[Cite as State v. Preciado, 2015-Ohio-19.]




                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 101257



                                              STATE OF OHIO

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                             RAFAEL PRECIADO

                                                         DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                    Case No. CR-93-297237-ZA

        BEFORE: Keough, J., Celebrezze, A.J., and Stewart, J.

        RELEASED AND JOURNALIZED:                    January 8, 2015
ATTORNEY FOR APPELLANT

Francis R. Krajenke
815 Superior Avenue, Suite 1225
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brett Hammond
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1}    Defendant-appellant, Rafael Preciado, appeals the trial court’s denial of his

motion to withdraw his 1993 guilty plea to attempted forgery, for which he was subsequently

convicted. Finding no merit to the appeal, we affirm.

                                          I. Background

       {¶2}    Preciado is not an American citizen and is not in the United States lawfully. In

June 1993, he was indicted on one count of forgery, one count of uttering, one count of

possessing criminal tools, and one count of drug abuse. The charges stemmed from Preciado’s

attempt to obtain a temporary driving permit using a fake social security card.

       {¶3}    In July 1993, pursuant to a plea agreement, Preciado pleaded guilty to an amended

count of attempted forgery, a first-degree misdemeanor, and the remaining counts were nolled.

On July 22, 1993, the trial court sentenced him to six months incarceration, suspended the

sentence, and ordered him to serve six months probation and 50 hours of community work

service.

       {¶4}    Over 20 years later, on March 7, 2014, Preciado filed a motion to vacate his plea.

He argued that his plea and conviction should be vacated because he was subject to removal

proceedings by the immigration authorities as a result of his plea, but the trial court had not

appointed an interpreter for him at the plea hearing, and neither the trial court nor his lawyer had

advised him of the immigration consequences of his guilty plea. Attached to Preciado’s motion

were the trial court’s judgment entry dated July 22, 1993, his affidavit, and a “Notice of Hearing

in Removal Proceedings” dated September 23, 2010, advising Preciado of a hearing before the

Immigration Court on December 29, 2010.
       {¶5}    The trial court denied the motion, finding that Preciado had “failed to move to

vacate in a timely manner following notice of pending deportation proceedings.” Further, the

court noted that because no transcript of the plea hearing had been filed, and court reporters’

notes are routinely destroyed, there was no longer any evidence regarding whether Preciado had

been advised of the immigration consequences of his plea.

       {¶6}    This appeal followed.

                                        II. Law and Analysis

A.     Standard of Review

       Because [Preciado’s motion to vacate] is a postsentence motion to withdraw a
       guilty plea, we apply Crim.R. 32.1, which permits a criminal defendant to
       withdraw a plea after the imposition of sentence only to correct a “manifest
       injustice.” A manifest injustice has been defined as a “clear or openly unjust
       act.” State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 1998-Ohio-271,
       699 N.E.2d 83. Under the manifest injustice standard, a postsentence withdrawal
       motion is allowable only in extraordinary cases. State v. Smith, 49 Ohio St.2d
       261, 264, 361 N.E.2d 1324 (1977). “A motion made pursuant to Crim.R. 32.1 is
       addressed to the sound discretion of the trial court, and the good faith, credibility
       and weight of the movant’s assertions in support of the motion are matters to be
       resolved by that court.” Id., at paragraph two of the syllabus. We therefore
       review a trial court’s refusal to allow a postsentence motion to withdraw a guilty
       plea for an abuse of discretion. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d
       715 (1992).

State v. Montgomery, 2013-Ohio-4193, 997 N.E.2d 579, ¶ 61.

B.     Appointment of an Interpreter

       {¶7} In his first assignment of error, Preciado asserts that the trial court erred in denying

his motion to vacate his plea because his due process rights were violated at the plea hearing

when the trial court failed to appoint an interpreter for him. The thrust of this assignment of

error is that his plea was not knowingly, voluntarily, and intelligently made because the trial

court did not provide an interpreter.
       {¶8} In a criminal case, the defendant is entitled to hear the proceedings in a language

that he can understand. State v. Almosawi, 2d Dist. Montgomery No. 24633, 2012-Ohio-3385, ¶

8.   Moreover, R.C. 2311.14(A) requires that a trial court appoint an interpreter for legal

proceedings whenever a participant in the proceedings “cannot readily understand or

communicate” “because of a hearing, speech, or other impairment.”

       {¶9}   The trial court is given broad discretion in determining whether a criminal

defendant requires the assistance of an interpreter. State v. Saah, 67 Ohio App.3d 86, 95, 585

N.E.2d 999 (8th Dist. 1990). The decision regarding whether a defendant is entitled to a

court-appointed language interpreter is based on the trial court’s assessment of the defendant’s

apparent ability to comprehend and communicate in the English language. State v. Castro, 2d

Dist. Montgomery No. 14398, 1995 Ohio App. LEXIS 4105, *4 (Sept. 20, 1995). An imperfect

grasp of the English language may be sufficient as long as the defendant has the ability to

understand and communicate in English. Id.

       {¶10} The defendant moving for a postsentence withdrawal of a guilty plea has the

burden of establishing the existence of a manifest injustice. Smith at paragraph one of the

syllabus. Preciado failed to meet this burden. His affidavit, attached to his motion to vacate,

stated only that “[n]o interpreter was present, my lawyer did not speak Spanish.” Notably,

Preciado did not aver that he had trouble communicating with his lawyer or understanding the

proceedings, nor that he required an interpreter or ever asked that an interpreter be appointed.

Absent such averments, Preciado’s bare assertions do not demonstrate that the trial court abused

its discretion in not appointing an interpreter. As stated above, in reaching a decision on a

postsentence motion to vacate a plea, a trial court has discretion to determine the “good faith,

credibility and weight of the movant’s assertions * * *.” Smith at paragraph two of the syllabus.
 In the absence of any averment that he could not understand the proceedings without an

interpreter, Preciado’s affidavit does not demonstrate that a manifest injustice occurred.

        {¶11} 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, 2001-Ohio-3993, 773 N.E.2d 522, ¶ 14, quoting Smith at paragraph

three of the syllabus. Here, Preciado waited over 20 years after his plea, and nearly four years

after he was advised of immigration proceedings, to file his motion to vacate. The lengthy delay

casts serious doubt on Preciado’s claim that his plea was not knowingly and intelligently made,

and suggests that the motion was made only in an effort to avoid the immigration consequences

of his plea.

        {¶12} Furthermore, in the absence of a transcript to support the motion to vacate, the

trial court was permitted to presume that Preciado had no impairment that would have required

the appointment of an interpreter at the plea hearing if, indeed, one was not appointed. See State

v. Gilmore, 8th Dist. Cuyahoga No. 97844, 2012-Ohio-2216, ¶ 9. Likewise, we are unable to

review the trial court’s discretionary decision not to appoint an interpreter and must presume

regularity in the trial court’s proceedings. Id., citing Knapp v. Edwards Laboratories, 61 Ohio

St.2d 197, 400 N.E.2d 384 (1980).

        {¶13} Because Preciado failed to meet his burden of demonstrating a manifest injustice,

the trial court did not abuse its discretion in denying the motion to vacate. The first assignment

of error is overruled.

B.      Ineffective Assistance of Counsel
       {¶14} In his second assignment of error, Preciado contends that his trial counsel was

ineffective for failing to request an interpreter, warn him of the immigration consequences of his

plea, and advise him of his right to consult with Mexican consular officials. Preciado contends

that such failures on the part of counsel created a manifest injustice such that the trial court erred

in denying his motion to vacate his plea.

       {¶15} To prevail on an ineffective assistance of counsel claim, a defendant must show

both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668,

687, 14 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶16} In State v. Bains, 8th Dist. Cuyahoga No. 94330, 2010-Ohio-5143, ¶ 25, this court

held that failure to inform a noncitizen that he faces a risk of deportation can satisfy the first

prong of the Strickland analysis. Nevertheless, a defendant alleging ineffective assistance of

counsel must still demonstrate prejudice as a result. Id. Preciado’s affidavit claimed that he

would “never” have pleaded guilty to the misdemeanor charge had he been properly advised by

the court and counsel, and “would have exercised my right to trial.”

       {¶17} We find Preciado’s claims that he would not have pleaded guilty and would have

gone to trial had he known the consequences of pleading guilty unpersuasive to demonstrate a

prejudice suffered. Even if this court were to accept in the absence of a transcript of the plea

hearing that Preciado’s counsel should have done more to advise him of the ramifications of a

guilty plea, Preciado fails to demonstrate that but for his counsel’s failure to properly advise him,

he would have prevailed against the charges at trial. Accordingly, he has not demonstrated that

he was prejudiced by his counsel’s performance. State v. Huang, 8th Dist. Cuyahoga No.

99945, 2014-Ohio-1511, ¶ 14 (defendant’s assertion that he would not have pleaded guilty but

would have gone to trial if counsel had advised him of the immigration consequences of his plea
not sufficient to demonstrate prejudice for ineffective assistance of counsel claim where

defendant failed to demonstrate he would have prevailed at trial).

        {¶18} Likewise, Preciado’s motion was untimely. As discussed below, Preciado was

advised of deportation proceedings in September 2010, yet waited until March 2014 to file his

motion to withdraw. Under these circumstances, he cannot demonstrate the prejudice necessary

to prevail on an ineffective assistance of counsel claim. Bains at ¶ 29; Huang at ¶ 16.

        {¶19} The second assignment of error is overruled.

C.      R.C. 2943.031 Advisement

        {¶20}   R.C. 2943.031(A) provides that prior to accepting a guilty plea from a

non-citizen, the court shall advise the defendant of potentially adverse affects a criminal

conviction may have on the individual’s citizenship status. In his third assignment of error,

Preciado contends that the trial court erred in denying his motion to vacate his plea and

conviction because the trial court did not advise him at the plea hearing, as required by R.C.

2943.031, of the possible immigration consequences of his plea.

        {¶21} 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. Lovano, 8th Dist. Cuyahoga No. 100578, 2014-Ohio-3418, ¶ 7. Here, it is

undisputed that no transcript of the plea hearing is available and that no other evidence exists to

prove that the court gave the advisement. Accordingly, in considering Preciado’s motion to

vacate his plea, the trial court was obliged to presume that the advisement was not given. Id. at

¶ 10.

        {¶22} Withdrawal of a guilty plea is not automatic, however, simply because the court

failed to give the R.C. 2943.031(A) advisement. Id. at ¶ 8. The decision to set aside a
judgment of conviction and allow the defendant to withdraw a guilty plea is committed to the

sound discretion of the court. Id., citing State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894,

820 N.E.2d 355, ¶ 32. As this court stated in Lovano, the Ohio Supreme Court has held that:

       [t]he court is allowed to take into account “many factors” when considering
       whether to grant a motion to withdraw a guilty plea based on the court’s failure to
       give the R.C. 2943.031(A) advisement. Francis at ¶ 36. Although the Ohio
       Supreme Court did not list what 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.” Id. at ¶ 42.

Lovano at ¶8.
      {¶23} This court has recognized that 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.” Id. at ¶ 13. “[S]ubsumed within timeliness is the

prejudice to the state in terms of stale evidence and unavailability of witnesses.” Id.

       {¶24} Preciado’s motion to withdraw his guilty plea was untimely for two reasons.

First, he waited over 20 years after his plea, and more than three years after receiving notice

concerning deportation proceedings, to file his motion, even though he was advised in September

2010 that a deportation-removal hearing was scheduled for December 2010. Commencement of

deportation proceedings alone was enough to put Preciado on notice that his legal issues were

affecting his ability to remain in the United States, and “that he must act with alacrity” to protect

that privilege. Huang, 8th Dist. Cuyahoga No. 99945, 2014-Ohio-1511 at ¶16; Lovano, 8th

Dist. Cuyahoga No. 100578, 2014-Ohio-3418 at ¶ 15.

       {¶25} Preciado argues that his motion was not filed sooner because he was not made

aware until recently that his conviction would have deportation consequences, and that the trial

court should have held a hearing on his motion so that he could have explained the reason for his

untimely filing. Preciado gave no explanation for his untimely filing in his motion, however,
and made no averment in the affidavit attached to the motion that he had only recently learned

about the immigration consequences of his plea. Hence, there is no evidence in the record to

support this assertion. State v. Villafuerte, 8th Dist. Cuyahoga No. 90367, 2008-Ohio-5587, ¶

17. A trial court’s decision to deny a motion to withdraw a guilty plea without a hearing is

granted deference. Richmond Hts. v. McEllen, 8th Dist. Cuyahoga No. 99281, 2013-Ohio-3151,

¶ 9. Without any explanation for the untimely filing, the trial court did not abuse its discretion

in denying the motion without a hearing.

       {¶26} Preciado’s motion was also untimely because his 20-year delay in seeking to

withdraw his guilty plea has severely prejudiced the state’s ability to proceed with a prosecution.

As the Ohio Supreme Court stated in Francis,

       The more time that passes between the defendant’s plea and the filing of the
       motion to withdraw it, the more probable it is that evidence will become stale and
       that witnesses will be unavailable. The state has an interest in maintaining the
       finality of a conviction that has been considered a closed case for a long period of
       time. It is certainly reasonable to require a criminal defendant who seeks to
       withdraw a plea to do so in a timely fashion rather than delaying for an
       unreasonable length of time.

Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355 at ¶ 41.

       {¶27} Allowing Preciado to withdraw his 20-year-old plea would prejudice the state’s

ability to prosecute the original charges, and impose on it an unreasonable obligation to maintain

evidence and witness lists on all cases, ad infinitum. State v. Suleiman, 8th Dist. Cuyahoga No.

83915, 2004-Ohio-4487, ¶ 13.       Accordingly, the trial court did not abuse its discretion in

denying Preciado’s untimely motion to vacate his guilty plea. The third assignment of error is

overruled.

       {¶28} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.
       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

FRANK D. CELEBREZZE, JR., A.J., and
MELODY J. STEWART, J., CONCUR
