State v. Villavicencio , 2014 Ohio 1522 ( 2014 )

[Cite as State v. Villavicencio, 2014-Ohio-1522.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100367
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOSELITO VILLAVICENCIO
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-99-383407
BEFORE: Boyle, A.J., Keough, J., and Blackmon, J.
RELEASED AND JOURNALIZED: April 10, 2014
ATTORNEY FOR APPELLANT
Smaragda Karakoudas
P.O. Box 110152
Cleveland, Ohio 44111
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:
{¶1} Defendant-appellant, Joselito Villavicencio, appeals from the trial court’s
decision denying his postsentence motion to withdraw his guilty plea. Finding no merit
to the appeal, we affirm.
Procedural History and Facts
{¶2} In September 1999, Villavicencio was indicted with felonious assault and
kidnapping. Villavicencio ultimately reached a plea agreement with the state where he
pleaded guilty to an amended charge of attempted felonious assault and domestic
violence. The trial court subsequently imposed a sentence of two years of community
controlled sanctions, and his probation was terminated on December 3, 2001.
{¶3} Approximately 11 years later, on February 20, 2013, Villavicencio moved
to withdraw his guilty plea on the grounds that (1) there was no Spanish interpreter
present during his plea hearing, which precluded him from understanding the legal import
of his guilty plea, and (2) the trial court failed to advise him of the immigration
consequences of his guilty plea as required under R.C. 2943.031(D). In support of his
motion, Villavicencio argued that he is a citizen of El Salvador and that he did not
understand what the trial judge was saying at the plea hearing.
{¶4} The state opposed the motion, arguing that the motion was untimely and
that the trial court had no duty to provide a translator because Villavicencio never
requested one, nor did the proceedings indicate that one was necessary. The state further
argued that the trial court was not required to provide the advisement regarding the
immigration consequences because Villavicencio stated that he was a citizen of the
United States. In support of its brief in opposition, the state offered an affidavit of
Vincent Holland, chief probation officer of the Cuyahoga County adult probation
department. According to Holland, the two probation officers that worked with
Villavicencio have since left the probation department. Holland further averred that
neither of the officers were Spanish-speaking; that one of the probation officers
conducted a presentence investigation and prepared a report regarding Villavicencio; that
Spanish-speaking probation officers were available whenever necessary or requested; and
that the Villavicencio’s records do not indicate the existence of any language barrier.
According to Villavicencio’s records, he reported that he was born in El Salvador but a
citizen of the United States.
{¶5} The trial court held a telephone-evidentiary hearing on the motion and had a
Spanish translator present.1 The trial court first heard from Villavicencio, who testified
that, at his plea hearing, he did not understand what the judge meant when she said the
word “citizen.” According to Villavicencio, he thought that “she meant I reside in
Cleveland.” Villavicencio further testified that he was born in El Salvador and is a
citizen of that country. On cross-examination, Villavicencio stated that he first became
aware of his misunderstanding in 2001 and the fact that he should not have pled guilty.
{¶6} The state presented testimony from Villavicencio’s former trial counsel —
John Luskin, who had represented Villavicencio in the underlying case. According to
At the time of the hearing, Villavicencio was being held by the United States
1
Luskin, he has been a licensed attorney for 18 years and it is his practice to call upon an
interpreter when he has a client whose primary language is Spanish. Luskin further
testified that he reviewed the transcript from Villavicencio’s plea hearing and, although
he did not “specifically recall the client,” he did not recall any difficulty that had occurred
at the plea hearing. Luskin also testified that, according to the plea transcript, he did not
have any trouble understanding Villavicencio nor did he ever suspect Villavicencio not
understanding the proceedings.
{¶7} The trial court subsequently issued a detailed opinion, denying
Villavicencio’s motion to withdraw his guilty plea.
{¶8} Villavicencio now appeals, raising the following six assignments of error:
I. The lower court erred and abused its discretion by failing to grant
defendant Joselito’s motion to withdraw his guilty pleas pursuant to O.R.C.
2943.01(D).
II. The failure to give defendant Joselito the proper advisal [sic]
under O.R.C. 2943.031(D) is a clear violation of due process.
III. The failure to provide defendant Joselito with a Spanish
interpreter is a violation of due process and prevented defendant from
making a knowing, intelligent, and voluntary plea.
IV. The failure to provide defendant Joselito with a Spanish
interpreter is a violation of his constitutional right to confront his accuser
and/or witnesses.
V. The failure to provide defendant with an interpreter violated his
constitutional rights to a full and fair hearing.
VI. Defendant Joselito has suffered a manifest injustice as a result
of the failure to receive the proper advisal [sic] as required by law.
marshals in East Hidalgo, Texas.
{¶9} Because these assignments of error involve the same application of facts
and law, we will address them together where appropriate.
R.C. 2943.031
{¶10} In the first and second assignments of error, Villavicencio argues that the
trial court failed to provide the advisement contained in R.C. 2943.031(A) relating to the
immigration consequences of his guilty plea, and therefore the trial court should have
vacated his plea as required under R.C. 2943.031(D). He further argues in his third
assignment of error that the failure to provide the advisement prevented him from making
a knowing, intelligent, and voluntary plea.
{¶11} R.C. 2943.031(A) requires a trial court to specifically advise non-citizen
defendants entering either a guilty or no contest plea that their conviction “may have the
consequences of deportation, exclusion from the admission to the United States, or denial
of naturalization.”
{¶12} While the standard of review for a postsentence motion under Crim.R. 32.1
is subject to the manifest injustice standard, this standard does not apply to plea
withdrawal motions filed pursuant to R.C. 2943.031(D). State v. Aquino, 8th Dist.
Cuyahoga No. 99971, 2014-Ohio-118, ¶ 13, citing State v. Francis, 104 Ohio St.3d 490,
2004-Ohio-6894, 820 N.E.2d 355, ¶ 26.
R.C. 2943.031(D) requires that a trial court set aside a judgment of
conviction and allow a defendant to withdraw his guilty plea if the
defendant demonstrates: (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 guilty may result in deportation under the
immigration laws of the federal government.
State v. Weber, 125 Ohio App.3d 120, 126, 707 N.E.2d 1178 (10th Dist.1997),
citing R.C. 2943.031(D).
{¶13} We review a trial court’s decision regarding a motion to withdraw a guilty
plea on R.C. 2943.031(D) grounds under an abuse of discretion. The Ohio Supreme
Court has explained that “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,” then “the trial court
must exercise its discretion in determining whether the statutory conditions are met,” and
finally “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).” Francis at ¶ 36.
{¶14} The requirement to vacate a guilty plea under R.C. 2943.031(D), however,
does not apply if the “defendant affirmatively has indicated either in writing or orally on
the record that he or she is a citizen of the United States.” Id. at ¶ 20, citing R.C.
2943.031(B). The statute provides as follows:
(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 that question in the affirmative;
(2) The defendant states orally on the record that he is a citizen of the
United States.
Id.
{¶15} The record reveals that Villavicencio stated to the trial court that he was a
United States citizen at the time of the plea hearing. As a result of his representation, the
trial court was not required to advise Villavicencio of the effect of his plea regarding his
status in the United States. Nor does R.C. 2943.031(D) provide any grounds for
Villavicencio to withdraw his guilty plea under such circumstances. Francis at ¶ 20; see
also Aquino, 8th Dist. Cuyahoga No. 99971, 2014-Ohio-118, at ¶ 18.
{¶16} Villavicencio’s reliance on the Seventh District’s decision in State v.
Lucente, 7th Dist. Mahoning No. 03MA216, 2005-Ohio-1657, is misplaced. In Lucente,
the defendant, unlike Villavicencio, informed the trial court that he was not a citizen of
the United States and therefore was entitled to the R.C. 2943.031(A) advisement prior to
entering his plea. The trial court’s failure to substantially comply with R.C.
2943.031(A), coupled with the timeliness of Lucente’s motion to withdraw his plea,
warranted the vacation of Lucente’s guilty plea. Id. at ¶ 52.
{¶17} But here, because Villavicencio represented that he was a United States
citizen, the trial court was not required to give any advisement regarding the immigration
consequences of his guilty plea. Accordingly, the trial court did not abuse its discretion
in denying the motion to withdraw the guilty plea on R.C. 2943.031(D) grounds.
{¶18} The first, second, and third assignments of error are overruled.
Manifest Injustice and Application of State v. Kiss
{¶19} Villavicencio also argues in his remaining assignments of error that the trial
court abused its discretion in failing to vacate his plea where a manifest injustice has
occurred. Specifically, he argues that “he did not understand the legal import of what the
[trial] judge was saying to him” because a Spanish translator was not present for the plea
hearing and that failure to provide a Spanish translator deprived him of due process and
prevented him from entering a knowing, intelligent, and voluntary plea.
{¶20} Under Crim.R. 32.1, a defendant who attempts to withdraw a guilty plea
after sentence has been imposed bears the burden of demonstrating a manifest injustice.
State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus.
This court has explained:
[a] manifest injustice is defined as a “clear or openly unjust act,
extraordinary and fundamental flaw in the plea proceeding.” Again,
“manifest injustice” comprehends a fundamental flaw in the path of justice
so extraordinary that the defendant could not have sought redress from the
resulting prejudice through another form of application reasonably available
to him or her.
(Citations omitted.) State v. Sneed, 8th Dist. Cuyahoga No. 80902, 2002-Ohio- 6502, ¶
13.
{¶21} “A motion made pursuant to Crim.R. 32.1 is addressed to the sound
discretion of the trial court, and the good faith, credibility and weight of the movant’s
assertions in support of the motion are matters to be resolved by that court.” Smith, at
paragraph two of the syllabus. Thus, our review is limited such that we cannot reverse
the trial court’s denial of the motion unless we find that the ruling was an abuse of
discretion. Id.{¶22} Villavicencio contends that this court’s decision in State v. Kiss, 8th Dist.
Cuyahoga Nos. 91353 and 91354, 2009-Ohio-739, is directly on point and compels
reversal of the trial court’s decision. We disagree.
{¶23} In Kiss, the defendant filed a postsentence motion to withdraw his guilty
pleas, requested an evidentiary hearing, and attached an affidavit, which averred that at
the time of the pleas, he barely spoke English, he did not have a translator, and he did not
understand the proceedings. Kiss at ¶ 12. The defendant further averred as to problems
that he had with immigration officials and his efforts to apply for citizenship after he had
served his prison term. Id. The trial court, however, denied the motion without an
evidentiary hearing and without stating the basis for its denial.
{¶24} In reversing the trial court, this court held that Kiss’s affidavit established
the possibility of a manifest injustice, and therefore the trial court should have held an
evidentiary hearing on the motion. Id. at ¶ 18. And although Kiss’s motion was filed 48
years after his guilty plea was entered, this court recognized that timeliness was only one
factor to consider and that the lack of an evidentiary hearing precluded any meaningful
review of “whether the delay was ‘reasonable’ under the circumstances of Kiss’s case.”
Id. at ¶ 13 and 18.
{¶25} Contrary to Villavicencio’s assertion, this court did not order that Kiss’s
guilty plea be vacated. Instead, this court remanded the case for an evidentiary hearing.
Id. In this case, the trial court’s actions are consistent with the holding in Kiss; it held an
evidentiary hearing on Villavicencio’s motion to withdraw his guilty pleas in light of the
assertions made in his motion.
{¶26} And based on the evidence presented at the evidentiary hearing, we find no
abuse of discretion in the trial court’s denial of Villavicencio’s motion to withdraw his
guilty plea. The transcript of Villavicencio’s plea hearing, the testimony of Luskin, and
the affidavit of Holland, all weighed against Villavicencio’s self-serving claim that he
needed a translator at the plea hearing. The record simply does not support
Villavicencio’s claim of manifest injustice or that his due process rights were violated.
{¶27} Moreover, Villavicencio acknowledged at the evidentiary hearing that he
became aware of his misunderstanding of the word “citizen” in 2001; yet, he waited until
12 years later to file his motion to withdraw. Villavicencio, however, offered no
evidence at the evidentiary hearing to explain his delay. As this court has previously
recognized, “‘an undue delay between the occurrence of the alleged cause for withdrawal
and the filing of the motion is a factor adversely affecting the credibility of the movant
and militating against the granting of the motion.’” State v. Spencer, 8th Dist. Cuyahoga
No. 92992, 2010-Ohio-667, ¶ 9, quoting Smith, 49 Ohio St.2d 261 at 264, 361 N.E.2d
1324.
{¶28} We find no abuse of discretion in the trial court’s denial of Villavicencio’s
postsentence motion to withdraw his guilty plea. The fourth, fifth, and sixth assignments
of error are overruled.
{¶29} Judgment affirmed.
It is ordered that appellee recover of appellant 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.
MARY J. BOYLE, ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., and
PATRICIA ANN BLACKMON, J., CONCUR