[Cite as State v. Rai, 2017-Ohio-8655.]


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

STATE OF OHIO                                        C.A. No.       28643

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
SUK B. RAI                                           STOW MUNICIPAL COURT
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   2015 CRB 0760

                                  DECISION AND JOURNAL ENTRY

Dated: November 22, 2017



        CALLAHAN, Judge

        {¶1}     Appellant, Suk Rai, appeals the Stow Municipal Court’s order denying his motion

to withdraw plea. For the reasons set forth below, this Court reverses.

                                                I.

        {¶2}     Mr. Rai asserts that he came to the United States from Bhutan in 2010 and held

the status of permanent resident at the time of his arrest for domestic violence in March 2015.

According to the record, Mr. Rai was arrested for domestic violence against his wife for an

incident that occurred on March 12, 2015. Mr. Rai does not speak English; rather, he speaks

Nepalese. His initial appearance before the court took place on March 16, 2015, and he was held

without bond. A Nepalese interpreter was present in court on March 17, 2015. On that day, Mr.

Rai signed an “Acknowledgment and Waiver of Rights” in which he waived his right to counsel

and acknowledged the possible consequences of his guilty plea because of his non-citizenship.

Mr. Rai then pleaded guilty to the domestic violence charge.
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       {¶3}    On February 28, 2017, Mr. Rai filed a motion to withdraw his guilty plea under

R.C. 2943.031, Crim.R. 32.1, and the Sixth Amendment and requested an “emergency” hearing

because “deportation [was] imminent.” The gist of Mr. Rai’s motion was that the translator was

not effective and he, therefore, did not understand the nature of the proceedings and the

consequences of his guilty plea. Among other things, Mr. Rai asserted that, had he known at the

time of his plea that he was subject to removal from the United States, he never would have

entered his plea. Mr. Rai submitted his own affidavit, as well as affidavits from his wife and

daughter with his motion.

       {¶4}    The trial court denied the motion without a hearing, stating it “specifically

informed the defendant that he had the right to an attorney and that one would be appointed to

represent him if he could not afford one” and “specifically informed the defendant of the

ramifications of the conviction as he was not a citizen.”            The trial court relied on the

“Acknowledgement and Waiver of Rights” form that had been signed by Mr. Rai. In denying

Mr. Rai’s motion, the trial court concluded that Mr. Rai had presented a “distorted view” of what

had occurred in court and that Mr. Rai understood and waived his rights.

       {¶5}     Mr. Rai now appeals, raising five assignments of error for this Court’s review.

This Court addresses the third assignment of error first, as it is dispositive of the appeal.

                                                  II.

                               Assignment of Error Number Three

       THE COURT ERRED BY NOT ENSURING THAT A COMPETENT
       INTERPRETER WAS PRESENT AND, THEREFORE, DID NOT COMPLY
       WITH [R.C.] 2943.031.

       {¶6}    Mr. Rai argues the trial court erred in denying his motion to withdraw his guilty

plea in that it failed to determine that he understood the potential immigration consequences of
                                               3


his guilty plea. Mr. Rai contends the consequences were “never stated to him verbatim in his

mother tongue.”

       {¶7}    Pursuant to R.C. 2943.031(A), except for certain minor misdemeanors,

       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
       consequences of deportation, exclusion from admission to the United States, or
       denial of naturalization pursuant to the laws of the United States.”

If a court fails to provide the advisement, a defendant may move to withdraw his plea and “the

court shall set aside the judgment” if the defendant shows that he is a non-citizen and the

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.” R.C.

2943.031(D).

       {¶8}    The Ohio Supreme Court has found that a trial court accepting a guilty plea from

a non-citizen “must give verbatim the warning set forth in R.C. 2943.031(A).” State v. Francis,

104 Ohio St.3d 490, 2004-Ohio-6894, paragraph one of the syllabus. Nonetheless, the trial

court’s failure to use the verbatim language of the statute does not automatically entitle a

defendant to withdraw his plea.     Id. at ¶ 44-48.    Rather, so long as “some warning of

immigration-related consequences was given,” a court considering a motion to withdraw the plea

under R.C. 2943.031(D) has “discretion in determining whether the trial court that accepted the

plea substantially complied with R.C. 2943.031(A).” Id. at paragraph two of the syllabus.

       {¶9}    “While the standard of review for a post-sentence motion under Crim.R. 32.1 is

subject to the manifest injustice standard, this standard does not apply to plea withdrawal
                                                  4


motions filed pursuant to R.C. 2943.031(D).” State v. Aquino, 8th Dist. Cuyahoga No. 99971,

2014-Ohio-118, ¶ 13, citing Francis at ¶ 26.

        This is because “[t]he 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.”

Mayfield Hts. v. Grigoryan, 8th Dist. Cuyahoga No. 101498, 2015-Ohio-607, ¶ 14, quoting

Francis at ¶ 26. Therefore, R.C. 2943.031(D)’s criteria substitute for the manifest injustice

standard when the section applies. Francis at ¶ 26. “[T]he four specifically mentioned statutory

criteria [are]: (1) the court failed to provide the warning, (2) the warning was required, (3) the

defendant is not a United States citizen, and (4) the conviction ‘may result’ in deportation,

exclusion, or denial of naturalization.” Id. at ¶ 37.

        {¶10} The trial court did not explicitly examine each of these statutory criteria when

denying Mr. Rai’s motion to withdraw his plea.            The court did, however, state that it

“specifically informed the defendant of the ramifications of the conviction as he was not a

citizen.” The trial court further stated that the digitally recorded proceeding had been deleted,

according to court policy.

        {¶11} Ordinarily, App.R. 9(B)(1) places the burden on an appellant to ensure that the

necessary proceedings are transcribed and made part of the record on appeal. App.R. 9(C)

provides a mechanism by which an appellant can provide the record when, as here, a recording

was made but is no longer available.         Here, Mr. Rai did not comply with App.R. 9(C).

Generally, “[i]n the absence of a complete record, this Court is obligated to presume regularity in

the proceedings below.” King v. Carleton, 9th Dist. Lorain No. 13CA010374, 2013-Ohio-5781,

¶ 30.
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       {¶12} However, R.C. 2943.031(E) provides that, “[i]n the absence of a record that the

court provided the advisement described in division (A) of this section and if the advisement is

required by that division, the defendant shall be presumed not to have received the advisement.”

The trial court did not acknowledge this presumption in its decision.

       {¶13} Instead, it relied on the written “Acknowledgement and Waiver of Rights” and the

fact that the initials “SR” were next to the section that advised non-citizens of the consequences

of a guilty or no contest plea in finding that it “specifically informed” Mr. Rai of the

ramifications of his guilty plea. However, the written form alone is not sufficient to rebut the

presumption. See State v. Velazquez, 12th Dist. Butler No. CA2015-05-091, 2016-Ohio-875, ¶

17 (holding “[t]he typewritten advisement form does not constitute a ‘record’ sufficient to rebut

this presumption”); Grigoryan, 2015-Ohio-607, ¶ 4, 19-21, 40 (a signed statement of rights form

in both defendant’s native language and English was not sufficient to rebut the presumption).

The State did not oppose Mr. Rai’s motion or attempt to enter any evidence to defeat this

presumption at the trial court level, nor has the State filed a brief on appeal.

       {¶14} “As the record stands, it is impossible for [this Court] to determine what

advisement, if any, was administered prior to the municipal court’s acceptance of [Mr. Rai’s]

guilty plea” and whether the advisement the court allegedly gave Mr. Rai substantially complied

with R.C. 2943.031(A). See Velazquez at ¶ 17; Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, at

¶ 48. Further, in the absence of a complete record, it is impossible for this Court to determine

what role the court-appointed interpreter played during the proceedings.

       {¶15} Accordingly, Mr. Rai’s third assignment of error is sustained.

                                Assignment of Error Number One

       [THE] TRIAL COURT ERRED BY NOT ENSURING THAT HIS PLEA WAS
       VOLUNTARY, INTELLIGENT[,] AND KNOWINGLY.      APPELLANT’S
                                                6


       EDUCATION AND [THE] TRANSLATOR’S INABILITY IS INSUFFICIENT
       AS A MATTER OF LAW TO PROVIDE APPELLANT WITH [THE]
       KNOWLEDGE NECESSARY TO WAIVE HIS RIGHT TO COUNSEL AND
       TO ENTER A GUILTY PLEA.

                              Assignment of Error Number Two

       THE TRIAL COURT ERRED BY NOT ENSURING THAT A COMPETENT
       INTERPRETER WAS PRESENT AND VIOLATED APPELLANT’S SIXTH
       AMENDMENT RIGHT TO COUNSEL. THE COURT’S FINDING THAT
       APPELLANT UNDERSTOOD THE PROCEEDINGS WAS CLEARLY
       ERRONEOUS[.]

                              Assignment of Error Number Four

       THE COURT ERRED BY NOT COMPLYING WITH OHIO CRIMINAL RULE
       32.1.

                              Assignment of Error Number Five

       THE TRIAL COURT ERRED BY ALLOWING [THE] INTERPRETER TO
       PROVIDE LEGAL ADVICE WHICH APPELLANT RELIED ON.
       APPELLANT’S ASSISTANCE FROM [THE] TRANSLATOR AS DE FACTO
       COUNSEL CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL
       AND A VIOLATION OF APPELLANT’S SIXTH AMEN[DMEN]T RIGHT.
       (Emphasis deleted.)

       {¶16} In light of this Court’s resolution of Mr. Rai’s third assignment of error, this Court

declines to consider his remaining assignments of error. See App.R. 12(A)(1)(c).

                                               III.

       {¶17} Mr. Rai’s third assignment of error is sustained. His first, second, fourth, and

fifth assignments of error are moot. The judgment of the Stow Municipal Court is reversed, and

this matter is remanded for further proceedings consistent with this opinion.

                                                                                  Judgment reversed
                                                                                and cause remanded.




       There were reasonable grounds for this appeal.
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       We order that a special mandate issue out of this Court, directing the Stow Municipal

Court, County of Summit, 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 Appellee.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



SCHAFER, P. J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

JASON LORENZON, Attorney at Law, for Appellant.

GREGORY M. WARD, Attorney at Law, for Appellee.
