State v. Weber

• Decision Date: 31 December 1997
• Docket Number: No. 97APA06-777,97APA06-777
• Citation: 125 Ohio App.3d 120,707 N.E.2d 1178
• Parties: The STATE of Ohio, Appellee, v. WEBER, Appellant. *
• Court: Ohio Court of Appeals

Page 120

125 Ohio App.3d 120

707 N.E.2d 1178

The STATE of Ohio, Appellee, v. WEBER, Appellant. ^*

No. 97APA06-777.

Court of Appeals of Ohio Tenth District, Franklin County.

Decided Dec. 31, 1997.

Ronald J. O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, Columbus, for appellee.

Kenneth R. Spiert, Columbus, for appellant.

LAZARUS, Judge.

Defendant-appellant, Maria J. Weber, appeals from a May 8, 1997 judgment entry in the Franklin County Court of Common Pleas denying her motion to withdraw her 1990 guilty plea to attempted theft, a violation of R.C. 2923.02 as it relates to 2913.02. Appellant contends that her guilty plea might be set aside under R.C. 2943.031(D) because the trial court failed to advise her, as required by that statute, of the possible consequences that her guilty plea might have on her immigration status. Appellant also contends that the judgment should be reversed because the trial court violated the attorney-client privilege by ordering appellant's former trial counsel to testify as to what advice counsel gave appellant regarding the possible effects her guilty plea might have on her immigration status. Because we hold that the trial court incorrectly applied the mandates of R.C 2943.031(D) for setting aside a guilty plea, we reverse the judgment below.

Appellant is a citizen of Poland. In October 1989, appellant and her daughter from a previous marriage legally entered the United States to live with her husband, a U.S. citizen.

On May 23, 1990, the Franklin County Grand Jury indicted appellant on one count of theft and one count of possession of criminal tools related to an incident in which appellant was caught attempting to steal $400 worth of clothing from a Lazarus department store. On November 12, 1990, appellant agreed to plead guilty to a lesser included offense of count one, attempted theft, in exchange for a nolle prosequi on the remaining count of the indictment. At that time, appellant executed an entry of guilty plea form, on which appellant noted that she was not a citizen of the United States, and during the plea hearing, the court was specifically told that appellant was Polish. Thereafter, the court conducted, through an interpreter, a plea dialogue with appellant but did not give the advisement regarding the possible deportation consequences of her guilty plea as required by R.C. 2943.031. The trial court accepted appellant's plea and on December 17, 1990, sentenced appellant to six months in jail, suspended on condition of serving a two-year term of probation. On December 16, 1992, the trial court discharged appellant from probation.

On March 21, 1997, appellant filed a motion to vacate or withdraw her guilty plea. Appellant's motion was based on the trial court's failure to advise appellant of the possible consequences that her guilty plea might have had on her immigration status and that this failure required the guilty plea to be vacated under R.C. 2943.031 and the Sixth and Fourteenth Amendments to the United States Constitution. According to appellant, the Immigration and Naturalization Service ("INS") initiated deportation proceedings against appellant in 1994 based on appellant's conviction in the instant case and a subsequent conviction for theft in January 1994. Appellant contends that, while her convictions made her automatically deportable under federal law, she was able to defend against the deportation through a "waiver of deportation" provision based upon family hardship available to alien spouses of United States citizens. According to appellant, this defense became unavailable due to recent amendments to the United States immigration laws and the death of appellant's husband in 1996. As a result, appellant contends that, to prevent her deportation, it became necessary to challenge the criminal charges underlying the deportation proceedings, including appellant's conviction in this case.

On May 7 and 8, 1997, the trial court held a hearing on appellant's motion. At the hearing, appellant testified that, if the trial court had given the advisement required under R.C. 2943.031(A), she would not have entered a guilty plea but would have taken the case to trial. Appellant also presented evidence that the INS had instituted deportation proceedings against her because of her conviction. In opposition to the motion, appellee, state of Ohio, presented evidence that, after the guilty plea in this case, appellant entered guilty pleas on two separate occasions and that appellant did so even after being specifically advised by the court as to the potential deportation consequences. In addition, the state called appellant's former counsel to testify. Over appellant's objection and after being ordered to testify by the trial court, appellant's former counsel testified that, prior to the plea hearing in November 1990, he advised appellant of the possibility of deportation if she was convicted, using her husband as an interpreter. Appellant's former counsel further testified, however, that he did not know whether appellant actually understood the potential deportation consequences of a conviction at the time appellant entered her guilty plea in November 1990.

At the conclusion of the hearing, the trial court overruled appellant's motion to withdraw her guilty plea. The court concluded that appellant was entitled to the advisement regarding possible deportation consequences under R.C. 2943.031(A) and that the trial court failed to give the advisement. The trial court held, however, that appellant was not prejudiced because appellant would have pled guilty even if he had given the advisement. In other words, appellant failed to show that the trial court's failure to advise appellant was, in the words of appellant's brief, "outcome determinative" of appellant's decision to plead guilty. In addition, the trial court held that appellant failed to show manifest injustice as required under Crim.R. 32.1 to withdraw a guilty plea after sentencing. In particular, the trial court stated:

"However, in reviewing the facts in this case, your client has said that the failure of me to give that advice influenced her plea; had I given her that advice under no circumstances would she have entered that plea.

"The court finds your client is absolutely not credible at all. She is not a credible witness. Not only her record of five, I believe, five prior theft offenses that have been admitted to, your client is not credible on the witness stand and the lack of credibility was supported by the testimony of her own counsel. The court believes that she had an awareness, and not a particular awareness, but an awareness, there may be deportation consequences and there's no doubt the defendant at every subsequent plea that she has entered she has been advised of her deportation consequences.

" * * *

"But more importantly, we are talking about manifest injustice and manifest injustice deals with the entire system. It also deals with your client. What injustice has been done in this case? The injustice has not been that your client has been deported as a result of this court's lack of giving her notice; the injustice is your client, one, sitting around for six years and not taking any action with respect to my lack of notice that she at least knew about in 1992; injustice to the system is for your client to sit around and wait for the ramifications for six years and when the prejudice takes place, oh, my heavens, now I want to go back.

" * * *

"The court believes any prejudice that happens to your client happened on her own actions, happened as a result of her husband dying, change in the immigration law, and there's no prejudice by what I failed to do. There's no doubt I failed to do that."

The trial court's decision was formally entered on May 8, 1997. Appellant timely appealed the May 8, 1997 judgment entry, raising the following two assignments of error:

1. "The trial court committed prejudicial error in concluding that appellant failed to establish prejudice, within the meaning of R.C. § 2943.031(D), from the court's failure to provide the advice required by R.C. § 2943.031(A)."

2. "The trial court committed prejudicial error and denied Weber due process under the Ohio and United States Constitutions when it ordered Weber's former trial counsel to testify absent a waiver of the attorney-client privilege pursuant to R.C. § 2317.02."

In her first assignment of error, appellant contends that neither the "outcome determinative" test of prejudice nor the manifest injustice standard of Crim.R. 32.1 applies to a motion to withdraw a guilty plea under R.C. 2943.031(D). Appellant contends that a withdrawal of a guilty plea is mandatory under R.C. 2943.031 if the defendant establishes that the advisement was required to be given, the trial court failed to give the advisement, and there has been some adverse immigration consequence of the guilty plea. In so arguing, appellant does not directly challenge the trial court's factual determination that appellant still would have pled guilty even if the trial court had given the advisement. Nor does appellant directly challenge the determination that appellant failed to prove manifest injustice as required under Crim.R. 32.1.

R.C. 2943.031, enacted by the General Assembly and signed by the Governor in 1989, generally requires that before accepting a guilty or no contest plea, a trial court must advise a noncitizen defendant that his plea may have consequences on his immigration status. The statute also establishes a procedure for withdrawal of the guilty plea if the advisement is not given. In particular, R.C. 2943.031 states:

"(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...