State v. Pina
| Decision Date | 05 December 1975 |
| Citation | 361 N.E.2d 262,3 O.O.3d 457,49 Ohio App.2d 394 |
| Parties | , 3 O.O.3d 457 The STATE of Ohio, Appellee, v. PINA et al., Appellants. The STATE of Ohio, Appellee, v. DOMBROWSKI, Appellant. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
In a criminal case, it is prejudicial error for a court not to require a translation and record of the remarks of an accused incapable of understanding the English language, but to rely solely upon the conclusions of an interpreter in determining whether the defendant fully understands the instructions of the court and the effects of a plea of guilty.
James A. Berry, Pros. Atty., Springfield, for appellee.
Thompson, Swope, Burns & Biswas, Reynoldsburg, and Bailey & Doughty, Springfield, for appellants.
Three defendants were indicted on August, 29, 1974, for multiple counts of aggravated burglary. On November 11, 1974, the charges were reduced to one count of breaking and entering, pleas of guilty were accepted and the defendants sentenced to terms of two to five years. On May 6, 1975, motions to withdraw the pleas of guilty were heard by the trial court and denied. It is from this denial that this appeal arises.
We agree that a motion to withdraw a plea of guilty may be made only before sentence is imposed, or after the imposition of a sentence is suspended or after sentence to correct a manifest injustice. Criminal Rule 32.1. We conclude that the sentences should be suspended and that the motions to set aside the judgment should be sustained to correct a manifest injustice.
By way of background, the defendants are immigrant gypsies, although the two women spent their first two years in the United States. The rest of their lives they spent in Poland or thereabouts, as well as can be ascertained, coming to the United States within the last two years.
At no time since their arrest did any one of the defendants speak for the record in English or in any other language. The local police officers, counsel and the court at no time communicated directly with them. Their responses to interpreters were not reported. The interpreters responded with collective conclusions such as, 'they understand' or 'they agree.' Never once were their responses interpreted or individualized as to each defendant.
The communication problem arose from the fact that these defendants use a tribal dialect of a Lovari Gypsy of Romany, influenced by considerable Polish and some German, with an Austrian accent. This communication problem was compounded by cultural and concept differences which operated as a handicap to an explanation of the American judicial concepts to people familiar only with a different system.
Certainly, there is a suspicion of a lack of cooperation in understanding. Those in the defendants' situation and vagrant background possess a native shrewdness, acquired in their wanderings, living by their wits and their own code that does not resemble that of the culture in which they reside and which they resist. That they resided in the United States two years, supporting a family, casts further doubt upon their total ignorance of English; however, this does not justify going beyond the record made at the time they supposedly entered a plea and at the time of the hearing on the motion to vacate the sentences.
The first assignment of error is the failure of the court to give all the mandatory instructions required by Criminal Rule 11(C)(2)(b) and (c) and the failure to comply with Criminal Rule 22. The second assignment of error is that the record does not demonstrate that the defendants were aware of the nature of the charge and the penalty or that they intelligently waived their rights. These will be discussed together.
It appears from the record that the two ladies had no formal education and could not read or write any language. The gentleman finished four years of grade school in Poland and could read and write Polish. Their attorney could not converse with them and was as dependent upon interpreters as the court.
The following is sufficient to demonstrate how the hearing was conducted:
'Mr. Kurpiel: They understand.
'Mr. Koloziej: They do understand.'
The record continues with no statement of any kind by the defendants personally and no direct translation of what the defendants said in any language. The response of one or the other of the interpreters was always the same: 'They concurred.' 'Yes, they expressed that previously.' 'They waive their rights.' 'They do agree.' The only record of the defendants' statements, understanding and plea is the general conclusion by an interpreter that they collectively understood or agreed. There is no record of what the interpreter said to the defendants and no record of the response of any one of the defendants to the interpreter's translation.
First, it appears that in advising the defendants the Court did not include all the rights set forth in Criminal Rule 11(C)(2)(c), leaving out the right of confrontation and compulsory process. The Court did not personally address any defendant on any subject and omitted one or more items in criminal Rule 11(C) (2)(a) and (b). In addition, as indicated earlier, the record reports the conclusions of the interpreters and never once reports, by a tape recording or otherwise, any direct communication by the Court to the defendants or by the defendants to the Court. The record in this respect is silent, even as to the entry of the plea itself. Criminal Rule 22.
The prosecution argues that Criminal Rule 11 is a 'voluntary and not constitutionally mandated supervisory rule of procedure designed to more accurately determine the voluntariness of a guilty plea.' Further, he argues that if the omission of an item in Criminal Rule 11 invalidates a plea, this 'would reduce Criminal Rule 11 to a ritualistic scholastic exercise similar to the Miranda warnings.' It is a mistake to assume that the Miranda warnings or Criminal Rule 11 is a ritualistic scholastic exercise.
Criminal Rule 11 is mandatory. A guilty plea cannot be said to be voluntary without strict compliance. State v. Griffey (1973), 35 Ohio St.2d 101, 298 N.E.2d 603; State v. Scott (1974), 40 Ohio App.2d 139, 318 N.E.2d 415; State v. Stone (1975), 43 Ohio St.2d 163, 331 N.E.2d 411.
The record is further confused by a reference to restitution, as follows:
'Mr. Hunter: A part of the state's negotiated plea was the prerequisite of the restitution being made.
'Mr. Koloziej: They fully understand and agree to it.'
Later, it appears that restitution was made. This confusion is suggested by a comment by the interpreter at the sentencing that defendants have children and they would like to pay the fine and return to the children.
Interpreters are used infrequently. In ordinary situations, the vehicle of communication is not a problem whether the method is by way of sign language, as with a deaf mute, or the translation of a foreign language. The problem in the instant case is magnified by a mixture of an isolated dialect with an ancient tongue that has borrowed words of Polish and German origin. The problem, however, is no more insurmountable than the ability of these defendants to exist in this country. What we are confronted with is the procedure to be followed in court when an interpreter is used.
In State v. Rodriguez (1959), 110 Ohio App. 307, 169 N.E.2d 444, the Court of Appeals for Fulton County said that in the examination of witnesses who cannot understand or speak the English language, the interpreter should not be permitted to give his conclusions with respect to answers of the witness but should give a literal interpretation of the language employed by the witness.
If a witness does not understand English, an interpreter will be sworn to interpret the oath to him and his testimony to the court. 56 Ohio Jurisprudence 2d 516, Witnesses, Section 86; 172 A.L.R. 923. An interpreter is...
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