State v. Lopez-Tolentino ( 2019 )

[Cite as State v. Lopez-Tolentino, 2019-Ohio-4778.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-280
v. : (C.P.C. No. 16CR-2160)
Juan Lopez-Tolentino, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on November 21, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
Prichard, for appellee.
On brief: Juan Lopez-Tolentino, pro se.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Juan Lopez-Tolentino, appeals from the April 17, 2019
judgment of the Franklin County Court of Common Pleas denying his motion to withdraw
guilty plea. For the reasons that follow, we affirm.
I. Facts and Procedural History
{¶ 2} By way of indictment filed April 20, 2016, appellant was indicted on four
counts of rape, in violation of R.C. 2907.02, all felonies of the first degree, and one count of
kidnapping, in violation of R.C. 2905.01, a felony of the first degree. On November 6, 2017,
appellant entered pleas of guilty to four stipulated lesser-included offenses of the rape
charges: three counts of sexual battery, in violation of R.C. 2907.03, all felonies of the third
degree, and one count of attempted sexual battery, in violation of R.C. 2923.02, as it relates
to R.C. 2907.03, a felony of the fourth degree. Plaintiff-appellee, State of Ohio, entered a
nolle prosequi as to the kidnapping count. The court ordered and received a pre-sentence
No. 19AP-280 2
investigation. On November 27, 2017, the trial court held a sentencing hearing. The
prosecutor and appellant's attorney jointly recommended a sentence of six and one-half
years' incarceration. The court imposed two years each as to Counts 1, 2, and 3; and six
months as to Count 4 to be served consecutively to each other for a total of six and one-half
years. No appeal was taken from the judgment.
{¶ 3} On April 10, 2019, appellant filed a motion to withdraw guilty pleas. Therein,
appellant argued: (1) although he had a court-appointed interpreter, there is "no record
evidence to support that [appellant] heard the procedures in a language that he
understood," (2) the "sworn statement" of the interpreter is not sufficient to determine
appellant did in fact understand the consequences of his pleas, (3) there is no clear evidence
on the record that the interpreter properly translated Spanish into English and English into
Spanish, (4) had appellant known the three sexual battery offenses and attempted sexual
battery offense "may/is" of similar import, he would not have entered guilty pleas and
would have instead elected to have a jury trial, and (5) the same offenses were allied
offenses.
{¶ 4} On April 17, 2019, the trial court denied appellant's motion with a succinct
entry stating appellant's motion was "not well-taken." Appellant timely filed a notice of
appeal on April 30, 2019.
II. Assignments of Error
{¶ 5} Appellant appeals and assigns the following four assignments of error for our
review:
I. The trial court erred and abused its discretion when it
knowingly or not accepted the blatant lie made by the State's
memorandum contra defendant motion to withdraw guilty
plea.
II. The trial court erred when it entered judgment against the
defendant for allied offenses.
III. The trial court erred and abused its discretion/depriving
a fair post-sentence hearing due to prosecutorial misconduct.
IV. The trial-court erred when denied effective assistant of
counsel.
(Sic passim.)
No. 19AP-280 3
III. Analysis
{¶ 6} Crim.R. 32.1 provides:
A motion to withdraw a plea of guilty or no contest may be
made only before sentence is imposed; but to correct manifest
injustice the court after sentence may set aside the judgment
of conviction and permit the defendant to withdraw his or her
plea.
{¶ 7} "Manifest injustice relates to some fundamental flaw in the proceedings
which result[s] in a miscarriage of justice or is inconsistent with the demands of due
process." State v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶ 5. " '[I]t is clear
that under such standard, a postsentence withdrawal motion is allowable only in
extraordinary cases.' " State v. Gripper, 10th Dist. No. 10AP-1186, 2011-Ohio-3656, ¶ 7,
quoting State v. Smith, 49 Ohio St. 2d 261, 264 (1977). A defendant seeking to withdraw a
post-sentence guilty plea bears the burden of establishing manifest injustice based on
specific facts either contained in the record or supplied through affidavits attached to the
motion. State v. Orris, 10th Dist. No. 07AP-390, 2007-Ohio-6499.
{¶ 8} A motion to withdraw a guilty plea after sentence is addressed to the sound
discretion of the trial court, and the trial court's judgment will not be reversed absent a
demonstration of abuse of discretion in concluding no manifest injustice occurred. State
v. Marable, 10th Dist. No. 03AP-97, 2003-Ohio-6653, ¶ 9; State v. Boyd, 10th Dist. No.
97APA12-1640 (Oct. 22, 1998). In order to find the trial court abused its discretion, we
must find more than an error of law or judgment. An abuse of discretion implies that the
court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
Ohio St. 3d 217, 219 (1983).
{¶ 9} " 'Although a trial court must conduct a hearing to determine whether there
is a reasonable and legitimate basis for the withdrawal of a guilty plea if the request is made
before sentencing, * * * the same is not true when the request is made after the trial court
has already sentenced the defendant.' " Orris at ¶ 9, quoting State v. Whiteman, 11th Dist.
No. 2001-P-0096, 2003-Ohio-2229, ¶ 19. Where the trial court considers a post-sentence
motion to withdraw a guilty plea, it must conduct a hearing only " 'if the facts alleged by the
defendant and accepted as true would require the trial court to permit withdrawal of the
plea.' " Id., quoting Whiteman at ¶ 19; State v. Lake, 10th Dist. No. 95APA07-847 (Mar. 28,
1996) Thus, "if the defendant fails to submit evidence containing sufficient operative facts
No. 19AP-280 4
to demonstrate that his plea was not entered into knowingly and voluntarily, and the record
indicates that the defendant is not entitled to relief, the trial court may dismiss the motion
without a hearing." Whiteman at ¶ 20, quoting State v. Kerns, 11th Dist. No. 99-T-0106,
(July 14, 2000).
{¶ 10} Appellant's request to withdraw his guilty pleas and this appeal suffer from a
number of deficiencies. First, we note the second assignment of error regarding allied
offenses and merger should have been raised in a direct appeal. Likewise, the fourth
assignment of error should have been raised either in a direct appeal or a petition for
postconviction relief depending on the allegation of ineffective assistance (which appellant
does not articulate in his brief except to point to the cumulative effects of the other
assignments of error).
{¶ 11} Second, as to the first and third assignments of error, the record indicates
that, on July 5, 2018, the court reporter requested the court pay the fees for transcription
of the November 6 and 27, 2017 plea and sentencing hearings and that appellant, or his
attorney, had requested the same and was an indigent person. Nevertheless, although
appellant insists he did attach a transcript as an exhibit to his post-sentence motion to
withdraw guilty pleas, the record contains no transcript of the plea or sentencing hearings.
Therefore, the information in the record about appellant's guilty pleas comes in large part
from the entry of guilty plea form, which reflects that both appellant and his counsel signed
the form explicitly describing the charges to which appellant agreed to plead guilty, the
range of possible punishments, and the joint recommendation of the prosecutor and
appellant's attorney. The entry of guilty plea form also reflects appellant understood the
important and substantial constitutional, statutory, and procedural rights he was waiving
by entering the guilty pleas, and was freely and voluntarily exercising his own will and best
judgment. The form further reflects appellant's attorney attested, in her opinion, that in
entering the pleas, appellant was acting knowingly, voluntarily, and intelligently in such
matter. The record also contains a notice of prison imposed form which was signed by
appellant and his attorney informing appellant of the postrelease control consequences.
No. 19AP-280 5
{¶ 12} As to appellant's allegations regarding the interpreter and the interpretation
of the court's colloquy, without a transcript1 we are not able to determine if the court
followed R.C. 2311.14, Rules 603, 604, and 702 of the Ohio Rules of Evidence, and Rule 88
of the Supreme Court of Ohio Rules of Superintendence in determining whether an
interpreter was required, and, if so, in qualifying, appointing, and placing under oath an
interpreter. As there is no transcript, we must presume regularity. "[W]here there is no
transcript submitted on appeal, '[t]here is a presumption that the trial court proceedings
were validly conducted. Absent a complete transcript or an acceptable alternative (such as
is described in App.R. 9(C)), we must presume that the trial court's decision is correct."
Barksdale v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 16AP-297, 2017-Ohio-395, ¶ 17,
quoting Jenkins v. State Farm Mut. Auto. Ins. Co., 10th Dist. No. 11AP-1074, 2013-Ohio-
1142, ¶ 30.
{¶ 13} We do note, however, the record indicates that on September 7, 2016, the
court appointed an interpreter and placed her under oath; on August 29, 2017, the court
appointed an interpreter and placed her under oath; on November 6, 2017 (the date of the
plea hearing), the court appointed an interpreter and placed her under oath; and on
November 27, 2017 (the date of the sentencing hearing), the court appointed an interpreter
and placed him under oath.
{¶ 14} Finally, we have previously held the law does not require a transcript include
non-English versions of testimony. State v. Noor, 10th Dist. No. 13AP-165, 2014-Ohio-
3397, ¶ 75-76. In State v. Vu, 10th Dist. No. 09AP-606, 2010-Ohio-4019, ¶ 27, where a
defendant suggested the transcripts were inadequate because they only included the
English version of the testimony, we observed:
1 Appellant attached a copy of a transcript to his appellate brief. At the top right hand corner of the copy it
states: "* *COPY – NOT FOR FILING* *." Furthermore, the copy is not signed or certified by the court reporter
as a "true, correct, and complete transcript." Therefore, we cannot accept the transcript as part of the record.
The transcript reveals, however, there was an interpreter "duly sworn" present at the plea hearing and the
interpreter was "provisionally qualified" for the State of Ohio. Rule 80(H) of the Supreme Court of Ohio Rules
of Superintendence define the term "[p]rovisionally qualified foreign language interpreter" as "a foreign
language interpreter who has received provisional certification from the Supreme Court Language Services
Program pursuant to Sup.R. 81(G)(3)." Rule 81(G)(3) states that "[a]n applicant who receives a score of less
than seventy percent but at least sixty percent in each of the sections of the oral examination shall receive
provisional certification from the program and be styled a 'provisionally qualified foreign language
interpreter.' The applicant may maintain provisional certification for up to thirty-six months following the
examination. If the applicant fails to receive an overall score of at least seventy percent in the sections of the
examination within this time frame, the provisional certification of the applicant shall cease." The transcript
also reveals there was an interpreter "duly sworn" present at the sentencing hearing.
No. 19AP-280 6
Appellant also suggests the transcripts are inadequate
because they consist only of the English version of the
testimony. We, however, are not aware of any requirement
that the transcript include non-English, in this case
Vietnamese, versions of the testimony, particularly in light of
the fact that testimony is taken by a stenographer who may or
may not be conversant in non-English languages.
{¶ 15} Consistent with our statement in Vu, we are aware of no statute or rule
requiring testimony or other trial proceedings occurring in a foreign language be
electronically recorded. Furthermore, appellant has not provided us, nor are we aware of,
any authority supporting the proposition that due process imposes such a requirement.
{¶ 16} Accordingly, for the foregoing reasons, we overrule appellant's first, second,
third, and fourth assignments of error.
IV. Conclusion
{¶ 17} Having overruled appellant's four assignments of error, we hereby affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER and BRUNNER, JJ., concur.