[Cite as State v. Nardiello, 2017-Ohio-8933.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 13-17-21

        v.

SHANE A. NARDIELLO,                                        OPINION

        DEFENDANT-APPELLANT.




                     Appeal from Tiffin-Fostoria Municipal Court
                            Trial Court No. CRB 1100132

                                       Judgment Affirmed

                          Date of Decision:     December 11, 2017




APPEARANCES:

        David L. Doughten for Appellant

        Charles R. Hall, Jr. for Appellee
Case No. 13-17-21


SHAW, J.

       {¶1} Defendant-appellant Shane A. Nardiello (“Nardiello”) appeals the June

15, 2017 judgment of the Tiffin-Fostoria Municipal Court overruling his motion to

withdraw his no contest plea. Nardiello assigns as error the trial court’s failure to

give him the proper advisement pursuant to R.C. 2943.031(A) for a non-citizen prior

to entering his no contest plea.

                            Facts and Procedural History

       {¶2} Nardiello is a citizen of the United Kingdom, legally residing in the

United States. On February 16, 2011, a complaint was filed alleging that, during a

traffic stop, Nardiello was found to be in possession of anabolic steroids, in violation

of R.C. 4729.51(C)(3), a misdemeanor of the first degree. The record indicates that

Nardiello was stopped for speeding in the Village of Republic in Seneca County,

Ohio. After he was issued a citation, Nardiello gave law enforcement written

consent to search his vehicle.      One glass vial of 9.1 grams of Testosterone

Propionate was found in the glove compartment along with $6,000 of cash.

Nardiello was issued a copy of the complaint and was summoned to appear before

the Tiffin-Fostoria Municipal Court on February 23, 2011.

       {¶3} On February 16, 2011, Nardiello’s counsel filed a notice of appearance.

Nardiello’s counsel also entered a written not guilty plea on his behalf and a waiver

of his speedy trial rights. Counsel further requested that a pre-trial be scheduled for


                                          -2-
Case No. 13-17-21


the matter. The trial court granted the request and scheduled the first pre-trial in the

case for March 23, 2011.

       {¶4} On March 23, 2011, Nardiello’s counsel appeared for the first pre-trial.

The trial court’s journal entry indicates that Nardiello was not present at this pre-

trial. The case was continued for a second pre-trial in order for discovery to be

completed.

       {¶5} On July 28, 2011, Nardiello appeared in court for a change of plea

hearing, where he entered a plea of no contest to the charge alleged in the complaint.

The trial court accepted Nardiello’s no contest plea and found him guilty. The trial

court sentenced Nardiello to a suspended sentence of 30 days in jail, a $250 fine,

one-year probation, and a six-month license suspension.

       {¶6} Nearly six years later, on March 20, 2017, Nardiello filed a motion to

withdraw his 2011 no contest plea. Nardiello argued that he was entitled to

withdraw his no contest plea because the trial court failed to advise him of the

possible adverse immigration consequences of his conviction prior to accepting his

no contest plea as required by R.C. 2943.031(A). Nardiello attached his own

affidavit to the motion claiming that the trial court did not give him the statutory

advisement prior to accepting his no contest plea, and further claiming that he had

just recently been advised by “immigration attorneys” that his 2011 misdemeanor

drug offense would preclude him from obtaining a green card and becoming a


                                          -3-
Case No. 13-17-21


citizen of the United States. Nardiello averred that he would not have entered the

no contest plea had he known his conviction would jeopardize him obtaining United

States citizenship in the future. Nardiello further explained that he was now married

to a United States Citizen.

       {¶7} After conducting two hearings, the trial court summarily overruled

Nardiello’s motion to withdraw his no contest plea in a general “check box” journal

entry. Specifically, in the section reading “In addition, the Court orders” the trial

court simply wrote “Motion to withdraw plea denied.” (Doc. No. 20). However,

we note that a review of the transcript from the second hearing held on Nardiello’s

motion reveals that the trial court concluded that the motion should be overruled

based upon the untimeliness of its filing and Nardiello’s failure to establish that he

had suffered any prejudice—i.e., any actual adverse immigration consequences—

as a result of his 2011 misdemeanor conviction. (See Doc. No. 28 at 10).

       {¶8} Nardiello filed this appeal asserting the following assignment of error.

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       OVERRULING  THE    APPELLANT’S MOTION TO
       WITHDRAW FROM AN INVALID PLEA.




                                         -4-
Case No. 13-17-21


                                  Relevant Law: R.C. 2943.0311

         {¶9} 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
         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.”

         {¶10} 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.


1
  Nardiello also attempts to argue on appeal that his no contest plea did not comply with Crim.R. 11 and
therefore he should be permitted to withdraw his plea pursuant to Crim.R. 32.1, which is an independent
basis from R.C. 2943.031. However, the record reveals that the motion filed by Nardiello with the trial court
to withdrawal his plea was premised solely upon R.C. 2943.031 and made no arguments pertaining to Crim.R.
32.1. Accordingly, we will only review the arguments Nardiello made before the trial court with respect to
the motion to withdraw his plea under R.C. 2943.031.

                                                    -5-
Case No. 13-17-21


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.

       {¶11} 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
       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.

       {¶12} 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. State v. Alonzo, 3d Dist. No. 13-15-26, 2016-Ohio-

160, ¶ 15 citing Mayfield Hts. v. Grigoryan, 8th Dist. Cuyahoga No. 101498, 2015-

Ohio-607, ¶ 19.

       {¶13} The record establishes that on May 22, 2017, the trial court held a

hearing on Nardiello’s motion to withdraw his no contest plea. Nardiello’s counsel

argued that the June 28, 2011 change of plea transcript did not evince that the non-


                                          -6-
Case No. 13-17-21


citizen advisement in R.C. 2943.031(A) was given to Nardiello before he entered

his no contest plea.

       {¶14} The trial court informed Nardiello’s counsel that the R.C. 2943.031(A)

non-citizen advisement is “typically done at the arraignment.” (Doc. No. 27 at 3).

The trial court further explained that “[i]t is generally not done at a change of plea,

whether they’re a citizen or not a citizen, in particular, Mr. Nardiello, when you

have an attorney.” (Id. at 4).

       {¶15} Nardiello’s counsel inquired further into the trial court’s explanation,

which appeared to make a distinction regarding the trial court’s obligation to give

the statutorily mandated advisement based upon whether the defendant was

represented by counsel. The trial court reiterated, “It’s done at the arraignment for

everyone, whether you’re a citizen or not. Everybody gets the advisement at the

arraignment. And I’m quite certain that your client did, because I do it multiple

times every day.” (Id.).

       {¶16} Nardiello’s counsel requested a continuance so that he could listen to

the audiotape from the date Nardiello’s arraignment was scheduled to take place

according the citation and summons issued to him.

       {¶17} On June 14, 2017, Nardiello filed a supplement to his motion to

withdraw his plea. Nardiello’s counsel asserted that the trial court’s docket lacked

any indicia that Nardiello was even present at the arraignment, let alone that he had


                                         -7-
Case No. 13-17-21


received the non-citizen advisement at the February 23, 2011 arraignment. Counsel

further noted that the record contained a February 16, 2011 notice from Nardiello’s

previous counsel indicating that a week prior to the scheduled arraignment counsel

had filed a written not guilty plea on his behalf, waived his speedy trial rights, and

requested a pre-trial date. Counsel also requested in the February 16, 2011 notice

to “please contact me with the hearing date so that I may notify my client.” (Doc.

No. 2).

       {¶18} Because the record does not establish that Nardiello was present at the

February 23, 2011 arraignment, and there is no other indication in the record that

the trial court gave him the non-citizen advisement, we must presume under R.C.

2943.031(E) that the advisement was not given. In these circumstances, the statute

is clear that the remedy to be provided is a mandatory withdrawal of the plea, which

in this instance, would require reversal of the trial court’s judgment and remand of

the case to the trial court for that purpose.

       {¶19} We note that we have previously expressed reservations with this

particular trial court’s practice of giving the R.C. 2943.031(A) non-citizen

advisement at arraignment only and not at the change of plea hearing. See State v.

Aryee, 3d Dist. Seneca No. 13-16-18, 2016-Ohio-8405, ¶ 18 (noting that “the better

practice, and in our view the practice clearly contemplated under the statute, would

be to personally address the defendant at the time of the change of plea hearing”).


                                           -8-
Case No. 13-17-21


The language of the statute is explicit and unambiguous: “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.” R.C. 2943.031(A)(emphasis added). As such, this

case presents a prime example of the peril created by the trial court’s practice to

exclusively give the R.C. 2943.031(A) non-citizen advisement at the arraignment,

and more specifically, the peril of doing so only in a group format to those

assembled in the courtroom prior to their individual arraignments.

       {¶20} Moreover, we do not endorse the trial court’s attempt to mitigate its

failure to give the statutorily mandated advisement by placing the onus on defense

counsel to inform Nardiello of the potential immigration consequences prior to

entering his change of plea. We recognize that there is a corresponding duty of

defense counsel to inform his or her non-citizen client of certain adverse

immigration consequences. See Kentucky v. Padilla, 559 U.S. 356, 364-74, 130

S.Ct. 1473 (2010) (wherein the United States Supreme Court held that the Sixth

Amendment imposes upon counsel, in negotiating a guilty or no-contest plea, the

duty to accurately advise a non-citizen client concerning the removal consequence

of his conviction). However, counsel’s duty is independent and does not relieve the

trial court of its statutory duty to give the advisement under R.C. 2943.031(A).




                                        -9-
Case No. 13-17-21


       {¶21} Notwithstanding all of this, we also acknowledge that the case law

analyzing R.C. 2943.031 has held that the trial court retains some discretion in

considering whether to grant a motion to withdraw a plea, despite the statutory

language of R.C. 2943.031(D) stating that a court “shall set aside the judgment and

permit the defendant to withdraw a plea.” The court’s discretion is generally

premised upon the consideration of additional factors such as timeliness of the

motion and prejudice to the State due to the defendant’s unreasonable delay in filing

the motion which are dictated by the particular facts of the case.      See State v.

Francis, 104 Ohio St. 3d 490, 2004-Ohio-6894, ¶ 40-42.

       {¶22} More importantly, however, R.C. 2943.031(D) also requires that the

defendant must show that the no contest plea and resulting conviction “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” in order to

invoke the statutory right to mandatory withdrawal of the plea by the trial court set

forth in the statute. Here, Nardiello stated in a self-serving affidavit accompanying

the motion to withdraw under R.C. 2943.031(D) that, “Recently I have been advised

by immigration attorneys that my plea to the misdemeanor drug offense would

preclude me from obtaining a green card, becoming a citizen or even staying in this

country.” (Doc. No. 14 at ¶ 5). However, nothing more was submitted in support

of the motion to withdrawal his plea.


                                        -10-
Case No. 13-17-21


       {¶23} It is our determination that this single statement in his own affidavit is

not a sufficient showing to invoke the mandatory remedy of withdrawal of his plea

under R.C. 2943.031(D), especially in light of the nearly six-year delay in filing the

motion. We further note the record at the change of plea hearing clearly indicates

that Nardiello had some apprisal of the “citizenship implications” prior to entering

his no contest plea. Specifically, the transcript of the change of plea hearing reveals

the following:

       Trial Court: [Defense Counsel], upon further recommendation of
       the prosecutor, have you had an opportunity to speak with your
       client about this proposed change of plea?

       Defense Counsel: Yes, I have, Your Honor, and --- I’m sorry.
       Yes, I have.

       Trial Court: And do you believe he understands the implications of
       a change of plea here today?

       Defense Counsel: He does, Your Honor. He’s not a U.S. Citizen,
       and that was one of the reasons that we had the delay in change of
       plea.

       Trial Court: Mr. Nardiello, do you need more time to speak with
       [Defense Counsel] about this?

       Nardiello: No, Your Honor.

       Trial Court: Is this what you want to do?

       Nardiello: Yes, Your Honor.

       Trial Court: Do you understand I’m not bound by that
       recommendation? I can impose a greater or lesser penalty, as I
       deem appropriate.

                                         -11-
Case No. 13-17-21



      Nardiello: Yes, Your Honor.

      Trial Court: And are you satisfied with the plea?

      Nardiello: Yes, Your Honor.

      Trial Court: Are you satisfied with [Defense Counsel’s]
      representation?

      Nardiello: Yes, Your Honor.

      Trial Court: And, [Defense Counsel], how does your client
      propose to plea?

      Defense Counsel: He would enter a plea of no contest with a
      stipulation of the finding of guilt at this time.

      Trial Court: And you understand, Mr. Nardiello, by entering a
      plea of no contest, you’re admitting to the truth of the facts as
      alleged on the face of the complaint.

      Nardiello: Yes, Your Honor.

      Trial Court: And you understand what the maximum possible
      penalties are.

      Nardiello: Yes, Your Honor.

      Trial Court: At this time, I’ll accept your plea of no contest.
      [Defense Counsel], anything you want to say about the facts about
      what happened?

      Defense Counsel: Your Honor, Mr. Nardiello, he accepts full
      responsibility for the contents in his car. He graduated from
      Heidelberg College. He’s no longer here. He’s a resident of
      Cuyahoga County. Again, he has---he’s here on a visa, so he just
      obtained employment. He’s got citizenship implications.



                                    -12-
Case No. 13-17-21


       ***

       Trial Court: Based upon my review of the case and this citation,
       the officer’s report, and your plea of no contest, there will be a
       finding of guilt. Mr. Nardiello, is there anything you’d like to say?
       Anything you think the Court should take into consideration with
       regard to the penalty?

       Defense Counsel: Your Honor, I have had an opportunity to
       speak at length with the prosecutor and I would appreciate if the
       Court would accept the prosecutor’s recommendation. Again,
       Mr. Nardiello is not a U.S. citizen, so these court implications are
       additional to whatever implications he has with the United States of
       America. He understands he committed a crime, committed a
       wrong, and wishes the Court’s indulgence, again, to give him some
       leniency.

(July 28, 2011 Trans. at 3-7).

       {¶24} Albeit coming from defense counsel and not the trial court, the

transcript excerpts above nevertheless indicate that, prior to the change of plea,

defense counsel and Nardiello were clearly aware and likely had discussed the

possibility that entering a no contest plea could affect his immigration status—and

that the “citizenship implications” were compelling enough to delay the plea

proceedings. (July 28, 2011 Trans. at 3-7). This is not to say that, defense counsel’s

discussions with Nardiello or comments on the record, relieved the trial court of its

duty under R.C. 2943.031(A) to give the non-citizen advisement. However, we find

Nardiello’s apprisal of immigration consequences at the time of his plea to be

significant when reviewing the credibility of his self-serving affidavit

accompanying the motion to withdraw, and in particular Nardiello’s representation

                                        -13-
Case No. 13-17-21


that he would not have entered the plea had he been aware of the admonitions

contained in the R.C. 2943.031(A) advisement.

       {¶25} In sum, Nardiello’s lack of sufficient evidence of pending or imminent

immigration consequences to invoke the mandatory remedy of withdrawal of the

plea under R.C. 2943.031(D), the clear indication of his apprisal of some possible

immigration consequences at the plea hearing, and the unreasonable delay of six

years before filing the motion to withdraw all constitute factors which support the

exercise of the trial court’s discretion in deciding Nardiello’s motion. And, in these

circumstances, we cannot find an abuse of that discretion in the trial court’s decision

to deny the motion. Accordingly, we overrule the assignment of error and affirm

the judgment of the trial court.

                                                                 Judgment Affirmed

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr




                                         -14-
