[Cite as State v. Tejeda,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96518

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ENGER TEJEDA DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-371948

BEFORE: Celebrezze, P.J., Rocco, J., and Keough, J.

RELEASED AND JOURNALIZED: September 29, 2011 ATTORNEY FOR APPELLANT

Guy D. Rutherford 614 West Superior Avenue Suite 940 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor BY: Kristen L. Sobieski Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113

FRANK D. CELEBREZZE, JR., P.J.:

{¶ 1} Appellant, Enger Tejeda, appeals the denial of his motion to withdraw his

1999 guilty plea to one count of attempted drug possession. He argues that he was not

properly advised of the possible immigration consequences before pleading guilty. After

a thorough review of the record and law, we affirm.

{¶ 2} Appellant immigrated to the United States from the Dominican Republic in

1994. In 1998, he was charged with drug possession, drug trafficking, and possession of

criminal tools — stemming from his arrest with five small bags of heroin. A plea deal

was reached where appellant agreed to plead guilty to one count of attempted possession

of drugs, and the remaining counts would be dismissed. On July 1, 1999, appellant entered his guilty plea before the trial court. After asking appellant what country he was

from and confirming his immigration status, the trial court stated: “Do you know that

you can be deported?” Appellant responded, “[y]eah. The judge tell [sic] me that when

I first got permit [sic].” The trial court then inquired further and asked, “[d]o you still

want to plead guilty?” Appellant responded that he did. The trial court accepted the

plea and sentenced appellant to community control.

{¶ 3} Then, in 2006, appellant was again arrested and charged with drug

possession. He pleaded guilty to drug possession in 2007 and was sentenced to

community control. He received notice of deportation proceedings against him on July

15, 2010.

{¶ 4} Appellant filed a motion to withdraw his 1999 plea arguing that he was

improperly advised of the consequences of his plea and asserting that had he been

properly informed, he would have gone to trial. The state opposed the motion and a

hearing was held. The trial court determined, based on all the facts and circumstances of

the case, that appellant subjectively understood the consequences of his plea and that it

was the second drug conviction that caused him to be subjected to deportation

proceedings, and the motion was denied. Appellant then timely filed the instant appeal.

I. Law and Analysis

{¶ 5} Appellant assigns one error, which states: “The trial court erred in denying

[appellant’s] motion to vacate his criminal plea pursuant to R.C. 2943.031.”

A. Withdrawal of Plea Based on Collateral Immigration Consequences {¶ 6} Before a trial court can accept a plea, Crim.R. 11 directs it to engage a

defendant to ensure that “‘the defendant is making the plea voluntarily,’ understands ‘the

nature of the charges’ and ‘the maximum penalty’ that may ensue, understands ‘the effect

of the plea,’ and understands the rights that he or she is waiving.” State v. Francis,

,

,

, ¶28, quoting Crim.R. 11(C)(2).

{¶ 7} R.C. 2943.031(A) instructs trial courts, prior to accepting pleas from

noncitizens, to advise them of three collateral consequences that may occur as a result of

a conviction of a felony or misdemeanor, other than a minor misdemeanor. It directs the

court to inform the defendant: “‘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.’”

{¶ 8} The statute then goes on to provide a remedy for defective advisements,

stating, “[u]pon motion of the defendant, the court shall set aside the judgment and permit

the defendant to withdraw a plea of guilty * * * and enter a plea of not guilty * * * if * * *

[(1)] the court fails to provide the defendant the advisement * * *, [(2)] the advisement is

required by that division, and [(3)] the defendant shows that he is not a citizen of the

United States and [(4)] 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.” R.C.

2943.031(D).

{¶ 9} The Ohio Supreme Court, in Francis, found this advisement mandatory, but

determined some amount of flexibility was required and held that whether a trial court

fulfilled this duty should be reviewed for substantial compliance.

at paragraph three

of the syllabus. “Substantial compliance denotes that under the totality of the

circumstances the defendant subjectively understands the implications of his plea and the

rights he is waiving. In addition, substantial compliance requires the defendant to show

that prejudice resulted from the lack of compliance. The test of prejudice queries

whether the plea would have been made despite the trial court’s failure to substantially

comply.” (Internal citations omitted.) State v. Zuniga, Lake App. Nos. 2003-P-0082

and 2004-P-0002,

.

{¶ 10} The Francis court further held that this court reviews the decision of the

trial court in granting or accepting a motion to withdraw a plea based on R.C. 2943.031

for an abuse of discretion.

{¶ 11} Appellant’s Crim.R. 32.1 motion to withdraw his plea argues that it was not

made knowingly, intelligently, and voluntarily because of the trial court’s failure to fully

inform him about the possible collateral immigration consequences attendant from a

drug-related conviction.

{¶ 12} Addressing a similar argument, the Francis court specified a number of

factors it used in deciding the issue. These included timeliness, prejudice, whether the movant demonstrated the four requirements for the application of R.C. 2943.031, and the

statements of the trial court. We, therefore, must determine if the trial court abused its

discretion in denying appellant’s motion to withdraw his plea after a full hearing. The

question becomes whether appellant subjectively understood the consequences of his plea

and whether the plea would have otherwise been made. Francis at ¶48.

a. Applicability of Advisement

{¶ 13} Appellant has satisfied the required elements in R.C. 2943.031(D). A

conviction for attempted drug possession is an offense that could lead to removal from

the United States.1 Further, appellant has demonstrated that the advisement given did not

strictly comply with R.C. 2943.031 and that such an advisement was necessary because

he is a noncitizen.

1 8 U.S.C.A. 1227(A)(2)(B)(i) lists a conviction involving a controlled substance as an offense that subjects an alien to removal. It states that “[a]ny alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.” b. Timeliness

{¶ 14} The prejudice suffered by the state faced with the task of presenting a case

against the movant must also be considered because “[t]he 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 at ¶40.

{¶ 15} The state asserts that it would be materially prejudiced by allowing

appellant to withdraw his plea because drugs seized during his arrest have been destroyed

pursuant to department policy. The destruction of the actual drugs in this case does not

preclude conviction, however, because the state still has laboratory records of the quantity

and identity of the substance seized from appellant. During the hearing on appellant’s

motion, the state hesitantly admitted that the laboratory technician who tested the drugs is

likely still available to testify. Therefore, trial is not impossible, although the state’s case

is compromised by a significant passage of time.

{¶ 16} This court and others have held that such delays are not, standing alone,

sufficient grounds to deny a motion based on R.C. 2943.031. See

State v.

Naoum, Cuyahoga App. Nos. 91662 and 91663,

; State v. Abouelhana,

Cuyahoga App. No. 92903,

(a 13-year delay between plea and motion to withdraw did not make the motion untimely); State v. Schlaf, Cuyahoga App. No. 90825,

(an 11-year delay was adequately explained by appellant’s lack of

knowledge of the immigration-related consequences of his plea).

{¶ 17} Appellant did not learn of deportation proceedings against him until shortly

before filing his motion to withdraw his plea in 2010. Therefore, his motion is not

untimely according to prior case law.

c. Prejudice

{¶ 18} Generally, to prevail on a postsentence Crim.R. 32.1 motion to withdraw a

plea, the movant must demonstrate a manifest injustice necessitating withdrawal.

However, when that motion is based on a failure to advise noncitizen defendants about

adverse immigration consequences, movants do not have to show such manifest

injustice, only that they were prejudiced. Francis at ¶26.

{¶ 19} In

this court found that giving two of the three advisements

was not substantial compliance, even though Naoum waited ten years to seek withdrawal

of his plea. However, this court went on to analyze the prejudice to the state and the

movant. Naoum was not informed of the possibility that he could be denied

naturalization, and that is what occurred. When he applied to become a naturalized

citizen, his application was denied based on the prior conviction. Based on all the facts

and circumstances in the case, this court determined that the trial court did not

substantially comply with the mandate in R.C. 2943.031 and that Naoum was prejudiced

by that failure. {¶ 20} Here, appellant received a significant reduction in charges as part of his

plea agreement. The charges were reduced from three felonies to one misdemeanor

charge in exchange for the plea. He was also informed of the fact that deportation

proceedings may result from the plea. It is also doubtful that the removal proceedings

initiated against appellant were brought as a result of this conviction. It was only after

appellant’s second drug conviction in 2007 that removal proceedings against him

commenced. Therefore, appellant has not shown prejudice as a result of the trial court’s

failure to advise him that he could face exclusion from or not be allowed to become a

naturalized citizen of this country.

II. Conclusion

{¶ 21} The prejudice to the state, the significant benefit received by appellant as

part of the plea, and the fact that appellant was not subject to removal proceedings until

he received a second drug-related conviction provides substantial evidence that the trial

court did not abuse its discretion in denying appellant’s motion to withdraw his guilty

plea after a full hearing. The trial court found that appellant was informed of the

possibility of deportation and that those proceedings did not commence until after a

second drug conviction. The trial court did not abuse its discretion in so holding.

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.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

KENNETH A. ROCCO, J., and KATHLEEN ANN KEOUGH, J., CONCUR