Cleveland v. Hernandez ( 2019 )

[Cite as Cleveland v. Hernandez, 2019-Ohio-255.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 107506
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
VANESSA HERNANDEZ
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cleveland Municipal Court
Case No. 2016 TRC 001927
BEFORE: Keough, J., S. Gallagher, P.J., and Handwork, J.*
RELEASED AND JOURNALIZED: January 24, 2019
ATTORNEYS FOR APPELLANT
Dominic J. Vitantonio
Argie, D’Amico & Vitantonio
6449 Wilson Mills Road
Cleveland, Ohio 44143
Marcus S. Sidoti
Jordan & Sidoti
50 Public Square
Terminal Tower, Suite 1900
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry
City of Cleveland Law Director
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114
Karrie D. Howard
Chief Prosecutor
City of Cleveland
By: Angela Rodriguez
Michael S. Kan
James H. Hewitt, III
Mark M. Jablonski
Assistant City Prosecutors
1200 Ontario Street, 8th Floor
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} This appeal is before the court on the accelerated docket pursuant to App.R. 11.1
and Loc.App.R. 11.1. The purpose of an accelerated appeal is to allow this court to render a
brief and conclusory opinion. State v. Priest, 8th Dist. Cuyahoga No. 100614, 2014-Ohio-1735,
¶ 1.
{¶2} In 2016, defendant-appellant, Vanessa Hernandez, a non-U.S. citizen, pleaded no
contest to and was convicted of operating a motor vehicle while under the influence of alcohol or
drugs, in violation of Cleveland Codified Ordinances 433.01(A)(1). In June 2018, Hernandez
filed an emergency motion to withdraw plea and vacate conviction, contending that the trial court
failed to advise her at the time of her plea, in accordance with R.C. 2943.031(A), that her guilty
plea could have a negative impact on her immigration status.1
{¶3} During the hearing on Hernandez’s motion, the trial court stated that it was not the
court’s responsibility to determine if a defendant is a United States citizen. (Tr. 5-6.) The
court’s journal entry denying the motion stated: “at the time of the plea, [counsel] never stated
[that] his client was not a U.S. Citizen. Therefore, the court [would] have [had] no reason to
advise defendant of potential deportation pursuant to [R.C.] 2943.031(A).”
{¶4} Hernandez now appeals, raising as her sole assignment of error that the trial court
erred in denying her motion to withdraw her plea and vacate her conviction.
{¶5} R.C. 2943.031(A) requires a trial court to give the following advisement to all
defendants entering either a guilty plea or a plea of no contest:
If you are not a citizen of the United States, you are hereby advised that conviction
of the offense to which you are pleading * * * 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 exceptions are if the defendant states orally on the record that he is a U.S. citizen or
signs a written plea form stating he is a citizen. R.C. 2943.031(B). Neither happened in this
1
Hernandez was born in El Salvador and entered the United States without inspection in 2006 at the age of 11. In
2012, Hernandez qualified for and was granted Deferred Action for Childhood Arrivals (“DACA”) status by U.S.
Citizenship and Immigration Services.
case. When a trial court accepts a plea from a foreign citizen without providing the necessary
advisement, the defendant may seek to withdraw his plea. R.C. 2943.031(D).
{¶6} Pursuant to the plain and unambiguous language of R.C. 2943.031, the trial court,
upon motion, shall set aside a conviction and allow the defendant to withdraw his guilty plea if
the following four requirements are met: (1) the court failed to provide the advisement
described in the statute; (2) the advisement was required to be given; (3) the defendant is not a
citizen of the United States; and (4) the offense to which the defendant pleaded guilty may result
in the defendant being subject to deportation, exclusion, or denial of naturalization under federal
immigration laws. The Ohio Supreme Court has held that timeliness of the motion to withdraw
the plea is also a consideration in determining whether a defendant may withdraw a plea after
sentencing under R.C. 2943.031. State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820
N.E.2d 355, ¶ 40-43 (timeliness is a consideration; not a sole justification for denial).
{¶7} In this case, the trial court did not rule on the merits of Hernandez’s motion, but
denied the motion on the sole basis that it was not the trial court’s responsibility to determine
whether Hernandez was a United States citizen.2 As previously discussed, this conclusion is in
error — R.C. 2943.031 requires the trial court to advise all defendants prior to accepting a guilty
or no contest plea of the potential immigration consequences of the plea. Accordingly, we
sustain the assignment of error, reverse the trial court’s decision, and remand for further
proceedings to apply the factors in R.C. 2943.031(D) in deciding Hernandez’s motion on the
merits.
2
This court notes that Hernandez’s booking card and information sheet that were filled out following her arrest, are a
part of the trial court record. The booking information sheet indicates that Hernandez was born in El Salvador.
Additionally, the presentence investigation report included information that Hernandez (1) came to the United States
at age 12, (2) is in the United States on a working permit, and (3) “is not a citizen.”
{¶8} We agree with the Second District’s advisement regarding plea colloquies:
Certainly the best practice is to ask all defendants routinely as part of the Crim.R.
11 dialogue, “Are you a citizen of the United States?” First, this is required by
R.C. 2943.031; second, the few seconds it takes to ask might well save hours of
lawyer and court time down the road (e.g., in addressing motions to withdraw
pleas or appeals for ineffective assistance of counsel; see Padilla [* * *]); third, it
will go a long way toward ensuring that a defendant’s decision to plead to a
particular charge is knowing, voluntary and intelligent. Moreover, by asking all
defendants, the court will avoid even the appearance that defendants are being
treated differently because the court assumes that “certain stereotypical attributes”
constitute alien status. See, e.g., Castillo, A Duty to Warn: Representing a
Non-Citizen in a Criminal Case, 44 Washburn L.J. 627, 647 (Spring 2005).
State v. Duplessis, 2d Dist. Clark No. 2009 CA 101, 2010-Ohio-4920, ¶ 10.
{¶9} Although not raised as an assignment of error or ground for withdrawal of plea, this
court questioned whether the trial court complied with R.C. 2937.06, 2937.07, and Traf.R. 10 by
entering a finding of guilt without (1) addressing Hernandez personally; (2) requesting or
receiving a formal plea from Hernandez; and (3) requesting or receiving an explanation of
circumstances at the time of the plea. This court, sua sponte, had the parties brief these issues
and what effect these omissions may have on Hernandez’s plea.
{¶10} The city concedes that the trial court did not request a formal plea from Hernandez
thus requiring reversal of her plea. See Cleveland v. Chappell, 8th Dist. Cuyahoga No. 104739,
2017-Ohio-4070 (defendant must expressly tender no contest plea; not attorney); but see State v.
Harvey, 3d Dist. Allen No. 1-09-48, 2010-Ohio-1627 (attorney entering plea for defendant
upheld where the record is clear that the defendant acquiesced in attorney’s oral pronouncement).
The city further concedes that the trial court did not request or receive an explanation of
circumstances prior to entering a finding of guilty thus also requiring reversal of her plea. See
Berea v. Moorer, 2016-Ohio-3452, 55 N.E.3d 1186 (8th Dist.).3 Accordingly, these omissions
would be further grounds for allowing Hernandez to withdraw her plea.
{¶11} Judgment reversed and remanded for further proceedings consistent with this
opinion.
It is ordered that appellant recover from appellee 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 Cleveland
Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
SEAN C. GALLAGHER, P.J., and
PETER M. HANDWORK, J.,* CONCUR
*(Sitting By Assignment: Judge Peter M. Handwork, retired, of the Sixth District Court of
Appeals).
3
The city correctly states that the Ohio Supreme Court recently held that double jeopardy does not attach to these
procedural errors. Girard v. Giordano, Slip Opinion No. 2018-Ohio-5024 (failure to provide an explanation of
circumstances does not invoke the principles of double jeopardy because the explanation-of-circumstances
requirement is merely a procedural protection; not a sufficiency-of-the-evidence defect).