[Cite as State v. Abukhalil, 2012-Ohio-1639.]



                      Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97129


                                       STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    FAED ABUKHALIL
                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-434694

        BEFORE: Stewart, P.J., Sweeney, J., and Cooney, J.

        RELEASED AND JOURNALIZED:                     April 12, 2012
ATTORNEYS FOR APPELLANT

Kim K. Alabasi
5368 St. Clair Avenue
Cleveland, OH 44103

Wayne F. Benos
6675 Oakwood Drive
Independence, OH 44131


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Kristen L. Sobieski
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

      {¶1} Defendant-appellant, Faed Abukhalil, appeals from the trial court’s denial of

his emergency motion to withdraw guilty plea and vacate judgment from his conviction

for criminal simulation. He also asserts that the trial court abused its discretion in

denying his request for a hearing on the motion. For the following reasons, we affirm.

      {¶2} Abukhalil, a noncitizen of the United States, was indicted for one felony

count of criminal simulation in March 2003. The record reveals that in August 2003, he

entered a guilty plea to an amended indictment that reduced the offense charged to a first

degree misdemeanor, resulting in a suspended sentence and probation. In December

2003, the Immigration and Naturalization Services (“INS”) commenced removal

proceedings because Abukhalil had been convicted of two previous offenses in addition

to this one. In April 2004, he was ordered to be removed from the country and placed

under an order of supervision, but was allowed to remain free subject to conditions.

      {¶3} On May 16, 2011, Abukhalil filed his emergency motion to withdraw guilty

plea and vacate judgment pursuant to R.C. 2943.031(D), and attached a complete copy of

the transcript of proceedings from his plea and sentencing hearing in August 2003 marked

as exhibit “H.” The case was assigned to the same judge who presided over the taking of

the plea and subsequent sentencing. As grounds for his motion, Abukhalil asserted that

he had been detained by immigration and customs enforcement officers for questioning

and faced the threat of deportation at any moment. A journal entry dated June 10, 2011
indicates that the trial court ordered a “transcript of plea and sentence from August 12,

2003 at state’s expense.” On June 28, 2011, the state filed a brief in opposition to the

emergency motion to withdraw the plea, and on July 8, 2011, the trial court denied

Abukhalil’s motion without a hearing. The court’s journal entry does not indicate the

reasons for its decision.

       {¶4} Abukhalil first argues that because the court did not substantially comply with

the requisite immigration advisements pursuant to R.C. 2943.031, he did not fully

comprehend the potential deportation, exclusion, and denial of naturalization

ramifications that the plea could have on his immigration status.

       {¶5} An appellate court reviews the trial court’s decision on a motion to withdraw

a guilty plea pursuant to R.C. 2943.031(D) for an abuse of discretion. State v. Francis,

104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 32.

       {¶6} R.C. 2943.031(D) contains the statutory conditions that must be met for the

trial court to set aside a judgment and permit withdrawal of a guilty plea, and provides,

in pertinent part:

       Upon motion of the defendant, the court shall set aside the judgment and
       permit the defendant to withdraw a plea of guilty * * *, if, after the effective
       date of this section,[ 1 ] 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.

        R.C. 2943.031 became effective October 2, 1989.
       1
       {¶7} While R.C. 2943.031 does not provide a time limitation for a defendant to file

a motion to withdraw, a trial court is nevertheless required to consider the timeliness of an

R.C. 2943.031(D) motion. Francis at ¶ 37-40. “[I]n 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.

 The Francis court went on to state that:

       The 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 witnesses will be unavailable. The 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. at ¶ 40.

       {¶8} R.C. 2943.031(A) states, in pertinent part:

       [T]he 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:

       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 * * * 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.

See, e.g., State v. Voskoboynikov, 8th Dist. No. 92423, 2009-Ohio-4882, ¶ 32 (“[A]t the

plea hearing, the trial court must advise the non-citizen defendant of three separate

consequences that might result from a guilty plea: 1) deportation; 2) exclusion from
admission into the United States; and 3) denial of naturalization.”)         The statutory

advisement is not required to be given unless the record affirmatively establishes by

affidavit or other documentation that a defendant is not a United States citizen.

Cleveland Hts. v. Roland, 8th Dist. No. 96529, 2012-Ohio-170, ¶ 13.

       {¶9} If a trial court has not substantially complied with R.C. 2943.031(A), a

defendant is required to show that prejudice resulted from the lack of compliance. State

v. Tejeda, 8th Dist. No. 96518, 2011-Ohio-4960, ¶ 9. The test for prejudice due to the

lack of compliance is “whether the plea would have otherwise been made.” State v.

Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

       [I]f some warning of immigration-related consequences was given at the
       time a non-citizen defendant’s plea was accepted, but 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).

Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, at ¶ 48. Substantial

compliance is met when “under the totality of the circumstances the defendant

subjectively understands the implications of his plea and the rights he is waiving.”

Tejeda at ¶ 9.

       {¶10} After Abukhalil was indicted, journal entries indicate that he was required to

surrender his passport, his green card, and was also ordered to provide the trial court with

“immigration services/homeland security information” to meet the conditions of his bond.

 At his plea and sentencing hearing, the trial court inquired of Abukhalil if he was a

United States citizen, and he responded that he was not. The above documents combined
with Abukhalil’s response confirm that the trial court was aware that he was not a citizen

of the United States, and therefore the advisement described in the statute was required.

       {¶11} Abukhalil establishes the possibility of deportation with an affidavit and

exhibits attached to his motion. The record contains a document from INS addressed to

Abukhalil stating that: “[y]ou are deportable for the reasons stated below * * * [o]n the

basis of the foregoing, it is charged that you are subject to removal from the United States

pursuant to the following provisions of law * * *.” In his affidavit, Abukhalil alleges

that “he was ordered removed/deported from the United States on April 12, 2004.”

       {¶12} The trial court’s complete advisement to Abukhalil concerning potential

consequences of deportation, exclusion of United States admission, or denial of

naturalization consisted of a single question: “Since you are not a United States citizen,

do you further understand that your plea of guilty to this case will be reported to INS?”

Abukhalil responded affirmatively and, shortly thereafter, entered a plea of guilty.

       {¶13} In Voskoboynikov, 8th Dist. No. 92423, 2009-Ohio-4882, “the trial court

informed appellant that he ‘could’ be ‘sanctioned’ by the immigration authorities ‘up to’

possible ‘deportation.’ In spite of the statute’s mandate, no other consequence was

stated.” Id. at ¶ 33. This court found the advisement to be “insufficient for purposes of

the statute.” Id. at ¶ 34.

       {¶14} In State v. Oluch, 10th Dist. No. 10AP-1038, 2011-Ohio-3998, ¶ 17,

“[d]uring the plea colloquy, the trial court informed defendant only ‘that by pleading

guilty, this could jeopardize [his] status here in this country.’” Id. at ¶ 17, quoting State
v. Ouch, 10th Dist. No. 06AP-488, 2006-Ohio-6949, ¶ 14. The reviewing court ruled

that by sustaining the defendant’s motion to withdraw his guilty plea, “the trial court did

not abuse its discretion in determining defendant did not subjectively understand all of the

consequences of his guilty pleas and would not have entered the pleas had the trial court

properly advised him.” Id. at ¶ 22.

       {¶15} In State v. Contreras, 6th Dist. No. H-10-024, 2011-Ohio-4736, ¶ 16, the

court stated that because the “trial court made little or no mention of the R.C. 2943.031

factors * * * we can only reason that the court did not consider any of the other [except

for timeliness] statutory factors set forth in R.C. 2943.031. The failure to consider all the

factors is contrary to the Supreme Court’s ruling in Francis.”

       {¶16} In the instant case, the trial court’s advisement did not substantially comply

with R.C. 2943.031(A).       Nevertheless, we find the motion that Abukhalil filed to

withdraw his guilty plea to be untimely.

       {¶17} In State v. Villafuerte, 8th Dist. No. 90367, 2008-Ohio-5587, the defendant

entered a guilty plea and became aware of deportation proceedings that were initiated

against him approximately four months later. The defendant delayed in moving to vacate

his guilty plea for “almost eleven years after he was convicted and ten years after he

became aware of the deportation proceedings.” Villafuerte at ¶ 16. This court found the

delay in filing his motion to vacate to be untimely and unreasonable because it imposed

“an unreasonable obligation on the State to maintain evidence, and the State [had] an

interest in maintaining the finality of a conviction * * *.” Id. at ¶ 18.
       {¶18} In the instant case, in August 2003, Abukhalil was immediately detained

by Immigration and Customs Enforcement after entering his guilty plea. Four months

later, a hearing was held where removal proceedings were commenced against him.          A

second hearing was held by INS five months later, and Abukhalil was ordered to be

removed from the United States, but placed under supervision. He filed his emergency

motion to withdraw guilty plea in May 2011, almost eight years after he became aware of

deportation proceedings.

       {¶19} Irrespective of whether Abukhalil had a subjective understanding of the

implications of his plea, or that the trial court’s advisement did not substantially comply

with R.C. 2943.031(A), it is apparent that Abukhalil knew of immigration-related

consequences immediately after he entered the plea and was detained and issued a notice

to appear before the INS. In his affidavit attached to his motion to withdraw his plea,

Abukhalil concedes that “he did not understand the immigration consequences of his plea

until he was ordered removed/deported from the United States on April 12, 2004,”

approximately eight months after entering the plea. Nevertheless, he still waited more

than seven years before he filed his motion to withdraw his plea, and Abukhalil has

provided no explanation for this long delay. We find that Abukhalil’s delay in filing his

motion to withdraw was unreasonable and untimely in light of these facts. His first

assignment of error is, accordingly, overruled.

       {¶20} For his second assignment of error, Abukhalil challenges the denial of his

motion to withdraw plea and vacate conviction pursuant to Crim.R. 32.1.
      {¶21} A court may permit a criminal defendant to withdraw a plea after the

imposition of sentence to correct manifest injustice. Crim.R. 32.1. While Crim.R. 32.1

does not set a time limitation for filing a motion to withdraw a plea, “undue delay

between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing

of a motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the

movant and militating against the granting of the motion.” State v. Bush, 96 Ohio St.3d

235, 2002-Ohio-3993, 773 N.E.2d 522, ¶ 14, citing State v. Smith, 49 Ohio St.2d 261, 361

N.E.2d 1324 (1977), paragraph three of the syllabus; see also State v. Gaston, 8th Dist.

No. 82628, 2003-Ohio-5825, ¶ 6 (“undue delay” is a factor to be assessed in determining

whether to grant a Crim.R. 32.1 motion). “[T]imeliness of the motion will be of different

importance in each case, depending on the specific facts.” State v. Sibai, 8th Dist. No.

84407, 2005-Ohio-2730, ¶ 8, citing Francis, 104 Ohio St.3d 490, 498, 2004-Ohio-6894,

820 N.E.2d 355.

      {¶22} In Sibai, the appellant did not file a motion to withdraw his plea for over

nine years after entering his plea, but did file the motion approximately 12 to 18 months

upon receiving notification that he was to be deported. Id. at ¶ 10. This court found that

“[u]nder these circumstances, ‘where the immigration-related consequences of the plea

and resulting conviction did not become evident for some time after the plea was

entered,’ we do not conclude that the mere fact over nine years has elapsed from the date

of his plea to constitute grounds for denying his motion to vacate.” Id. at ¶ 12. See also

State v. Colthirst, 8th Dist. No. 84286, 2004-Ohio-6118 (motion to withdraw filed three
years after receiving notice of deportation not untimely filed because the defendant was

incarcerated for much of the time between entering the plea and filing the motion); but

see State v. Coleman, 10th Dist. Nos. 03AP-219 and 03AP-220, 2003-Ohio-7234

(Crim.R. 32.1 motion filed four years after entering plea with no explanation for long

delay adversely affects credibility and militates against granting the motion).

       {¶23} Again, Abukhalil’s failure to provide any reason to explain the delay in

filing the motion to withdraw his plea precludes the relief that he requests pursuant to

Crim.R. 32.1.

       {¶24} Abukhalil argues thirdly that the court erred in denying his motion to

withdraw his plea by not following the Supreme Court’s mandate in Padilla v. Kentucky,

559 U.S. ___, 130 S.Ct. 1473, 1483, 176 L.Ed.2d 284 (2010). He contends that Padilla

stands for the proposition that failure of counsel to advise a non-citizen client of

immigration-related consequences of a guilty plea provides an independent basis for

withdrawing his plea because it constitutes a violation of his Sixth Amendment right to

counsel. However, Abukhalil’s constitutional analysis is misplaced in this instance.

       {¶25} Padilla involved a defense attorney who gave Padilla “false assurance that

his conviction would not result in his removal from this country.”         Padilla at 1483.

Abukhalil does not assert that he was misinformed by his trial counsel, so Padilla has

negligible application under the circumstances presented because it pertains to an

ineffective assistance of counsel analysis. Here, the relevant facts that are dispositive of

this appeal involve the untimeliness of Abukhalil’s motion to withdraw.
       {¶26} In State v. Bains, 8th Dist. No. 94330, 2010-Ohio-5143, a non-citizen

appellant complained that he was entitled to withdraw his guilty plea due to ineffective

assistance of counsel.    This court, while referencing Padilla in its analysis, recognized

that the movant became aware of deportation proceedings six years prior to filing the

motion to withdraw his guilty plea. While this court recognized the propositions of

Padilla, we nonetheless found that the defendant’s motion was untimely. Id. at ¶ 29.

Abukhalil’s third assignment of error is overruled.

       {¶27} In his final assigned error, Abukhalil complains that it was an abuse of

discretion to deny his motion to withdraw without a hearing as requested.       The decision

whether to hold a hearing or to explain reasons for a ruling on a motion to withdraw a

plea “are matters entrusted to the sound discretion of the trial court.”         Francis, 104

Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, at ¶ 56. “[U]nless it is clear that

denial of the motion is warranted, a trial court should hold a hearing.” Id. at ¶ 51, citing

State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), paragraph one of the syllabus.

“Sometimes, the record will reveal the reasons for denial with sufficient clarity to show

that it was not error to fail to hold a hearing or to specify the reasons for denial.” Id. at ¶

56.

       {¶28} In this instance, the record indicates that Abukhalil never addressed in his

motion, his affidavit, or his appellate brief the above-mentioned timeliness issue that

militates against withdrawing the plea.       Therefore, the trial court did not abuse its
discretion by not conducting a hearing. Abukhalil’s fourth assignment is not well taken

and is overruled.

       {¶29} Judgment affirmed.

       It is ordered that appellee recover of appellant its costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.               A   certified

copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of

Appellate Procedure.




MELODY J. STEWART, PRESIDING JUDGE

JAMES J. SWEENEY, J., and
COLLEEN CONWAY COONEY, J., CONCUR
