{¶ 44} I respectfully dissent regarding Tabbaa's motion to withdraw his plea pursuant to R.C. 2943.031.
{¶ 45} The case law is quite settled that the trial court has no discretion regarding whether to grant a motion to withdraw a guilty plea if the statutory conditions are met. State v. Yuen, Franklin App. No. 01AP-1410, 2002-Ohio-5083; State v. Mason, Greene App. No. 2001-CA-113, 2002-Ohio-930; State v. Weber, 125 Ohio App.3d 120, 707 N.E.2d 1178. "* * * [A]s evidenced by the use of the mandatory term `shall,' the trial court has no discretion and must set aside the conviction as long as the four statutory requirements are met." State v. Weber, supra, 126. Nevertheless, the majority would add a fifth requirement of timeliness not stated in the statute.
{¶ 46} In State v. Yuen the Tenth Appellate District comprehensively addressed the question of timeliness and found no basis to this argument. In a lengthy discussion of R.C. 2943.031(D), the court noted that, whereas R.C. 2953.21(A)(2) sets forth time limitations for filing petitions for postconviction relief, there is no statutory restriction of time for withdrawing guilty pleas under 2943.031.
{¶ 47} The majority acknowledges there is no time limit in 2943.031 but then proceeds with the same analysis it used under Crim.R. 32.1. The majority thus ignores the clear difference between the two. The Supreme Court of Ohio enunciated a timeliness standard in Bush, infra, *Page 360 in motions pursuant to Crim.R. 32.1, because the rule specifies "manifest injustice" as the basis for granting a motion to withdraw a plea of guilty.No such condition, however, is specified in R.C. 2943.031. That is why the requirements under Crim.R.32.1 are not applicable.
{¶ 48} In Yuen, the Tenth Appellate District compared 2943.031 with Crim.R. 32.1. The court acknowledged that "delay in filing is a factor to be considered in determining manifest injustice and the defendant's credibility." But the court concluded: "Without question, R.C. 2943.031 differs from Crim.R. 32.1 in that R.C. 2943.031(D) does not grant the trial court the discretion to determine whether the guilty plea should be vacated * * *. Rather, it mandates the plea be vacated in the absence of the required advisement." If the court has no discretion and the court is mandated to vacate the plea, then it follows that the court is also precluded from adding a fifth requirement.
{¶ 49} The Tenth District explained the appellate task of statutory construction: "`Our main consideration in construing a statute is the legislative intent based on a review of the language used. In the review of statutes to discern the legislature's intent, "it is the duty of the courts to give a statute the interpretation its language calls for where this can reasonably be done, and the general rule is that no intent may be imputed to the Legislature in the enactment of a law, other than such as is supported by the language of the law itself." * * * This duty is based on the presumption that the legislature knows the meaning of words and chooses the specific words contained in a statute to express its intent. Consequently, a court may not use words not in the statute to add or limit the expressed legislative intent. * * *' In re Adoption ofKoszycki (1999), 13 Ohio App.3d 434, 437-438, 728 N.E.2d 437. (Footnotes omitted.)" Id. at ¶ 22.
{¶ 50} The majority cites to R.C. 1.47(C) to support its adding a time restriction. Adding a vague time limitation, however, would be contrary to the legislative intent and mandate an unjust and unreasonable result. First, nothing in the statute alerts the accused to defend against an objection of timeliness. The statute does not require the accused to explain the reason for the timing of a motion to withdraw a plea. In the case at bar, it would be fundamentally unfair to ambush defendant with a new requirement now and not provide him an opportunity to explain the timing of his motion.3
{¶ 51} A cursory overview of the immigration laws, moreover, indicates that there is sound basis for not restricting the time during which a defendant can ask to withdraw a plea. Prior to 1996, certain crimes were not deportable offenses. *Page 361 Congress lowered the bar for deportation by expanding the class of state law crimes subject to deportation. Congress also made this change retroactive on the basis that deportation was not deemed a criminal procedure. Mason, supra, at ¶ 9. If a time restriction is imposed on defendants, as the majority wants, then those defendants who pled guilty to a crime subsequently classified as subject to deportation would have no recourse years later. That result is clearly not the legislative intent of this statute.
{¶ 52} To understand the reason for this unique statute, one must understand the effect of deportation. As the Second Appellate District observed, "deportation may result in loss of all that makes life worth living, Ng Fung Ho v. White (1922), 259 U.S. 275,66 L.Ed. 938, 42 S.Ct. 492, and is `close to punishment,' Galvan v.Press (1943), 347 U.S. 522, 98 L.Ed. 911,74 S.Ct. 737." Mason, supra. Adverse consequences such as deportation can be substantially disproportionate to the seriousness of the crime, which in the case at bar was the failure to return two rental chain saws.4
{¶ 53} There are other reasons why it is unreasonable to restrict the time for an accused to withdraw a guilty plea under this statute. Anyone who wishes to be naturalized must reside in this country for a continuous period of time. Those who leave this country and return must begin that time period again. Thus the time frame for naturalization can be lengthy. Similarly, believing they can return, persons may leave the country for any number of reasons and then later discover that their reentry is barred.
{¶ 54} By not establishing any time limitations, the statute clearly intends to allow the accused time to discover the adverse consequences of their pleas. The accused need time to discover consequences not explained by the court. Thus there is a sound reason for the statute not limiting the time to file a motion to withdraw a plea. Similarly, the statute does not require the accused to explain when the consequences were first discovered.
{¶ 55} Nor does the statute authorize an appeal solely from the failure to give the required advisement. The appeal, here, is taken from the denial of the 2943.031 motion. Until that motion was made and denied, there could have been no appeal, pursuant to this statute, on that matter. The statute determines the procedure, and that procedure begins with a motion. The doctrine of res judicata cannot apply before such a motion is made. The appeal on the conviction, however, is another matter. *Page 362
{¶ 56} In a very comprehensive analysis, the Tenth District explained the special nature of R.C. 2943.031 by comparing it to statutes like 2945.67 and 2945.70, which grant "jurisdiction to appellate courts to hear appeals." State v. Weber, supra. The court held that "R.C. 2943.031 is similar to those statutes found to confer substantive rights * * *." "Particularly, these include the right to be advised by the court that one's guilty plea may have consequences on one's immigration status and the right to withdraw a guilty plea if the trial court fails to make the advisement and when certain other statutory requirements are met. Significantly, prior to the enactment of R.C. 2943.031 in 1989, neither of these rights was available to defendants. See State v. Odubanjo (1992), 80 Ohio App.3d 329, 333, 609 N.E.2d 209 (`Prior to the legislative enactment of R.C. 2943.031, the burden of advising defendants of this deportation consequence was incumbent upon defendant's counsel. Then, to argue such error, defendant had to show prejudice for ineffective assistance of counsel.')." Id. 131-132.
{¶ 57} The court concluded that "* * * R.C. 2943.031 confers substantive rights * * *." Id. Those substantive rights, the court held, cannot be restricted by additional requirements, such as establishing that the defendant would not have otherwise pled guilty or showing manifest injustice. Because the statute confers rights with specifically four statutory requirements, no more requirements can be added except by the legislature.
{¶ 58} The statute not only confers substantive rights that cannot be further restricted but also mandates a procedure that begins with a motion. The appeal of a denial of a 2943.031 motion starts at a different point than an appeal from a conviction. Thus the doctrine of res judicata cannot apply. It requires finality, whereas this statute requires the final judgment be changed but only through a procedure that begins with a motion.
{¶ 59} On this point, the statute is like Crim.R. 32.1. Under neither Crim.R. 32.1 nor R.C. 2943.031 is one required to appeal what is properly the basis for what has not yet been filed as a motion to withdraw a plea. Not until that motion is denied is the issue ripe for appeal. Thus the issues underlying either motion are not subject to the doctrine of res judicata. But there the similarity ends. For a motion under 32.1, the court has discretion and it may consider the timing of the motion, but not for a motion under 2943.031. It is the failure to appreciate the difference between these two motions that has caused much misunderstanding. As the Tenth District held, the statute provides "an independent means of withdrawing a guilty plea separate and apart from" Crim.R.32.1. Weber, supra.
{¶ 60} Finally, the majority fails to appreciate that the legislature clearly placed the responsibility on the court to advise non-citizens of the adverse *Page 363 consequences of their plea. To say that the state should not have to bear the burden that results from the court's failure to comply with the statute is to ignore the clear and unambiguous role assigned to the court. The statute clearly shifts the consequences to the state, and properly so because it is the state that has failed in its mandated duty to advise the accused.
{¶ 61} The statute sets forth a simple mechanism to prevent the predicament the majority speculates on. The statute permits the court to ask in writing whether the defendant is a citizen, if the court asks in that same writing for the defendant's plea. The statute also specifies what statement is to be read to the defendant. State v. Quran, Cuyahoga App. No. 80201, 2002-Ohio-4917. This requirement of the court is not onerous. Indeed, reading such a document in open court can provide a solid foundation5 for the personal dialogue also required. There is no reason, therefore, for the appellate court to change the plain meaning of this statute by imposing an additional requirement on the defendant.
3 Below, defendant argued solely that the statute had no time limitation.
4 At the time of his plea, defendant was 21 and here on a student visa. He was enrolled in mechanical engineering at Cleveland State University. At the hearing he stated that he asked his father to return the saws, but his father put them in the trunk of his car and forgot about them. The saws were subsequently returned to the owner.
5 The statement in 2943.031 can also provide a basis for a translation, if one is needed.