[Cite as State v. Lopez, 2011-Ohio-6743.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2011CA00040
FRANCISCO LOPEZ :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas Case No. 2008CR2234C
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 27, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOHN D. FERRERO JONATHAN A. BARTELL
PROSECUTING ATTORNEY, 700 W. St. Clair Ave., Suite 214
STARK COUNTY, OHIO Cleveland, Ohio 44113
By: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
[Cite as State v. Lopez, 2011-Ohio-6743.]
Hoffman, P.J.
{¶1} On February 20, 2009, the Stark County Grand Jury indicted Appellant,
Francisco Lopez, on one count of felonious assault, in violation of R.C. 2903.11(A)(1), a
second degree felony. The trial court permitted the State to amend the indictment to
aggravated assault, in violation of R.C. 2903.12, a fourth degree felony. On March 20,
2009, Appellant pled guilty as charged in the amended indictment. Thereafter, the trial
court accepted the plea and sentenced Appellant to 6 months in prison. Appellant did
not file a direct appeal.
{¶2} On November 19, 2010, Appellant filed a motion to vacate his guilty plea.
On January 19, 2011, the trial court denied the motion without hearing.
{¶3} It is from that decision Appellant prosecutes this appeal assigning as
error:1
{¶4} “I. THE TRIAL COURT ERRED BY DENYING A HEARING FOR MR.
LOPEZ’S MOTION TO VACATE GUILTY PLEA WHEN AT THE TIME OF THE PLEA
THE COURT FAILED TO PROVIDE THE ADVISORY LANGUAGE PURUSANT TO
O.R.C. §2943.031 THAT THE GUILTY PLEA MAY RESULT IN ADVERSE
IMMIGRATION STATUS CHANGE.
{¶5} “II. THE TRIAL COURT ERRED BY FAILING TO RECOGNIZE THAT
UNDER THE SUPREME COURT’S HOLDING IN PADILLA V. KENTUCKY A
DECISION MAY BE VACATED BECAUSE OF INEFFECTIVE LEGAL ASSISTANCE.
{¶6} “III. THE TRIAL COURT ERRED BY FAILING TO RECOGNIZE A
CONFLICT OF INTEREST WHEN DEFENDANT’S ORIGINAL COUNSEL WAS
1
While Appellant lists nine assignments of error on p. 4 of his Brief, he lists and argues only the
three cited infra in his “ARGUMENT” section.
Stark County, Case No. 2011CA00040 3
SIMULTANEOUSLY REPRESENTING THE OTHER CO-DEFENDANTS WITHOUT
EXPRESS WRITTEN CONSENT.”
I.
{¶7} Crim. R. 32.1 governs the withdrawal of a guilty plea and states “[a]
motion to withdraw a plea of guilty or no contest may be made only before sentence is
imposed; but to correct manifest injustice the court after sentence may set aside the
judgment of conviction and permit the defendant to withdraw his or her plea.”
{¶8} An appellate court reviews a trial court’s decision on a motion to withdraw
a plea under an abuse of discretion standard. State v. Francis, 104 Ohio St.3d 490, 820
N.E.2d 355, 2004-Ohio-6894, ¶ 32. (Citations omitted.)
{¶9} A hearing on a postsentence motion to withdraw a plea is not required if
the facts, as alleged by the defendant and accepted as true by the court, would not
require that the guilty plea be withdrawn. State v. Wilkey, 5th Dist. No. CT2005-0050,
2006-Ohio-3276, at ¶26 (citing State v. Patterson, 5th Dist. No. 2003CA00135, 2004-
Ohio-1569).
{¶10} Appellant was born in Mexico and his first language is Spanish. Appellant
was legally in the United States, but is not a United States citizen. He was represented
in the underlying case by attorney Jose Iborra, who also represented co-defendant
Sergio Bera Belmudes. Appellant signed a guilty plea form, which stated, in part: “I
understand the consequences of a conviction upon me if I am not a U.S. Citizen.”
{¶11} A transcript of the plea and sentencing hearing is provided in the record.
The following portions are relevent to this appeal:
Stark County, Case No. 2011CA00040 4
{¶12} “MR. IBORRA: Your Honor, if it pleases the Court, on behalf of each Mr.
Belmudes and Mr. Lopez, I would indicate to the Court that I’ve had plenty of time to talk
with each independently about the status of this case and the discussions that we’ve
had and also the state’s amended [sic], each of them, I’ve reviewed the plea forms with
them.
{¶13} “Mr. Belmudes, just for the record, pretty much conversational in English.
{¶14} “Mr. Lopez understands a significant amount of English, but prefers that
everything just be reaffirmed in Spanish.
{¶15} “I did review everything with them in Spanish; they each executed this
form.
{¶16} “I believe we’re prepared to go forward.
{¶17} “If the Court approves, I’ll just translate to each of them as we go, making
sure that there is no problems.
{¶18} “THE COURT: And you feel comfortable with that arrangement and you’ve
been able to communicate fully?
{¶19} “MR. IBORRA: Yeah, there has been no problem with communication.
{¶20} “Ah, I’ve explained to Mr. Lopez, who at one time in this case was set for
trial, explained to him that, you know, an interpreter would be necessary, because I’m
just way too distracted trying, during the trial to do that, but he understands that I’m
serving as both counsel and interpreter for purposes of this plea and he consented to
that.” March 20, 2009 T. at 4-5.
{¶21} Thereafter, the trial court engaged in a Crim. R. 11 colloquy with the
defendants, with Mr. Iborra translating for the defendants in Spanish the words spoken
Stark County, Case No. 2011CA00040 5
in English by the court. Mr. Iborra responded in English to the court’s questioning,
however, the transcript at most points does not indicate that the defendants verbally
responded in either English or Spanish to the court’s questioning after Attorney Iborra’s
translation. In addition, several responses by Mr. Iborra in the colloquy were collective
conclusions such as, ‘they understand’.
{¶22} Near the conclusion of the colloquy, the court stated:
{¶23} “THE COURT: The Court is going to issue a sentence - - well, there is one
other thing I need to do. I need to make sure they both understand this. Because both
Mr. Lopez and Mr. Belmudes are legally in the United States, but neither are U.S.
citizens.
{¶24} “MR. IBORRA: That’s correct.
{¶25} ‘THE COURT: Correct? Let me then also, I do need to warn you that, both
of you - -
{¶26} “ - - - - - - - -
{¶27} “(Thereupon, Attorney Iborra translated for the defendants in Spanish the
words spoken by the Court.)
{¶28} “- - - - - --
{¶29} “THE COURT: -- if you are not a citizen of the United States, you are
hereby advised that the conviction of this particular criminal offense by pleading guilty
this could have consequences of being deported or being excluded from admission to
the United States or denial of naturalization pursuant to the law of the United States.
{¶30} “Do you both understand that?
{¶31} “MR. IBORRA (after translation): They both understand.
Stark County, Case No. 2011CA00040 6
{¶32} THE COURT: “And I would indicate Mr. Belmudes said, Yes, and Mr.
Lopez said, Yes. Does that in any way change either of your, ah, intentions or either of
you wanting to plead guility?
{¶33} MR. IBORRA (after translation): No - -
{¶34} THE COURT: No?
{¶35} “MR. IBORRA: - - To Mr. Belmudes. No to Mr. Lopez.
{¶36} “THE COURT: Thank you. So therefore, Mr. Belmudes, your plea of guilty
is still guilty; is that correct?
{¶37} “DEFENDANT BELMUDES: Yes.
{¶38} “THE COURT: Thank you. And Mr. Lopez, you still wish to plead guilty?
{¶39} “DEFENDANT LOPEZ: Yes.
{¶40} “THE COURT: Thank you. The Court will accept those.” March 20, 2009
T. at 22-25.
{¶41} Appellant’s November 19, 2010 motion to withdraw the guilty plea sets
forth the following reasons for his request:
{¶42} (1) A conflict of interest was created when the criminal defense attorney
represented the two co-defendants in the case without the proper informed consent;
{¶43} (2) the criminal attorney improperly served as both legal representative
and the interpreter at the time the plea was taken;
{¶44} (3) the defendant did not receive the statutory advisement language as set
forth in R.C. 2943.031(A) in Spanish; and
{¶45} (4) the defendant was denied the effective assistance of counsel as
counsel did not inform him the plea may carry immigration consequences.
Stark County, Case No. 2011CA00040 7
{¶46} The trial court denied the motion to withdraw the plea without hearing,
stating: “It is clear from the review of the record that the defendant was adequately
represented and fully understood the nature of the proceedings and was fully advised
concerning the potential for deportation.” (Emphasis added.) January 19, 2011
Judgment Entry.
{¶47} On appeal, Appellant’s assignments of errors collectively challenge the
manner in which the underlying plea was taken, namely the issues of meaningful
translation and adequacy of legal representation as to the consequences of exclusion.
After serving his jail sentence, Appellant apparently travelled to Mexico and learned
upon his return that he is subject to exclusion from the United States because of his
conviction. Appellant states that exclusion, as opposed to deportation, means a legal
permanent resident traveling abroad may not reenter without being placed in formal
removal proceedings. Deportation, on the other hand, triggers certain procedural
constitutional safeguards and occurs without the person having left the United States.
Appellant contends the trial court “sole focus on the term ‘deportation’” demonstrates a
misunderstanding as to the immigration consequences faced by the Appellant as a
result of the plea.
{¶48} At the outset, we note this appeal implicates both R.C. 2943.0312, which
supplies the language a trial court accepting a plea of guilty or no contest is to use to
2
R.C. 2943.031 states: “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
* * *, 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 * * * 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.’ ”
Stark County, Case No. 2011CA00040 8
warn a noncitizen criminal defendant of the possible consequences (deportation,
exclusion, or denial of naturalization) of a criminal conviction, and the full and proper
translation of this statutory requirement to a defendant who is limited English proficient.
{¶49} In this case, the trial court relied upon Mr. Iborra to function as a
translator, apparently with the consent [albeit unconfirmed] of the Appellant. The record
is devoid of any indication that Mr. Iborra is a certified court interpreter or possesses the
skills, knowledge, and ability to serve as a court interpreter.
{¶50} The State finds State v. Mota, 6th Dist. App. No. L-04-1354, 2006-Ohio-
3800 instructive for the proposition it is not error for defense counsel to act as an
interpreter even when there was no indication on the record he was certified. We find
the underlying rationale in Mota persuasive even though in Mota, the trial court engaged
the defendant in a direct conversation about his understanding and command of the
English language and his ability to understand his counsel and the defendant conceded
his counsel spoke fluent Spanish – both of which are absent in the case sub judice. The
Sixth District Court of Appeals found no due process violation because “[a] qualified
attorney who is expert in foreign language will guarantee his client due process better
than an interpreter ignorant in the law.” Id. at ¶ 24.
{¶51} Since Mota, the Ohio Supreme Court has issued guidelines for the
judiciary to establish interpreter qualifications and the necessity of interpreter services.
See, The Supreme Court of Ohio, Interpreters in the Judicial System: A Handbook for
Ohio Judges. In addition, Rules 80 to 87 the Ohio Rules of Superintendence were
promulgated in January 1, 2010, to establish certification for foreign language
interpreters. See also, City of Columbus v. Lopez-Antonio, 153 Ohio Misc.2d 4, 914
Stark County, Case No. 2011CA00040 9
N.E.2d 464, 2009-Ohio-4892, for summary of a defendant’s constitutional, procedural
and statutory rights to an interpreter.
{¶52} Based upon the record noted supra, we do not find the trial court abused
its discretion in finding no manifest injustice is evident from the record and a hearing
was not necessary. Contrary to his claim, the record reflects Appellant was advised of
the possibility of exclusion.3 Appellant’s argument is premised on inconvenience, not
innocence, and does not rise to the level of manifest injustice.
{¶53} Appellant’s first assignment of error is overruled.
II
{¶54} Herein Appellant asserts the record does not reflect his counsel fully
translated the advisory language in R.C. 2943.031. Appellant does not identify where in
the record the alleged incomplete translation can be found. As noted in our discussion
of his first assignment of error, the record supports the conclusion he was advised of the
possibility of exclusion.
{¶55} Appellant’s reliance on Padilla v. Kentucky, ____U.S. ______, 130 S.Ct.
1473 (2010) is misplaced as Padilla is significantly distinguishable.4 In Padilla, the
defendant’s attorney advised him he did not have to worry about immigration status
despite the fact the charge against him required mandatory deportation. No such
improper advice has been shown in this case.
{¶56} Appellant’s second assignment of error is overruled.
3
We note Appellant’s self-serving affidavit and that of his wife were not filed with his motion to
vacate his plea.
4
See the Court’s opinion in State v. Gallegos-Martinez for a similar discussion and
distinguishment of Padilla.
Stark County, Case No. 2011CA00040 10
III
{¶57} Herein Appellant claims the trial court erred by not “recognizing” his
counsel had a conflict of interest because he also represented Appellant’s co-
defendant, Sergio Bera Belmudes.
{¶58} There is no demonstration in this record either Appellant or his co-
defendant had conflicting defenses available or statements were made by Belmudes
implicating Appellant.
{¶59} Furthermore, it would appear this issue could have been raised on direct
appeal and is therefore barred by res judicata. We find the mere allegation of a conflict
of interest insufficient to demonstrate a manifest justice sufficient to require the
withdrawal of Appellant’s plea.
{¶60} Appellant’s third assignment of error is overruled.
{¶61} The judgment of the trial court is affirmed.
By: Hoffman, P.J.
Wise, J. concurs,
Delaney, J. dissents
s/ William B. Hoffman
HON. WILLIAM B. HOFFMAN
s/ John W. Wise
HON. JOHN W. WISE
HON. PATRICIA A. DELANEY
Stark County, Case No. 2011CA00040 11
Delaney, J., dissenting
{¶62} I respectfully dissent from the majority opinion.
{¶63} I do not find persuasive the decision of the Sixth District in State v. Mota,
6th Dist. No. App. No. L-04-1354, 2006-Ohio-3800, particularly in light of the Ohio
Supreme Court’s recent issuance of guidelines for the judiciary to establish interpreter
qualification and the necessity of interpreter services.
{¶64} Furthermore, R.C. 2311.14(A)(1) states: “Whenever because of a hearing,
speech or other impairment a party to or witness in a legal proceeding cannot readily
understand or communicate, the court shall appoint a qualified interpreter to assist such
person.”
{¶65} The need for a qualified interpreter in felony cases is constitutionally
required by Crim.R. 11(C) which requires a trial court to “determine that the defendant
understands the nature of the charge, the maximum penalty involved, and the effect of
the plea.” (Emphasis added.)
{¶66} In this case, the trial court did not directly address Appellant in regards to
his ability to understand English and to understand his counsel, nor does the record
reflect the interpreter qualifications of Mr. Iborra.
{¶67} Because the possibility of a manifest injustice is evident from the record, I
would find a hearing, as requested, would be necessary to address the assertions in
support of the motion to withdraw the plea.
Stark County, Case No. 2011CA00040 12
{¶68} Given the serious impact of exclusion as a consequence of the criminal
plea upon the defendant and his family lawfully living in this country, I would sustain
Appellant’s first Assignment of Error and remand this case to the trial court for an oral
hearing.
s/ Patricia A. Delaney _________________
JUDGE PATRICIA A. DELANEY
[Cite as State v. Lopez, 2011-Ohio-6743.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
FRANCISCO LOPEZ :
:
Defendant-Appellant : Case No. 2011CA00040
:
For the reasons stated in our accompanying Opinion, the judgment of the Stark
County Court of Common Pleas is affirmed. Costs assessed to Appellant.
s/ William B. Hoffman ________________
HON. WILLIAM B. HOFFMAN
s/ John W. Wise ____________________
HON. JOHN W. WISE
_________________________________
HON. PATRICIA A. DELANEY