State v. Aquino

[Cite as State v. Aquino, 2014-Ohio-118.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99971
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TOMAS AQUINO
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-462688 and CR-469861
BEFORE: Keough, J., Stewart, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: January 16, 2014
APPELLANT PRO SE
Tomas Aquino
No. 504-965
Toledo Correctional Institution
2001 East Central Avenue
Toledo, Ohio 43608-0033
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kristen L. Sobieski
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Tomas Aquino, appeals the trial court’s judgment
denying his post-sentence motion to withdraw his guilty plea. Finding no merit to the
appeal, we affirm the trial court’s decision.
{¶2} In 2005, Aquino was indicted in two separate cases charging him with various
counts of kidnapping and sexually oriented offenses. In May 2006, he entered into a plea
agreement involving both cases and sentencing was scheduled for June 2006. On the day
of sentencing, Aquino, through counsel, orally moved to withdraw his guilty plea on the
basis that he (1) was innocent of the charges, (2) did not enter a knowing, intelligent, and
voluntary plea, and (3) wanted a trial. The trial court denied the oral motion, finding that
Aquino’s plea was valid; the court sentenced Aquino to a total aggregate prison term of
nine years. Aquino did not appeal his convictions or the court’s denial of his motion to
withdraw his plea.
{¶3} In April 2007, Aquino requested leave to file a delayed appeal, which this
court denied. State v. Aquino, 8th Dist. Cuyahoga No. 89767 (May 16, 2007). Aquino’s
discretionary appeal to the Supreme Court of Ohio was not accepted for review. State v.
Aquino, 115 Ohio St.3d 1423, 2007-Ohio-5056, 874 N.E.2d 539.
{¶4} In October 2007, Aquino moved to withdraw his plea pursuant to Crim.R.
32.1, contending that he did not sign the written plea agreement and, therefore, his plea
was invalid. The state opposed the motion arguing, among other things, that although no
written plea agreement was entered into, the plea was made in open court. The trial court
denied the motion, and Aquino did not appeal that decision.
{¶5} In March 2011, Aquino again moved to withdraw his plea, contending that he
did not enter a knowing, intelligent, and voluntary plea because he was not advised of all
of his rights prior to entering the plea. Again, the trial court denied Aquino’s motion, and
again, Aquino did not file an appeal.
{¶6} In October 2012, Aquino filed a third motion to withdraw his plea pursuant to
Crim.R. 32.1 and R.C. 2943.03 and 2943.031, contending that (1) the court abused its
discretion in denying his oral presentence motion to withdraw his guilty plea; (2) he is
innocent of the charges against him; (3) he received ineffective assistance of trial counsel
during the plea bargain process and did not voluntarily and intelligently plead guilty
because he relied on the faulty advice of his attorney; (4) he did not speak, read, or
understand English and was not provided an interpreter during the plea bargain process;
and (5) the trial court did not properly advise him that his citizenship could be revoked and
that he could be deported upon entry of the guilty pleas.
{¶7} The trial court denied his motion without explanation or an evidentiary
hearing. It is from this decision that Aquino appeals, contending in his sole assignment
of error that the trial court abused its discretion in denying his motion to withdraw his
guilty plea and for not conducting an evidentiary hearing.
{¶8} Aquino moved to withdraw his plea pursuant to Crim.R. 32.1 and R.C.
2943.031. Because these theories of relief require different standards of review and
analysis, we address them separately.
Crim.R. 32.1
{¶9} A Crim.R. 32.1 post-sentence motion to withdraw a guilty plea is subject to a
manifest injustice standard. State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992).
An appellate court will not reverse a trial court’s denial of a motion to withdraw a plea
absent an abuse of discretion. State v. Caver, 8th Dist. Cuyahoga Nos. 90945 and 90946,
2008-Ohio-6155, citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977). An
abuse of discretion implies that the court’s attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
{¶10} “Res judicata prevents repeated attacks on a final judgment and applies to all
issues that were or might have been litigated.” State v. Sneed, 8th Dist. Cuyahoga No.
84964, 2005-Ohio-1865, ¶ 16, citing State v. Brown, 8th Dist. Cuyahoga No. 84322,
2004-Ohio-6421. “‘The doctrine of res judicata is applicable to successive motions to
withdraw a guilty plea under Crim.R. 32.1.’” State v. Muhumed, 10th Dist. Franklin No.
11AP-1001, 2012-Ohio-6155, ¶ 13, quoting State v. Tinney, 5th Dist. Richland No. 2011
CA 41, 2012-Ohio-72, ¶ 27.
{¶11} In October 2007, Aquino filed his first written motion to withdraw his guilty
plea pursuant to Crim.R. 32.1, contending that he did not sign the written plea agreement
and, therefore, his plea was invalid. The trial court denied the motion and Aquino did not
appeal the decision. In March 2011, Aquino again moved to withdraw his guilty plea
pursuant to Crim.R. 32.1 arguing that he did not enter a knowing, intelligent, and
voluntary plea because the trial court failed to advise him of all of his rights. Again, the
trial court denied the motion, and Aquino did not appeal that decision.
{¶12} The issues Aquino raises regarding ineffective assistance of counsel and the
knowing, intelligent, and voluntary nature of his plea are barred by res judicata because
these arguments could have been raised in a direct appeal. Accordingly, the trial court
did not abuse its discretion in denying Aquino’s motion to withdraw his guilty plea
pursuant to Crim.R. 32.1.
R.C. 2943.031
{¶13} While the standard of review for a post-sentence 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. 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).
{¶14} The Tenth District addressed the standard of review of a motion to withdraw
a plea filed under R.C. 2943.03(D) in State v. Muhumed, 10th Dist. Franklin No.
11AP-1001, 2012-Ohio-6155, ¶ 10:
The same abuse of discretion standard of review applies to the trial court’s
decision on a motion filed pursuant to R.C. 2943.031(D). Francis at ¶ 32.
However, “when a defendant’s motion to withdraw is premised on R.C.
2943.031(D), the standards within that rule guide the trial court’s exercise of
discretion.” Id. at ¶ 33; see also [State v.] Oluoch, [10th Dist. Franklin No.
07AP-45, 2007-Ohio-5560] at ¶ 25. To clarify, the exercise of discretion
“applies to the trial court’s decision on whether the R.C. 2943.031(D)
elements have been established (along with the factors of timeliness and
prejudice * * *), not generally to the trial court’s discretion once the
statutory provisions have been met.” Id. at ¶ 34. “[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, * * * the trial court must exercise its
discretion in determining whether the statutory conditions are met, and * * *
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).” Id. at ¶ 36.
{¶15} Although Aquino filed prior motions to withdraw his guilty plea, this is the
first time he requested that his plea be withdrawn pursuant to R.C. 2943.031; therefore, his
motion on this basis is not barred by res judicata. Muhumed at ¶ 22 (prior motions to
withdraw guilty plea pursuant to Crim.R. 32.1 that do not raise the issue of the trial court’s
failure to provide the advisement set forth in R.C. 2943.031 for non-citizens as grounds for
the withdrawal will not bar a subsequent motion to withdraw pursuant to R.C. 2943.031.)
{¶16} Although res judicata does not bar Aquino’s motion to withdraw under R.C.
2943.031, we find that he is not entitled to relief because the record demonstrates that the
trial court was not required to advise Aquino under R.C. 2943.031(A) that his plea could
affect his status in the United States because Aquino and his counsel both stated that
Aquino was a United States citizen.
{¶17} 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.” However, R.C. 2943.031(B) provides that the advisement is not
required if “[t]he defendant states orally on the record that he is a citizen of the United
States.” R.C. 2943.031(B)(2).
{¶18} In this case, during the plea colloquy, the court advised Aquino that his plea
could have an effect on his “status here.” Aquino responded through his interpreter, “He
say, I understand what you’re saying, but I am an American citizen.” Aquino’s defense
counsel then stated: “He is naturalized.” Accordingly, because Aquino and his defense
counsel indicated that he is a naturalized citizen, the trial court was not required to advise
Aquino of the effect of his plea regarding his status in the United States. The fact that
Aquino is a naturalized citizen is of no consequence. R.C. 2943.031(B)(2) does not
differentiate between naturalized and natural-born American citizens. The rights of
citizenship of the native-born and of the naturalized person are of the same dignity and are
coextensive. Schneider v. Rusk, 377 U.S. 163, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964); see
also Luria v. United States, 231 U.S. 9, 34 S.Ct. 10, 58 L.Ed. 101 (1913) (under the
federal constitution, a naturalized citizen stands on an equal footing with the native citizen
in all respects save that of eligibility to the presidency).
{¶19} Accordingly, the trial court did not abuse its discretion in denying
Aquino’s motion to withdraw his guilty plea without conducting an evidentiary hearing
because he is not entitled to relief under R.C. 2943.031. Aquino’s assignment of error is
therefore overruled.
{¶20} Judgment affirmed.
It is ordered that appellee recover from 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.
KATHLEEN ANN KEOUGH, JUDGE
MELODY J. STEWART, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR