[Cite as State v. Zabala, 2011-Ohio-2947.]


                                        COURT OF APPEALS
                                     DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   William B. Hoffman, P.J.
                                               :   Julie A. Edwards, J.
                         Plaintiff-Appellee    :   Patricia A. Delaney, J.
                                               :
-vs-                                           :   Case No. 10CAC080059
                                               :
                                               :
MATEO ZABALA                                   :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Delaware
                                                    County Municipal Court No. 03-CRB-
                                                    01564

JUDGMENT:                                           Reversed and Remanded

DATE OF JUDGMENT ENTRY:                             June 2, 2011

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

PETER B. RUFFING                                    BRIAN C. DIFRANCO
Justice Center                                      DiFranco Law Office, LLC
70 North Union Street                               100 E. Campus View Blvd., 250
Delaware, Ohio 43015                                Columbus, Ohio 43235
[Cite as State v. Zabala, 2011-Ohio-2947.]


Edwards, J.

        {¶1}     Defendant-appellant, Mateo Zabala, appeals from the July 8, 2010,

Judgment Entry of the Delaware County Municipal Court denying his Motion to

Withdraw his plea. Plaintiff-appellee is the State of Ohio.

                                 STATEMENT OF THE FACTS AND CASE

        {¶2}     On August 5, 2003, a complaint was filed in Delaware County Municipal

Court charging appellant with drug possession (marijuana) in violation of R.C. 2925.11,

a minor misdemeanor. On the same date, a complaint was filed charging appellant with

possession of drug paraphernalia in violation of R.C. 2925.14, a misdemeanor of the

fourth degree. At his scheduled arraignment on August 11, 2003, appellant, who was

not represented by counsel, pleaded no contest to the charge of possession of drug

paraphernalia and was found guilty. He was fined $150.00 plus costs and ordered to

perform forty hours of community service.        Appellant was found not guilty of the

remaining charge.

        {¶3}     Subsequently, on June 3, 2010, appellant filed a Motion to Withdraw his

plea pursuant to R.C. 2943.031(D) and Crim.R. 32.1. Appellant, in his motion, noted

that he was not a United States citizen and was awaiting a hearing in regard to his

eligibility for Legal Permanent Residence based on his marriage to a U.S. citizen.

Appellant alleged that the trial court’s finding of guilt following appellant’s no contest

plea rendered him inadmissible and subject to removal from the United States.

Appellant argued that, in accepting his plea, the trial court failed to comply with R.C.

2943.031(E) because it never advised him personally that his conviction could result in
Delaware County App. Case No. 10CAC080059                                                3


deportation, exclusion from admission to the United States or denial of naturalization.

Appellant, in his motion, stated, in relevant part, as follows:

       {¶4}    “Defendant’s record of conviction demonstrates that before the Judge

addressed the Defendant personally, the entire courtroom was read a number of rights

prior to the commencement of the court hearings that day. When defendant signed his

waiver of rights form he was only put on notice by the form of the potential of

deportation only. The Trial Court addressed Defendant personally before accepting his

plea but only inquired if Defendant understood the earlier recitation given to the entire

courtroom. The Trial Court made reference only to the concerns about Immigration

Laws that were explained earlier.           O.R.C. 2943.031(A).      Pursuant to O.R.C.

2943.031(E), when the Court is unable to provide a record showing that the Court

provided the required advisement, the defendant is ‘presumed not to have received the

advisement.’

       {¶5}    “Defendant learned of his current inadmissibility to Adjustment of Status to

Legal Permanent Residence after retaining current counsel. Defendant is scheduled to

appear in Immigration court on June 17, 2010 and must be able to demonstrate that he

is admissible. If he fails to demonstrate that he is admissible as a Legal Permanent

Resident then the Immigration Judge will order Defendant removed from the United

States to Colombia.”

       {¶6}    Attached to appellant’s motion was a June 15, 2009, “Decision on

Application for Permanent Residence” from the United States Citizenship and

Immigration Services denying his January 11, 2009, Application for Permanent

Residence or Adjust Status. The decision stated that appellant’s application was being
Delaware County App. Case No. 10CAC080059                                               4


denied because appellant had failed to submit certified arrest records and certified court

dispositions relating to a 2007 case out of Westerville, Ohio. The decision noted that

appellant had been requested to submit information with respect to five different criminal

cases, including the case sub judice.

       {¶7}   A hearing on appellant’s motion was held on June 25, 2010. Pursuant to a

Judgment Entry filed on July 8, 2010, the trial court denied such motion. The trial court,

in its Judgment Entry, found that it had, on August 11, 2003, stated that a conviction for

a non-United States citizen could result in deportation, exclusion from admission or

denial of naturalization. The trial court indicated that it had addressed appellant

personally when his case was called and had asked him if he was in court when the trial

court recited the general arraignment rights to all defendants. The trial court further

stated that appellant had indicated that he had understood his rights and had

understood the trial court’s explanation regarding how a conviction could affect

appellant’s immigration rights. The trial court, based on the forgoing, found that

appellant “was given warnings that substantially complied with R.C. 2943.031. He

appeared to understand the possible implication that a conviction could have on his

immigration rights.”

       {¶8}   Appellant now raises the following assignment of error on appeal:

       {¶9}   “THE TRIAL COURT ERRED IN DENYING DEFENDANT/APPELLANT’S

MOTION TO WITH DRAW [SIC] HIS GUILTY PLEA FOR LACK OF SUBSTANTIAL

COMPLIANCE WITH O.R.C. 2943.031 WHERE THE TRIAL COURT ERRED IN

DETERMINING THAT A GROUP RECITATION OF THE REQUIREMENTS OF O.R.C.

2943.031 GIVEN AT THE COMMENCEMENT OF ARRAIGNMENT FOLLOWED BY AN
Delaware County App. Case No. 10CAC080059                                                  5


ACKNOWLEDGMENT OF THE DEFENDANT THAT HE UNDERSTOOD COMPLIES

WITH THE ‘PERSONALLY ADDRESS’ LANGUAGE OF THE STATUTE.”

                                                 I

       {¶10} Appellant, in his sole assignment of error, argues that the trial court erred

in denying appellant’s Motion to Withdraw his no contest plea. Appellant specifically

contends that the trial court erred in finding that a group recitation of the requirements of

R.C. 2943.031 given at the commencement of arraignment, followed by appellant’s

acknowledgement that he understood, complies with the statute.

       {¶11} A trial court's decision on a noncitizen's motion to withdraw guilty or no-

contest plea, based on allegedly inadequate advisement of immigration-related

consequences of plea, is reviewed for abuse of discretion. See State v. Francis, 104

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

       {¶12} In Ohio, the duty to inform a non-citizen defendant of the possible

deportation consequences of his or her plea is entrusted to the trial court. R.C.

2943.031(A) states that, when a trial court accepts a guilty plea from a defendant, like

appellant, who is not a United States citizen: “ * * * [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:

       {¶13} ‘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.’ “
Delaware County App. Case No. 10CAC080059                                                  6


       {¶14} In addition, R.C. 2943.031(D) states:

       {¶15} “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.”

       {¶16} In State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355,

the Ohio Supreme Court set forth the standard for plea withdrawal motions pursuant to

R.C. 2943.031 claims: “[I]f some warning of immigration-related consequences was

given at the time a noncitizen 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 at ¶ 48. “‘Substantial compliance means that

under the totality of the circumstances the defendant subjectively understands the

implications of his plea and the rights he is waiving. * * * The test is whether the plea

would have otherwise been made.’” Id., quoting State v. Nero (1990), 56 Ohio St.3d

106, 108, 564 N.E.2d 474.
Delaware County App. Case No. 10CAC080059                                                   7


       {¶17} Appellant, in the case sub judice, did not file a direct appeal.              An

appellant’s failure to directly appeal a court’s failure to comply with R.C. 2943.031

during the plea process is not barred by the doctrine of res judicata. See State v.

Lucente, Mahoning App. No. 03 MA 216, 2005-Ohio-1657. In Lucente, the court stated,

in relevant part, as follows: “Prior to addressing whether the trial court adequately

advised appellant of R.C. 2943.031, we must first address the state's argument that

appellant's arguments concerning the adequacy of the advisement under R.C.

2943.031, ‘may be barred by res judicata.’ If appellant's arguments are barred by res

judicata, then whether or not the advisement complied with R.C. 2943.031 would be a

moot issue. The state's contention is that appellant could have raised the failure to

comply with R.C. 2943.031 in a direct appeal, and thus res judicata applies.

       {¶18} “The Tenth Appellate District has held that a motion to withdraw a plea for

failure to comply with R.C. 2943.031 is not barred by the failure to appeal the defect in a

plea process. State v. Yuen, 10th Dist. No. 01AP-1410, 2002-Ohio-5083, at ¶ 31. In so

holding, the Tenth District relied on the Ohio Supreme Court case of State v. Bush, 96

Ohio St.3d 235, 773 N.E.2d 522, 2002-Ohio-3993 and the similarities between a motion

to withdraw under Crim.R. 32.1 and a motion to withdraw under R.C. 2943.031. Yuen,

2002-Ohio-5083.

       {¶19} “In Bush, the Ohio Supreme Court was asked to determine whether a

motion to withdraw a guilty plea filed after the time for appeal had expired must be

considered a motion for post-conviction relief under R.C. 2953.21. Bush, 96 Ohio St.3d

235, 773 N.E.2d 522. The Supreme Court held that a Crim.R. 32.1 motion was not a

petition for post-conviction relief, but was rather a distinct avenue for relief. Id. at ¶ 11,
Delaware County App. Case No. 10CAC080059                                               8


773 N.E.2d 522. It explained that post-conviction relief is a collateral attack on the

validity of a conviction or sentence. Id. at ¶ 13, 773 N.E.2d 522. However, a Crim.R.

32.1 motion to withdraw is not a collateral attack since it is filed in the underlying

criminal case and targets the withdrawal of a plea. Id.

       {¶20} “Applying the Supreme Court's reasoning, the Yuen court explained that a

R.C. 2943.031 motion to withdraw is similar to a Crim.R. 32.1 motion to withdraw, in that

‘it is commenced with the filing of a motion in the underlying case, it is directed to the

plea, and the statute giving rise to the motion does not specify any time limits.’ Yuen,

2002-Ohio-5083, at ¶ 29. Furthermore, the Yuen court explained that in Bush, the

motion to withdraw the plea was filed outside the time limits for a direct appeal, and in

that case the Supreme Court did not suggest that Bush's remedy under Crim.R. 32.1

was barred by his failure to appeal from his guilty plea. Id. at ¶ 30, 773 N.E.2d 522.

Thus, given all of the above, the Yuen court concluded, a defendant may appeal ‘the

trial court's failure to comply with R.C. 2943.031, or * * * may appeal the trial court's

refusal to grant his R.C. 2943.031(E) motion to withdraw.’ Id. at ¶ 31.

       {¶21} “We find the Tenth District's reasoning logical. Accordingly, res judicata

does not bar appellant's appeal; the state's argument fails.” Id at paragraphs 10-14.

       {¶22} We find, therefore, that appellant’s motion was not barred by the doctrine

of res judicata. In State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d

355, the Ohio Supreme Court recognized that necessary proof to support such a claim

may not exist within the record on direct appeal of the conviction. Id at ¶ 36. The court

further noted that a motion under R.C. 2943.031(D) and an appeal from the denial of

such motion provide the exclusive remedies for a trial court’s alleged failure to comply
Delaware County App. Case No. 10CAC080059                                                 9

with R.C. 2943.031(A). State ex rel. White v. Suster, 101 Ohio St.3d 212, 2004-Ohio-

719, 803 N.E.2d 813 at paragraph 7.

       {¶23} We further find that appellant’s motion was timely made. In Francis, supra,

the court held that the timeliness of the motion to vacate the guilty plea was an

important factor when determining whether the trial court abused its discretion. While

recognizing that R.C. 2943.031 did not provide any time limitations within which to file a

motion to withdraw, the court stated as follows:

       {¶24} “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

paragraph 40.

       {¶25} On August 11, 2003, appellant entered his no contest plea in the case sub

judice. His motion to vacate the same was not filed until June 2, 2010. Appellant, in his

motion, indicated that “he had learned of his current inadmissibility to Adjustment of

Status to Legal Permanent Residence after retaining current counsel” and that he was

scheduled to appear in Immigration Court on June 17, 2010. We find that appellant’s

motion was filed with a reasonable length of time.

       {¶26} The issue that must next be determined is whether or not the trial court

erred in determining that a group recitation of the requirements of R.C. 2943.031 given

at the start of arraignment, followed by appellant’s acknowledgement that he
Delaware County App. Case No. 10CAC080059                                                10


understood, complied with the requirement in R.C. 2943.031(A) that the court address

the defendant personally.

       {¶27} In State v. Yanez, 150 Ohio App.3d 510, 2002-Ohio-7076, 782 N.E.2d

146, the court held, as relevant part, as follows:

       {¶28} “The principal goal of statutory interpretation is to give effect to the intent

of the legislature. See Bailey v. Republic Engineered Steels, Inc. (2001), 91 Ohio St.3d

38, 39, 741 N.E.2d 121. The court must first look to the language of the statute. If the

language unambiguously and distinctly expresses the sense of the legislative body, it

must be applied as written. Id.; … The General Assembly has put the three required

warnings-deportation, exclusion from the United States, and denial of naturalization-in

quotation marks. We find no other criminal statute in which the General Assembly has

used quotation marks to designate the trial court's colloquy with a defendant. See, also,

State v. Quran, 2002-Ohio-4917, 2002 WL 31087704, at ¶ 21. The use of quotation

marks and the command to the trial court that it ‘address the defendant personally’ and

‘provide * * * the advisement’ indicate a clear intent by the General Assembly that each

warning should be given to ensure that a person pleading guilty or no contest knows

exactly what immigration consequences his plea may have. It is an acknowledgement

that, at least to some defendants, the collateral consequences of a plea, namely

deportation, exclusion from admission to the United States, and denial of naturalization,

may well be a more serious sanction than the imposition of a prison term. See, e.g.,

Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. at 322-323, 121 S.Ct. 2271, 150

L.Ed.2d 347; see, also, Chin& Holmes, Effective Assistance of Counsel and the

Consequences of Guilty Pleas, 87 Cornell L.Rev. at 700. The words of the statute,
Delaware County App. Case No. 10CAC080059                                              11


bracketed by quotation marks, do not permit any other interpretation.” Id at paragraph

29.

       {¶29} The court, in Yanez, further held that the appellant’s written signature on a

plea form that specified the immigration consequences did not satisfy the requirement in

R.C. 2943.031(A) that the court personally address a defendant. See also State v.

Mason, 2002-Ohio-930, 2002 WL 242662, at 4 in which the court held that “[i]t is clear

however, that the legislature intended that the trial court engage in a personal colloquy

with the non-citizen defendant to assure itself that the defendant fully understands the

deportation consequences of his plea.”

       {¶30} In the case sub judice, the trial court, at arraignment, advised a group

sitting behind the court railing of all of the potential consequences referred to in R.C.

2943.031(A). When appellant appeared at the podium before the trial court, the

following exchange occurred between appellant and the trial court:

       {¶31} “The Court: Are you a U.S. citizen?

       {¶32} “The Defendant: No, your honor.

       {¶33} “The Court: And you understand, uh what I was talking about, you’re not

concerned about uhm any of the matters in terms of uhn Immigration Laws and things

like that that I explained to you?

       {¶34} “The Defendant: yes I do your honor.

       {¶35} “The Court: You do understand that?

       {¶36} “The Defendant: [no verbal response] (Arraignment Video Trans., at

9:15:07 AM).” Appellant then entered his no contest plea.
Delaware County App. Case No. 10CAC080059                                                12


       {¶37} We find, based on the foregoing, that the trial court never personally

addressed appellant and assured itself that appellant fully understood the immigration

consequences of his plea of no contest. Appellant was never personally advised that

his conviction could result in deportation, exclusion from admission to the United States

or denial of naturalization. We find, for such reason, that the trial court erred in denying

appellant’s Motion to Withdraw his plea.

       {¶38} Appellant’s sole assignment of error is, therefore, sustained.

       {¶39} Accordingly, the judgment of the Delaware County Municipal Court is

reversed and this matter is remanded to the trial court for further proceedings.




By: Edwards, J.

Delaney, J. concurs

Hoffman, P.J. dissents

                                                    ______________________________



                                                    ______________________________



                                                    ______________________________

                                                                 JUDGES

JAE/d0216
Delaware County App. Case No. 10CAC080059                                             13

Hoffman, PJ., dissenting

      {¶40} I respectfully dissent from the majority opinion.

      {¶41} While I am not yet convinced res judicata does not apply in the case sub

judice, I, nevertheless, dissent because I find Appellant’s motion to withdraw his plea

nearly seven years after it was entered is untimely.

      {¶42} Although unnecessary to my decision, I further question the majority’s

conclusion the trial court never “personally” addressed Appellant and assured itself

Appellant fully understood the immigration consequences of his plea of no contest.

(Majority Opinion at ¶24). It appears underlying the majority’s conclusion is its concern

whether group advisement of R.C. 2943.031 consequences is permissible. I do not find

the necessity to “personally” address the defendant requires the trial court to

“individually” advise the defendant of possible immigration consequences prior to

personally addressing the defendant as to his or her understanding of the same.




                                                ________________________________
                                                HON. WILLIAM B. HOFFMAN
[Cite as State v. Zabala, 2011-Ohio-2947.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
MATEO ZABALA                                      :
                                                  :
                        Defendant-Appellant       :       CASE NO. 10CAC080059




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Delaware County Municipal Court is reversed and this matter is

remanded to the trial court for further proceedings. Costs assessed to appellee.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
