(Id.). In addition to the “declaration,” Alonzo attached a copy of his Mexican
passport to his motion.
{¶17} The record on appeal contains the transcription of two proceedings
held on December 2, 2002. The first was held in the morning of December 2,
2002 during which the trial court simultaneously advised multiple defendants of
various rights including the advisement under R.C. 2943.031(A). The second
proceeding was held in the afternoon of December 2, 2002, where Alonzo entered
his no contest pleas with the assistance of a Spanish-speaking interpreter. The
transcript reflects that the trial court’s advisement included the words of the statute
verbatim under R.C. 2943.031(A). However, Alonzo contends that the trial court
never provided him with the R.C. 2943.031(A) advisement. In support of his
claim, Alonzo argues the record fails to establish that he was present during the
morning proceeding where the R.C. 2943.031(A) advisement was given because
there is no identification of the defendants who were present in the courtroom at
the time.
{¶18} Even though Alonzo is not identified in the transcript of the morning
proceeding as one of the defendants present, there are other indicia in the record
establishing Alonzo’s presence at the proceeding. Specifically, the record
indicates that Alonzo was placed in jail following the arrest for his DUI related
charges at approximately 4:00 a.m. on Friday, November 29, 2002, and that he
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continued to be incarcerated until he appeared in court on Monday, December 2,
2002. The trial court’s sentence also reflects a credit for four days of time served
which is consistent with this timeframe. Moreover, the summons issued by the
arresting officer stated that Alonzo’s personal appearance was required at the
Tiffin Municipal Court at 9:00 a.m. on December 2, 2002. The trial court’s R.C.
2943.031(A) advisement was given at the Tiffin Municipal Court sometime
between 9:12 a.m. and 9:15 a.m. on December 2, 2002. It should be noted that the
only evidence Alonzo relies upon to demonstrate that he was not present at the
morning proceeding is his unsupported assertion in his “declaration,” nearly
thirteen years later, that the trial court never provided him with the advisement.
Nevertheless, the issue of whether or not the trial court provided Alonzo with the
R.C. 2943.031(A) advisement is not dispositive to the issue of whether or not he
has demonstrated he is entitled to withdraw his no contest pleas.
{¶19} Even assuming arguendo that the record supports Alonzo’s claim
that the advisement was not given to him, the withdrawal of the plea is not
automatic simply because the court failed to give the R.C. 2943.031(A)
advisement. As noted earlier, the Supreme Court of Ohio has held the decision to
set aside a judgment of conviction and allow the defendant to withdraw a plea is
committed to the sound discretion of the court as to “whether the R.C.
2943.031(D) elements have been established (along with the factors of timeliness
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and prejudice * * *).” State v. Francis, 104 Ohio St. 3d 490, 2004-Ohio-6894, ¶
32-34. In sum, the court is allowed to take into account “many factors” when
considering whether to grant a motion to withdraw a plea based on the court’s
failure to give the R.C. 2943.031(A) advisement. Parma v. Lemajic, Cuyahoga
No. 102620, 2015-Ohio-3888, ¶ 9, citing Francis at ¶ 36. Although the Supreme
Court of Ohio did not list what factors in addition to the R.C. 2943.031(D) factors
the court could consider, it did state that “untimeliness will sometimes be an
important factor in reaching a decision on a motion to withdraw.” Francis at ¶ 42.
{¶20} “The concept of ‘timeliness’ discussed in Francis involves more than
just the numerical calculation of the number of years between entering the plea
and the motion to withdraw the plea. As Francis noted, subsumed within
timeliness is the prejudice to the state in terms of stale evidence and unavailability
of witnesses.” State v. Lovano, 8th Dist. Cuyahoga No. 100578, 2014-Ohio-3418,
¶ 13. In the instant case, Alonzo waited nearly thirteen years after entering his
pleas in this case, with three intervening “criminal offenses” in 2004, 2005, and
2010, before deciding to withdraw his pleas in the 2002 DUI case. To counter the
untimeliness issue, Alonzo claims that he “only recently became aware that his no
contest plea could lead him to be detained by ICE and be deported” in June of
2015. (Doc. No. 6 at 6). Thus, Alonzo asserts this demonstrates that he is now
prejudiced as a result of entering his no contest pleas in the 2002 case and by not
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being properly advised of the potential deportation consequences of his pleas by
the trial court.
{¶21} The record reflects that Alonzo did not support his motion to
withdraw with documentation affirmatively demonstrating that the 2002
conviction resulting from his no contest pleas has caused him to suffer prejudice.
Alonzo has not produced any documentation demonstrating the issuance of a
notice of detainment, let alone a notice of deportation proceedings or that a
deportation order was issued against him. Nor has he attached an affidavit
averring that he will be deported, excluded, or denied citizenship, or that he has
received notice that deportation proceedings are pending, or that his 2002 DUI
conviction, as opposed to his 2004, 2005, or 2010 criminal cases, is the proximate
cause of the purported deportation proceedings. Instead, Alonzo has simply made
unsupported assertions in his motion to withdraw claiming he had been detained
by ICE and faced the possibility of deportation.1
{¶22} Moreover, “ ‘an undue delay between the occurrence of the alleged
cause for withdrawal of a guilty plea and the filing of a motion under Crim.R. 32.1
is a factor adversely affecting the credibility of the movant and militating against
the granting of the motion.’ ” State v. Bush, 96 Ohio St. 3d 235, 2002-Ohio-3993,
¶ 14, quoting State v. Smith, 49 Ohio St. 2d 261 (1977), at paragraph three of the
1
In his appellate brief, Alonzo’s attorney claims that Alonzo was deported to Mexico on July 7, 2015.
Other than the assertion made by counsel there is no documentation or other evidence to support this claim.
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syllabus. Thus, the lengthy delay and the lack of evidence provided in support of
his motion casts serious doubt on Alonzo’s claim that his plea was not knowingly,
intelligently, and voluntarily made, and suggests that the motion to withdraw was
sought only in an effort to avoid the alleged immigration consequences of his plea.
{¶23} For all these reasons, we conclude that the trial court did not abuse
its discretion in overruling Alonzo’s motion on the basis that he failed to
demonstrate he was entitled to vacate his plea under R.C. 2943.031(A) and
Crim.R. 32.1. Accordingly, the first assignment of error is overruled.
Failure to Conduct an Evidentiary Hearing
{¶24} Finally, we address the issue of the trial court’s failure to hold a
hearing. In Francis, which addressed an appeal from the trial court’s denial of the
defendant’s motion to withdraw pursuant to R.C. 2943.031, the Supreme Court of
Ohio determined:
[A]s a general rule, in the absence of specific requirements to the
contrary, decisions as to whether to hold a hearing and as to
whether to explain reasons for a ruling are matters entrusted to
the sound discretion of the trial court. Sometimes, a trial court’s
explanation of the reasons underlying the decision to deny the
motion will illuminate why a hearing was not necessary.
Sometimes, the record will reveal the reasons for denial with
sufficient clarity to show that it was not error to fail to hold a
hearing or to specify the reasons for denial. We simply find that,
in this case, the combination of a failure to hold a hearing and a
failure to explain the reasoning are so significant that appellate
review is impossible and that further proceedings by the trial
court are necessary.
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Id. at ¶ 56. Here, the trial court clearly explained its reasons for overruling the
motion in its judgment entry. Moreover, the lack of evidence in the record to
support Alonzo’s unsworn assertions makes it readily apparent that no hearing is
warranted here, as Alonzo failed to meet his burden and withdrawal of the plea is
not required. “Where the defendant fails to ‘carry his burden of presenting facts
from the record or supplied through affidavit that establish manifest injustice or
warrant a hearing,’ we are not required to permit withdrawal of the plea or to hold
a hearing.” State v. Muhumed, 10th Dist. Franklin No. 2012-Ohio-6155, ¶ 47
(applying the same standard to cases involving the request to vacate a plea under
R.C. 2943.031(A)); quoting State v. Garcia, 10th Dist. Franklin No. 08AP–224,
2008-Ohio-6421, ¶ 15. Therefore, we conclude that the trial court did not err
when it chose not to conduct a hearing on Alonzo’s motion to withdraw his no
contest pleas. Accordingly, the second assignment of error is overruled.
{¶25} For all these reasons, the judgment is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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