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Date: 06-10-2021

Case Style:

State of Ohio v. Alfonso Vazquez Palafox

Case Number: S-20-034

Judge: Myron C. Duhart

Court: IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY

Plaintiff's Attorney: Beth A. Tischler, Sandusky County Prosecuting Attorney, and
Alexis M. Hotz, Assistant Prosecuting Attorney

Defendant's Attorney:


Toledo, Ohio Criminal Defense Lawyer Directory


Description:

Toledo, Ohio - Criminal defense attorney represented Alfonso Vazquez Palafox with one count of domestic violence, a fifth-degree felony, and one count of disrupting public services, a fourth-degree felony charges.



{¶ 3} Appellant, who is not a citizen of the United States, was indicted by the
Sandusky County Grand Jury on April 22, 2016, on one count of domestic violence, a
fifth-degree felony, and one count of disrupting public services, a fourth-degree felony.
He was subsequently arraigned and pled not guilty.
{¶ 4} On September 16, 2016, a plea of guilty form was filed in the trial court
which set forth that appellant desired to enter a guilty plea to the lesser included charge of
attempted aggravated menacing in violation of R.C. 2903.21, a second-degree
misdemeanor. A change of plea and sentencing hearing was held that same day.
Appellant was represented by counsel and an interpreter was present to assist appellant
with translation from English to Spanish.
{¶ 5} At the hearing, the court addressed appellant’s counsel, and counsel apprised
the court, inter alia, that appellant was not a United States citizen and the effect of the 3.
plea may have consequences of deportation. The court requested that the interpreter
“verify or substantiate that [appellant] has gone through this plea of guilty.” The
interpreter conferred with appellant, off of the record, and the interpreter stated, “Yes,
Your Honor.” The court then addressed the victim and the interpreter, and asked, “does
she understand what’s going on?” The interpreter conferred with victim, and the
interpreter replied, “Yes, Your Honor.”
{¶ 6} The state recommended that appellant be sentenced to 90 days in county jail,
suspended, and two years of non-reporting probation, and be assessed for anger
management and follow any treatment recommendation. The state also recommended
that the original count of the indictment be dismissed.
{¶ 7} The court found appellant had knowingly and voluntarily entered his plea of
guilty to attempted aggravated menacing, a second-degree misdemeanor. The court
adopted the state’s sentencing recommendation of 90 days in county jail, suspended. The
court stated, “So I would need his signature on the plea.” The interpreter conferred with
appellant. The court announced it “finds that he has made a knowing, voluntary and
intelligent waiver of those rights. Court accepts his plea of guilty * * * and imposes the
sentence which I just read into the record.”
{¶ 8} On January 20, 2018, the court ordered appellant’s community control
terminated early, based on the recommendation of the probation department that no
further supervision was needed since appellant paid all of his obligations and gained
maximum benefit from supervision. 4.
{¶ 9} On August 1, 2018, appellant filed a motion to withdraw guilty or no contest
plea pursuant to Crim.R. 32.1, in which he asserted that as a direct result of his plea, he
was placed in immigration removal proceedings. The court did not rule on this motion.
{¶ 10} On September 17, 2019, appellant filed a motion to withdraw plea pursuant
to R.C. 2943.031(A), in which he alleged that as a result of his conviction, he was placed
in removal proceedings with the Cleveland Immigration Court. Appellant requested a
hearing. The state filed a reply to the motion to withdraw plea pursuant to R.C.
2943.031(A), in which it asserted the trial court had substantially complied with Crim.R.
11(C). The state also set forth arguments regarding ineffective assistance of counsel.
{¶ 11} On December 13, 2019, the court issued a judgment entry in which it
denied appellant’s motion without a hearing. The court noted that at the plea hearing, it
“relied upon the services of [the] interpreter * * * to impress upon [appellant] the Rule 11
advisements, along with the possible consequences of deportation.” The court set forth
appellant “must show – after a three year delay in filing his motion to withdraw his guilty
plea – that a manifest injustice has resulted from the court’s acceptance of his plea.” The
court concluded “substance should prevail over form,” and denied the motion to
withdraw guilty plea pursuant to R.C. 2943.031(A).
Appeal
{¶ 12} Appellant filed a delayed appeal, attached to which was a notice to appear,
dated March 1, 2017, from the U.S. Department of Homeland Security. The notice
provided that appellant was subject to removal from the United States due to his 5.
September 16, 2016 conviction. Appellant was ordered to appear before an immigration
judge to show why he should not be removed from the United States.
First Assignment of Error
{¶ 13} Appellant argues his guilty plea should be vacated because the trial court
failed to give him the immigration warnings set forth in R.C. 2943.031. Appellant
contends the court did not address him personally and give him the required warnings,
nor did the court verify with appellant that his counsel had done so. Appellant submits
the court relied completely on defense counsel’s representation that the warnings were
conveyed to appellant.
{¶ 14} The state observes appellant’s counsel informed the court that appellant
was not a United States citizen, and the state concedes the court was required to provide
appellant with the warnings set forth in R.C. 2943.031, but the court did not do so. The
state acknowledges appellant’s plea should be vacated and the case remanded.
Law
R.C. 2943.031
{¶ 15} R.C. 2943.031 became effective in 1989, and provides:
(A) 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 or a misdemeanor other than a
minor misdemeanor if the defendant previously has not been convicted of
or pleaded guilty to a minor misdemeanor, the court shall address the 6.
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 (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.”
Upon request of the defendant, the court shall allow him additional
time to consider the appropriateness of the plea in light of the advisement
described in this division.
(B) The court is not required to give the advisement described in
division (A) of this section if either of the following applies:
(1) The defendant enters a plea of guilty on a written form, the form
includes a question asking whether the defendant is a citizen of the United
States, and the defendant answers that question in the affirmative;
(2) The defendant states orally on the record that he is a citizen of
the United States.
(C) Except as provided in division (B) of this section, the defendant
shall not be required at the time of entering a plea to disclose to the court
his legal status in the United States. 7.
(D) 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.
(E) In 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.
(F) Nothing in this section shall be construed as preventing a court,
in the sound exercise of its discretion pursuant to Criminal Rule 32.1, from
setting aside the judgment of conviction and permitting a defendant to
withdraw his plea.
Compliance/Lack of Compliance with R.C. 2943.031 Warnings
{¶ 16} In State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355,
the Ohio Supreme Court held “[a] trial court accepting a guilty or no-contest plea from a 8.
defendant who is not a citizen of the United States must give verbatim the warning set
forth in R.C. 2943.031(A).” Id. at paragraph one of the syllabus. However, if “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).” Id. at paragraph two of the syllabus.
{¶ 17} In State v. Kona, 148 Ohio St.3d 539, 2016-Ohio-7796, 71 N.E.3d 1023,
¶ 16, the Ohio Supreme Court recognized that “[f]or a noncitizen, the most significant
aspect of a criminal conviction may not be the resulting criminal sanction but the
conviction’s effect on immigration status.” Thus, “[i]f the trial court fails to give the
advisement and immigration implications arise from the plea, the court must allow the
defendant to withdraw his plea.” Id. at ¶ 18.1

Timeliness
{¶ 18} While the General Assembly did not include a timeliness provision in R.C.
2943.031, the Ohio Supreme Court addressed the issue and held that the timeliness of the
filing of a motion to withdraw plea should be considered. Francis at ¶ 40. The court
observed “[t]he 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

1
The Kona defendant had not actually entered a plea of guilty or no contest. Id. at ¶ 1.
The issue was whether the defendant’s involvement in a pretrial diversion program
invoked the advisement requirement of R.C. 2943.031. Id. at ¶ 13.9.
witnesses will be unavailable.” Id. Moreover, the court noted “[t]he 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. Notwithstanding, the court stated “in some cases even a considerable
delay in filing the motion to withdraw will not be a factor supporting denial of the
motion, such as when the immigration-related consequences of the plea and resulting
conviction did not become evident for some time after the plea was entered.” Id. at ¶ 42.
Mootness Issue
{¶ 19} In State v. Panda, 5th Dist. Ashland No. 20-COA-001, 2020-Ohio-3040,
the appellate court noted that appellant had already served her sentence, paid the fines
and costs, and her probation had been terminated, so the court sua sponte raised the issue
of whether the appeal was moot. Id. at ¶ 24. The court observed “[t]he issue of mootness
of a criminal case arises only if it is shown that there is no possibility that any collateral
legal consequences will be imposed upon the basis of the challenged conviction.” Id.
The court concluded the potential impact on Panda’s immigration status was a collateral
legal consequence, thus the matter was not moot. Id. at ¶ 25.
Standard
{¶ 20} We review the trial court’s judgment denying appellant’s motion to
withdraw plea under an abuse of discretion standard. Francis at ¶ 32. An abuse of
discretion is more than an error of judgment or law; it occurs when the court’s decision is 10.
unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
Analysis
{¶ 21} In order for appellant to be entitled to relief under R.C. 2943.031(D), he
must show the following: (1) the trial court failed to give the advisement required by
R.C. 2943.031(A); (2) the trial court was required to give the advisement; (3) he is not a
citizen of the United States; and (4) the conviction of the offense to which he pled guilty
may result in his being subject to deportation.
{¶ 22} Upon review, appellant filed a motion to withdraw plea pursuant to R.C.
2943.031(A), in which he alleged as a result of his conviction, based on an unadvised
plea, he was placed in removal proceedings with the Cleveland Immigration Court. The
state responded by arguing the trial court had substantially complied with Crim.R. 11(C)
during the plea hearing. The state also presented arguments regarding ineffective
assistance of counsel. We note Crim.R. 11(C) details the steps a trial court must follow
before accepting a guilty plea in a felony case, while Crim.R. 11(D) addresses the plea
process in misdemeanor cases. Further, appellant did not raise a claim of ineffective
assistance of counsel. We observe that neither of the state’s arguments applied to
appellant’s motion to withdraw plea. These arguments were not reasserted on appeal.
{¶ 23} Regarding the R.C. 2943.031 requirements, the record shows there is no
dispute that appellant is not a citizen of the United States and that the trial court was
required to give the advisement, but completely failed to do so. In addition, appellant 11.
informed the trial court of his possible deportation. We find appellant has satisfied the
four procedural requirements for relief under R.C. 2943.031(D).
{¶ 24} With respect to the timeliness in which appellant filed his motion to
withdraw plea, the trial court noted in its judgment entry that it reviewed cases addressing
this issue and concluded “substance should prevail over form. Fairness to the state of
Ohio and to the Defendant is the goal. Witnesses die, or move away, or cannot be
located.” Further, the court set forth “[t]he Defendant must show – after a three year
delay in filing his motion to withdraw his guilty plea – that a manifest injustice has
resulted from the court’s acceptance of his plea which effectively erased two felony
counts * * *.” The court also observed defendant “had competent counsel who placed
upon the record that he had counseled the defendant on the subject of deportation.”
{¶ 25} We observe the trial court sua sponte introduced the timeliness issue, as
neither appellant nor the state mentioned the timing of the filing of the motion to
withdraw plea. While the court referred to the three-year delay in which appellant filed
his motion, the record shows appellant filed his first motion to withdraw plea in August
of 2018, but the court never ruled on that motion. Moreover, the court did not analyze
when appellant filed his motion to withdraw plea (the first or second motion) in light of
when appellant was notified that he was being placed in removal proceedings. Rather,
the court considered the amount of time which had passed since appellant entered his
plea. 12.
{¶ 26} In addition, a review of the record reveals no evidence which suggests the
state’s case against appellant was prejudiced due to the timing of appellant’s motion to
withdraw plea (the first or second motion) or that witnesses have died, moved away or
cannot be located. Hence, we find appellant’s motion to withdraw plea pursuant to R.C.
2943.031 was not untimely under the circumstances.
{¶ 27} Finally, we note the record shows appellant has paid his obligations and his
community control has been terminated, thus he has “served his sentence.” However,
since appellant’s immigration status is a collateral legal consequence of his criminal case,
his appeal is not moot.
{¶ 28} We find appellant met the four-part showing required under R.C.
2943.031(D), and his motion was timely. We therefore conclude the trial court abused its
discretion when it denied appellant’s motion to withdraw plea pursuant to R.C. 2943.031.
Accordingly, appellant first assignment of error is well-taken. Our disposition of this
assignment of error renders appellant’s second assignment of error moot.

Outcome: he judgment of the Sandusky County Court of Common Pleas is reversed,
and this matter is remanded for proceedings consistent with this decision. The state is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment reversed and remanded.

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