[Cite as State v. Lovano, 2014-Ohio-3418.]


                 Court of Appeals of Ohio
                                     APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 100578



                                             STATE OF OHIO


                                                        PLAINTIFF-APPELLANT

                                                  vs.

                                     SALVATORE LOVANO

                                                        DEFENDANT-APPELLEE



                                       JUDGMENT:
                                 REVERSED AND REMANDED



                                  Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                                  Case No. CR-93-290205

        BEFORE:           Stewart, J., Boyle, A.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                         August 7, 2014
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Edward Fadel
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Margaret W. Wong
Scott E. Bratton
Margaret Wong & Associates Co.
3150 Chester Avenue
Cleveland, OH 44114
MELODY J. STEWART, J.:

      {¶1} R.C. 2943.031(A) requires the court, prior to accepting a guilty plea, to

advise a defendant who is not a citizen of the United States that the plea “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.” The issue in

this appeal is whether the court abused its discretion by granting a motion to

withdraw a guilty plea, made 19 years after the fact, premised on its failure to give

the advisement.

                                          I

      {¶2} In May 1993, defendant-appellee Salvatore Lovano, a Canadian citizen

lawfully residing in the United States, pleaded guilty to one count of felony theft

and two misdemeanor counts of attempted passing bad checks and was convicted of

those offenses. Nineteen years later, Lovano was convicted of aggravated assault.

Facing deportation because he had been convicted of more than one crime

involving moral turpitude, in July 2012, Lovano filed a motion to withdraw the

1993 guilty plea. Filing the motion pursuant to both R.C. 2943.031 and Crim.R.

32.1, Lovano claimed that neither the court nor defense counsel advised him at the

time of his 1993 plea that a conviction could have adverse consequences involving

deportation. Lovano supported the motion with an affidavit to that same effect.
The parties agreed that the 1993 plea proceedings had not been transcribed and that

the court reporter had long since disposed of the case notes. The lawyer who

represented Lovano in 1993 testified at a hearing that he recalled representing

Lovano, but could not “recall any privileged communications or non-privileged

communications with my client in this matter.” The lawyer also had no specific

recollection of the court giving the R.C. 2943.031 advisement.

      {¶3} The state argued that the motion to withdraw the guilty plea was

untimely.   It noted that by October 1993, Lovano had actual notice that his

conviction could lead to possible deportation, yet failed to take action to withdraw

the plea at the time. It cited as proof of Lovano’s notice an October 1993 journal

entry resetting a hearing on Lovano’s violation because deportation proceedings

had commenced against Lovano. The state further argued that Lovano’s delay in

seeking to withdraw his guilty plea resulted in demonstrable prejudice to it. It

claimed that the trial lawyer’s inability to recall the specifics of the 1993 plea was

proof that the claim was stale. It told the court that it had not preserved evidence

from a 19 year-old case, so it would be highly prejudiced in reprosecuting the case.



      {¶4} Lovano acknowledged that deportation proceedings had commenced

against him in 1993, but claimed that he received a “waiver” at that time that

allowed him to remain in the United States. He said that “I thought the waiver
eliminated the case for immigration purposes but I recently learned that this is not

correct.” Lovano Affidavit at ¶ 6. It was not until after his 2012 conviction that

he learned that he was subject to deportation because he had been convicted of

more than one crime involving moral turpitude. Finally, he claimed that he would

not have pleaded guilty in 1993 had he been made aware that the conviction could

be used as a basis for deportation.

      {¶5} The court took the matter under advisement and then granted the motion

to withdraw the guilty plea without opinion.

      {¶6} The state appeals, arguing in two assignments of error that the trial court

erred by granting the motion to withdraw the guilty plea because it was untimely

under both R.C. 2943.031(D) and Crim.R. 32.1.

                                         II

      {¶7} Under R.C. 2943.031(E), the absence of a record showing that the court

gave the advisement required by R.C. 2943.031(A) creates a presumption that the

advisement was not given. Hence, when an advisement is not given, when the

defendant shows that he is not a United States citizen, and when the defendant

shows that deportation consequences exist from having pleaded guilty to the crime,

the court must “set aside the judgment and permit the defendant to withdraw a plea

of guilty” to a conviction for an offense that may result in the defendant being

deported. R.C. 2943.031(D).
      {¶8} Withdrawal of a guilty plea is not automatic simply because the court

failed to give the R.C. 2943.031(A) advisement.        The decision to set aside a

judgment of conviction and allow the defendant to withdraw a guilty plea is

committed to the sound discretion of the court. State v. Francis, 104 Ohio St.3d

490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 32. The court is allowed to take into

account “many factors” when considering whether to grant a motion to withdraw a

guilty plea based on the court’s failure to give the R.C. 2943.031(A) advisement.

Id. at ¶ 36. Although the Ohio Supreme Court did not list what factors the court

could consider, it did state that “untimeliness will sometimes be an important factor

in reaching a decision on a motion to withdraw.” Id. at ¶ 42.

                                         III

      {¶9} The state argues that Lovano failed to establish that he was entitled to

relief under R.C. 2943.031(D) because he did not demonstrate that the court failed

to give him the required advisement. It maintains that the only proof that the court

failed to give the advisement is contained in Lovano’s “self-serving” affidavit — an

affidavit that the court should have discounted.

      {¶10} We need not consider whether the court erred by finding Lovano’s

affidavit credible because the state’s argument ignores the import of R.C.

2943.031(E). That section states: “In the absence of a record that the court

provided the advisement described in division (A) of this section and if the
advisement is required by that division, the defendant shall be presumed not to have

received the advisement.” It is undisputed that the transcript of the plea hearing is

unavailable and that no other evidence exists to prove that the court gave the

advisement. This constitutes an “absence of a record” that the court provided the

advisement. Even had the court struck Lovano’s affidavit as self-serving (or even

if Lovano had not offered an affidavit at all), the state’s concession that there is no

record that the court gave the advisement was enough to oblige the court to presume

that the advisement was not given.

                                           IV

        {¶11} The state’s primary argument is that the court abused its discretion by

failing to find the motion to withdraw the guilty plea untimely because 19 years

passed from the date of the conviction to the date of the motion to withdraw the

plea.

        {¶12} In Francis, the Supreme Court stated:

        Timeliness of the motion is just one of many factors the trial court
        should take into account when exercising its discretion in considering
        whether to grant the motion. 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.
      However, at the same time, we also do not accept the court of appeals’
      determination that, as a matter of law, untimeliness here was a
      sufficient factor in and of itself to justify the trial court’s decision to
      deny the motion. In light of the strong policy expressed within R.C.
      2943.031(D), we reject the court of appeals’ approach in this regard,
      particularly when the trial court, which did not explain its ruling, never
      found that appellant’s delay in moving to withdraw the plea was
      unreasonable. It is too great a leap on this meager record to conclude,
      with no further inquiry, that appellant’s delay in filing the motion was
      unreasonable as a matter of law.

Id. at ¶ 41-42.

      {¶13} With these principles in mind, we conclude that the court acted

arbitrarily and unreasonably by granting Lovano’s motion to withdraw the guilty

plea made 19 years after the fact. It is true that the Supreme Court made it plain

that it would not create a bright-line rule on the timing of motions brought under

R.C. 2943.031(D) and that the timeliness of the motion would be but one factor

underlying the court’s discretion to grant a motion to withdraw a plea. Id. at ¶ 42.

Nevertheless, the concept of “timeliness” discussed in Francis involves more than

just the numerical calculation of the number of years between entering the plea and

the motion to withdraw the plea. As Francis noted, subsumed within timeliness is

the prejudice to the state in terms of stale evidence and unavailability of witnesses.

      {¶14} Lovano’s motion to withdraw his guilty plea was untimely for two

reasons. First, and most obviously, the motion was untimely because he waited 19

years to file it. Again, while the timeliness of the motion cannot be considered
dispositive as a matter of law, there is no doubt that 19 years is an exceptionally

lengthy lapse of time between the plea and the motion to withdraw the plea.

         {¶15} Second, the 19-year lapse of time became all the more egregious

because Lovano did not file a motion to withdraw the guilty plea despite being

aware just one month after his May 1993 conviction that it could lead to

deportation. He concedes that he was ordered in June 1993 to show cause why he

should not be deported for having committed the acts underlying his May 1993

guilty plea. That conviction did not lead to his deportation because an immigration

judge granted a waiver under former Section 212(c), 8 U.S.C. 1182(c) (repealed in

1996).      Nevertheless, commencement of deportation proceedings alone was

enough to put Lovano on notice that his May 1993 guilty plea had immigration

consequences and that he must act with alacrity to protect his privilege to remain in

the United States.

         {¶16} We recently considered a similar set of facts in State v. Huang, 8th

Dist. Cuyahoga No. 99945, 2014-Ohio-1511. Huang was convicted of domestic

violence in 1996 and 2001. Deportation proceedings commenced against him in

2004, but those proceedings were cancelled.         Deportation proceedings were

recommenced after Huang was convicted of gross sexual imposition and menacing

by stalking in 2009. In 2012, he sought to withdraw his no contest plea underlying

the 2001 conviction on grounds that counsel was ineffective for failing to warn him
that his no contest plea could have immigration consequences. The court denied

the motion to withdraw and we affirmed.            Quoting the principle that “[i]t 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[,]”

Francis, 104 Ohio St.3d 490, at ¶ 40, we stated:

       Lastly, regarding his ineffective assistance claims, we find that
       Huang’s motion was untimely. Huang had notice of immigration
       issues years prior to moving to withdraw his plea. In 2004, Huang
       was contacted by immigration authorities and a deportation-removal
       hearing was scheduled. This alone should have put Huang on notice
       that his legal issues were compromising his ability to lawfully remain
       in the United States. Yet, despite this warning, Huang did not make
       any effort to withdraw his no contest plea. It was only after his 2009
       conviction for menacing by stalking, followed by his receipt of the
       removal letters in 2011 and 2012, that Huang decided to revisit his
       2001 no contest plea.

Id. at ¶ 17.

       {¶17} The principles we applied in Huang apply with even more force to this

case because the eight-year delay in bringing a motion to withdraw that we deemed

unreasonable in that case is far-eclipsed by the 19-year delay in this case. And it

bears noting that Lovano’s excuse for not taking earlier action to withdraw his

guilty plea — he thought the deportation waiver “eliminated the case for

immigration purposes” — is not a valid excuse for the 19-year delay. The law

does not excuse willful ignorance.     Having been put on notice that his 1993

conviction could lead to deportation, Lovano had the duty to exercise due diligence
and seek advice from legal counsel at that point in time. It was unreasonable for

the court to give no consideration at all to Lovano’s failure to act when he had

notice that his 1993 conviction had deportation consequences.

      {¶18} The 19-year delay in seeking to withdraw the guilty plea has also

severely prejudiced the state’s ability to proceed with a prosecution. Francis made

it clear that the state has an interest in maintaining the finality of a conviction in a

case that has been closed for an extended period of time. Francis, supra, at ¶ 40;

Huang at ¶ 17.

      {¶19} The state told the court that any evidence of Lovano’s guilt had

long-since been destroyed. In addition, the state told the court that Lovano had

engaged in a “fairly complex check scheme” involving a codefendant and multiple

locations where they passed bad checks. Given the passage of time, the state

would be severely prejudiced in recreating a case to prosecute.

      {¶20} Finally, the court’s decision could be viewed as appearing to rest, at

least in part, on its belief that the state had no viable interest in continuing to

prosecute Lovano for passing bad checks. During the hearing on the motion to

withdraw the guilty plea, the court asked the state: “What is the State’s interest in

maintaining this particular conviction of a 1993 low level passing bad check case,

other than just maintaining it?”      That question was unwarranted because the

prosecuting attorney has sole discretion to prosecute crimes. Bordenkircher v.
Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604. The court’s question also

gave the impression that the court thought it pointless to prosecute Lovano again.

Whether this was the court’s actual intention is impossible to determine from the

transcript. But it bears mentioning that the court’s sentiments appear sympathetic

toward Lovano’s lack of diligence in seeking to withdraw his plea. By waiting so

long to withdraw his plea, Lovano was able to take advantage of a court reporter

destroying stale transcript notes, thus triggering the statutory presumption that the

R.C. 2943.031(A) advisement was not given. Furthermore, Lovano’s delay has

also enabled him to benefit from the state disposing of what it very reasonably

thought after so long a period of time was unneeded evidence. With Lovano’s

1993 defense attorney unable to recall any specifics of the case, it seems that the

state would be hard-pressed to find witnesses with a better recollection more than

20 years after the fact.

      {¶21} The court’s decision to grant Lovano’s motion to withdraw his guilty

plea not only allows Lovano to benefit from his own dilatory conduct, it

undermines any notion that criminal judgments should be final.          Lovano has

undeniably known for 19 years that his 1993 guilty plea had deportation

consequences, so he cannot reasonably claim otherwise as a basis for seeking the

withdrawal of his plea.    Meanwhile, Lovano’s delay has caused demonstrable

prejudice to the state in terms of mounting a new prosecution.          The court’s
intimation that there was no point to reprosecuting a “low level passing bad check

case” is a value judgment that resides solely with the prosecuting attorney, and

underscores the arbitrariness of the court’s decision to grant the motion to withdraw

the guilty plea. The first assignment of error is sustained. The second assignment

of error is moot.

      {¶22} This cause is reversed and remanded to the trial court for further

proceedings consistent with this opinion.

      It is ordered that appellant recover of appellee 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, JUDGE

MARY J. BOYLE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
