In re P.R. , 2019 Ohio 4751 ( 2019 )

[Cite as In re P.R., 2019-Ohio-4751.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: P.R. : APPEAL NOS. C-180166
C-180167
: TRIAL NOS. 08-9871x
08-9874x
: O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal:November 20, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Appellee State of Ohio,
McKinney & Namei Co., LPA, and David L. Dawson, for Appellant P.R.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} P.R. appeals from the juvenile court’s denial of his motions to
withdraw his admissions and vacate his adjudications and his petition for
declassification. P.R. contends that his admissions to conduct that would have
constituted rape and gross sexual imposition, if committed by an adult, should have
been set aside because the juvenile court did not advise him that his admissions
could have immigration consequences as required by R.C. 2943.031. He further
argues that the juvenile court erred in denying his request to be reclassified as a Tier
I juvenile offender registrant. Finding his assignments of error without merit, we
affirm the juvenile court’s judgments.
{¶2} In 2008, when P.R. was 14 years old, he admitted that he engaged in
sexual conduct and sexual contact with a seven-year-old girl. P.R. was given
suspended commitments, placed on probation, ordered to attend the residential
program at Hillcrest, and classified a Tier III sex offender. At the end-of-disposition
hearing, the juvenile court reclassified him a Tier II sexual offender.
The Hearing on the Motions
{¶3} In 2016, P.R. filed motions to withdraw his admissions pursuant to
Crim.R. 32.1 and R.C. 2943.031 alleging that P.R. was not given the immigration
warnings as mandated by R.C. 2943.031 before entering his admissions. Initially,
P.R. argued that his adjudications for aggravated felonies rendered P.R. deportable.
At the hearing, P.R.’s counsel explained that P.R. had not been placed in deportation
proceedings, but, the adjudication could affect P.R.’s eligibility for Deferred Action
for Childhood Arrivals (“DACA”). He further explained that juvenile adjudications
are frequently considered in evaluating an individual’s good moral character for
DACA eligibility.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} The state argued that R.C. 2943.031 does not apply to juvenile
adjudications, and that if the legislature had intended to apply the statute to
juveniles, it would have included the term “adjudicated.” The state further argued
that the withdrawal of the admissions would prejudice the state because the juvenile
court would no longer have jurisdiction over P.R. because he is 25, the DACA
pathway occurred long after P.R.’s adjudication, and the seven-year delay was
problematic and prejudicial to the state.
{¶5} The juvenile court found that R.C. 2943.031, the advisement it
requires, and the remedy for a failure to provide the advisement do not apply to
juvenile adjudications because the statute refers to guilty pleas and convictions and
does not include admissions or adjudications. Further, Crim.R. 32.1, which allows
for the withdrawal of a plea in a criminal case, does not apply to juvenile
proceedings.
{¶6} Instead, the juvenile court reviewed the record to determine whether
the magistrate complied with Juv.R. 29(D) when accepting P.R.’s admissions. The
court concluded that the magistrate properly advised P.R. of the nature of the
allegations and consequences of the admissions.
{¶7} Finally, the juvenile court found that the decision to continue P.R.’s
classification as a Tier II offender was supported by sufficient evidence. The court
reviewed all relevant factors, including the nature of the offenses, the age of the
victim, subsequent treatment, the risk assessment, and P.R.’s criminal history and
determined that P.R. did not present sufficient evidence to support a declassification.
{¶8} On appeal, P.R. raises two assignments of error. In his first
assignment of error, P.R. argues that the court erred by denying his motion to
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OHIO FIRST DISTRICT COURT OF APPEALS
withdraw his admissions because P.R. was not advised of any potential immigration
consequences pursuant to R.C. 2943.031, the juvenile court should have allowed him
to withdraw the admissions because he was not advised of the potential immigration
consequences of the admissions, and his motion to vacate should be remanded to
consider whether P.R.’s trial counsel was ineffective for failing to advise him of the
immigration consequences of his admissions. We must first determine whether R.C.
2943.031 applies to juvenile adjudications.
R.C. 2943.031 Does Not Apply to Juvenile Adjudications
{¶9} We review issues of statutory construction de novo. In re J.F., 2017-
Ohio-7675, 97 N.E.3d 999, ¶ 18 (1st Dist.). When interpreting a statute, we must
first look to the language of the statute itself. Id. Where the statutory language is
plain and unambiguous and conveys a clear and definite meaning, we apply it as
written without interpreting or construing it. Id.
{¶10} R.C. 2943.031(A) provides, in relevant part:
(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,
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OHIO FIRST DISTRICT COURT OF APPEALS
exclusion from admission to the United States, or denial of
naturalization pursuant to the laws of the United States.”
{¶11} The statutory language is plain and unambiguous. The statute applies
to criminal proceedings involving defendants who enter pleas of guilty or no contest.
We first note that juvenile proceedings are not criminal proceedings for immigration
purposes. See Uritsky v. Gonzales, 399 F.3d 728, 735 (6th Cir.2005) (explaining
that in enacting 8 U.S.C. 1101(a)(48)(A), which defined the term “conviction” for the
Immigration and Naturalization Act, Congress did not intend to include juvenile
delinquency findings as convictions). Additionally, the statute refers to “defendant,”
“guilty plea,” and “conviction,” but does not include the terms “juvenile,”
“adjudication,” or “admission.”
{¶12} Had the legislature intended the statute to apply to juvenile
proceedings, it would have included juvenile adjudications. See, e.g., R.C.
2950.01(B)(1) defining “sex offender” as “a person who is convicted of, pleads guilty
to, has been convicted of, has pleaded guilty to, is adjudicated a delinquent child for
committing, or has been adjudicated a delinquent child for committing a sexually
oriented offense;” R.C. 2929.13(A)(2) prohibiting persons from possessing firearms
when “[t]he person is under indictment for or has been convicted of any felony
offense of violence or has been adjudicated a delinquent child for the commission of
an offense that, if committed by an adult, would have been a felony offense of
violence.” Because the statute does not apply to juvenile proceedings, we find P.R.’s
first argument lacks merit.
The Admissions were Entered Knowingly
{¶13} Next, P.R. contends that the court erred by not allowing him to
withdraw his admissions pursuant to Juv.R. 29(D). Specifically, he alleges that the
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OHIO FIRST DISTRICT COURT OF APPEALS
magistrate did not inform him that his admissions “may have the consequences of
deportation, exclusion from admission to the United States, or denial of
naturalization” prior to accepting his admissions. See R.C. 2943.031(A). Due to this
omission, P.R. claims his admissions were not entered knowingly because the
immigration consequences would have been critical to his decision to enter the
admissions.
{¶14} However, P.R. has not established that his adjudications have any
deportation, admissibility, or naturalization consequences. Instead, he argued that
the adjudications could subject him to deportation and affect his eligibility for
numerous immigration benefits, including DACA.
{¶15} We must note that the record does not establish what P.R.’s
immigration status is in the United States. P.R. did not testify at the hearing or
submit an affidavit. The only affidavit in the record is that of his mother, which is
void of any discussion regarding P.R.’s immigration status. Nonetheless, the issues
before us are premised on the lack of immigration status. See United States v. Lopez,
929 F.3d 783, 786 (6th Cir.2019) (discussing that to be eligible for DACA an
applicant must have no lawful status on June 15, 2012).
{¶16} DACA was enacted in 2012 when Secretary Janet Napolitano of the
Department of Homeland Security (“DHS”) announced in a memorandum that DHS
would exercise its “prosecutorial discretion” as to certain aliens who were brought to
this country as children. Id., citing Memorandum from Secretary Janet Napolitano,
Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the
United States as Children 1, p. 3 (June 15, 2012). However, DACA does not confer
any substantive rights, immigration status, or a pathway to citizenship; only
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OHIO FIRST DISTRICT COURT OF APPEALS
Congress can confer these rights through its legislative authority. See id.
{¶17} Secretary Napolitano discussed criteria which should be satisfied
before individuals can be considered for an “exercise of prosecutorial discretion”
which, in effect, could result in DHS choosing not to seek their removal. Id. And the
Memorandum was released on June 15, 2012, long after P.R.’s adjudications. See
Lopez at 786.
{¶18} After reviewing the record, we agree with the trial court’s
determination that the magistrate informed the juvenile of all of the dispositional
options and consequences of his admissions and determined that the juvenile
understood all the dispositional options and consequences prior to accepting the
admissions. We are not persuaded by his second argument.
P.R.’s Counsel was not Ineffective
{¶19} P.R. requests that the motion to vacate be remanded to the juvenile
court to determine whether his counsel was ineffective for failing to advise him of the
immigration consequences of the admissions. P.R. did not raise this issue in his
motions to withdraw his admissions. It is well settled that issues not raised in the
trial court may not be raised for the first time on appeal. State v. Comen, 50 Ohio
St.3d 206, 211, 533 N.E.2d 640 (1990).
{¶20} Even if he had raised this issue in the juvenile court, as previously
discussed, P.R. has not established that his adjudications have had any adverse
immigration consequences. Without any adverse consequences, there is no advice
for counsel to provide.
{¶21} Accordingly, we overrule his first assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
The Declassification Motion was Properly Overruled
{¶22} In his second assignment of error, P.R. argues that the juvenile court
abused its discretion by overruling his petition for declassification because the
evidence was sufficient to support declassification.
{¶23} The juvenile court has discretion in determining a juvenile’s tier
classification. See In re Antwon C., 182 Ohio App. 3d 237, 2009-Ohio-2567, 912
N.E.2d 182, ¶ 17 (1st Dist.). We review a classification for an abuse of discretion. See
In re T.M., 12th Dist. Fayette No. CA2015-07-017, 2016-Ohio-162, ¶ 27.
{¶24} In determining whether a juvenile’s sex-offender classification should
be continued, the juvenile court must review the prior classification, and all relevant
factors and information, including the factors in R.C. 2152.83(D). R.C. 2152.85(C).
The R.C. 2152.83(D) factors include the nature of the sexually-oriented offense;
whether the child has shown any genuine remorse or compunction for the offense;
the public interest and safety; the factors set forth in R.C. 2950.11(K); the factors set
forth in R.C. 2929.12(B) and (C) as they apply to the delinquent child, the offense,
and the victim; and the results of any treatment provided to the child and of any
follow-up professional assessment of the child.
{¶25} The R.C. 2950.11(K) factors include the age of the delinquent child, the
child’s prior record, the age of the victim, the number of victims, whether alcohol or
drugs were used in the commission of the offense, any prior dispositional order or
treatment, any mental illness or disability of the child, the nature of the offense,
whether the offender displayed cruelty, and any other “behavioral characteristics”
that contributed to the delinquent child’s conduct. The R.C. 2929.12(B) and (C)
factors relevant to P.R. include whether the offender’s relationship with the victim
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OHIO FIRST DISTRICT COURT OF APPEALS
facilitated the offense and whether the offender expected to cause physical harm.
{¶26} The court considered all relevant factors including P.R.’s success in
treatment and on probation, Dr. Barzman’s expert testimony and his report that
concluded P.R. was at a low risk to reoffend. The court was concerned with P.R.’s
stability and the expert’s admission that his report did not include P.R.’s recent
divorce in his assessment of P.R.’s stability or reoffense risk. The court was further
concerned with the facts of the sex offenses, including the young age of the victim.
{¶27} After thoroughly reviewing the record, we cannot say that the juvenile
court’s decision to continue P.R.’s Tier II sex-offender classification was arbitrary,
unreasonable, or unconscionable, and we overrule his second assignment of error.
Conclusion
{¶28} Having considered and overruled all of P.R.’s assignments of error, we
affirm the judgments of the trial court.
Judgments affirmed.
BERGERON and WINKLER, JJ., concur.
Please note:
The court has recorded its own entry this date.
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