[Cite as State v. Zabala, 2011-Ohio-2947.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : William B. Hoffman, P.J.
: Julie A. Edwards, J.
Plaintiff-Appellee : Patricia A. Delaney, J.
:
-vs- : Case No. 10CAC080059
:
:
MATEO ZABALA : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Delaware
County Municipal Court No. 03-CRB-
01564
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: June 2, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PETER B. RUFFING BRIAN C. DIFRANCO
Justice Center DiFranco Law Office, LLC
70 North Union Street 100 E. Campus View Blvd., 250
Delaware, Ohio 43015 Columbus, Ohio 43235
[Cite as State v. Zabala, 2011-Ohio-2947.]
Edwards, J.
{¶1} Defendant-appellant, Mateo Zabala, appeals from the July 8, 2010,
Judgment Entry of the Delaware County Municipal Court denying his Motion to
Withdraw his plea. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 5, 2003, a complaint was filed in Delaware County Municipal
Court charging appellant with drug possession (marijuana) in violation of R.C. 2925.11,
a minor misdemeanor. On the same date, a complaint was filed charging appellant with
possession of drug paraphernalia in violation of R.C. 2925.14, a misdemeanor of the
fourth degree. At his scheduled arraignment on August 11, 2003, appellant, who was
not represented by counsel, pleaded no contest to the charge of possession of drug
paraphernalia and was found guilty. He was fined $150.00 plus costs and ordered to
perform forty hours of community service. Appellant was found not guilty of the
remaining charge.
{¶3} Subsequently, on June 3, 2010, appellant filed a Motion to Withdraw his
plea pursuant to R.C. 2943.031(D) and Crim.R. 32.1. Appellant, in his motion, noted
that he was not a United States citizen and was awaiting a hearing in regard to his
eligibility for Legal Permanent Residence based on his marriage to a U.S. citizen.
Appellant alleged that the trial court’s finding of guilt following appellant’s no contest
plea rendered him inadmissible and subject to removal from the United States.
Appellant argued that, in accepting his plea, the trial court failed to comply with R.C.
2943.031(E) because it never advised him personally that his conviction could result in
Delaware County App. Case No. 10CAC080059 3
deportation, exclusion from admission to the United States or denial of naturalization.
Appellant, in his motion, stated, in relevant part, as follows:
{¶4} “Defendant’s record of conviction demonstrates that before the Judge
addressed the Defendant personally, the entire courtroom was read a number of rights
prior to the commencement of the court hearings that day. When defendant signed his
waiver of rights form he was only put on notice by the form of the potential of
deportation only. The Trial Court addressed Defendant personally before accepting his
plea but only inquired if Defendant understood the earlier recitation given to the entire
courtroom. The Trial Court made reference only to the concerns about Immigration
Laws that were explained earlier. O.R.C. 2943.031(A). Pursuant to O.R.C.
2943.031(E), when the Court is unable to provide a record showing that the Court
provided the required advisement, the defendant is ‘presumed not to have received the
advisement.’
{¶5} “Defendant learned of his current inadmissibility to Adjustment of Status to
Legal Permanent Residence after retaining current counsel. Defendant is scheduled to
appear in Immigration court on June 17, 2010 and must be able to demonstrate that he
is admissible. If he fails to demonstrate that he is admissible as a Legal Permanent
Resident then the Immigration Judge will order Defendant removed from the United
States to Colombia.”
{¶6} Attached to appellant’s motion was a June 15, 2009, “Decision on
Application for Permanent Residence” from the United States Citizenship and
Immigration Services denying his January 11, 2009, Application for Permanent
Residence or Adjust Status. The decision stated that appellant’s application was being
Delaware County App. Case No. 10CAC080059 4
denied because appellant had failed to submit certified arrest records and certified court
dispositions relating to a 2007 case out of Westerville, Ohio. The decision noted that
appellant had been requested to submit information with respect to five different criminal
cases, including the case sub judice.
{¶7} A hearing on appellant’s motion was held on June 25, 2010. Pursuant to a
Judgment Entry filed on July 8, 2010, the trial court denied such motion. The trial court,
in its Judgment Entry, found that it had, on August 11, 2003, stated that a conviction for
a non-United States citizen could result in deportation, exclusion from admission or
denial of naturalization. The trial court indicated that it had addressed appellant
personally when his case was called and had asked him if he was in court when the trial
court recited the general arraignment rights to all defendants. The trial court further
stated that appellant had indicated that he had understood his rights and had
understood the trial court’s explanation regarding how a conviction could affect
appellant’s immigration rights. The trial court, based on the forgoing, found that
appellant “was given warnings that substantially complied with R.C. 2943.031. He
appeared to understand the possible implication that a conviction could have on his
immigration rights.”
{¶8} Appellant now raises the following assignment of error on appeal:
{¶9} “THE TRIAL COURT ERRED IN DENYING DEFENDANT/APPELLANT’S
MOTION TO WITH DRAW [SIC] HIS GUILTY PLEA FOR LACK OF SUBSTANTIAL
COMPLIANCE WITH O.R.C. 2943.031 WHERE THE TRIAL COURT ERRED IN
DETERMINING THAT A GROUP RECITATION OF THE REQUIREMENTS OF O.R.C.
2943.031 GIVEN AT THE COMMENCEMENT OF ARRAIGNMENT FOLLOWED BY AN
Delaware County App. Case No. 10CAC080059 5
ACKNOWLEDGMENT OF THE DEFENDANT THAT HE UNDERSTOOD COMPLIES
WITH THE ‘PERSONALLY ADDRESS’ LANGUAGE OF THE STATUTE.”
I
{¶10} Appellant, in his sole assignment of error, argues that the trial court erred
in denying appellant’s Motion to Withdraw his no contest plea. Appellant specifically
contends that the trial court erred in finding that a group recitation of the requirements of
R.C. 2943.031 given at the commencement of arraignment, followed by appellant’s
acknowledgement that he understood, complies with the statute.
{¶11} A trial court's decision on a noncitizen's motion to withdraw guilty or no-
contest plea, based on allegedly inadequate advisement of immigration-related
consequences of plea, is reviewed for abuse of discretion. See State v. Francis, 104
Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355 at paragraph 32.
{¶12} In Ohio, the duty to inform a non-citizen defendant of the possible
deportation consequences of his or her plea is entrusted to the trial court. R.C.
2943.031(A) states that, when a trial court accepts a guilty plea from a defendant, like
appellant, who is not a United States citizen: “ * * * [T]he 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:
{¶13} ‘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.’ “
Delaware County App. Case No. 10CAC080059 6
{¶14} In addition, R.C. 2943.031(D) states:
{¶15} “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.”
{¶16} In State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355,
the Ohio Supreme Court set forth the standard for plea withdrawal motions pursuant to
R.C. 2943.031 claims: “[I]f some warning of immigration-related consequences was
given at the time a noncitizen defendant's plea was accepted, but the warning was not a
verbatim recital of the language in R.C. 2943.031(A), 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).” Francis at ¶ 48. “‘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.’” Id., quoting State v. Nero (1990), 56 Ohio St.3d
106, 108, 564 N.E.2d 474.
Delaware County App. Case No. 10CAC080059 7
{¶17} Appellant, in the case sub judice, did not file a direct appeal. An
appellant’s failure to directly appeal a court’s failure to comply with R.C. 2943.031
during the plea process is not barred by the doctrine of res judicata. See State v.
Lucente, Mahoning App. No. 03 MA 216, 2005-Ohio-1657. In Lucente, the court stated,
in relevant part, as follows: “Prior to addressing whether the trial court adequately
advised appellant of R.C. 2943.031, we must first address the state's argument that
appellant's arguments concerning the adequacy of the advisement under R.C.
2943.031, ‘may be barred by res judicata.’ If appellant's arguments are barred by res
judicata, then whether or not the advisement complied with R.C. 2943.031 would be a
moot issue. The state's contention is that appellant could have raised the failure to
comply with R.C. 2943.031 in a direct appeal, and thus res judicata applies.
{¶18} “The Tenth Appellate District has held that a motion to withdraw a plea for
failure to comply with R.C. 2943.031 is not barred by the failure to appeal the defect in a
plea process. State v. Yuen, 10th Dist. No. 01AP-1410, 2002-Ohio-5083, at ¶ 31. In so
holding, the Tenth District relied on the Ohio Supreme Court case of State v. Bush, 96
Ohio St.3d 235, 773 N.E.2d 522, 2002-Ohio-3993 and the similarities between a motion
to withdraw under Crim.R. 32.1 and a motion to withdraw under R.C. 2943.031. Yuen,
2002-Ohio-5083.
{¶19} “In Bush, the Ohio Supreme Court was asked to determine whether a
motion to withdraw a guilty plea filed after the time for appeal had expired must be
considered a motion for post-conviction relief under R.C. 2953.21. Bush, 96 Ohio St.3d
235, 773 N.E.2d 522. The Supreme Court held that a Crim.R. 32.1 motion was not a
petition for post-conviction relief, but was rather a distinct avenue for relief. Id. at ¶ 11,
Delaware County App. Case No. 10CAC080059 8
773 N.E.2d 522. It explained that post-conviction relief is a collateral attack on the
validity of a conviction or sentence. Id. at ¶ 13, 773 N.E.2d 522. However, a Crim.R.
32.1 motion to withdraw is not a collateral attack since it is filed in the underlying
criminal case and targets the withdrawal of a plea. Id.
{¶20} “Applying the Supreme Court's reasoning, the Yuen court explained that a
R.C. 2943.031 motion to withdraw is similar to a Crim.R. 32.1 motion to withdraw, in that
‘it is commenced with the filing of a motion in the underlying case, it is directed to the
plea, and the statute giving rise to the motion does not specify any time limits.’ Yuen,
2002-Ohio-5083, at ¶ 29. Furthermore, the Yuen court explained that in Bush, the
motion to withdraw the plea was filed outside the time limits for a direct appeal, and in
that case the Supreme Court did not suggest that Bush's remedy under Crim.R. 32.1
was barred by his failure to appeal from his guilty plea. Id. at ¶ 30, 773 N.E.2d 522.
Thus, given all of the above, the Yuen court concluded, a defendant may appeal ‘the
trial court's failure to comply with R.C. 2943.031, or * * * may appeal the trial court's
refusal to grant his R.C. 2943.031(E) motion to withdraw.’ Id. at ¶ 31.
{¶21} “We find the Tenth District's reasoning logical. Accordingly, res judicata
does not bar appellant's appeal; the state's argument fails.” Id at paragraphs 10-14.
{¶22} We find, therefore, that appellant’s motion was not barred by the doctrine
of res judicata. In State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d
355, the Ohio Supreme Court recognized that necessary proof to support such a claim
may not exist within the record on direct appeal of the conviction. Id at ¶ 36. The court
further noted that a motion under R.C. 2943.031(D) and an appeal from the denial of
such motion provide the exclusive remedies for a trial court’s alleged failure to comply
Delaware County App. Case No. 10CAC080059 9
with R.C. 2943.031(A). State ex rel. White v. Suster, 101 Ohio St.3d 212, 2004-Ohio-
719, 803 N.E.2d 813 at paragraph 7.
{¶23} We further find that appellant’s motion was timely made. In Francis, supra,
the court held that the timeliness of the motion to vacate the guilty plea was an
important factor when determining whether the trial court abused its discretion. While
recognizing that R.C. 2943.031 did not provide any time limitations within which to file a
motion to withdraw, the court stated as follows:
{¶24} “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.” Id at
paragraph 40.
{¶25} On August 11, 2003, appellant entered his no contest plea in the case sub
judice. His motion to vacate the same was not filed until June 2, 2010. Appellant, in his
motion, indicated that “he had learned of his current inadmissibility to Adjustment of
Status to Legal Permanent Residence after retaining current counsel” and that he was
scheduled to appear in Immigration Court on June 17, 2010. We find that appellant’s
motion was filed with a reasonable length of time.
{¶26} The issue that must next be determined is whether or not the trial court
erred in determining that a group recitation of the requirements of R.C. 2943.031 given
at the start of arraignment, followed by appellant’s acknowledgement that he
Delaware County App. Case No. 10CAC080059 10
understood, complied with the requirement in R.C. 2943.031(A) that the court address
the defendant personally.
{¶27} In State v. Yanez, 150 Ohio App.3d 510, 2002-Ohio-7076, 782 N.E.2d
146, the court held, as relevant part, as follows:
{¶28} “The principal goal of statutory interpretation is to give effect to the intent
of the legislature. See Bailey v. Republic Engineered Steels, Inc. (2001), 91 Ohio St.3d
38, 39, 741 N.E.2d 121. The court must first look to the language of the statute. If the
language unambiguously and distinctly expresses the sense of the legislative body, it
must be applied as written. Id.; … The General Assembly has put the three required
warnings-deportation, exclusion from the United States, and denial of naturalization-in
quotation marks. We find no other criminal statute in which the General Assembly has
used quotation marks to designate the trial court's colloquy with a defendant. See, also,
State v. Quran, 2002-Ohio-4917, 2002 WL 31087704, at ¶ 21. The use of quotation
marks and the command to the trial court that it ‘address the defendant personally’ and
‘provide * * * the advisement’ indicate a clear intent by the General Assembly that each
warning should be given to ensure that a person pleading guilty or no contest knows
exactly what immigration consequences his plea may have. It is an acknowledgement
that, at least to some defendants, the collateral consequences of a plea, namely
deportation, exclusion from admission to the United States, and denial of naturalization,
may well be a more serious sanction than the imposition of a prison term. See, e.g.,
Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. at 322-323, 121 S.Ct. 2271, 150
L.Ed.2d 347; see, also, Chin& Holmes, Effective Assistance of Counsel and the
Consequences of Guilty Pleas, 87 Cornell L.Rev. at 700. The words of the statute,
Delaware County App. Case No. 10CAC080059 11
bracketed by quotation marks, do not permit any other interpretation.” Id at paragraph
29.
{¶29} The court, in Yanez, further held that the appellant’s written signature on a
plea form that specified the immigration consequences did not satisfy the requirement in
R.C. 2943.031(A) that the court personally address a defendant. See also State v.
Mason, 2002-Ohio-930, 2002 WL 242662, at 4 in which the court held that “[i]t is clear
however, that the legislature intended that the trial court engage in a personal colloquy
with the non-citizen defendant to assure itself that the defendant fully understands the
deportation consequences of his plea.”
{¶30} In the case sub judice, the trial court, at arraignment, advised a group
sitting behind the court railing of all of the potential consequences referred to in R.C.
2943.031(A). When appellant appeared at the podium before the trial court, the
following exchange occurred between appellant and the trial court:
{¶31} “The Court: Are you a U.S. citizen?
{¶32} “The Defendant: No, your honor.
{¶33} “The Court: And you understand, uh what I was talking about, you’re not
concerned about uhm any of the matters in terms of uhn Immigration Laws and things
like that that I explained to you?
{¶34} “The Defendant: yes I do your honor.
{¶35} “The Court: You do understand that?
{¶36} “The Defendant: [no verbal response] (Arraignment Video Trans., at
9:15:07 AM).” Appellant then entered his no contest plea.
Delaware County App. Case No. 10CAC080059 12
{¶37} We find, based on the foregoing, that the trial court never personally
addressed appellant and assured itself that appellant fully understood the immigration
consequences of his plea of no contest. Appellant was never personally advised that
his conviction could result in deportation, exclusion from admission to the United States
or denial of naturalization. We find, for such reason, that the trial court erred in denying
appellant’s Motion to Withdraw his plea.
{¶38} Appellant’s sole assignment of error is, therefore, sustained.
{¶39} Accordingly, the judgment of the Delaware County Municipal Court is
reversed and this matter is remanded to the trial court for further proceedings.
By: Edwards, J.
Delaney, J. concurs
Hoffman, P.J. dissents
______________________________
______________________________
______________________________
JUDGES
JAE/d0216
Delaware County App. Case No. 10CAC080059 13
Hoffman, PJ., dissenting
{¶40} I respectfully dissent from the majority opinion.
{¶41} While I am not yet convinced res judicata does not apply in the case sub
judice, I, nevertheless, dissent because I find Appellant’s motion to withdraw his plea
nearly seven years after it was entered is untimely.
{¶42} Although unnecessary to my decision, I further question the majority’s
conclusion the trial court never “personally” addressed Appellant and assured itself
Appellant fully understood the immigration consequences of his plea of no contest.
(Majority Opinion at ¶24). It appears underlying the majority’s conclusion is its concern
whether group advisement of R.C. 2943.031 consequences is permissible. I do not find
the necessity to “personally” address the defendant requires the trial court to
“individually” advise the defendant of possible immigration consequences prior to
personally addressing the defendant as to his or her understanding of the same.
________________________________
HON. WILLIAM B. HOFFMAN
[Cite as State v. Zabala, 2011-Ohio-2947.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
MATEO ZABALA :
:
Defendant-Appellant : CASE NO. 10CAC080059
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Delaware County Municipal Court is reversed and this matter is
remanded to the trial court for further proceedings. Costs assessed to appellee.
_________________________________
_________________________________
_________________________________
JUDGES