State v. Hernandez ( 2020 )


Menu:
  •       [Cite as State v. Hernandez, 
    2020-Ohio-5496
    .]
    IN THE COURT OF APPEALS
    FIRST APPELLATE DISTRICT OF OHIO
    HAMILTON COUNTY, OHIO
    STATE OF OHIO,                                 :      APPEAL NO. C-190698
    TRIAL NO. B-9704868A
    Plaintiff-Appellee,                      :
    vs.                                      :
    O P I N I O N.
    JOSE HERNANDEZ,                                :
    Defendant-Appellant.                     :
    Criminal Appeal From: Hamilton County Court of Common Pleas
    Judgment Appealed From Is: Affirmed
    Date of Judgment Entry on Appeal: December 2, 2020
    Joseph T. Deters, Hamilton County Prosecuting Attorney, Melynda J. Machol,
    Assistant Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting
    Attorney, for Plaintiff-Appellee,
    McKinney & Namei Co., L.P.A., and Sarah C. Larcade, for Defendant-Appellant.
    OHIO FIRST DISTRICT COURT OF APPEALS
    CROUSE, Judge.
    {¶1}   In January 1998, defendant-appellant Jose Hernandez pled guilty to
    repeatedly raping his stepdaughter and entered into an agreed sentence of five to 25
    years in prison. In July 2019, he filed a motion to withdraw his guilty plea and/or
    vacate his conviction on the basis that the trial court failed to advise him of the
    possible immigration-related consequences of his plea. The trial court denied the
    motion.
    {¶2}   He has appealed, arguing in one assignment of error that the trial
    court erred in denying his motion since no R.C. 2943.031 advisement was given at
    the time of his plea.     For the reasons discussed below, we overrule the sole
    assignment of error and affirm the judgment of the trial court.
    The R.C. 2943.031 Advisement
    {¶3}   Trial courts are required to advise a defendant of possible immigration
    consequences before accepting a guilty plea, unless the defendant states on the
    record or in writing that he is a United States citizen. R.C. 2943.031(B).
    (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 * * *, 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,
    2
    OHIO FIRST DISTRICT COURT OF APPEALS
    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.”
    ***
    (D) 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 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.
    R.C. 2943.031.
    {¶4}   The state concedes that the four factors listed in R.C. 2943.031(D)
    have been met, but argues that Hernandez’s motion to withdraw his guilty plea was
    properly denied because he failed to demonstrate prejudice and the motion was
    untimely.
    {¶5}   An appellate court reviews a trial court’s decision on a motion to
    withdraw a plea pursuant to R.C. 2943.031 under an abuse-of-discretion standard.
    State v. Francis, 
    104 Ohio St.3d 490
    , 
    2004-Ohio-6894
    , 
    820 N.E.2d 355
    , ¶ 32. “The
    exercise of discretion we discuss applies to the trial court’s decision on whether the
    R.C. 2943.031(D) elements have been established (along with the factors of
    3
    OHIO FIRST DISTRICT COURT OF APPEALS
    timeliness and prejudice discussed below), not generally to the trial court’s discretion
    once the statutory provisions have been met.” (Emphasis sic.) Id. at ¶ 34.
    {¶6}     Despite the fact that the General Assembly did not include a timeliness
    provision in R.C. 2943.031, the Francis court held that the timeliness of the
    defendant’s motion to withdraw his guilty plea should be considered. Id. at ¶ 40. The
    court stated:
    The more time that passes between the defendant’s plea and the filing of
    the motion to withdraw it, the more probable it is that evidence will
    become stale and that witnesses will be unavailable. The state has an
    interest in maintaining the finality of a conviction that has been
    considered a closed case for a long period of time. It is certainly
    reasonable to require a criminal defendant who seeks to withdraw a plea
    to do so in a timely fashion rather than delaying for an unreasonable
    length of time.
    Id.
    {¶7}     The Francis court held that in weighing untimeliness, a court must
    consider the facts of the case, such as when the immigration-related consequences of
    the plea became known to the defendant. Id. at ¶ 42.
    {¶8}     Hernandez contends that Francis did not state that timeliness should
    be considered in all circumstances. Rather, Hernandez contends that timeliness only
    becomes a consideration if there was some advisement regarding immigration
    consequences given at the plea hearing. Since there was no advisement given at his
    plea hearing, Hernandez argues that timeliness is not a factor that should be
    considered.
    4
    OHIO FIRST DISTRICT COURT OF APPEALS
    {¶9}    The state agrees that the trial court did not provide any immigration
    advisement whatsoever at the plea hearing. The state does not argue, and we do not
    find, substantial compliance, as there was no compliance by the trial court.
    Nevertheless, the state contends that timeliness is a factor we must consider even
    though the trial court did not give any immigration advisement.
    {¶10} We agree with the state that Francis made timeliness a factor, even for
    cases in which no advisement was given. While the facts of Francis demonstrated
    that some advisement was given, the court clearly stated that “[t]imeliness of the
    motion is just one of many factors that the trial court should take into account when
    exercising its discretion in considering whether to grant the motion.” Francis, 
    104 Ohio St.3d 490
    , 
    2004-Ohio-6894
    , 
    820 N.E.2d 355
    , at ¶ 40. Chief Justice Moyer’s
    concurrence seems to read the majority opinion similarly when he argued that the
    “holding * * * violates the plain language of R.C. 2943.031(D) * * * [because]
    timeliness of the filing of the motion is not among the statutory criteria.” 
    Id.
     at ¶ 59-
    60. The Chief Justice wrote, “While the state’s interest in finality is undeniable, we
    should not use the protection of that interest as a justification for disregarding the
    plain language of a statute.” Id. at ¶ 64.
    {¶11} Several other courts of appeals have agreed with our interpretation of
    Francis. See, e.g., State v. Walker, 
    2017-Ohio-511
    , 
    78 N.E.3d 922
    , ¶ 18 (10th Dist.)
    (“Other courts addressing Francis have found that timeliness is a factor to consider
    even when a trial court did not give any immigration advisement.”); State v. Alonzo,
    3d Dist. Seneca No. 13-15-26, 
    2016-Ohio-160
    , ¶ 19 (“[e]ven 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
    5
    OHIO FIRST DISTRICT COURT OF APPEALS
    R.C. 2943.031(A) advisement.”); State v. Lein, 8th Dist. Cuyahoga No. 103954,
    
    2016-Ohio-5330
    , ¶ 14 (defendant’s 20-year delay in filing a motion to withdraw his
    plea rendered it untimely even where the R.C. 2943.031(A) advisement was
    presumed not given); State v. Reyes, 12th Dist. Butler Nos. CA2015-06-113, CA2015-
    06-114 and CA2015-06-115, 
    2016-Ohio-2771
    , ¶ 24, (“based upon the particular
    circumstances of a case, a trial court may deny a motion to withdraw a plea filed
    pursuant to R.C. 2943.031(D) solely on the basis of timeliness.”).
    {¶12} Hernandez points us to State v. Kona, 
    148 Ohio St.3d 539
    , 2016-Ohio-
    7796, 
    71 N.E.3d 1023
    , ¶ 41, where the court held that since no R.C. 2943.031(A)
    advisement was given, the trial court erred in not granting the defendant’s motion to
    withdraw his guilty plea. However, the issue in Kona was whether the defendant’s
    admission of facts sufficient to establish guilt as part of a pretrial diversion program
    invoked the advisement requirement of R.C. 2943.031(A). Id. at ¶ 1. Timeliness was
    not raised by the state and was not discussed by the court. See id. at ¶ 13. Therefore,
    we cannot find that Kona either expressly or impliedly overruled Francis.
    {¶13} As an intermediate appellate court, we are, of course, bound to follow
    Supreme Court precedent. See Reyes at ¶ 21 (“It is axiomatic that a court of appeals
    must follow established Ohio Supreme Court precedent.”). Therefore, despite the
    fact that R.C. 2943.031(D) mentions nothing about timeliness, we find that pursuant
    to Francis, timeliness is a factor that must be considered in this case.
    {¶14} In his motion to withdraw his guilty plea, Hernandez claimed that (1)
    when he pled guilty he was under the impression that he would not be deported as a
    result of his plea; (2) the Ohio Parole Board was under the impression that he would
    6
    OHIO FIRST DISTRICT COURT OF APPEALS
    not be deported; and (3) the delay in filing his motion from December 2016 to July
    2019 was due to his attorney, not him.
    {¶15} First, there is abundant evidence demonstrating that although
    Hernandez was not read the R.C. 2943.031(A) advisement at his plea hearing, he was
    aware of the immigration-related consequences of his plea well before December
    2016. At the plea hearing, defense counsel stated, and Hernandez agreed, that they
    had spent “a lot of time * * * many hours” going over his guilty plea. Then, the
    following exchange occurred:
    THE COURT: Are there any other underlying agreements upon which the
    proposed plea is based other than what has been stated for the record?
    DEFENSE COUNSEL: There is not. In fact, I did inform him in addition,
    because of the nature of the charge, nature of the conviction * * * that he
    was subject to deportation. He is not a citizen of the United States. I want
    to make that clear also.
    {¶16} Furthermore, the prosecutor stated:
    We also [sic] dismissing what is called the sexual predator spec because
    in this particular instance, I don’t believe it is going to have any meaning,
    since it is certainly our understanding that when the defendant is
    convicted of a felony, he will be deported after he serves his time here,
    and he will never be in the United States to be subject to any kind of
    notification. So it has really no meaning, so we will dismiss the
    specification attached to count 1 also.
    {¶17} Second, Hernandez signed a written plea agreement prior to the
    hearing. The plea form asked, “Are you a citizen of the United States of America?”
    7
    OHIO FIRST DISTRICT COURT OF APPEALS
    Hernandez answered, “No.”       The plea form then recited the R.C. 2943.031(A)
    advisement. Hernandez signed at the bottom of the form. At the plea hearing, the
    court asked Hernandez if he had read the plea form, discussed it with defense
    counsel, understood its meaning, and signed it. Hernandez responded affirmatively.
    {¶18} Third, Ohio Department of Rehabilitation and Correction (“ODRC”)
    and parole board documents put Hernandez on notice of deportation well before July
    2019. On April 23, 1998, Hernandez signed a form given to him by ODRC advising
    him that he was wanted by “US Immigration” and that there had been a “detainer
    placed.” In its February 2001 denial of parole, the parole board stated, “Inmate
    should serve at least ½ his maximum sentence before being deported to El
    Salvador.” Then, inexplicably, in its July 2013 denial of parole, the board questioned
    whether Hernandez would be deported (“Offender currently has a detainer for
    deportation. * * * The board has been notified that deportation is unlikely”). Despite
    any wrongful assumption made by the parole board in 2013, Hernandez had been
    advised years earlier that he would be deported, and so the parole board’s statement
    that he might not be deported does not excuse his delay.
    {¶19} Fourth, the length of the delay (21 years) supports a finding that
    Hernandez’s motion was untimely. “Waiting 24 years to file his R.C. 2943.031(D)
    motion since entering his guilty pleas was, while not dispositive alone as a matter of
    law, untimely and unreasonable, as many courts of appeals have found with lesser
    delays.” State v. Leon, 6th Dist. Huron No. H-18-018, 
    2019-Ohio-1178
    , ¶ 43 (listing
    decisions from other courts of appeals).
    {¶20} Finally, Hernandez’s complete failure to explain the delay in filing the
    motion supports a holding that the motion was untimely. See Walker, 2017-Ohio-
    8
    OHIO FIRST DISTRICT COURT OF APPEALS
    511, 
    78 N.E.3d 922
    , at ¶ 25. As illustrated above, his claim that he was unaware of
    the consequences of his plea until December 2016 is without merit.
    {¶21} The trial court did not explain its reasoning in denying Hernandez’s
    motion to withdraw his guilty plea. However, the state’s motion in response to
    Hernandez’s motion to withdraw conceded that the four R.C. 2943.031(D) factors
    had been met and focused on the issue of timeliness.                Since we agree that
    Hernandez’s motion was untimely, we cannot say that the trial court abused its
    discretion in denying his motion to withdraw his guilty plea.
    Conclusion
    {¶22} The sole assignment of error is overruled and the judgment of the trial
    court is affirmed.
    Judgment affirmed.
    MYERS, P.J., and WINKLER, J., concur.
    Please note:
    The court has recorded its own entry on the date of the release of this opinion.
    9
    

Document Info

Docket Number: C-190698

Judges: Crouse

Filed Date: 12/2/2020

Precedential Status: Precedential

Modified Date: 12/2/2020