State v. Khrinyuk

[Cite as State v. Khrinyuk, 2013-Ohio-498.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98857
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
OLEG KHRINYUK
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-553443
BEFORE: S. Gallagher, J., Stewart, A.J., and Boyle, J.
RELEASED AND JOURNALIZED: February 14, 2013
ATTORNEY FOR APPELLANT
Eric M. Levy
55 Public Square
Suite 1600
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mark J. Mahoney
Kristen L. Sobieski
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1. Appellant, Oleg Khrinyuk, appeals the judgment of the
Cuyahoga County Court of Common Pleas that denied his postsentence motion to
withdraw his guilty plea. For the reasons stated herein, we affirm the decision of the trial
court.
{¶2} On October 3, 2011, appellant was indicted on charges of drug trafficking,
drug possession, and possessing criminal tools, all with forfeiture specifications. He
initially entered a plea of not guilty. On January 23, 2012, he entered a change of plea to
guilty to the drug trafficking charge, a fourth-degree felony, with the forfeiture
specifications, and the remaining counts were nolled.
{¶3} At the change of plea hearing on February 29, 2012, the court addressed
appellant through an interpreter. The court mistakenly addressed appellant as “Mr.
Melnichuk,” which is the name of a codefendant in the action. Nevertheless, the charges
against appellant were properly set forth, as well as the terms of a plea agreement.
{¶4} Defense counsel indicated that through the use of an interpreter, the plea had
been discussed with appellant, his rights were explained, and the possible immigration
ramifications of the plea had been reviewed and discussed. It was represented that
appellant had a green card, but was not a citizen.
{¶5} Thereafter, the court engaged in a direct colloquoy with appellant in which
the appellant expressed that he wished to take the plea agreement and that he was able to
understand the proceeding as it was being interpreted to him. The court explained to
appellant the rights he was waiving in pleading guilty, informed him of the nature of the
charge and the maximum penalty involved, received appellant’s acknowledgment that he
understood the rights he was waiving, and otherwise complied with Crim.R. 11(C).
{¶6} When asked whether he was a citizen of the United States, appellant indicated
that he only possessed a green card. Thereupon, the trial court provided the following
advisement of immigration-related consequences: “Do you understand that your plea
could result in your deportation, exclusion, or denial of naturalization?” Appellant
answered affirmatively and proceeded to enter a plea of guilty that was accepted by the
court.
{¶7} On February 29, 2012, the trial court sentenced appellant to one year of
community control sanctions with conditions. On July 9, 2012, appellant filed a motion
to withdraw his guilty plea, alleging that he was not properly advised of the immigration
ramifications under R.C. 2925.03(A)(2). Appellant attached an affidavit, as well as the
portion of the transcript reflecting the advisement that was given. On July 25, 2012, the
trial court denied the motion. Thereafter, appellant filed a motion to reconsider with a
request for a hearing that was denied by the trial court.
{¶8} Appellant filed this appeal on August 24, 2012. He raises two assignments
of error for our review. Under his first assignment of error, appellant claims the trial
court erred by failing to properly read verbatim the R.C. 2943.031 advisement of
deportation consequences at the time he entered his change of plea.
{¶9} Because of the serious consequences of a criminal conviction on a
noncitizen’s status in this country, trial courts are required to give the advisement set forth
in R.C. 2943.031(A), which states in relevant part:
* * * [P]rior to accepting a plea of guilty or a plea of no contest to an
indictment, information, or complaint charging a felony * * *, 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.”
(Emphasis added.)
{¶10} The Ohio Supreme Court has recognized that R.C. 2943.031(A) creates a
substantive right and that the above advisement must be given verbatim to a defendant
who is not a citizen of the United States. State v. Francis, 104 Ohio St.3d 490,
2004-Ohio-6894, 820 N.E.2d 355, ¶ 20, 29. If a court fails to provide the advisement,
R.C. 2943.031(D) instructs 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.
{¶11} In ruling on a motion under R.C. 2943.031(D), a trial court must determine
whether the statutory conditions have been established. Francis at ¶ 35-36.
Additionally, the trial court should take into account the timeliness of the motion and
consider whether the defendant has demonstrated prejudice by the trial court’s alleged
failure to comply with R.C. 2943.031(A). Id. at ¶ 45. Although R.C. 2943.031(A)
provides the language for the warning that is to be given the defendant, when evaluating
a motion to withdraw the plea under R.C. 2943.031(D), the standard to be applied is one
of substantial compliance. Id. at ¶ 46. As indicated in Francis:
We hold that if some warning of immigration-related consequences was
given at the time a noncitizen defendant’s plea was accepted, but the
warning was not a recital of the verbatim R.C. 2943.031(A) statutory
language, a trial court considering the defendant’s motion to withdraw the
plea under R.C. 2943.031(D) must exercise its discretion in determining
whether the trial court that accepted the plea substantially complied with
R.C. 2943.031(A). “Substantial compliance means that under the totality
of the circumstances the defendant subjectively understands the
implications of his plea and the rights he is waiving. * * * The test is
whether the plea would have otherwise been made.”
Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, at ¶ 48, quoting State v.
Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
{¶12} A trial court’s decision on a motion to withdraw a plea premised on R.C.
2943.031(D) is reviewed for an abuse of discretion. Francis at ¶ 32. “An abuse of
discretion occurs when a decision is unreasonable, arbitrary, or unconscionable.” State
ex rel. Stiles v. School Emps. Retirement Sys., 102 Ohio St.3d 156, 2004-Ohio-2140, 807
N.E.2d 353, ¶ 13.
{¶13} In this case, appellant established that he is not a U.S. citizen, that he was
entitled to the advisement under R.C. 2943.031(A), and that as a result of his conviction
he was found to be removable from the United States by an immigration court. He also
claims that his motion to withdraw was timely filed on July 16, 2012, because the removal
order was issued on June 18, 2012.
{¶14} Even assuming that the motion was timely filed, we still find the trial court
did not abuse its discretion in denying the motion. The record reflects that the trial court
substantially complied with R.C. 2943.031(A). Although the trial court did not give the
required advisement verbatim, appellant was informed that his change of plea could result
in his “deportation, exclusion, or denial of naturalization[.]” Appellant indicated that he
understood. Further, defense counsel advised the court that, with the use of an
interpreter, he had discussed with appellant the plea, explained his rights, and reviewed
the possible immigration ramifications of the plea.1 A review of the transcript reflects
that the trial court engaged in a dialogue with appellant and his answers reflect that he
understood the questions and advisements that were provided, including the immigration
consequences of entering a change of plea. Under the totality of the circumstances, the
trial court could reasonably conclude that appellant subjectively understood the
1
We note appellant does not claim ineffective assistance of trial counsel as a basis for
withdrawing the plea. He focused on the failure to give the verbatim advisement under R.C.
2943.031(A) and the failure to hold a hearing on the motion. See Padilla v. Kentucky, 559 U.S.
2___, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).
immigration implications of his plea and the rights he was waiving. Finding no abuse of
discretion, appellant’s first assignment of error is overruled.
{¶15} Under his second assignment of error, appellant argues the trial court erred
by failing to hold an evidentiary hearing on the motion to withdraw his plea.
{¶16} The Francis court recognized that a trial court is not necessarily required to
hold a hearing or specify reasons in ruling on the motion to withdraw. Francis, 104 Ohio
St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, at ¶ 50-52. The court stated: “[D]ecisions
on whether to hold a hearing and on whether to explain reasons for a ruling are matters
entrusted to the sound discretion of the trial court.” Because the record in this matter
supports the trial court’s decision to deny the motion and allows for a sufficient review,
we find no abuse of discretion in the trial court’s decision to rule on the motion without a
hearing. Appellant’s second assignment of error is overruled.
{¶17} 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, A.J., and
MARY J. BOYLE, J., CONCUR