State v. Perry

• Decision Date: 01 July 2019
• Docket Number: Case No. CT2018-0045
• Citation: 2019 Ohio 2776
• Parties: STATE OF OHIO Plaintiff - Appellee v. WENROSS S. PERRY Defendant - Appellant
• Court: Ohio Court of Appeals

2019 Ohio 2776

STATE OF OHIO Plaintiff - Appellee v. WENROSS S. PERRY Defendant - Appellant

Case No. CT2018-0045

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

July 1, 2019

JUDGES: Hon. John W. Wise, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, J.

OPINION

CHARACTER OF PROCEEDING: Appeal from the Musking County Court of Common Pleas, Case No. CR2017-0179

JUDGMENT: Reversed and Remanded

APPEARANCES:

For Plaintiff-Appellee

D. MICHAEL HADDOX

Prosecuting Attorney

Muskingum County, Ohio

By: GERALD V. ANDERSON II

Assistant Prosecuting Attorney

Muskingum County, Ohio

27 North Fifth St., P.O. Box 189

Zanesville, Ohio 43702-0189

For Defendant-Appellee

JOSEPH N. PHILLIPS

Amato Law Office, L.P. A.

420 Broadway Avenue

Wellsville, Ohio 43968

Baldwin, J.

{¶1} Wenross S. Perry appeals the decision of the Muskingum County Court of Common Pleas denying his request to withdraw his guilty plea. Appellee is the State of Ohio.

STATEMENT OF FACTS AND THE CASE

{¶2} The facts leading to Appellants arrest are unnecessary for the consideration and resolution of the issues before this court and are therefore omitted.

{¶3} Appellant was charged with possession of drugs with a forfeiture specification, a third degree felony in violation of R.C. 2925.11(A) as well as trafficking in drugs with a forfeiture specification, also a third degree felony in violation of R.C. 2925.03(A)(2).

{¶4} Appellant entered a plea of not guilty on May 17, 2017, then changed his plea to guilty to one count of violating 2925.03(A)(2), trafficking in drugs, on June 19, 2017. (The violation of R.C. 2925.11(A) was dismissed by the state.) During the plea hearing, the following exchange occurred:

THE COURT: And you understand that you are a resident of the United States but you're not a United States citizen to the point that by entering this plea you could be deported?

THE DEFENDANT: Yes, sir.

THE COURT: You also understand you have a right to contact your consulate and that type of thing, if you need to. You understand that?

THE DEFENDANT: Yes, sir.

THE COURT: And that could also be a possible consequence to you entering the plea. You understand that?

THE DEFENDANT: Yes, sir.

***

THE COURT: I normally would as at this point in time, are you a U.S. citizen?

THE DEFENDANT: I'm a resident of the United States.

Plea Hearing, June 19, 2017, pp. 8-10.

{¶5} Appellant's guilty plea was accepted and he was sentenced to a twelve month prison term, given eighty-three days credit for time served and ordered to forfeit $5,055.00 that was on his person when he was arrested.

{¶6} On November 20, 2017, Appellant received a Notice to Appear in Immigration Court. Removal proceedings were initiated as a result of his conviction in this case pursuant to Sections 2327(a)(2)(A)(iii) and 237(a)(2)(B)(i) of the Immigration and Nationality Act.

{¶7} Appellant filed a motion to withdraw his guilty plea as a result of the initiation of the deportation proceedings. He attached his affidavit containing the following statements:

2. Affiant states that he is a lawful permanent resident of the United States; he is not a United States Citizen.

3. Affiant states that he is a citizen of Jamaica.

4. Affiant states that he pled guilty to one count of Trafficking in Drugs — Marijuana, with a forfeiture specification, in violation of R.C. § 2925.03(A)(2), a third degree felony, in Muskingum County Court of Common Pleas case number CR2017-0179 on June 19, 2017.

5. Affiant states that he was not given any explanation of his rights or the consequences of entering his plea, and further, that he did not understand the consequences of his plea and was not aware that a conviction for the charged offense would affect his immigration status.

6. Affiant states that his defense counsel did not advise him of any adverse immigration consequences from entering his plea.

7. Affiant further states that had he known pleading guilty to the charged offense would have consequences on his immigration status, he would not have entered the plea and would have exercised his rights and fought the case in court.

8. Affiant states that as a result of his conviction for Trafficking in Drugs — Marijuana, with a forfeiture specification, in violation of R.C. § 2925.03(A)(2), a third degree felony, in Muskingum County Court of Common Pleas case number CR2017-0179, he is removable from and inadmissible to the United States.

{¶8} Appellant also attached the affidavit of Kathleen S. Fish. Ms. Fish identified herself as an immigration attorney. She reviewed Appellant's conviction and concluded that it made Appellant removable from United States, ineligible for admission to the United States and ineligible for U.S. citizenship.

{¶9} Appellant argued that the trial court failed to comply with the requirements of R.C. 2943.031(A) when he was sentenced. That section requires that:

(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 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:

(B) "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."

{¶10} Revised Code 2943.031(D) describes the remedy for failure to comply with the requirements of Subsection (A):

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.

{¶11} The trial court considered the motion and the state's response and denied Appellant's request without a hearing finding:

*** the Defendant was advised of the risk of deportation and opportunity to contact the Jamaican consulate regarding the legal ramifications of his plea. The Court finds that the advisements provided substantially comply with R.C. §2943.031. Furthermore, the Defendant argues that his defense attorney failed to inform him that deportation is mandated in his case; however, he fails to provide any support for such a claim and only the Department of Homeland Security has authority to deport a non-U.S. citizen, and only after a hearing pursuant to Immigration and Nationality Act §240(3) has been held; the Defendant has not had such a hearing.

Therefore, after due consideration of the same, the Defendant's motion is Denied, and his request for an oral hearing is Denied.

{¶12} Appellant filed a timely notice of appeal from the trial court's decision and submitted three assignments of error:

{¶13} "I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION TO WITHDRAW AND VACATE HIS GUILTY PLEA BECAUSE THE TRIAL COURT FAILED TO SUBSTANTIALLY COMPLY WITH THE STATUTORILY REQUIRED ADVISEMENTS TO NONCITIZENS CONTAINED IN R.C. § 2943.031(A)."

{¶14} "II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION TO WITHDRAW AND VACATE HIS GUILTY PLEA BECAUSE APPELLANT'S PLEA WAS NOT KNOWINGLY, INTELLIGENTLY, OR VOLUNTARILY MADE DUE TO THE TRIAL COURT'S FAILURE TO SUBSTANTIALLY COMPLY WITH THE STATUTORILY REQUIRED ADVISEMENTS TO NONCITIZENS CONTAINED IN R.C. § 2943.03L(A)."

{¶15} "III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S MOTION TO WITHDRAW HIS GUILTY PLEA ON THE BASIS OF INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS FORMER ATTORNEY FAILED TO PROPERLY ADVISE HIM OF THE IMMIGRATION CONSEQUENCES AS A RESULT OF PLEADING GUILTY PURSUANT TO PADILLA V. KENTUCKY, 559 U.S. 356, 364, 130 S.CT. 1473, 176 L.ED.2D 284 (2010)."

STANDARD OF REVIEW

{¶16} Appellant asked to withdraw his guilty plea pursuant to Crim.R. 32.1 and R.C. 2943.031. While post-sentence motions filed under Crim.R. 32.1 are subject to the manifest injustice standard, that requirement is not applicable when the Appellant claims a violation of R.C. 2943.031. State v. Oluoch, 10th Dist. Franklin No. 07AP-45, 2007-Ohio-5560, ¶ 9. "R.C. 2943.031(D)'s explicit language mandates that a trial court set aside a judgment of conviction and allow a defendant to withdraw his guilty plea if the defendant satisfies four requirements. Showing manifest injustice is not included as one of the requirements." State v. Weber, 125 Ohio App.3d 120, 129, 707 N.E.2d 1178 (10th Dist.1997).

{¶17} Appellant must instead show that "(1) the court failed to provide the defendant with the advisement contained in R.C. 2943.031(A); (2) the advisement was required; (3) the defendant is not a United States citizen; and (4) the offense to which the defendant pled guilty may result in deportation under the immigration laws of the federal government." Id. at 126, 707 N.E.2d 1178.

{¶18} The trial court's decision regarding whether the elements have been established is reviewed under an abuse of discretion standard. Francis at ¶ 32.

To clarify, the exercise of discretion

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