[Cite as State v. Rai, 2017-Ohio-8655.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28643
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
SUK B. RAI STOW MUNICIPAL COURT
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 2015 CRB 0760
DECISION AND JOURNAL ENTRY
Dated: November 22, 2017
CALLAHAN, Judge
{¶1} Appellant, Suk Rai, appeals the Stow Municipal Court’s order denying his motion
to withdraw plea. For the reasons set forth below, this Court reverses.
I.
{¶2} Mr. Rai asserts that he came to the United States from Bhutan in 2010 and held
the status of permanent resident at the time of his arrest for domestic violence in March 2015.
According to the record, Mr. Rai was arrested for domestic violence against his wife for an
incident that occurred on March 12, 2015. Mr. Rai does not speak English; rather, he speaks
Nepalese. His initial appearance before the court took place on March 16, 2015, and he was held
without bond. A Nepalese interpreter was present in court on March 17, 2015. On that day, Mr.
Rai signed an “Acknowledgment and Waiver of Rights” in which he waived his right to counsel
and acknowledged the possible consequences of his guilty plea because of his non-citizenship.
Mr. Rai then pleaded guilty to the domestic violence charge.
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{¶3} On February 28, 2017, Mr. Rai filed a motion to withdraw his guilty plea under
R.C. 2943.031, Crim.R. 32.1, and the Sixth Amendment and requested an “emergency” hearing
because “deportation [was] imminent.” The gist of Mr. Rai’s motion was that the translator was
not effective and he, therefore, did not understand the nature of the proceedings and the
consequences of his guilty plea. Among other things, Mr. Rai asserted that, had he known at the
time of his plea that he was subject to removal from the United States, he never would have
entered his plea. Mr. Rai submitted his own affidavit, as well as affidavits from his wife and
daughter with his motion.
{¶4} The trial court denied the motion without a hearing, stating it “specifically
informed the defendant that he had the right to an attorney and that one would be appointed to
represent him if he could not afford one” and “specifically informed the defendant of the
ramifications of the conviction as he was not a citizen.” The trial court relied on the
“Acknowledgement and Waiver of Rights” form that had been signed by Mr. Rai. In denying
Mr. Rai’s motion, the trial court concluded that Mr. Rai had presented a “distorted view” of what
had occurred in court and that Mr. Rai understood and waived his rights.
{¶5} Mr. Rai now appeals, raising five assignments of error for this Court’s review.
This Court addresses the third assignment of error first, as it is dispositive of the appeal.
II.
Assignment of Error Number Three
THE COURT ERRED BY NOT ENSURING THAT A COMPETENT
INTERPRETER WAS PRESENT AND, THEREFORE, DID NOT COMPLY
WITH [R.C.] 2943.031.
{¶6} Mr. Rai argues the trial court erred in denying his motion to withdraw his guilty
plea in that it failed to determine that he understood the potential immigration consequences of
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his guilty plea. Mr. Rai contends the consequences were “never stated to him verbatim in his
mother tongue.”
{¶7} Pursuant to R.C. 2943.031(A), except for certain minor misdemeanors,
prior to accepting a plea of guilty * * *, 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
consequences of deportation, exclusion from admission to the United States, or
denial of naturalization pursuant to the laws of the United States.”
If a court fails to provide the advisement, a defendant may move to withdraw his plea and “the
court shall set aside the judgment” if the defendant shows that he is a non-citizen and the
conviction “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.” R.C.
2943.031(D).
{¶8} The Ohio Supreme Court has found that a trial court accepting a guilty plea from
a non-citizen “must give verbatim the warning set forth in R.C. 2943.031(A).” State v. Francis,
104 Ohio St.3d 490, 2004-Ohio-6894, paragraph one of the syllabus. Nonetheless, the trial
court’s failure to use the verbatim language of the statute does not automatically entitle a
defendant to withdraw his plea. Id. at ¶ 44-48. Rather, so long as “some warning of
immigration-related consequences was given,” a court considering a motion to withdraw the plea
under R.C. 2943.031(D) has “discretion in determining whether the trial court that accepted the
plea substantially complied with R.C. 2943.031(A).” Id. at paragraph two of the syllabus.
{¶9} “While the standard of review for a post-sentence motion under Crim.R. 32.1 is
subject to the manifest injustice standard, this standard does not apply to plea withdrawal
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motions filed pursuant to R.C. 2943.031(D).” State v. Aquino, 8th Dist. Cuyahoga No. 99971,
2014-Ohio-118, ¶ 13, citing Francis at ¶ 26.
This is because “[t]he General Assembly has apparently determined that due to
the serious consequences of a criminal conviction on a noncitizen’s status in this
country, a trial court should give the R.C. 2943.031(A) warning, and that failure
to do so should not be subject to the manifest-injustice standard even if sentencing
has already occurred.”
Mayfield Hts. v. Grigoryan, 8th Dist. Cuyahoga No. 101498, 2015-Ohio-607, ¶ 14, quoting
Francis at ¶ 26. Therefore, R.C. 2943.031(D)’s criteria substitute for the manifest injustice
standard when the section applies. Francis at ¶ 26. “[T]he four specifically mentioned statutory
criteria [are]: (1) the court failed to provide the warning, (2) the warning was required, (3) the
defendant is not a United States citizen, and (4) the conviction ‘may result’ in deportation,
exclusion, or denial of naturalization.” Id. at ¶ 37.
{¶10} The trial court did not explicitly examine each of these statutory criteria when
denying Mr. Rai’s motion to withdraw his plea. The court did, however, state that it
“specifically informed the defendant of the ramifications of the conviction as he was not a
citizen.” The trial court further stated that the digitally recorded proceeding had been deleted,
according to court policy.
{¶11} Ordinarily, App.R. 9(B)(1) places the burden on an appellant to ensure that the
necessary proceedings are transcribed and made part of the record on appeal. App.R. 9(C)
provides a mechanism by which an appellant can provide the record when, as here, a recording
was made but is no longer available. Here, Mr. Rai did not comply with App.R. 9(C).
Generally, “[i]n the absence of a complete record, this Court is obligated to presume regularity in
the proceedings below.” King v. Carleton, 9th Dist. Lorain No. 13CA010374, 2013-Ohio-5781,
¶ 30.
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{¶12} However, R.C. 2943.031(E) provides that, “[i]n 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.”
The trial court did not acknowledge this presumption in its decision.
{¶13} Instead, it relied on the written “Acknowledgement and Waiver of Rights” and the
fact that the initials “SR” were next to the section that advised non-citizens of the consequences
of a guilty or no contest plea in finding that it “specifically informed” Mr. Rai of the
ramifications of his guilty plea. However, the written form alone is not sufficient to rebut the
presumption. See State v. Velazquez, 12th Dist. Butler No. CA2015-05-091, 2016-Ohio-875, ¶
17 (holding “[t]he typewritten advisement form does not constitute a ‘record’ sufficient to rebut
this presumption”); Grigoryan, 2015-Ohio-607, ¶ 4, 19-21, 40 (a signed statement of rights form
in both defendant’s native language and English was not sufficient to rebut the presumption).
The State did not oppose Mr. Rai’s motion or attempt to enter any evidence to defeat this
presumption at the trial court level, nor has the State filed a brief on appeal.
{¶14} “As the record stands, it is impossible for [this Court] to determine what
advisement, if any, was administered prior to the municipal court’s acceptance of [Mr. Rai’s]
guilty plea” and whether the advisement the court allegedly gave Mr. Rai substantially complied
with R.C. 2943.031(A). See Velazquez at ¶ 17; Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, at
¶ 48. Further, in the absence of a complete record, it is impossible for this Court to determine
what role the court-appointed interpreter played during the proceedings.
{¶15} Accordingly, Mr. Rai’s third assignment of error is sustained.
Assignment of Error Number One
[THE] TRIAL COURT ERRED BY NOT ENSURING THAT HIS PLEA WAS
VOLUNTARY, INTELLIGENT[,] AND KNOWINGLY. APPELLANT’S
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EDUCATION AND [THE] TRANSLATOR’S INABILITY IS INSUFFICIENT
AS A MATTER OF LAW TO PROVIDE APPELLANT WITH [THE]
KNOWLEDGE NECESSARY TO WAIVE HIS RIGHT TO COUNSEL AND
TO ENTER A GUILTY PLEA.
Assignment of Error Number Two
THE TRIAL COURT ERRED BY NOT ENSURING THAT A COMPETENT
INTERPRETER WAS PRESENT AND VIOLATED APPELLANT’S SIXTH
AMENDMENT RIGHT TO COUNSEL. THE COURT’S FINDING THAT
APPELLANT UNDERSTOOD THE PROCEEDINGS WAS CLEARLY
ERRONEOUS[.]
Assignment of Error Number Four
THE COURT ERRED BY NOT COMPLYING WITH OHIO CRIMINAL RULE
32.1.
Assignment of Error Number Five
THE TRIAL COURT ERRED BY ALLOWING [THE] INTERPRETER TO
PROVIDE LEGAL ADVICE WHICH APPELLANT RELIED ON.
APPELLANT’S ASSISTANCE FROM [THE] TRANSLATOR AS DE FACTO
COUNSEL CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL
AND A VIOLATION OF APPELLANT’S SIXTH AMEN[DMEN]T RIGHT.
(Emphasis deleted.)
{¶16} In light of this Court’s resolution of Mr. Rai’s third assignment of error, this Court
declines to consider his remaining assignments of error. See App.R. 12(A)(1)(c).
III.
{¶17} Mr. Rai’s third assignment of error is sustained. His first, second, fourth, and
fifth assignments of error are moot. The judgment of the Stow Municipal Court is reversed, and
this matter is remanded for further proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Stow Municipal
Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
LYNNE S. CALLAHAN
FOR THE COURT
SCHAFER, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
JASON LORENZON, Attorney at Law, for Appellant.
GREGORY M. WARD, Attorney at Law, for Appellee.
State v. Rai
Combined Opinion