[Cite as State v. Hernandez, 2017-Ohio-679.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HARDIN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 6-16-08

        v.

JOSE CARLOS HERNANDEZ,                                   OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Hardin County Common Pleas Court
                          Trial Court No. CRI 2002 2038

                                     Judgment Affirmed

                          Date of Decision: February 27, 2017




APPEARANCES:

        Stephenie Lape Wolfinbarger for Appellant

        Jason M. Miller for Appellee
Case No. 6-16-08


ZIMMERMAN, J.,

       {¶1} Defendant-appellant, Jose Carlos Hernandez (“Hernandez”), appeals

from a journal entry entered by the Hardin County Court of Common Pleas denying

his motion to withdraw his plea pursuant to R.C. 2943.031(D). Because we find the

denial of the motion was proper for different reasons as set forth by the trial court,

we affirm the trial court’s decision to deny the motion.

                           Facts and Procedural History

       {¶2} On June 12, 2002, Hernandez was indicted by a Hardin County grand

jury on one count of Unlawful Sexual Contact with a Minor, a felony offense of the

third degree, (R.C. 2907.04) (Tr. Docket No. 1). On October 4, 2002 and pursuant

to a negotiated plea, Hernandez pled guilty to one count of Unlawful Sexual

Conduct with a Minor, a felony of the fourth degree, in violation of R.C.

2907.04(A), (B)(1). Hernandez was a citizen of Mexico at the time he entered his

plea. (Plea Tr. 10).

       {¶3} Hernandez was convicted and sentenced to ten months in prison (Plea

Tr. 3) and was subsequently deported to Mexico on April 15, 2003 as a result of his

conviction. However, after his deportation, Hernandez re-entered the United States

on at least two occasions, was charged and convicted of illegal entry, and deported

each time (see generally St. Ex. 2)




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       {¶4} Hernandez filed his motion in the trial court to withdraw his guilty plea

on April 21, 2016. A hearing on the motion occurred on July 26, 2016, Hernandez

did not attend or offer testimony through alternative means.        The trial court

overruled the motion on August 11, 2016 finding there to be substantial compliance

by the trial judge of Hernandez’s advisement under R.C. 2943.031(A) and further

determining Hernandez’s motion to be untimely.

       {¶5} Hernandez appeals this entry, raising three assignments of error.

                       ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ERRED WHEN IT FOUND THERE WAS
       SUBSTANTIAL COMPLIANCE WITH R.C. 2943.031 BY THE
       TRIAL COURT AT THE 2002 PLEA HEARING.

                       ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ERRED IN CONSIDERING
       “TIMELINESS” OF THE MOTION WHEN DENYING
       CARLOS’ (APPELLANT’S) MOTION TO WITHDRAW PLEA.

                      ASSIGNMENT OF ERROR NO. III

       EVEN IF “TIMELINESS” IS A FACTOR TO BE
       CONSIDERED IN ANALYZING A R.C. 2943.031 MOTION TO
       WITHDRAW PLEA, THE TRIAL COURT ERRED IN
       FINDING “TIMELINESS” ALONE IS SUFFICIENT BASIS
       FOR DENIAL.

       {¶6} All of Hernandez’s assignments of error address the trial court’s denial

of his motion to withdraw his 2002 guilty plea. These assignments of error are

interrelated, and therefore, shall be addressed together.

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                                Standard of Review

       {¶7} A post sentence motion under Crim.R.32.1 is subject to a standard of

manifest injustice, State v. Xie, 62 Ohio St.3d 521 at 526 (1992). An appellate court

will not reverse a denial of a motion to withdraw a plea absent an abuse of discretion.

State v. Totten, 10th Dist. Franklin No. 05AP-278, 2005-Ohio-6210, ¶5. The term

‘abuse of discretion’ connotes more than an error of law or judgment; it implies that

the court’s attitude is unreasonable, arbitrary or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶8} “However, the manifest injustice standard does not apply to plea

withdrawal motions filed pursuant to R.C. 2943.031(D)”. State v. Francis, 104

Ohio St.3d 490, 2004-Ohio-6894, ¶26. R.C. 2943.031(D) allows a defendant to

withdraw a guilty plea if the defendant satisfies four requirements, and a showing

of manifest injustice is not included as one of the requirements.            The four

requirements are:

       (1) The court failed to provide the defendant with the advisement

       contained in R.C. 2943.031(A); (2) the advisement was required; (3)

       the defendant is not a United States citizen; and (4) the offense to

       which the defendant pled guilty may result in deportation under the

       immigration laws of the federal government. R.C. 2943.031(D).




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       {¶9} The same abuse of discretion standard of review applies to a trial court’s

decision on a motion filed pursuant to R.C. 2943.031(D). Francis at ¶32. However,

“when a defendant’s motion to withdraw is premised on R.C. 2943.031(D), the

standards within that rule guide the trial court's exercise of discretion”. Id. at ¶33.

To clarify, the exercise of discretion “applies to the trial court’s decision on whether

the R.C. 2943.031(D) elements have been established (along with the factors of

timeliness and prejudice * * *), not generally to the trial court’s discretion once the

statutory provisions have been met.” Francis at ¶34. “[A] defendant seeking relief

under R.C. 2943.031(D) must make his or her case before the trial court, under the

terms of that statute, * * * the trial court must exercise its discretion in determining

whether the statutory conditions are met, and * * * an appellate court reviews a trial

court’s decision on the motion under an abuse-of-discretion standard in light of R.C.

2943.031(D)”. Id. at ¶36.

                            Motion Under R.C. 2943.031

       {¶10} Section 2943.031(A) of the Revised Code requires a trial court to give

the following advisement to defendants entering either a guilty plea or a plea of no

contest, unless the defendant indicates that he is a citizen, in accordance with R.C.

2943.031(B):

       (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
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Case No. 6-16-08


      not been convicted of or pleaded guilty to a minor misdemeanor,
      the 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 (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.

      {¶11} Section 2943.031(D) of the Revised Code specifies the remedy for a

trial court’s failure to advise as required under R.C. 2943.031(A). State v. Yuen,

10th Dist. Franklin No. 01AP-1410, 2002-Ohio-5083, ¶18.                 “Under R.C.

2943.031(D), a defendant who has not received the advisement required by R.C.

2943.031(A) may move to set aside the judgment and withdraw his guilty plea. This

motion and an appeal from the denial of the motion provide the exclusive remedies

for an alleged violation of R.C. 2943.031(A).” State ex re. White v. Suster, 101

Ohio St.3d 212, 2004-Ohio-719, ¶7.

      {¶12} Section 2943.031(D) of the Revised Code reads in relevant part as

follows:

      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
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      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.

                        The R.C. 2943.031(A) Advisement

      {¶13} The record establishes that on October 4, 2002, Hernandez entered

into plea negotiations whereupon his original charge of Unlawful Sexual Conduct

with a Minor was amended from a felony of the third degree to a felony of the fourth

degree under R.C. 2907.04(A), (B)(1).

      {¶14} During the plea hearing the following exchange took place between

the trial court and Hernandez:

      The Court:          Do you understand that you have a right to
      consult with the department of the Mexican consolate [sic]?

      Interpreter:         Correct. Yes, sir.

      The Court:           And are you giving up that right?

      Interpreter:         Yes, sir.

      The Court:           Now, Mr. Fischmann, you have gone over his
      right to consult the Mexican consolate [sic] and be represented by
      the Mexican consolate [sic]?

      Mr. Fischmann: I have, Your Honor. However, it’s my
      understanding that the Mexican consolate [sic] in a situation such
      as this, there isn’t much help that they would render. They would
      help with verious [sic] documentation problems, things like that,
      but as far as criminal contact, I don’t see there is a lot of help that
      they would have or could have been in this situation.

      Interpreter:          Correct. Correct, sir.
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Case No. 6-16-08



       The Court:         Now, Mr. Hernandez, do you also understand
       that once this proceeding is over you could be deported by the
       American government and Immigration Services of this country?

       Interpreter:         Correct. Yes, sir.

       The Court:           Alright.

       Mr. Phillips:         Your Honor, may I interject? Just for the
       record I just - - with regard to the Mexican consolate [sic], I’d just
       like the record to reflect that we did advise them of the
       defendant’s arrest and of his rights through the Mexican
       consolate [sic].

       Interpreter:         Correct.

       The Court:       All right. Thank you. Now, Mr. Hernandez,
       is there anything we’ve gone over so far that you don’t
       understand?

       Interpreter:         No, sir. He says he understands everything.

       The Court:           Is there anything you would like us to explain
       further?

       Interpreter:         He says I’m fine.

       {¶15} Hernandez argues on appeal that the advisement only warned him of

deportation as a potential consequence of his plea with no mention of exclusion

from future admission to the United States or denial of naturalization, citizenship

pursuant to the laws of the United States.

       {¶16} Assuming arguendo that the record supports Hernandez’s claim that a

proper advisement was not given to him, the withdrawal of the plea is not automatic

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Case No. 6-16-08


simply because the court failed to give the R.C. 2943.031(A) advisement. As noted

earlier, the Supreme Court of Ohio has held the decision to set aside a judgment of

conviction and allow the defendant to withdraw a plea is committed to the sound

discretion of the court as to “whether the R.C. 2943.031(D) elements have been

established (along with the factors of timeliness and prejudice * * *).” Francis, Id.

at ¶32-34. Thus, the court is permitted to take into account “many factors” when

considering whether to grant a motion to withdraw a plea based on the court’s failure

to give the R.C. 2943.031(A) advisement. Parma v. Lemajic, 8th Dist. Cuyahoga

No. 102620, 2015-Ohio-3888, ¶9, citing Francis at ¶36. Although the Supreme

Court of Ohio did not list what factors in addition to those set forth in R.C.

2943.031(D) that the court could consider, it did state that “untimeliness will

sometimes be an important factor in reaching a decision on a motion to withdraw.”

Francis at ¶42.

       {¶17} “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.”

State v. Lovano, 8th Dist. Cuyahoga No. 100578, 2014-Ohio-3418, ¶13. Hernandez

waited nearly thirteen years after entering his plea in this case, with at least two

additional deportations (2011 and 2015 for illegally entering the United States),

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Case No. 6-16-08


before deciding to withdraw it. Thus, any assertion that he was prejudiced is

untimely.

         {¶18} The record reflects that Hernandez did not support his motion to

withdraw with documentation affirmatively demonstrating that his 2002 conviction

has caused him to suffer prejudice in regards to exclusion from admission to the

United States or denial of naturalization. The attachment to Hernandez’s motion,

(Ex A) “Warning to Alien Ordered Removed or Deported” bears reference to

deportation proceedings not exclusion from admission or a denial of naturalization

request.       Clearly, Hernandez was aware that deportation was a collateral

consequence of his 2002 conviction.

         {¶19} Hernandez has not presented us with an affidavit averring that he has

been excluded from admission to the United States or was denied citizenship

pursuant to the laws of the United States by virtue of his 2002 conviction as opposed

to his multiple deportations being the source of his immigration problems.1

         {¶20} Further, “ ‘an 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


1
  Please see State v. Batista, 10th Dist. Franklin No. 03AP-1009, 2004-Ohio-5066, at ¶12… “there is no
evidence appellant is facing exclusion from admission to the United States, or denial of naturalization
pursuant to the laws of the United States as a result of his guilty plea, which is insufficient to show prejudicial
effect”. See also, State v. Balderas, 2nd Dist. Greene No. 07-CA-25, 2007-Ohio-4887 (because the defendant
failed to show the convictions resulting from his pleas in state court in the case at issue, rather than his federal
convictions, adversely affected his immigration status, there was no error in trial court’s decision to deny his
motion to withdraw).



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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, ¶14,

quoting State v. Smith, 49 Ohio St.2d 261 (1977), at paragraph three of the syllabus.

Thus, the lengthy delay and the lack of evidence provided in support of his motion

casts serious doubt on Hernandez’s claim that his plea was not knowing,

intelligently, and voluntarily made.

       {¶21} For these reasons, we conclude that the trial court did not abuse its

discretion in overruling Hernandez’s motion on the basis that he failed to

demonstrate he was entitled to vacate his plea under R.C. 2943.031(D) and Crim.R.

32.1. Accordingly, the first, second and third assignments of error are overruled.

       {¶22} Having found no error prejudicial to the appellant herein in the

particulars assigned, we affirm the judgment of the trial court.

                                                                   Judgment Affirmed

PRESTON, P.J. and SHAW, J., concur.

/jlr




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