[Cite as State v. Razo, 2016-Ohio-2763.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                        C.A. No.      15CA010749

          Appellee

          v.                                         APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
RANULFO RAZO                                         COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
          Appellant                                  CASE Nos. 01CR058101
                                                                02CR059992

                                 DECISION AND JOURNAL ENTRY

Dated: May 2, 2016



          SCHAFER, Judge.

          {¶1}   Defendant-Appellant, Ranulfo Razo, appeals the judgment of the Lorain County

Court of Common Pleas denying his Motion to Vacate Guilty Plea. We affirm.

                                                I.

          {¶2}   Razo is a citizen of Mexico. In 2002, Razo pled guilty to two counts of rape in

Case No. 01CR058101. The trial court sentenced Razo to an indefinite term of 11 to 25 years in

prison.

          {¶3}   In 2003, Razo pled guilty to an additional 10 counts of rape in Case No.

02CR059992. The trial court sentenced Razo to an agreed aggregate term of 18 years in prison

and ordered that sentence to be served consecutively with the sentence from the prior case. This

Court affirmed Razo’s convictions in Case No. 02CR059992 on appeal. See State v. Razo, 9th

Dist. Lorain No. 03CA008263, 2004-Ohio-3405, ¶ 13. Thus, Razo will serve between 29 and 43

years in prison on both cases.
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       {¶4}     Since 2003, Razo has repeatedly appealed his criminal convictions. In 2004,

Razo filed a motion to withdraw his guilty pleas in Case No. 02CR059992. The trial court

denied Razo’s motion and this Court affirmed.            See State v. Razo, 9th Dist. Lorain No.

05CA008639, 2005-Ohio-3793, ¶ 22. In 2008, Razo filed a motion for resentencing pursuant to

State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, along with another motion to withdraw his

guilty pleas.   The trial court then resentenced Razo to an aggregate term of 18 years of

incarceration and informed Razo of his post-release control obligations. The trial court also

denied Razo’s successive motion to withdraw his guilty pleas. This Court affirmed the trial

court’s denial of Razo’s successive motion to withdraw his guilty pleas. See State v. Razo, 9th

Dist. Lorain No. 08CA009509, 2009-Ohio-3405, ¶ 17.

       {¶5}     On June 14, 2014, Razo filed a motion to vacate his guilty pleas in Case Nos.

01CR058101 and 02CR059992. In his motion, Razo argued that the trial court did not give the

proper advisement pursuant to R.C. 2943.031(A) for a non-U.S. citizen upon entering his guilty

pleas. The State responded in opposition to Razo’s motion. On February 11, 2015, the trial

court denied Razo’s motion to vacate his guilty pleas.

       {¶6}     Razo filed this timely appeal, raising one assignment of error for our review.

                                                 II.

                                       Assignment of Error

       The trial court erred when it overruled Appellant’s Motion to Vacate Guilty
       Plea without hearing, when at the time of [his] plea the court failed to
       provide the advisement pursuant to O.R.C. Section 2943.031(A) that [he] was
       subject to possible deportation, exclusion from the United States, or denial of
       naturalization[.]

       {¶7}     In his sole assignment of error, Razo argues that the trial court erred by denying

his motion to vacate his guilty pleas. Specifically, Razo contends that at the time that he entered
                                                  3


his guilty pleas, the trial court failed to provide the advisement pursuant to R.C. 2943.031(A)

that his guilty pleas may have consequences of deportation, exclusion from admission to the

United States, or denial of naturalization. We disagree.

       {¶8}    We review a trial court's decision regarding a motion to withdraw a guilty plea on

R.C. 2943.031(D) grounds under an abuse of discretion standard. State v. Francis, 104 Ohio

St.3d 490, 2004-Ohio-6894, ¶ 32. “At the same time,” 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. “[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,” then “the trial court

must exercise its discretion in determining whether the statutory conditions are met[.]” Id. at ¶

36.

       {¶9}    R.C. 2943.031(A) states:

       Except as provided in division (B) of this section, prior to accepting a plea of
       guilty * * *, 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 * * * 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(D) states:


       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
       [October 2, 1989], the court fails to provide the defendant the advisement
                                                 4


        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.”

        {¶10} The Supreme Court of Ohio has held:

        A trial court accepting a guilty or no contest plea from a defendant who is not a
        citizen of the United States must give verbatim the warning set forth in R.C.
        2943.031(A), informing the defendant that conviction of the offense for which the
        plea is entered “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.”

Francis at paragraph one of the syllabus. We have recognized that Francis creates a “substantial

compliance requirement.” State v. Liu, 9th Dist. Summit No. 24112, 2008-Ohio-6793, ¶ 9. The

Court articulated this requirement as follows:

        If some warning of immigration-related consequences was given at the time a
        noncitizen defendant’s plea was accepted, but the warning was not a verbatim
        recital of the language in R.C. 2943.031(A), a trial court considering the
        defendant’s motion to withdraw the plea under R.C. 2943.031(D) must exercise
        its discretion in determining whether the trial court that accepted the plea
        substantially complied with R.C. 2943.031(A).

Francis at paragraph two of the syllabus. The Court also defined “substantial compliance” as

reviewing whether “under the totality of the circumstances the defendant subjectively

understands the implications of his plea and the rights he is waiving. * * * The test is whether the

plea would have otherwise been made.” Id. at ¶ 48, quoting State v. Nero, 56 Ohio St.3d 106,

108 (1990). The Court emphasized, however, that “[t]his specific determination” is merely one

of many factors for the trial court to consider when ruling on a motion to withdraw a guilty plea

pursuant to R.C. 2943.031, id., and also recognized that the timeliness of the motion is a critical

factor, id. at ¶ 40.
                                                 5


       {¶11} Here, we determine that the trial court did not err by denying Razo’s motion to

withdraw his guilty pleas. The trial court’s judgment entry referenced the more than 12-year

delay in Razo’s filing his motion to withdraw his guilty pleas. Specifically, the trial court noted

that because Razo waited so long to file his motion, the transcript of his 2002 plea hearing was

no longer available, as those records were destroyed pursuant to the policies and procedures of

the trial court’s reporters. In his motion to withdraw his guilty pleas, Razo failed to explain why

it took him over a decade to move to withdraw his guilty pleas in Case No. 01CR058101. In the

absence of evidence by Razo demonstrating why a 12-year delay was reasonable in this matter,

we determine that Razo’s motion to withdraw his guilty pleas was untimely and that the trial

court did not err by denying said motion. See Liu at ¶ 11 (concluding that the trial court did not

abuse its discretion by denying defendant’s motion to withdraw a plea where the defendant,

without reason, waited five years before filing his motion.).

       {¶12} Moreover, although the record of the 2002 plea hearing in Case No. 01CR058101

no longer exists, the trial court concluded that R.C. 2943.031(E)’s presumption1 was not

warranted. The trial court reached this conclusion after reviewing the transcript of the plea

hearing in Case No. 02CR059992, which contained the following colloquy:

       Trial court: You are not a United States citizen. You are a citizen of Mexico, is
       that correct?

       Razo: Yes, Your Honor.

       Trial court: Do you understand that once you are released from the penitentiary,
       you could and probably will be deported and returned to Mexico? Do you
       understand?

       Razo: Yes.

       1
         R.C. 2943.031(E) states that “[i]n the absence of a record that the court provided the
advisement described in [R.C. 2943.031(A)] and if the advisement is required by that division,
the defendant shall be presumed not to have received the advisement.”
                                                 6



       Trial court: [Defense counsel], is there anything further that I should advise him?

       Defense counsel: Your Honor, my understanding of the immigration law since, I
       believe, ’96, is that for what they call an aggravated felony, which this would be,
       [deportation] is automatic.

       Trial court: So you will be deported and returned to Mexico. Do you understand?

       Razo: Yes.

       Defense counsel: Right. If he were to return after being deported having
       committed a felony, it carries an automatic 10 years in prison.

       Trial court: Do you understand?

       Razo: Yes.

       Trial court: Have you discussed this matter with your lawyer?

       Razo: Yes.

       Trial court: Do you understand the consequences of this plea today?

       Razo: Yes.

Based upon this exchange, the trial court determined that Razo received an adequate R.C.

2943.031(A) advisement in Case No. 02CR059992 and, thus, Razo knew as of March 27, 2003

that he faced certain deportation from the United States following the conclusion of his prison

sentences. With this knowledge at hand, the trial court found it significant that Razo still elected

to plead guilty to ten counts of rape in Case No. 02CR059992 and proceeded to wait roughly 12

years before filing a motion to withdraw his guilty pleas from Case No. 01CR058101. Based

upon this timeline of events, we cannot conclude that Razo would have entered different pleas in

Case No. 01CR058101 but for the trial court’s alleged failure to issue the R.C. 2943.031(A)

advisement in that case. Accordingly, we determine that the trial court substantially complied
                                                 7


with the dictates of R.C. 2943.031(A) and that the trial court did not abuse its discretion by

denying Razo’s motion to withdraw his guilty pleas.

       {¶13}    Razo’s assignment of error is overruled.

                                                III.

       {¶14} Razo’s sole assignment of error is overruled and the judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT
                                                8


CARR, P. J.
CANNON, J.
CONCUR.

(Cannon, J., of the Eleventh District Court of Appeals, sitting by assignment.)


APPEARANCES:

RICHARD DRUCKER, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
