Because I disagree with the majority's disposition of this matter, I respectfully dissent.
Applying the strict language of R.C. 2943.031 (D), the majority concludes that the trial court must he reversed and instructed to vacate the guilty plea appellant entered in this matter in 1990. Moreover, concluding that the statute "is substantive, not procedural, the majority finds the Rules of Criminal Procedure inapplicable to appellants motion to withdraw her guilty plea for lack of the stated warnings under R.C. 2943.031.
Since its inception, Crim.R. 11 has governed the procedure for ensuring that a defendant knowingly, intelligently, and voluntarily enters a guilty plea. Similarly, Crim.R. 32.1 has governed the procedure for withdrawing a guilty plea. R.C.2943.031 carves out an exception to those rules, and seems to require that a trial court apply its terms rather than those set forth in Crim.R. 11 and 32.1 in the limited circumstances encompassed by the statute. In particular, while Crim.R. 11 does not mention deportation consequences among those items of which a defendant must be advised before his or her guilty plea is accepted, R.C. 2943.031 (A) requires a trial court to advise a defendant of possible deportation consequences under the circumstances specified in the statute. Similarly, although Crim.R. 32.1 requires manifest injustice to support withdrawing a guilty plea, the literal language of R.C. 2943.031 indicates that the plea shall permit a defendant to withdraw a guilty plea if the R.C. 2943.031 (A) warning is not given and the defendant is subject to possible deportation. In that regard, the statute and rule appear to conflict. Because R.C. 2943.031 appears to conflict with the pertinent Criminal Rules, an effort must be made to render R.C. 2943.031 and the rules compatible. See Statev. Heyden (1992), 81 Ohio App.3d 272, 610 N.E.2d 1067. If the statute and rules prove irreconcilable, then we would be required to determine whether R.C. 2943.031 is an encroachment on the Supreme Court's *Page 134 authority to promulgate rules under the Modern Courts Amendment, Section 5 (B), Article IV, of the Ohio Constitution.
In my opinion, R.C. 2943.031 (D) and the relevant rules can be reconciled by looking at the Rules of Criminal Procedure "as an overlay to the statute. Thus, while the statute sets "out certain requirements for the trial court in accepting a defendant's guilty plea, and specifies certain grounds for granting a defendant's motion to withdraw that plea, the section should be read in the context of Crim.R. 32.1, which allows a guilty plea to be withdrawn only upon a showing of manifest injustice. To accomplish that reconciliation, I interpret R.C. 2943.031 (D) to set forth, in effect, a rebuttable presumption that a guilty plea shall be withdrawn if the listed factors are met. The burden then shifts to the state to defeat that result by showing that no manifest injustice occurred through the trial court's failure to warn a defendant in accordance with the statute.1
Nor does the foregoing reconciliation render the statute meaningless. To the contrary, the statute specifically requires that the possibility of deportation be a factor not only in accepting the guilty plea but in determining whether that guilty plea may be withdrawn. Absent the statute, deportation might be rendered a natural consequence of criminal activity, but insufficient to raise questions" about the propriety of a guilty plea.
Here, the trial court determined that appellant suffered no manifest injustice by the trial courts failure to give the stated warning of R.C. 2943.031 (A). Specifically, although the trial court in 1990 failed to warn appellant of the possibility of being deported because of her guilty plea, appellant subsequently pled guilty to two theft offenses after being advised in each of those subsequent offenses of the possible deportation consequences. Moreover, having gained knowledge that her guilty plea in the subsequent theft offenses could lead to her deportation, appellant did not at that time seek to withdraw her guilty plea in the present matter, but waited years after even the subsequent pleas were entered to seek to withdraw her guilty plea in this case. Despite her testimony that she would not have entered her guilty plea in this case had the trial court given her the necessary warning, the trial courts finding to the contrary is supported by the record.
Because the record supports the trial court's finding of no manifest injustice or prejudice to appellant by the trial court's failure to advise appellant of the possible deportation consequences of her guilty plea to the theft offense, the trial *Page 135 court properly refused to grant appellant's motion to withdraw her guilty plea under R.C. 2943.031.
Accordingly, I dissent.
1 To the extent necessary, the word "shall" may mean "may" if necessary to the construction of the statute. Dorrian v. SciotoConservancy Dist. (1971), 27 Ohio St.2d 102, 107-108, 56 O.O.2d 58, 60-61, 271 N.E.2d 834, 837-838.