[Cite as State v. Alonzo, 2016-Ohio-160.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-15-26

        v.

RICARDO ALONZO,                                           OPINION

        DEFENDANT-APPELLANT.




                     Appeal from Tiffin-Fostoria Municipal Court
                            Trial Court No. 02 TRC 4452

                                      Judgment Affirmed

                            Date of Decision: January 19, 2016




APPEARANCES:

        Margaret W. Wong for Appellant

        Richard H. Palau for Appellee
Case No. 13-15-26


SHAW, P.J.

       {¶1} Defendant-appellant Ricardo Alonzo appeals the June 26, 2015

judgment of the Tiffin-Fostoria Municipal Court overruling his motion to

withdraw his no contest pleas. Alonzo assigns as error the trial court’s finding that

he was given the proper advisement pursuant to R.C. 2943.031(A) for a non-

citizen upon entering his no contest pleas and the trial court’s determination of the

matter without conducting an evidentiary hearing.

                          Facts and Procedural History

       {¶2} Alonzo is a citizen of Mexico residing in Fremont, Ohio.             On

December 2, 2002, Alonzo appeared before the Tiffin Municipal Court and

entered no contest pleas to one count of DUI, one count of Unlawful BAC, one

count of No Operator’s License, and one count of Open Container. The record

indicates that a Spanish-speaking interpreter assisted Alonzo with entering his

pleas. Upon accepting his pleas and finding him guilty, the trial court sentenced

Alonzo to thirty days in jail for the DUI offense, giving him four days credit for

time served and suspending the remaining twenty-six days. Alonzo was also

placed on one year of probation and ordered to pay court costs.

       {¶3} Nearly thirteen years later, on June 26, 2015, Alonzo filed a motion to

withdraw his no contest pleas pursuant to R.C. 2943.031 and Crim.R. 32.1.

Alonzo asserted the trial court failed to give him the advisement required by R.C.


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2943.031(A) regarding the deportation consequences of his no contest pleas.

Alonzo also stated that he had been detained by the Department of Homeland

Security Immigration and Customs Enforcement (“ICE”) and claimed that he was

now subject to “imminent removal from the United States.” (Doc. No. 6 at 1). In

addition, Alonzo argued that his pleas should be vacated pursuant to Crim.R. 32.1

to correct a manifest injustice.

       {¶4} The trial court subsequently issued a judgment entry overruling

Alonzo’s motion to withdraw his no contest pleas. Specifically, the trial court

reviewed the record of the prior proceedings and found that it fully complied with

Crim.R. 11 when it accepted the plea. The trial court further found the record of

the December 2, 2002 proceedings demonstrated that “the admonitions contained

in Section 2943.031 [of the Revised Code] were clearly given and recorded on the

record, including the admonition that the defendant could be deported due to the

plea of guilty or no contest in this proceeding. While the Court is sympathetic to

the plight of [Alonzo], it is difficult to see how manifest injustice has resulted in

this instance, and a delay of thirteen years in attempting to remedy this matter

would appear that the instant motion is nothing more than a means of delaying the

defendant’s deportation.”     (Doc. No. 7 at 3-4).     Accordingly, the trial court

determined that no manifest injustice existed as set forth in Crim.R. 32.1 and that

the proper advisement was given in accordance with R.C. 2943.031.


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      {¶5} Alonzo filed a motion to reconsider which was also overruled.

      {¶6} Alonzo subsequently filed this appeal, asserting the following

assignments of error.

                        ASSIGNMENT OF ERROR NO. I

      THE   TRIAL   COURT     ERRED   IN   DENYING
      DEFENDANT/APPELLANT’S MOTION TO WITHDRAW
      HIS GUILTY PLEA [SIC] PURSUANT TO R.C. 2943.031
      WHERE THE ADVISEMENTS REQUIRED BY R.C. 2943.031
      WERE NOT GIVEN.

                        ASSIGNMENT OF ERROR NO. II

      THE   TRIAL   COURT     ERRED   IN   DENYING
      DEFENDANT/APPELLANT’S MOTION TO WITHDRAW
      HIS GUILTY PLEA [SIC] PURSUANT TO R.C. 2943.031
      WITHOUT AN EVIDENTIARY HEARING.

                                    Discussion

      {¶7} Alonzo’s assignments of error both address the trial court’s denial of

his motion to withdraw his no contest pleas. Because these assignments of error

are intertwined, we shall address them together.

                               Standard of Review

      {¶8} Criminal Rule 32.1 post-sentence motions to withdraw guilty pleas are

subject to a manifest injustice standard. State v. Oluoch, 10th Dist. Franklin No.

07AP-45, 2007-Ohio-5560, ¶ 9, citing State v. Xie, 62 Ohio St.3d 521, 526 (1992).

In general, manifest injustice relates to a fundamental flaw in the proceedings that

results in a miscarriage of justice or is inconsistent with the demands of due

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process. State v. Williams, 12th Dist. Warren No. CA2012–08–060, 2013-Ohio-

1387, ¶ 12. The decision whether to grant a motion to withdraw a guilty plea rests

within the sound discretion of the trial court and we will not reverse the trial

court’s decision absent an abuse of that discretion. State v. Nathan, 99 Ohio

App.3d 722, 725 (3d Dist.1995). “An abuse of discretion is more than an error in

judgment;” thus, we will only reverse the trial court if its reasoning was

“unreasonable, arbitrary, or unconscionable.” State v. Maney, 3d Dist. Defiance

Nos. 4-12-16, 4-12-17, 2013-Ohio-2261, ¶ 17, citing State v. Adams, 62 Ohio

St.2d 151, 157-158 (1980).

      {¶9} 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)’s explicit language

mandates that a trial court set aside a judgment of conviction and allow a

defendant to withdraw his guilty plea if the defendant satisfies four requirements.

Showing manifest injustice is not included as one of the requirements.” State v.

Weber, 125 Ohio App.3d 120, 129 (10th Dist.1997). The four requirements to be

demonstrated 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




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guilty may result in deportation under the immigration laws of the federal

government. Id. at 126.

       {¶10} The same abuse of discretion standard of review applies to the 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; see also Oluoch at ¶ 25. 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.

               The Trial Court’s Ruling on the Motion to Withdraw

       {¶11} Alonzo argues that the trial court erred in overruling his motion to

vacate his pleas because he never received the advisement required by R.C.

2943.031(A).


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       {¶12} 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):

       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.

       {¶13} 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. 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 rel. White v. Suster, 101 Ohio St.3d 212,

2004–Ohio–719, ¶ 7.

       {¶14} 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

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      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.

      {¶15} 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.       Mayfield Hts. v. Grigoryan, 8th Dist.

Cuyahoga No. 101498, 2015–Ohio–607, ¶ 19.

      {¶16} On appeal, Alonzo claims the record reflects that he was not given

the advisement under R.C. 2943.031(A) when he entered his no contest pleas. In

support of his motion to withdraw, Alonzo attached a handwritten “declaration”

which appears to be penned by someone else and indicates that it was read to

Alonzo in his native language Spanish prior to him signing it. This “declaration”

states that Alonzo is a citizen of Mexico and claims that during his 2002 no

contest plea proceeding the trial court was aware he was not a U.S. citizen and

failed to explain to him “the consequences of DUI would result in deportation,

exclusion to admission to the US and denial of naturalization.” (Doc. No. 6, Ex.

A). Alonzo’s “declaration” further states that in 2004, 2005, and 2010, he “had

three criminal offenses” and he did not remember being specifically advised of the

adverse consequences to his immigration status in the proceedings in those cases.


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(Id.). In addition to the “declaration,” Alonzo attached a copy of his Mexican

passport to his motion.

       {¶17} The record on appeal contains the transcription of two proceedings

held on December 2, 2002. The first was held in the morning of December 2,

2002 during which the trial court simultaneously advised multiple defendants of

various rights including the advisement under R.C. 2943.031(A). The second

proceeding was held in the afternoon of December 2, 2002, where Alonzo entered

his no contest pleas with the assistance of a Spanish-speaking interpreter. The

transcript reflects that the trial court’s advisement included the words of the statute

verbatim under R.C. 2943.031(A). However, Alonzo contends that the trial court

never provided him with the R.C. 2943.031(A) advisement. In support of his

claim, Alonzo argues the record fails to establish that he was present during the

morning proceeding where the R.C. 2943.031(A) advisement was given because

there is no identification of the defendants who were present in the courtroom at

the time.

       {¶18} Even though Alonzo is not identified in the transcript of the morning

proceeding as one of the defendants present, there are other indicia in the record

establishing Alonzo’s presence at the proceeding.           Specifically, the record

indicates that Alonzo was placed in jail following the arrest for his DUI related

charges at approximately 4:00 a.m. on Friday, November 29, 2002, and that he


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continued to be incarcerated until he appeared in court on Monday, December 2,

2002. The trial court’s sentence also reflects a credit for four days of time served

which is consistent with this timeframe. Moreover, the summons issued by the

arresting officer stated that Alonzo’s personal appearance was required at the

Tiffin Municipal Court at 9:00 a.m. on December 2, 2002. The trial court’s R.C.

2943.031(A) advisement was given at the Tiffin Municipal Court sometime

between 9:12 a.m. and 9:15 a.m. on December 2, 2002. It should be noted that the

only evidence Alonzo relies upon to demonstrate that he was not present at the

morning proceeding is his unsupported assertion in his “declaration,” nearly

thirteen years later, that the trial court never provided him with the advisement.

Nevertheless, the issue of whether or not the trial court provided Alonzo with the

R.C. 2943.031(A) advisement is not dispositive to the issue of whether or not he

has demonstrated he is entitled to withdraw his no contest pleas.

       {¶19} Even assuming arguendo that the record supports Alonzo’s claim

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

automatic 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


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and prejudice * * *).” State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, ¶

32-34. In sum, the court is allowed 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, 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 the R.C. 2943.031(D) 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.” Francis at ¶ 42.

       {¶20} “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. In the instant case, Alonzo waited nearly thirteen years after entering his

pleas in this case, with three intervening “criminal offenses” in 2004, 2005, and

2010, before deciding to withdraw his pleas in the 2002 DUI case. To counter the

untimeliness issue, Alonzo claims that he “only recently became aware that his no

contest plea could lead him to be detained by ICE and be deported” in June of

2015. (Doc. No. 6 at 6). Thus, Alonzo asserts this demonstrates that he is now

prejudiced as a result of entering his no contest pleas in the 2002 case and by not


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being properly advised of the potential deportation consequences of his pleas by

the trial court.

        {¶21} The record reflects that Alonzo did not support his motion to

withdraw with documentation affirmatively demonstrating that the 2002

conviction resulting from his no contest pleas has caused him to suffer prejudice.

Alonzo has not produced any documentation demonstrating the issuance of a

notice of detainment, let alone a notice of deportation proceedings or that a

deportation order was issued against him.                    Nor has he attached an affidavit

averring that he will be deported, excluded, or denied citizenship, or that he has

received notice that deportation proceedings are pending, or that his 2002 DUI

conviction, as opposed to his 2004, 2005, or 2010 criminal cases, is the proximate

cause of the purported deportation proceedings. Instead, Alonzo has simply made

unsupported assertions in his motion to withdraw claiming he had been detained

by ICE and faced the possibility of deportation.1

        {¶22} Moreover, “ ‘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 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


1
 In his appellate brief, Alonzo’s attorney claims that Alonzo was deported to Mexico on July 7, 2015.
Other than the assertion made by counsel there is no documentation or other evidence to support this claim.

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syllabus. Thus, the lengthy delay and the lack of evidence provided in support of

his motion casts serious doubt on Alonzo’s claim that his plea was not knowingly,

intelligently, and voluntarily made, and suggests that the motion to withdraw was

sought only in an effort to avoid the alleged immigration consequences of his plea.

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

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

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

Crim.R. 32.1. Accordingly, the first assignment of error is overruled.

                    Failure to Conduct an Evidentiary Hearing

      {¶24} Finally, we address the issue of the trial court’s failure to hold a

hearing. In Francis, which addressed an appeal from the trial court’s denial of the

defendant’s motion to withdraw pursuant to R.C. 2943.031, the Supreme Court of

Ohio determined:

      [A]s a general rule, in the absence of specific requirements to the
      contrary, decisions as to whether to hold a hearing and as to
      whether to explain reasons for a ruling are matters entrusted to
      the sound discretion of the trial court. Sometimes, a trial court’s
      explanation of the reasons underlying the decision to deny the
      motion will illuminate why a hearing was not necessary.
      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. We simply find that,
      in this case, the combination of a failure to hold a hearing and a
      failure to explain the reasoning are so significant that appellate
      review is impossible and that further proceedings by the trial
      court are necessary.


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Id. at ¶ 56. Here, the trial court clearly explained its reasons for overruling the

motion in its judgment entry. Moreover, the lack of evidence in the record to

support Alonzo’s unsworn assertions makes it readily apparent that no hearing is

warranted here, as Alonzo failed to meet his burden and withdrawal of the plea is

not required. “Where the defendant fails to ‘carry his burden of presenting facts

from the record or supplied through affidavit that establish manifest injustice or

warrant a hearing,’ we are not required to permit withdrawal of the plea or to hold

a hearing.” State v. Muhumed, 10th Dist. Franklin No. 2012-Ohio-6155, ¶ 47

(applying the same standard to cases involving the request to vacate a plea under

R.C. 2943.031(A)); quoting State v. Garcia, 10th Dist. Franklin No. 08AP–224,

2008-Ohio-6421, ¶ 15. Therefore, we conclude that the trial court did not err

when it chose not to conduct a hearing on Alonzo’s motion to withdraw his no

contest pleas. Accordingly, the second assignment of error is overruled.

       {¶25} For all these reasons, the judgment is affirmed.

                                                                Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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