State v. Lovano

[Cite as State v. Lovano, 2014-Ohio-3418.]
Court of Appeals of Ohio
APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100578
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
SALVATORE LOVANO
DEFENDANT-APPELLEE
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-93-290205
BEFORE: Stewart, J., Boyle, A.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: August 7, 2014
ATTORNEYS FOR APPELLANT
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Edward Fadel
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Margaret W. Wong
Scott E. Bratton
Margaret Wong & Associates Co.
3150 Chester Avenue
Cleveland, OH 44114
MELODY J. STEWART, J.:
{¶1} R.C. 2943.031(A) requires the court, prior to accepting a guilty plea, to
advise a defendant who is not a citizen of the United States that the plea “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.” The issue in
this appeal is whether the court abused its discretion by granting a motion to
withdraw a guilty plea, made 19 years after the fact, premised on its failure to give
the advisement.
I
{¶2} In May 1993, defendant-appellee Salvatore Lovano, a Canadian citizen
lawfully residing in the United States, pleaded guilty to one count of felony theft
and two misdemeanor counts of attempted passing bad checks and was convicted of
those offenses. Nineteen years later, Lovano was convicted of aggravated assault.
Facing deportation because he had been convicted of more than one crime
involving moral turpitude, in July 2012, Lovano filed a motion to withdraw the
1993 guilty plea. Filing the motion pursuant to both R.C. 2943.031 and Crim.R.
32.1, Lovano claimed that neither the court nor defense counsel advised him at the
time of his 1993 plea that a conviction could have adverse consequences involving
deportation. Lovano supported the motion with an affidavit to that same effect.
The parties agreed that the 1993 plea proceedings had not been transcribed and that
the court reporter had long since disposed of the case notes. The lawyer who
represented Lovano in 1993 testified at a hearing that he recalled representing
Lovano, but could not “recall any privileged communications or non-privileged
communications with my client in this matter.” The lawyer also had no specific
recollection of the court giving the R.C. 2943.031 advisement.
{¶3} The state argued that the motion to withdraw the guilty plea was
untimely. It noted that by October 1993, Lovano had actual notice that his
conviction could lead to possible deportation, yet failed to take action to withdraw
the plea at the time. It cited as proof of Lovano’s notice an October 1993 journal
entry resetting a hearing on Lovano’s violation because deportation proceedings
had commenced against Lovano. The state further argued that Lovano’s delay in
seeking to withdraw his guilty plea resulted in demonstrable prejudice to it. It
claimed that the trial lawyer’s inability to recall the specifics of the 1993 plea was
proof that the claim was stale. It told the court that it had not preserved evidence
from a 19 year-old case, so it would be highly prejudiced in reprosecuting the case.
{¶4} Lovano acknowledged that deportation proceedings had commenced
against him in 1993, but claimed that he received a “waiver” at that time that
allowed him to remain in the United States. He said that “I thought the waiver
eliminated the case for immigration purposes but I recently learned that this is not
correct.” Lovano Affidavit at ¶ 6. It was not until after his 2012 conviction that
he learned that he was subject to deportation because he had been convicted of
more than one crime involving moral turpitude. Finally, he claimed that he would
not have pleaded guilty in 1993 had he been made aware that the conviction could
be used as a basis for deportation.
{¶5} The court took the matter under advisement and then granted the motion
to withdraw the guilty plea without opinion.
{¶6} The state appeals, arguing in two assignments of error that the trial court
erred by granting the motion to withdraw the guilty plea because it was untimely
under both R.C. 2943.031(D) and Crim.R. 32.1.
II
{¶7} 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. Hence, when an advisement is not given, when the
defendant shows that he is not a United States citizen, and when the defendant
shows that deportation consequences exist from having pleaded guilty to the crime,
the court must “set aside the judgment and permit the defendant to withdraw a plea
of guilty” to a conviction for an offense that may result in the defendant being
deported. R.C. 2943.031(D).
{¶8} Withdrawal of a guilty plea is not automatic simply because the court
failed to give the R.C. 2943.031(A) advisement. The decision to set aside a
judgment of conviction and allow the defendant to withdraw a guilty plea is
committed to the sound discretion of the court. State v. Francis, 104 Ohio St.3d
490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 32. The court is allowed to take into
account “many factors” when considering whether to grant a motion to withdraw a
guilty plea based on the court’s failure to give the R.C. 2943.031(A) advisement.
Id. at ¶ 36. Although the Ohio Supreme Court did not list what factors the court
could consider, it did state that “untimeliness will sometimes be an important factor
in reaching a decision on a motion to withdraw.” Id. at ¶ 42.
III
{¶9} The state argues that Lovano failed to establish that he was entitled to
relief under R.C. 2943.031(D) because he did not demonstrate that the court failed
to give him the required advisement. It maintains that the only proof that the court
failed to give the advisement is contained in Lovano’s “self-serving” affidavit — an
affidavit that the court should have discounted.
{¶10} We need not consider whether the court erred by finding Lovano’s
affidavit credible because the state’s argument ignores the import of R.C.
2943.031(E). That section states: “In the absence of a record that the court
provided the advisement described in division (A) of this section and if the
advisement is required by that division, the defendant shall be presumed not to have
received the advisement.” It is undisputed that the transcript of the plea hearing is
unavailable and that no other evidence exists to prove that the court gave the
advisement. This constitutes an “absence of a record” that the court provided the
advisement. Even had the court struck Lovano’s affidavit as self-serving (or even
if Lovano had not offered an affidavit at all), the state’s concession that there is no
record that the court gave the advisement was enough to oblige the court to presume
that the advisement was not given.
IV
{¶11} The state’s primary argument is that the court abused its discretion by
failing to find the motion to withdraw the guilty plea untimely because 19 years
passed from the date of the conviction to the date of the motion to withdraw the
plea.
{¶12} In Francis, the Supreme Court stated:
Timeliness of the motion is just one of many factors the trial court
should take into account when exercising its discretion in considering
whether to grant the motion. 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.
However, at the same time, we also do not accept the court of appeals’
determination that, as a matter of law, untimeliness here was a
sufficient factor in and of itself to justify the trial court’s decision to
deny the motion. In light of the strong policy expressed within R.C.
2943.031(D), we reject the court of appeals’ approach in this regard,
particularly when the trial court, which did not explain its ruling, never
found that appellant’s delay in moving to withdraw the plea was
unreasonable. It is too great a leap on this meager record to conclude,
with no further inquiry, that appellant’s delay in filing the motion was
unreasonable as a matter of law.
Id. at ¶ 41-42.
{¶13} With these principles in mind, we conclude that the court acted
arbitrarily and unreasonably by granting Lovano’s motion to withdraw the guilty
plea made 19 years after the fact. It is true that the Supreme Court made it plain
that it would not create a bright-line rule on the timing of motions brought under
R.C. 2943.031(D) and that the timeliness of the motion would be but one factor
underlying the court’s discretion to grant a motion to withdraw a plea. Id. at ¶ 42.
Nevertheless, the concept of “timeliness” discussed in Francis involves more than
just the numerical calculation of the number of years between entering the plea and
the motion to withdraw the plea. As Francis noted, subsumed within timeliness is
the prejudice to the state in terms of stale evidence and unavailability of witnesses.
{¶14} Lovano’s motion to withdraw his guilty plea was untimely for two
reasons. First, and most obviously, the motion was untimely because he waited 19
years to file it. Again, while the timeliness of the motion cannot be considered
dispositive as a matter of law, there is no doubt that 19 years is an exceptionally
lengthy lapse of time between the plea and the motion to withdraw the plea.
{¶15} Second, the 19-year lapse of time became all the more egregious
because Lovano did not file a motion to withdraw the guilty plea despite being
aware just one month after his May 1993 conviction that it could lead to
deportation. He concedes that he was ordered in June 1993 to show cause why he
should not be deported for having committed the acts underlying his May 1993
guilty plea. That conviction did not lead to his deportation because an immigration
judge granted a waiver under former Section 212(c), 8 U.S.C. 1182(c) (repealed in
1996). Nevertheless, commencement of deportation proceedings alone was
enough to put Lovano on notice that his May 1993 guilty plea had immigration
consequences and that he must act with alacrity to protect his privilege to remain in
the United States.
{¶16} We recently considered a similar set of facts in State v. Huang, 8th
Dist. Cuyahoga No. 99945, 2014-Ohio-1511. Huang was convicted of domestic
violence in 1996 and 2001. Deportation proceedings commenced against him in
2004, but those proceedings were cancelled. Deportation proceedings were
recommenced after Huang was convicted of gross sexual imposition and menacing
by stalking in 2009. In 2012, he sought to withdraw his no contest plea underlying
the 2001 conviction on grounds that counsel was ineffective for failing to warn him
that his no contest plea could have immigration consequences. The court denied
the motion to withdraw and we affirmed. Quoting the principle that “[i]t 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[,]”
Francis, 104 Ohio St.3d 490, at ¶ 40, we stated:
Lastly, regarding his ineffective assistance claims, we find that
Huang’s motion was untimely. Huang had notice of immigration
issues years prior to moving to withdraw his plea. In 2004, Huang
was contacted by immigration authorities and a deportation-removal
hearing was scheduled. This alone should have put Huang on notice
that his legal issues were compromising his ability to lawfully remain
in the United States. Yet, despite this warning, Huang did not make
any effort to withdraw his no contest plea. It was only after his 2009
conviction for menacing by stalking, followed by his receipt of the
removal letters in 2011 and 2012, that Huang decided to revisit his
2001 no contest plea.
Id. at ¶ 17.
{¶17} The principles we applied in Huang apply with even more force to this
case because the eight-year delay in bringing a motion to withdraw that we deemed
unreasonable in that case is far-eclipsed by the 19-year delay in this case. And it
bears noting that Lovano’s excuse for not taking earlier action to withdraw his
guilty plea — he thought the deportation waiver “eliminated the case for
immigration purposes” — is not a valid excuse for the 19-year delay. The law
does not excuse willful ignorance. Having been put on notice that his 1993
conviction could lead to deportation, Lovano had the duty to exercise due diligence
and seek advice from legal counsel at that point in time. It was unreasonable for
the court to give no consideration at all to Lovano’s failure to act when he had
notice that his 1993 conviction had deportation consequences.
{¶18} The 19-year delay in seeking to withdraw the guilty plea has also
severely prejudiced the state’s ability to proceed with a prosecution. Francis made
it clear that the state has an interest in maintaining the finality of a conviction in a
case that has been closed for an extended period of time. Francis, supra, at ¶ 40;
Huang at ¶ 17.
{¶19} The state told the court that any evidence of Lovano’s guilt had
long-since been destroyed. In addition, the state told the court that Lovano had
engaged in a “fairly complex check scheme” involving a codefendant and multiple
locations where they passed bad checks. Given the passage of time, the state
would be severely prejudiced in recreating a case to prosecute.
{¶20} Finally, the court’s decision could be viewed as appearing to rest, at
least in part, on its belief that the state had no viable interest in continuing to
prosecute Lovano for passing bad checks. During the hearing on the motion to
withdraw the guilty plea, the court asked the state: “What is the State’s interest in
maintaining this particular conviction of a 1993 low level passing bad check case,
other than just maintaining it?” That question was unwarranted because the
prosecuting attorney has sole discretion to prosecute crimes. Bordenkircher v.
Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604. The court’s question also
gave the impression that the court thought it pointless to prosecute Lovano again.
Whether this was the court’s actual intention is impossible to determine from the
transcript. But it bears mentioning that the court’s sentiments appear sympathetic
toward Lovano’s lack of diligence in seeking to withdraw his plea. By waiting so
long to withdraw his plea, Lovano was able to take advantage of a court reporter
destroying stale transcript notes, thus triggering the statutory presumption that the
R.C. 2943.031(A) advisement was not given. Furthermore, Lovano’s delay has
also enabled him to benefit from the state disposing of what it very reasonably
thought after so long a period of time was unneeded evidence. With Lovano’s
1993 defense attorney unable to recall any specifics of the case, it seems that the
state would be hard-pressed to find witnesses with a better recollection more than
20 years after the fact.
{¶21} The court’s decision to grant Lovano’s motion to withdraw his guilty
plea not only allows Lovano to benefit from his own dilatory conduct, it
undermines any notion that criminal judgments should be final. Lovano has
undeniably known for 19 years that his 1993 guilty plea had deportation
consequences, so he cannot reasonably claim otherwise as a basis for seeking the
withdrawal of his plea. Meanwhile, Lovano’s delay has caused demonstrable
prejudice to the state in terms of mounting a new prosecution. The court’s
intimation that there was no point to reprosecuting a “low level passing bad check
case” is a value judgment that resides solely with the prosecuting attorney, and
underscores the arbitrariness of the court’s decision to grant the motion to withdraw
the guilty plea. The first assignment of error is sustained. The second assignment
of error is moot.
{¶22} This cause is reversed and remanded to the trial court for further
proceedings consistent with this opinion.
It is ordered that appellant recover of appellee its 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
Cuyahoga County Court of Common Pleas 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.
________________________________________
MELODY J. STEWART, JUDGE
MARY J. BOYLE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR