[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Kona, Slip Opinion No. 2016-Ohio-7796.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2016-OHIO-7796
              THE STATE OF OHIO, APPELLEE, v. KONA, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as State v. Kona, Slip Opinion No. 2016-Ohio-7796.]
When in accordance with the requirements of a pretrial diversion program a
        noncitizen defendant admits sufficient facts to warrant a finding of guilt, the
        trial court must provide to the defendant the advisement contained in R.C.
        2943.031(A) that the admission of guilt may affect his or her immigration
        status.
   (No. 2014-0733—Submitted June 10, 2015—Decided November 21, 2016.)
              APPEAL from the Court of Appeals of Cuyahoga County,
                              No. 100191, 2014-Ohio-1242.
                                    _________________
        PFEIFER, J.
        {¶ 1} In this case, we hold that when in accordance with the requirements
of a pretrial diversion program a noncitizen defendant admits sufficient facts to
warrant a finding of guilt, the trial court must provide to the defendant the
                             SUPREME COURT OF OHIO




advisement contained in R.C. 2943.031(A) that the admission of guilt may affect
his or her immigration status, i.e., that it “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.”
                      Factual and Procedural Background
       {¶ 2} Defendant-appellant, Issa Kona, is not a United States citizen but has
been a legal resident since 2002. On April 1, 2006, Kona was arrested for allegedly
attempting to steal a battery charger worth around $80 from a Home Depot store in
Cleveland. The police report states that he was followed out of the store by security
guards, who demanded the battery charger, and that a physical confrontation ensued
with at least one of the guards.
       {¶ 3} On May 2, 2006, Kona was indicted by the Cuyahoga County Grand
Jury on two counts of robbery pursuant to R.C. 2911.02. R.C. 2911.02 reads:


               (A) No person, in attempting or committing a theft offense
       or in fleeing immediately after the attempt or offense, shall do any
       of the following:
               (1) Have a deadly weapon on or about the offender’s person
       or under the offender’s control;
               (2) Inflict, attempt to inflict, or threaten to inflict physical
       harm on another;
               (3) Use or threaten the immediate use of force against
       another.


The bill of particulars filed by the state on June 8, 2006, alleged that Kona had, in
committing or fleeing from the commission of a theft offense, inflicted, attempted
to inflict, or threatened to inflict harm on someone and also had used or threatened
the immediate use of force on that same person. Kona pleaded not guilty; he sought




                                          2
                                January Term, 2016




guidance from an immigration attorney and was advised that attempted robbery and
theft are offenses for which he could be deported if convicted.
       {¶ 4} On September 20, 2006, the day that trial was set to begin, the court
granted Kona a continuance to apply for the Cuyahoga County diversion program.
On October 30, 2006, with the approval of the prosecuting attorney, the trial court
admitted Kona into the diversion program. The entry read:


                  In accordance with the provisions of R.C. 2935.36, the
       prosecutor’s office has found that the defendant has met eligibility
       requirements for acceptance into the Cuyahoga County pretrial
       diversion program.
                  ***
                  In all cases admitted into the diversion program, the
       defendant shall be granted a $1000.00 personal bond (CSR), and
       shall be placed under the supervision of the probation department’s
       court supervised release program/diversion unit.
                  Upon consideration, the court hereby approves the
       defendant’s participation in said program, and orders that this case
       to [sic] be placed in an inactive status until further notice.


       {¶ 5} The trial court spoke only through its entry; Kona was not brought
before the judge into open court. There was no mention in the entry about any
possible effect on Kona of enrollment in the diversion program as far as possible
deportation, exclusion from admission to the United States, or denial of
naturalization.
       {¶ 6} As a prerequisite of participating in the diversion program, Kona was
required to complete a diversion packet. One document in the packet, titled
“Criteria for Acceptance,” required him to “admit his guilt, in regard to the pending




                                          3
                             SUPREME COURT OF OHIO




charges, in a written statement.”      The document he executed to satisfy this
requirement was titled “Admission of Guilt Statement,” and contained Kona’s
name and criminal-case number. The document provided this instruction:


               You are to provide a complete, accurate, and truthful
       statement concerning your present criminal charge(s).           This
       statement must admit to the crimes for which you are charged.


       {¶ 7} Kona’s statement read:


               On April 1, 2006, I entered the Home Depot located at 11901
       Berea Road, Cleveland, Ohio and took a battery charger, removed it
       from its package, and hid it in my coat. I purchased a window for
       $180.00 and exited the store.
               As I left the store, I was confronted and apprehended by
       three (3) store security men. The battery charger was found in my
       coat and recovered.
               The total value was $59.00.


       {¶ 8} Another document in the diversion packet, titled “General Rules,”
informed Kona that should he not abide by all of the conditions of the diversion
agreement, his case would be brought to court as if he had not participated in the
diversion program and the state would have the right to use the written admission
of guilt in its case against him. The diversion packet also contained a waiver-of-
rights form, but that form contained no information regarding any possible effect
that participation in the diversion program might have on his immigration status.
       {¶ 9} Kona successfully completed the diversion program, and on May 4,
2007, the trial court, upon the state’s recommendation, dismissed the case against




                                         4
                                  January Term, 2016




Kona; further, the court granted Kona’s motion for expungement and sealed the
record.
          {¶ 10} But Kona’s admission of guilt had consequences. Kona later learned
that under federal immigration law, an admission of guilt made pursuant to a
diversion program can constitute a conviction affecting immigration status. 8
U.S.C. 1101(a)(48)(A). After the dismissal, Kona had submitted an application for
naturalization and was advised by immigration officials that he would be subject to
deportation upon the final processing of his application due to the admission of
guilt he had signed as part of the pretrial diversion program. Kona testified that
after learning the effect of his admission of guilt, he consulted with several
immigration lawyers, who advised him that the only way to avoid deportation
would be to withdraw the admission of guilt and have the conviction vacated.
          {¶ 11} Kona filed a motion to unseal the record, to which the state filed a
brief in opposition. But the trial court granted the motion on September 10, 2008.
Then, on October 20, 2008, Kona filed a motion to vacate his plea. In a journal
entry of February 25, 2009, the trial court ordered Kona to file a supplemental
motion within 21 days. He filed that motion on March 6, 2009, and the state filed
its response on March 25, 2009.
          {¶ 12} On April 21, 2009, the trial court held a hearing. Kona argued that
his admission of guilt operated as a conviction under federal law and that he was
entitled to all the protections he would have been afforded had he actually entered
a guilty plea, including those protections under Crim.R. 11 and R.C. 2943.031.
R.C. 2943.031(A) requires courts to alert noncitizens that a guilty plea or no-contest
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.”
          {¶ 13} The state argued that R.C. 2943.031 does not require a trial court to
advise a defendant entering a pretrial diversion program of possible immigration




                                           5
                             SUPREME COURT OF OHIO




consequences. Since Kona had not entered a plea of guilty or no contest, the state
argued, the trial court had not been required to follow Crim.R. 11 or R.C. 2943.031.
       {¶ 14} On July 2, 2013, the trial court, in an entry without any analysis,
denied Kona’s amended motion to withdraw his plea and vacate the judgment.
Kona appealed to the Eighth District Court of Appeals.             That court stated,
“Although we sympathize with Kona and agree that the application of the
immigration laws in his case result in a manifest injustice, we cannot agree with
him that the trial court erred here.” 2014-Ohio-1242, ¶ 19. The court concluded
that “because Kona did not enter a plea of guilty or no contest as part of his pretrial
diversion program, the trial court was not required to follow the mandates of
Crim.R. 11 and R.C. 2943.031. * * * A trial court cannot withdraw a plea that was
never entered into, nor can it vacate a conviction that does not exist.” Id. at ¶ 22.
       {¶ 15} The cause is before this court upon the allowance of a discretionary
appeal. 140 Ohio St.3d 1414, 2014-Ohio-3785, 15 N.E.3d 883.
                                 Law and Analysis
       {¶ 16} For a noncitizen, the most significant aspect of a criminal conviction
may not be the resulting criminal sanction but the conviction’s effect on
immigration status. “[D]eportation is an integral part—indeed, sometimes the most
important part—of the penalty that may be imposed on noncitizen defendants who
plead guilty to specified crimes.” (Footnote deleted.) Padilla v. Kentucky, 559
U.S. 356, 364, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). R.C. 2943.031 recognizes
the seriousness of possible effects of convictions on noncitizens; it requires a trial
court, before it accepts a defendant’s plea, to advise the defendant on the possibility
of “deportation, exclusion from admission to the United States, or denial of
naturalization” resulting from the plea. The statute reads:


               (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,




                                          6
                               January Term, 2016




       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.”
               Upon request of the defendant, the court shall allow him
       additional time to consider the appropriateness of the plea in light of
       the advisement described in this division.


R.C. 2943.031.
       {¶ 17} The statute requires that the advisement be given to every defendant
making a plea of guilty or no contest, unless the defendant has stated orally on the
record that he is a citizen of the United States or has answered a written question
on the form on which he enters a plea of guilty that he is a citizen of the United
States. R.C. 2943.031(B).
       {¶ 18} If the trial court fails to give the advisement and immigration
implications arise from the plea, the court must allow the defendant to withdraw his
plea. R.C. 2943.031(D) sets forth the circumstances under which the court must
accept the withdrawal of the plea:


               Upon motion of the defendant, the court shall set aside the
       judgment and permit the defendant to withdraw a plea of guilty or




                                         7
                             SUPREME COURT OF OHIO




       no contest and enter a plea of not guilty * * * if * * *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.


       {¶ 19} In State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820
N.E.2d 355, this court held that motions to withdraw pleas under R.C. 2943.031(D)
after sentencing has occurred are not subject to the Crim.R. 32.1 standard that
requires a defendant to demonstrate manifest injustice before a court may permit
him to withdraw his plea. “The General Assembly has apparently determined that
due to the serious consequences of a criminal conviction on a noncitizen’s status in
this country, a trial court should give the R.C. 2943.031(A) warning and that failure
to do so should not be subject to the manifest-injustice standard even if sentencing
has already occurred.” Id. at ¶ 26. R.C. 2943.031 creates “a substantive statutory
right for certain criminal defendants and that * * * right therefore prevails over the
general procedural provision of Crim.R. 32.1.” Id. at ¶ 27. R.C. 2943.031 provides
an independent procedure, available after judgment, allowing a challenge to a
substantive defect in the underlying proceedings.
       {¶ 20} The vacation of a plea pursuant to R.C. 2943.031(D) has important
consequences in immigration proceedings; because it concerns a procedural or
substantive defect in the underlying conviction, the vacation is recognized for
immigration purposes. A vacation for procedural or substantive reasons addresses
the validity of the underlying conviction and eliminates the criminal ground for
deportation. On the other hand, “[i]f the criminal record is expunged or dismissed




                                           8
                                January Term, 2016




because of post-conviction behavior such as successfully completing probation, or
for rehabilitative purposes, then the federal immigration agencies do not recognize
the expungement or dismissal as erasing the conviction.” Andrew Moore, Criminal
Deportation, Post-Conviction Relief and the Lost Cause of Uniformity, 22
Geo.Immigr.L.J. 665, 668 (2008).
        {¶ 21} In In re Adamiak, 23 I. & N. Dec. 878 (BIA 2006), the Board of
Immigration Appeals addressed the case of an Ohio permanent resident who faced
immigration consequences—removal from the country as an alien convicted of an
aggravated felony—as a result of a guilty plea he had made to a drug-trafficking
offense. During the course of the immigration proceedings, Patryk Adamiak sought
to withdraw his guilty plea through the procedure outlined in R.C. 2943.031, and
the trial court granted the withdrawal of the plea. An immigration judge, however,
held that the withdrawal of the plea had no effect for immigration purposes because
Adamiak had been convicted of a felony under the definition of a “conviction” in
8 U.S.C. 1101(a)(48), and she found him removable as charged. Adamiak at 879.
        {¶ 22} But the board reversed the decision of the immigration judge,
concluding that “the court’s vacation of that conviction should be recognized for
immigration purposes” and that the conviction should no longer be considered
valid. Id. at 881. The board noted that it views vacation of convictions for
procedural defects differently from other postconviction vacations:


               In our decisions addressing the effect of State court orders
        vacating convictions, we have distinguished between situations in
        which a conviction is vacated based on post-conviction events, such
        as rehabilitation, and those in which a conviction is vacated because
        of a defect in the underlying criminal proceedings


Id. at 879.




                                         9
                            SUPREME COURT OF OHIO




       {¶ 23} The board explained that it recognized the vacation of Adamiak’s
conviction because the vacation was related to a defect in the underlying
proceedings and did not result from the rehabilitation of Adamiak or an attempt by
the trial court to help him avoid immigration hardships. The board held:


              The Ohio court’s order permitting withdrawal of the
       respondent’s guilty plea is based on a defect in the underlying
       proceedings, i.e., the failure of the court to advise the respondent of
       the possible immigration consequences of his guilty plea, as
       required by Ohio law.       To remedy the defect in the original
       proceedings, the trial court ordered that the respondent be afforded
       a new trial on the underlying drug trafficking charge. Under these
       circumstances, we find that the Ohio court’s vacation of the
       respondent’s conviction should be recognized in immigration
       proceedings.


In re Adamiak, 23 I. & N. Dec. at 879-880.
       {¶ 24} The Sixth Circuit Court of Appeals has also adopted this view:


       [W]hen a court vacates an alien’s conviction for reasons solely
       related to rehabilitation or to avoid adverse immigration hardships,
       rather than on the basis of a procedural or substantive defect in the
       underlying criminal proceedings, the conviction is not eliminated
       for immigration purposes. Matter of Pickering, 23 I & N Dec. 621,
       624 (BIA 2003). This interpretation of the law is consistent with
       that of other circuits and with our own interpretation. A conviction
       vacated for rehabilitative or immigration reasons remains valid for




                                         10
                               January Term, 2016




       immigration purposes, while one vacated because of procedural or
       substantive infirmities does not.


Pickering v. Gonzales, 465 F.3d 263, 266 (6th Cir.2006). The policy reasons for
creating the distinction between convictions vacated for procedural or substantive
reasons and other rehabilitative or immigration reasons “are rooted in Congress’s
desire to achieve uniformity in the treatment of criminal behavior for deportation
purposes and to prevent state judges and prosecutors from defeating federal
immigration policy by providing ameliorative relief through changes to the criminal
record.” Moore, Criminal Deportation, Post-Conviction Relief and the Lost Cause
of Uniformity, 22 Geo.Immigr.L.J. at 665.
       {¶ 25} This disparate treatment of vacated convictions follows from the
development of the definition of “conviction” in federal immigration law. “Over
the years, the BIA has wrestled with the question of when a ‘conviction’ occurred
under state statutes providing for varying degrees of deferred adjudication.”
Murillo-Espinoza v. Immigration & Naturalization Serv., 261 F.3d 771, 774 (9th
Cir.2001). The board described the problem in In re Ozkok, 19 I. & N. Dec. 546,
550-551 (BIA 1988):


       [T]he Board has attempted over the years to reconcile its definition
       of a final conviction with the evolving criminal procedures created
       by the various states. Having reviewed our decisions in this regard,
       we must acknowledge that the standard which we have applied to
       the many variations in state procedure may permit anomalous and
       unfair results in determining which aliens are considered convicted
       for immigration purposes. * * *
               We find no rational or legal reason for according * * * aliens
       different immigration status based on the criminal procedures of the




                                           11
                             SUPREME COURT OF OHIO




       states where they committed a crime. Under the approach we have
       taken in the past, form has been placed over substance, and aliens
       who are clearly guilty of criminal behavior and whom Congress
       intended to be considered “convicted” have been permitted to
       escape the immigration consequences normally attendant upon a
       conviction.


       {¶ 26} Out of concern that a more uniform approach was needed to
determine what would constitute a conviction for immigration purposes, the court
in Ozkok adopted a three-part test under which an alien was considered “convicted”
when “(1) the alien had been found guilty or pleaded guilty or nolo contendere or
had admitted sufficient facts to warrant a finding of guilty; (2) the judge had ordered
some form of punishment; and (3) a judgment of guilt could be entered without
further proceedings relating to guilt if the person violated terms of his probation or
other court order.” Murillo-Espinoza at 774, citing Ozkok at 551-552.
       {¶ 27} In 1996, as part of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of Public Law No. 104-208, 110 Stat. 3009-
546 (enacted September 30, 1996) (“IIRIRA”), Congress, defined the meaning of
the term “conviction” for immigration purposes, essentially adopting two elements
of the Ozkok test:


               The term “conviction” means, with respect to an alien, a
       formal judgment of guilt of the alien entered by a court or, if
       adjudication of guilt has been withheld, where—
               (i) a judge or jury has found the alien guilty or the alien has
       entered a plea of guilty or nolo contendere or has admitted sufficient
       facts to warrant a finding of guilt, and




                                          12
                                January Term, 2016




               (ii) the judge has ordered some form of punishment, penalty,
       or restraint on the alien’s liberty to be imposed.


8 U.S.C. 1101(a)(48)(A).
       {¶ 28} In In re Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA 1999), the board,
examining the legislative history of the IIRIRA, discussed the significance of
Congress’s not adopting the third prong of Ozkok:


       The legislative history of section 322 of the IIRIRA underscores the
       breadth of the new definition:
               “Ozkok * * * does not go far enough to address situations
       where a judgment of guilt or imposition of sentence is suspended,
       conditioned upon the alien’s future good behavior. * * * In some
       States, adjudication may be “deferred” upon a finding or confession
       of guilt, and a final judgment of guilt may not be imposed if the alien
       violates probation until there is an additional proceeding regarding
       the alien’s guilt or innocence. In such cases, the third prong of the
       Ozkok definition prevents the original finding or confession of guilt
       to be considered a ‘conviction’ for deportation purposes. This new
       provision, by removing the third prong of Ozkok, clarifies
       Congressional intent that even in cases where adjudication is
       ‘deferred,’ the original finding or confession of guilt is sufficient to
       establish a ‘conviction’ for purposes of the immigration laws.” See
       H.R. Conf. Rep. No. 104-828, at 224 (1996).


Id. at 518. The board concluded that




                                         13
                              SUPREME COURT OF OHIO




       Congress intends that an alien be considered convicted, based on an
       initial finding or admission of guilt coupled with the imposition of
       some punishment, even in a state where further proceedings relating
       to the alien’s actual guilt or innocence may be required upon his
       violation of probation in order for him to be considered convicted
       under the state law.


Id. Thus, even though a defendant can escape a conviction under state law by not
violating probation and ultimately having the case dismissed, a conviction for
federal-immigration-law purposes occurs upon the admission of facts sufficient to
warrant a finding of guilt coupled with a restraint on liberty. The fact that a
conviction is not automatic upon the violation of the terms of the diversion
agreement was significant under Ozkok but is not significant under the statute.
“[The] statutory definition of ‘conviction’ has eliminated the ‘further proceedings’
consideration from the analysis, thus ending disparate treatment of aliens turning
on the technicalities of their states’ deferred adjudication procedures.” Susan L.
Pilcher, Justice Without A Blindfold: Criminal Proceedings and the Alien
Defendant, 50 Ark.L.Rev. 269, 321 (1997).
       {¶ 29} Thus, participation in a diversion program can have unintended
consequences for a noncitizen; even though a diversion-program participant avoids
a conviction in state court, a noncitizen participant in such a program may still have
a conviction on his or her record for immigration-law purposes:


       [A]n admission of guilt coupled with any restraint on liberty—such
       as having to complete a specified drug or alcohol awareness
       program—is a conviction under immigration law. If a prosecutor
       requires an admission of guilt to enter a pretrial diversion program
       and this admission is recorded, then for immigration purposes the




                                         14
                                  January Term, 2016




          alien’s participation in pretrial diversion is deemed a conviction all
          the same. This is true even if, as a result of successful completion
          of the diversion program, the prosecutor drops the charges. While
          the purpose of pretrial programs is to permit first-time offenders to
          rehabilitate without any criminal record on their file, where
          admission of guilt is required to participate, the result has been that
          aliens who participate in these programs have a conviction for
          immigration purposes and may be deportable depending on the type
          of crime committed.


(Footnotes deleted.) Dinesh Shenoy & Salima Oines Khakoo, One Strike and
You’re Out! The Crumbling Distinction Between the Criminal and the Civil for
Immigrants in the Twenty-First Century, 35 Wm. Mitchell L. Rev. 135, 158-159
(2008).
          {¶ 30} Such is the case with Kona. In this case, Kona participated in
Cuyahoga County’s pretrial diversion program, which was established pursuant to
R.C. 2935.36. The statute provides:


                 (A) The prosecuting attorney may establish pre-trial
          diversion programs for adults who are accused of committing
          criminal offenses and whom the prosecuting attorney believes
          probably will not offend again. The prosecuting attorney may
          require, as a condition of an accused’s participation in the program,
          the accused to pay a reasonable fee for supervision services that
          include, but are not limited to, monitoring and drug testing. The
          programs shall be operated pursuant to written standards approved
          by journal entry by the presiding judge or, in courts with only one
          judge, the judge of the court of common pleas * * *.




                                            15
                             SUPREME COURT OF OHIO




       {¶ 31} Ohio’s pretrial-diversion-program statute does not require a
defendant to admit guilt prior to being admitted into a program, but the Cuyahoga
County program that Kona participated in did make that a requirement for entry
into the program. A criterion for acceptance into the program at the time Kona
entered it was that “[t]he applicant must admit his guilt, in regard to the pending
charges, in a written statement.” By meeting this requirement, Kona also satisfied
the first element of the 8 U.S.C. 1101(a)(48)(A)(i) definition of “conviction”: “the
alien * * * has admitted sufficient facts to warrant a finding of guilt.”
       {¶ 32} The second element of the definition of “conviction” is that “(ii) the
judge has ordered some form of punishment, penalty, or restraint on the alien’s
liberty to be imposed.” As a participant in the diversion program, Kona was subject
to the following requirements:


               5. As a condition of a personal bond, an applicant shall be
       placed under the supervision of the Probation Department’s Court
       Supervised Release Program/Diversion Unit.
               ***
               9. The applicant must be willing to make himself available
       for conferences with a Division Officer * * * between the hours of
       8:30 a.m. and 4:00 p.m., unless other arrangements are made.
               ***
               14. The applicant must be willing to pay restitution, fines,
       court costs, administrative fees, including an offender’s fee, which
       will include a community works service charge, in an amount
       determined by a Diversion Officer, and/or provide volunteer work
       to a non-profit community service organization.
               ***




                                          16
                                January Term, 2016




               17. The applicant must submit to evaluation and treatment
       for alcohol and substance abuse or mental health problems. * * *
               ***
               18. The applicant must not leave the county of his/her
       residence without permission from the Division Officer. Written
       permission must be obtained before leaving the State.


Kona thus suffered a deprivation of liberty, satisfying the second element of the
federal definition of “conviction.”
       {¶ 33} The dismissal of the robbery charges against Kona after his
successful participation in Cuyahoga County’s diversion program is meaningless
under federal immigration law; his admission of guilt yields a conviction for
purposes of immigration law. Only if his “conviction” is vacated for substantive
or procedural reasons, i.e., through R.C. 2943.031(D), can Kona escape
immigration law implications of his admission of guilt.
       {¶ 34} There is no dispute about the fact that Kona received no warning
from the trial court that preparing and signing an admission-of-guilt form as a
requirement to enter Cuyahoga County’s diversion program could have a
significant effect on his immigration status. R.C. 2943.031 exists to force courts to
advise noncitizens that their pleas of guilty or no contest may lead to a conviction
that has a serious impact on their immigration status, potentially more serious than
any criminal sanction. That is, the statute protects defendants from voluntarily
submitting to a conviction without notice of how that act could affect their
immigration status. For all relevant purposes, in federal immigration law—about
which R.C. 2943.031 exists to provide a warning—there is no functional difference
between a guilty or no-contest plea and an admission of guilt. A conviction, as
defined in federal law, flows from all three.




                                         17
                             SUPREME COURT OF OHIO




       {¶ 35} Because R.C. 2943.031 requires warning noncitizens of the potential
effects of convictions, it is triggered upon a defendant’s admission of guilt as part
of a pretrial diversion program, since that admission creates a conviction under
federal law. R.C. 2943.031 requires courts to inform defendants about the effect
not of the plea, but of the conviction that follows the plea. The statute requires the
judge to inform the defendant, “[Y]ou are hereby advised that conviction of the
offense to which you are pleading guilty * * * 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.” (Emphasis added.) It is
the conviction that has consequences in the immigration system. For purposes of
R.C. 2943.031, an admission of guilt is tantamount to a guilty plea because a
conviction—for federal purposes—follows it.
       {¶ 36} The very purpose of R.C. 2943.031 demands that admissions of guilt
made pursuant to diversion programs be included within its ambit. Otherwise, a
defendant amenable to pretrial diversion—whose presence in the program means
that, pursuant to R.C. 2935.36, he or she is a person whom the prosecuting attorney
believes “probably will not offend again”—becomes susceptible, without warning,
to the immigration effects of an admission of guilt; meanwhile, the more serious
offender, who is not offered diversion, gets the full benefit of the protections of
R.C. 2943.031. Not requiring R.C. 2943.031 protections for defendants admitting
guilt in pretrial diversion proceedings also runs contrary to R.C. 2935.36—the
defendants deemed to have committed the least serious offenses potentially suffer,
without warning, the most serious consequences.
       {¶ 37} We therefore hold that R.C. 2943.031(A) requires that the trial court
provide an advisement to a defendant submitting an admission of guilt for entry
into a pretrial diversion program. The court must inform the defendant that the
admission may have the consequences of deportation, exclusion from admission to




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the United States, or denial of naturalization pursuant to the laws of the United
States.
          {¶ 38} Pursuant to R.C. 2943.031(D), upon the motion of the defendant, the
court must set aside the prior judgment if four factors are fulfilled: (1) the court
failed to provide the defendant the advisement before the admission of guilt, (2) the
advisement was required, (3) the defendant is not a citizen of the United States, and
(4) the conviction for the offense to which a plea was entered results in the
defendant’s being subject to deportation, exclusion from admission to the United
States, or denial of naturalization pursuant to the laws of the United States. We
find that the trial court abused its discretion in not finding that all four factors were
satisfied in this case. Upon remand, the trial court should set aside the prior
judgment by vacating the dismissal, vacating the admission of guilt, and allowing
Kona to plead not guilty to the underlying charges.
          {¶ 39} We note that there have been changes made to the Cuyahoga County
pretrial diversion program since Kona’s entry into it in 2006. The diversion packet
now has a prominent warning to noncitizens on the application page:


                  **NOTICE: If you are not a citizen of the United States,
          you are hereby advised that application and/or admission to the
          Diversion Program 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.


(Boldface sic.)
          {¶ 40} More importantly, the state relates in its brief, “The prosecutor’s
diversion program has been amended. It now requires a full plea of guilt to be
entered on the record, with the plea not accepted by the trial court.” At oral
argument, the state reiterated that beginning in 2014, defendants entering Cuyahoga




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County’s pretrial diversion program participate in a plea hearing with a judge. So
at least from 2014, noncitizen defendants have been receiving from the trial judge
the notice required by R.C. 2943.031 of potential immigration effects of
participation in Cuyahoga County’s diversion program.           Cuyahoga County
identified a problem and took steps to rectify it, and we commend it for that.
                                       Conclusion
       {¶ 41} We hold that R.C. 2943.031(A) required the trial court to advise
Kona that his admission of guilt made for purposes of entering into Cuyahoga
County’s pretrial diversion program 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. Because the trial court failed to give that
advisement, and because Kona has sufficiently proved the elements of R.C.
2943.031(D), the trial court must vacate the dismissal of the case against Kona and
vacate the admission of guilt that he executed as part of the pretrial-diversion-
program process.
       {¶ 42} Accordingly, we reverse the judgment of the court of appeals and
remand the cause to the trial court.
                                                                Judgment reversed,
                                                              and cause remanded.
       O’CONNOR, C.J., and LANZINGER and O’NEILL, JJ., concur.
       O’DONNELL and FRENCH, JJ., dissent and would dismiss the cause as
improvidently allowed.
       KENNEDY, J., dissents and would affirm the judgment for the reasons stated
by the court of appeals.
                               _________________
       Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, T. Allan
Regas, and Diane Smilanick, Assistant Prosecuting Attorneys, for appellee.




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                               January Term, 2016




       Polito, Paulozzi, Rodstrom & Burke, L.L.P., Joseph T. Burke, and Michael
G. Polito, for appellant.
       Harlan D. Karp, Tina R. Haddad, and Tanya Linetsky, pro se, urging
reversal as amici curiae.
       Law Offices of Jennifer Peyton, Jennifer I. Peyton, and Daniel Natalie;
Margaret Wong and Associates, Co., L.P.A., and Scott Bratton, urging reversal for
amicus curiae American Immigration Lawyers Association, Ohio Chapter.
       Russell S. Bensing, urging reversal for amicus curiae Ohio Association of
Criminal Defense Lawyers.
       John T. Forristal, urging reversal for amicus curiae Cuyahoga Criminal
Defense Lawyers Association.
                               _________________




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