State v. Nardiello ( 2017 )

[Cite as State v. Nardiello, 2017-Ohio-8933.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-17-21
v.
SHANE A. NARDIELLO, OPINION
DEFENDANT-APPELLANT.
Appeal from Tiffin-Fostoria Municipal Court
Trial Court No. CRB 1100132
Judgment Affirmed
Date of Decision: December 11, 2017
APPEARANCES:
David L. Doughten for Appellant
Charles R. Hall, Jr. for Appellee
Case No. 13-17-21
SHAW, J.
{¶1} Defendant-appellant Shane A. Nardiello (“Nardiello”) appeals the June
15, 2017 judgment of the Tiffin-Fostoria Municipal Court overruling his motion to
withdraw his no contest plea. Nardiello assigns as error the trial court’s failure to
give him the proper advisement pursuant to R.C. 2943.031(A) for a non-citizen prior
to entering his no contest plea.
Facts and Procedural History
{¶2} Nardiello is a citizen of the United Kingdom, legally residing in the
United States. On February 16, 2011, a complaint was filed alleging that, during a
traffic stop, Nardiello was found to be in possession of anabolic steroids, in violation
of R.C. 4729.51(C)(3), a misdemeanor of the first degree. The record indicates that
Nardiello was stopped for speeding in the Village of Republic in Seneca County,
Ohio. After he was issued a citation, Nardiello gave law enforcement written
consent to search his vehicle. One glass vial of 9.1 grams of Testosterone
Propionate was found in the glove compartment along with $6,000 of cash.
Nardiello was issued a copy of the complaint and was summoned to appear before
the Tiffin-Fostoria Municipal Court on February 23, 2011.
{¶3} On February 16, 2011, Nardiello’s counsel filed a notice of appearance.
Nardiello’s counsel also entered a written not guilty plea on his behalf and a waiver
of his speedy trial rights. Counsel further requested that a pre-trial be scheduled for
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the matter. The trial court granted the request and scheduled the first pre-trial in the
case for March 23, 2011.
{¶4} On March 23, 2011, Nardiello’s counsel appeared for the first pre-trial.
The trial court’s journal entry indicates that Nardiello was not present at this pre-
trial. The case was continued for a second pre-trial in order for discovery to be
completed.
{¶5} On July 28, 2011, Nardiello appeared in court for a change of plea
hearing, where he entered a plea of no contest to the charge alleged in the complaint.
The trial court accepted Nardiello’s no contest plea and found him guilty. The trial
court sentenced Nardiello to a suspended sentence of 30 days in jail, a $250 fine,
one-year probation, and a six-month license suspension.
{¶6} Nearly six years later, on March 20, 2017, Nardiello filed a motion to
withdraw his 2011 no contest plea. Nardiello argued that he was entitled to
withdraw his no contest plea because the trial court failed to advise him of the
possible adverse immigration consequences of his conviction prior to accepting his
no contest plea as required by R.C. 2943.031(A). Nardiello attached his own
affidavit to the motion claiming that the trial court did not give him the statutory
advisement prior to accepting his no contest plea, and further claiming that he had
just recently been advised by “immigration attorneys” that his 2011 misdemeanor
drug offense would preclude him from obtaining a green card and becoming a
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citizen of the United States. Nardiello averred that he would not have entered the
no contest plea had he known his conviction would jeopardize him obtaining United
States citizenship in the future. Nardiello further explained that he was now married
to a United States Citizen.
{¶7} After conducting two hearings, the trial court summarily overruled
Nardiello’s motion to withdraw his no contest plea in a general “check box” journal
entry. Specifically, in the section reading “In addition, the Court orders” the trial
court simply wrote “Motion to withdraw plea denied.” (Doc. No. 20). However,
we note that a review of the transcript from the second hearing held on Nardiello’s
motion reveals that the trial court concluded that the motion should be overruled
based upon the untimeliness of its filing and Nardiello’s failure to establish that he
had suffered any prejudice—i.e., any actual adverse immigration consequences—
as a result of his 2011 misdemeanor conviction. (See Doc. No. 28 at 10).
{¶8} Nardiello filed this appeal asserting the following assignment of error.
THE TRIAL COURT ABUSED ITS DISCRETION BY
OVERRULING THE APPELLANT’S MOTION TO
WITHDRAW FROM AN INVALID PLEA.
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Relevant Law: R.C. 2943.0311
{¶9} 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):
(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
other than a minor misdemeanor if the defendant previously has
not been convicted of or pleaded guilty to a minor 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, 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.”
{¶10} 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. Franklin 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.
1
Nardiello also attempts to argue on appeal that his no contest plea did not comply with Crim.R. 11 and
therefore he should be permitted to withdraw his plea pursuant to Crim.R. 32.1, which is an independent
basis from R.C. 2943.031. However, the record reveals that the motion filed by Nardiello with the trial court
to withdrawal his plea was premised solely upon R.C. 2943.031 and made no arguments pertaining to Crim.R.
32.1. Accordingly, we will only review the arguments Nardiello made before the trial court with respect to
the motion to withdraw his plea under R.C. 2943.031.
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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.
{¶11} 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 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.
{¶12} 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. State v. Alonzo, 3d Dist. No. 13-15-26, 2016-Ohio-
160, ¶ 15 citing Mayfield Hts. v. Grigoryan, 8th Dist. Cuyahoga No. 101498, 2015-
Ohio-607, ¶ 19.
{¶13} The record establishes that on May 22, 2017, the trial court held a
hearing on Nardiello’s motion to withdraw his no contest plea. Nardiello’s counsel
argued that the June 28, 2011 change of plea transcript did not evince that the non-
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citizen advisement in R.C. 2943.031(A) was given to Nardiello before he entered
his no contest plea.
{¶14} The trial court informed Nardiello’s counsel that the R.C. 2943.031(A)
non-citizen advisement is “typically done at the arraignment.” (Doc. No. 27 at 3).
The trial court further explained that “[i]t is generally not done at a change of plea,
whether they’re a citizen or not a citizen, in particular, Mr. Nardiello, when you
have an attorney.” (Id. at 4).
{¶15} Nardiello’s counsel inquired further into the trial court’s explanation,
which appeared to make a distinction regarding the trial court’s obligation to give
the statutorily mandated advisement based upon whether the defendant was
represented by counsel. The trial court reiterated, “It’s done at the arraignment for
everyone, whether you’re a citizen or not. Everybody gets the advisement at the
arraignment. And I’m quite certain that your client did, because I do it multiple
times every day.” (Id.).
{¶16} Nardiello’s counsel requested a continuance so that he could listen to
the audiotape from the date Nardiello’s arraignment was scheduled to take place
according the citation and summons issued to him.
{¶17} On June 14, 2017, Nardiello filed a supplement to his motion to
withdraw his plea. Nardiello’s counsel asserted that the trial court’s docket lacked
any indicia that Nardiello was even present at the arraignment, let alone that he had
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received the non-citizen advisement at the February 23, 2011 arraignment. Counsel
further noted that the record contained a February 16, 2011 notice from Nardiello’s
previous counsel indicating that a week prior to the scheduled arraignment counsel
had filed a written not guilty plea on his behalf, waived his speedy trial rights, and
requested a pre-trial date. Counsel also requested in the February 16, 2011 notice
to “please contact me with the hearing date so that I may notify my client.” (Doc.
No. 2).
{¶18} Because the record does not establish that Nardiello was present at the
February 23, 2011 arraignment, and there is no other indication in the record that
the trial court gave him the non-citizen advisement, we must presume under R.C.
2943.031(E) that the advisement was not given. In these circumstances, the statute
is clear that the remedy to be provided is a mandatory withdrawal of the plea, which
in this instance, would require reversal of the trial court’s judgment and remand of
the case to the trial court for that purpose.
{¶19} We note that we have previously expressed reservations with this
particular trial court’s practice of giving the R.C. 2943.031(A) non-citizen
advisement at arraignment only and not at the change of plea hearing. See State v.
Aryee, 3d Dist. Seneca No. 13-16-18, 2016-Ohio-8405, ¶ 18 (noting that “the better
practice, and in our view the practice clearly contemplated under the statute, would
be to personally address the defendant at the time of the change of plea hearing”).
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The language of the statute is explicit and unambiguous: “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.” R.C. 2943.031(A)(emphasis added). As such, this
case presents a prime example of the peril created by the trial court’s practice to
exclusively give the R.C. 2943.031(A) non-citizen advisement at the arraignment,
and more specifically, the peril of doing so only in a group format to those
assembled in the courtroom prior to their individual arraignments.
{¶20} Moreover, we do not endorse the trial court’s attempt to mitigate its
failure to give the statutorily mandated advisement by placing the onus on defense
counsel to inform Nardiello of the potential immigration consequences prior to
entering his change of plea. We recognize that there is a corresponding duty of
defense counsel to inform his or her non-citizen client of certain adverse
immigration consequences. See Kentucky v. Padilla, 559 U.S. 356, 364-74, 130
S.Ct. 1473 (2010) (wherein the United States Supreme Court held that the Sixth
Amendment imposes upon counsel, in negotiating a guilty or no-contest plea, the
duty to accurately advise a non-citizen client concerning the removal consequence
of his conviction). However, counsel’s duty is independent and does not relieve the
trial court of its statutory duty to give the advisement under R.C. 2943.031(A).
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{¶21} Notwithstanding all of this, we also acknowledge that the case law
analyzing R.C. 2943.031 has held that the trial court retains some discretion in
considering whether to grant a motion to withdraw a plea, despite the statutory
language of R.C. 2943.031(D) stating that a court “shall set aside the judgment and
permit the defendant to withdraw a plea.” The court’s discretion is generally
premised upon the consideration of additional factors such as timeliness of the
motion and prejudice to the State due to the defendant’s unreasonable delay in filing
the motion which are dictated by the particular facts of the case. See State v.
Francis, 104 Ohio St. 3d 490, 2004-Ohio-6894, ¶ 40-42.
{¶22} More importantly, however, R.C. 2943.031(D) also requires that the
defendant must show that the no contest plea and resulting conviction “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” in order to
invoke the statutory right to mandatory withdrawal of the plea by the trial court set
forth in the statute. Here, Nardiello stated in a self-serving affidavit accompanying
the motion to withdraw under R.C. 2943.031(D) that, “Recently I have been advised
by immigration attorneys that my plea to the misdemeanor drug offense would
preclude me from obtaining a green card, becoming a citizen or even staying in this
country.” (Doc. No. 14 at ¶ 5). However, nothing more was submitted in support
of the motion to withdrawal his plea.
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{¶23} It is our determination that this single statement in his own affidavit is
not a sufficient showing to invoke the mandatory remedy of withdrawal of his plea
under R.C. 2943.031(D), especially in light of the nearly six-year delay in filing the
motion. We further note the record at the change of plea hearing clearly indicates
that Nardiello had some apprisal of the “citizenship implications” prior to entering
his no contest plea. Specifically, the transcript of the change of plea hearing reveals
the following:
Trial Court: [Defense Counsel], upon further recommendation of
the prosecutor, have you had an opportunity to speak with your
client about this proposed change of plea?
Defense Counsel: Yes, I have, Your Honor, and --- I’m sorry.
Yes, I have.
Trial Court: And do you believe he understands the implications of
a change of plea here today?
Defense Counsel: He does, Your Honor. He’s not a U.S. Citizen,
and that was one of the reasons that we had the delay in change of
plea.
Trial Court: Mr. Nardiello, do you need more time to speak with
[Defense Counsel] about this?
Nardiello: No, Your Honor.
Trial Court: Is this what you want to do?
Nardiello: Yes, Your Honor.
Trial Court: Do you understand I’m not bound by that
recommendation? I can impose a greater or lesser penalty, as I
deem appropriate.
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Nardiello: Yes, Your Honor.
Trial Court: And are you satisfied with the plea?
Nardiello: Yes, Your Honor.
Trial Court: Are you satisfied with [Defense Counsel’s]
representation?
Nardiello: Yes, Your Honor.
Trial Court: And, [Defense Counsel], how does your client
propose to plea?
Defense Counsel: He would enter a plea of no contest with a
stipulation of the finding of guilt at this time.
Trial Court: And you understand, Mr. Nardiello, by entering a
plea of no contest, you’re admitting to the truth of the facts as
alleged on the face of the complaint.
Nardiello: Yes, Your Honor.
Trial Court: And you understand what the maximum possible
penalties are.
Nardiello: Yes, Your Honor.
Trial Court: At this time, I’ll accept your plea of no contest.
[Defense Counsel], anything you want to say about the facts about
what happened?
Defense Counsel: Your Honor, Mr. Nardiello, he accepts full
responsibility for the contents in his car. He graduated from
Heidelberg College. He’s no longer here. He’s a resident of
Cuyahoga County. Again, he has---he’s here on a visa, so he just
obtained employment. He’s got citizenship implications.
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***
Trial Court: Based upon my review of the case and this citation,
the officer’s report, and your plea of no contest, there will be a
finding of guilt. Mr. Nardiello, is there anything you’d like to say?
Anything you think the Court should take into consideration with
regard to the penalty?
Defense Counsel: Your Honor, I have had an opportunity to
speak at length with the prosecutor and I would appreciate if the
Court would accept the prosecutor’s recommendation. Again,
Mr. Nardiello is not a U.S. citizen, so these court implications are
additional to whatever implications he has with the United States of
America. He understands he committed a crime, committed a
wrong, and wishes the Court’s indulgence, again, to give him some
leniency.
(July 28, 2011 Trans. at 3-7).
{¶24} Albeit coming from defense counsel and not the trial court, the
transcript excerpts above nevertheless indicate that, prior to the change of plea,
defense counsel and Nardiello were clearly aware and likely had discussed the
possibility that entering a no contest plea could affect his immigration status—and
that the “citizenship implications” were compelling enough to delay the plea
proceedings. (July 28, 2011 Trans. at 3-7). This is not to say that, defense counsel’s
discussions with Nardiello or comments on the record, relieved the trial court of its
duty under R.C. 2943.031(A) to give the non-citizen advisement. However, we find
Nardiello’s apprisal of immigration consequences at the time of his plea to be
significant when reviewing the credibility of his self-serving affidavit
accompanying the motion to withdraw, and in particular Nardiello’s representation
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that he would not have entered the plea had he been aware of the admonitions
contained in the R.C. 2943.031(A) advisement.
{¶25} In sum, Nardiello’s lack of sufficient evidence of pending or imminent
immigration consequences to invoke the mandatory remedy of withdrawal of the
plea under R.C. 2943.031(D), the clear indication of his apprisal of some possible
immigration consequences at the plea hearing, and the unreasonable delay of six
years before filing the motion to withdraw all constitute factors which support the
exercise of the trial court’s discretion in deciding Nardiello’s motion. And, in these
circumstances, we cannot find an abuse of that discretion in the trial court’s decision
to deny the motion. Accordingly, we overrule the assignment of error and affirm
the judgment of the trial court.
Judgment Affirmed
PRESTON, P.J. and WILLAMOWSKI, J., concur.
/jlr
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