State v. Gegia

• Decision Date: 28 April 2004
• Docket Number: No. 21819.,21819.
• Citation: 157 Ohio App.3d 112,809 NE 2d 673
• Parties: The STATE of Ohio, Appellee, v. GEGIA, Appellant.
• Court: Ohio Court of Appeals

157 Ohio App.3d 112

2004-Ohio-2124

809 NE 2d 673

2004-Ohio-2124

The STATE of Ohio, Appellee, v. GEGIA, Appellant.

No. 21819.

Court of Appeals of Ohio, Ninth District, Summit County.

Decided April 28, 2004.

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Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Richard S. Kasay, Assistant Prosecuting Attorney, for appellee.

Bakur Gegia, appellant pro se.

WHITMORE, Presiding Judge.

{¶ 1} Appellant Bakur Gegia has appealed from a judgment of the Summit County Court of Common Pleas that denied his motion to withdraw his guilty pleas. This court affirms.

I

{¶ 2} On December 2, 1999, appellant, a Russian citizen, was indicted by the Summit County Grand Jury on four counts: aggravated burglary, in violation of R.C. 2911.01(A)(1), with a firearm specification attached; kidnapping, in violation of R.C. 2905.01(A)(2), with a firearm specification attached; grand theft, in violation of R.C. 2913.02(A)(3); and possessing criminal tools, in violation of R.C. 2923.24. Appellant, accompanied by an interpreter, initially entered a plea of not guilty, and the case was set for trial. Pursuant to a plea agreement, on February 15, 2000, appellant withdrew his not guilty plea and pleaded guilty to the charges of aggravated robbery, kidnapping, and the firearm specifications attached to each charge; the other charges were dismissed. The trial court sentenced appellant accordingly.

{¶ 3} On October 9, 2002, and October 22, 2002, appellant filed untimely petitions for post-conviction relief; the petitions were both captioned to include "ALTERNATIVE POSTSENTENCE MOTION TO WITHDRAW A GUILTY PLEA PURSUANT TO CRIM.R. 32.1."¹ The state filed a motion to dismiss the petitions. The trial court construed the October 22, 2002 petition as only a petition for post-conviction relief and denied the petition. Appellant filed an appeal, and in a decision dated June 25, 2003, this court held that the trial court erred in reviewing appellant's motion as only a petition for post-conviction relief. "The trial court should have separately entertained those arguments contained in the dual post-sentence motion that pertained to Appellant's motion to withdraw his guilty plea." State v. Gegia, 9th Dist. No. 21438, 2003-Ohio-3313, 2003 WL 21459006, at ¶ 8. We reversed and remanded the matter to the trial court.

{¶ 4} On remand, the trial court reviewed the following arguments that were contained in appellant's October 22, 2002 dual post-sentence motion and which related to appellant's motion to withdraw his guilty plea: (1) appellant's guilty plea violated his Fifth and Fourth Amendment rights because he pleaded guilty without having effective assistance of trial counsel; (2) appellant pleaded guilty without adequate inquiry on the record by the trial court to ensure that the plea was knowingly, voluntarily, and intelligently made; (3) trial counsel failed to advise appellant of possible deportation upon entering a guilty plea; and (4) trial counsel failed to assert appellant's rights pursuant to the Vienna Convention. The trial court denied appellant's motion to withdraw his guilty pleas on November 4, 2003.

{¶ 5} Appellant has timely appealed, asserting four assignments of error. We have consolidated some of appellant's assignments of error to facilitate review:

II

Assignment of Error Number One

"The trial court erred when it failed to appoint an interpreter pursuant to R.C. 2311.14 when it became apparent that the defendant could not readily understand or communicate and thereby failing to insure the guilty plea was valid under Crim.R. 11."

Assignment of Error Number Two

"Appellant's guilty plea violated his Fifth and Fourteenth Amendment rights because he pleaded guilty without having the effective assistance of counsel and the trial court violated Article VI, Clause 2, of the United States Constitution when it failed to protect defendant's rights under the Vienna Convention."

Assignment of Error Number Three

"The trial court erred when it failed to give all three required immigration consequences listed in R.C. 2943.031(A), and also erred when it failed to explain to appellant the term `to be deported' does not mean that appellant would serve his prison time in his own country."

{¶ 6} In appellant's first, second, and third assignments of error, he has essentially argued that the trial court abused its discretion when it denied his motion to withdraw his guilty pleas. This court disagrees.

{¶ 7} Crim.R. 32.1 governs motions to withdraw guilty pleas. That rule provides:

"A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea."

{¶ 8} Pursuant to Crim.R.32.1, a motion to withdraw a plea of guilty that is made after sentencing must demonstrate a manifest injustice. State v. Smith (1977), 49 Ohio St.2d 261, 3 O.O.3d 402, 361 N.E.2d 1324, paragraph one of the syllabus. The term "manifest injustice" has "been variously defined, but it is clear that under such standard, a postsentence withdrawal motion is allowable only in extraordinary cases." Id. at 264, 3 O.O.3d 402, 361 N.E.2d 1324. The burden of establishing manifest injustice is on the movant. Id. at paragraph one of the syllabus. The movant must not only allege manifest injustice, but also support his allegation with specific facts contained in the record or in affidavits submitted with the motion. State v. Ellis (Aug. 3, 1999), 4th Dist. No. 98CA13, 1999 WL 624541, at * 1, citing Smith, 49 Ohio St.2d at 264, 3 O.O.3d 402, 361 N.E.2d 1324. The Ohio Supreme Court has further stated that "although Crim.R. 32.1 itself does not provide for a time limit after the imposition of sentence, during which a motion to withdraw a plea of guilty must be made, it has been held that an undue delay between the occurrence of the alleged cause for withdrawal and the filing of the motion is a factor adversely affecting the credibility of the movant and militating against the granting of the motion." Smith, 49 Ohio St.2d at 264, 3 O.O.3d 402, 361 N.E.2d 1324.

{¶ 9} The decision to grant or deny a motion to withdraw a guilty plea is within the sound discretion of the trial court. Smith, 49 Ohio St.2d at 264, 3 O.O.3d 402, 361 N.E.2d 1324. ("The motion is addressed to the sound discretion of the trial court, and the good faith, credibility and weight of the movant's assertions in support of the motion are matters to be resolved by that court."); see, also, State v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715, paragraph two of the syllabus. An abuse of discretion connotes more than a mere error in judgment; it signifies an attitude on part of the trial court that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140. When applying the abuse-of-discretion standard, an appellate court may not substitute its judgment for that of the trial court. Berk v. Matthews (1990), 53 Ohio St.3d 161, 169, 559 N.E.2d 1301.

{¶ 10} In the instant matter, appellant has argued that his motion to withdraw his guilty plea should have been granted because (1) the trial court failed to appoint an interpreter when appellant entered his guilty plea; (2) his guilty plea violated his Fifth and Fourth Amendment rights because he was not afforded the effective assistance of counsel; and (3) the trial court failed to explain the phrase "to be deported" when appellant pleaded guilty to the crimes as charged. We will separately address each argument.

Failure to Appoint an Interpreter

{¶ 11} Appellant has argued that his plea should be vacated because he was not provided an interpreter pursuant to R.C. 2311.14(A), which provides:

"(A)(1) Whenever because of a hearing, speech, or other impairment a party to or witness in a legal proceeding cannot readily understand or communicate, the court shall appoint a qualified interpreter to assist such person. Before appointing any interpreter under this division for a party or witness who is a mentally retarded person or developmentally disabled person, the court shall evaluate the qualifications of the interpreter and shall make a determination as to the ability of the interpreter to effectively interpret on behalf of the party or witness that the interpreter will assist, and the court may appoint the interpreter only if the court is satisfied that the interpreter is able to effectively interpret on behalf of that party or witness."

{¶ 12} Appellant has further argued that because an interpreter was not present at the plea hearing he could not have knowingly and intelligently waived his right to a jury trial. This court finds this argument without merit.

{¶ 13} The record reveals that appellant did not want an interpreter present at the hearing. The following discussion took place during the hearing:

"Defense Counsel: May it please the Court. At this time Appellant is ready to enter a plea, as the prosecutor stated. Appellant understands his rights as I explained them to him. He understands the best he could hope for from this Court is a six-year sentence, based on the minimum possible. Knowing all that, he wishes to enter a plea of guilty.

"The Court: All right. I believe there's an issue raised in regard to Appellant's ability to speak English.

"Defense Counsel: Well, we've had an interpreter before. I have talked to him. He understands what's going on today.

"Appellant: Yes, ma'am

"The Court: All right. Sir, you don't need an interpreter?

"Appellant: Well, I can't understand everything. No big deal, Your Honor. I'm sorry. I can understand.

"The Court: You can understand English?

"Appellant: Yeah, enough, at least.

"The Court: All right, sir. Do you want to raise your right hand."

{¶ 14} Because appellant was given an opportunity to have an interpreter present and he ...