[Cite as State v. Aquino,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99971

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

TOMAS AQUINO DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-462688 and CR-469861

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

RELEASED AND JOURNALIZED: January 16, 2014 APPELLANT PRO SE

Tomas Aquino No. 504-965 Toledo Correctional Institution 2001 East Central Avenue Toledo, Ohio 43608-0033

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Kristen L. Sobieski Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, J.:

{¶1} Defendant-appellant, Tomas Aquino, appeals the trial court’s judgment

denying his post-sentence motion to withdraw his guilty plea. Finding no merit to the

appeal, we affirm the trial court’s decision.

{¶2} In 2005, Aquino was indicted in two separate cases charging him with various

counts of kidnapping and sexually oriented offenses. In May 2006, he entered into a plea

agreement involving both cases and sentencing was scheduled for June 2006. On the day

of sentencing, Aquino, through counsel, orally moved to withdraw his guilty plea on the

basis that he (1) was innocent of the charges, (2) did not enter a knowing, intelligent, and

voluntary plea, and (3) wanted a trial. The trial court denied the oral motion, finding that

Aquino’s plea was valid; the court sentenced Aquino to a total aggregate prison term of

nine years. Aquino did not appeal his convictions or the court’s denial of his motion to

withdraw his plea.

{¶3} In April 2007, Aquino requested leave to file a delayed appeal, which this

court denied. State v. Aquino, 8th Dist. Cuyahoga No. 89767 (May 16, 2007). Aquino’s

discretionary appeal to the Supreme Court of Ohio was not accepted for review. State v.

Aquino,

,

,

.

{¶4} In October 2007, Aquino moved to withdraw his plea pursuant to Crim.R.

32.1, contending that he did not sign the written plea agreement and, therefore, his plea

was invalid. The state opposed the motion arguing, among other things, that although no written plea agreement was entered into, the plea was made in open court. The trial court

denied the motion, and Aquino did not appeal that decision.

{¶5} In March 2011, Aquino again moved to withdraw his plea, contending that he

did not enter a knowing, intelligent, and voluntary plea because he was not advised of all

of his rights prior to entering the plea. Again, the trial court denied Aquino’s motion, and

again, Aquino did not file an appeal.

{¶6} In October 2012, Aquino filed a third motion to withdraw his plea pursuant to

Crim.R. 32.1 and R.C. 2943.03 and 2943.031, contending that (1) the court abused its

discretion in denying his oral presentence motion to withdraw his guilty plea; (2) he is

innocent of the charges against him; (3) he received ineffective assistance of trial counsel

during the plea bargain process and did not voluntarily and intelligently plead guilty

because he relied on the faulty advice of his attorney; (4) he did not speak, read, or

understand English and was not provided an interpreter during the plea bargain process;

and (5) the trial court did not properly advise him that his citizenship could be revoked and

that he could be deported upon entry of the guilty pleas.

{¶7} The trial court denied his motion without explanation or an evidentiary

hearing. It is from this decision that Aquino appeals, contending in his sole assignment

of error that the trial court abused its discretion in denying his motion to withdraw his

guilty plea and for not conducting an evidentiary hearing. {¶8} Aquino moved to withdraw his plea pursuant to Crim.R. 32.1 and R.C.

2943.031. Because these theories of relief require different standards of review and

analysis, we address them separately.

Crim.R. 32.1

{¶9} A Crim.R. 32.1 post-sentence motion to withdraw a guilty plea is subject to a

manifest injustice standard. State v. Xie,

,

(1992).

An appellate court will not reverse a trial court’s denial of a motion to withdraw a plea

absent an abuse of discretion. State v. Caver, 8th Dist. Cuyahoga Nos. 90945 and 90946,

, citing State v. Smith,

,

(1977). An

abuse of discretion implies that the court’s attitude was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore,

,

(1983).

{¶10} “Res judicata prevents repeated attacks on a final judgment and applies to all

issues that were or might have been litigated.” State v. Sneed, 8th Dist. Cuyahoga No.

84964,

, citing State v. Brown, 8th Dist. Cuyahoga No. 84322,

. “‘The doctrine of res judicata is applicable to successive motions to

withdraw a guilty plea under Crim.R. 32.1.’” State v. Muhumed, 10th Dist. Franklin No.

11AP-1001,

, ¶ 13, quoting State v. Tinney, 5th Dist. Richland No. 2011

CA 41,

.

{¶11} In October 2007, Aquino filed his first written motion to withdraw his guilty

plea pursuant to Crim.R. 32.1, contending that he did not sign the written plea agreement and, therefore, his plea was invalid. The trial court denied the motion and Aquino did not

appeal the decision. In March 2011, Aquino again moved to withdraw his guilty plea

pursuant to Crim.R. 32.1 arguing that he did not enter a knowing, intelligent, and

voluntary plea because the trial court failed to advise him of all of his rights. Again, the

trial court denied the motion, and Aquino did not appeal that decision.

{¶12} The issues Aquino raises regarding ineffective assistance of counsel and the

knowing, intelligent, and voluntary nature of his plea are barred by res judicata because

these arguments could have been raised in a direct appeal. Accordingly, the trial court

did not abuse its discretion in denying Aquino’s motion to withdraw his guilty plea

pursuant to Crim.R. 32.1.

R.C. 2943.031

{¶13} 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 motions filed pursuant to R.C. 2943.031(D). State v. Francis,

,

,

, ¶ 26. “R.C. 2943.031(D) requires that a trial

court set aside a judgment of conviction and allow a defendant to withdraw his guilty plea

if the defendant demonstrates: “(1) the court failed to provide the defendant with the

advisement contained in R.C. 2943.031(A); (2) the advisement was required; (3) the

defendant is not a United States citizen; and (4) the offense to which the defendant pled

guilty may result in deportation under the immigration laws of the federal government.” State v. Weber,

,

(10th Dist. 1997), citing R.C.

2943.031(D).

{¶14} The Tenth District addressed the standard of review of a motion to withdraw

a plea filed under R.C. 2943.03(D) in State v. Muhumed, 10th Dist. Franklin No.

11AP-1001,

, ¶ 10:

The same abuse of discretion standard of review applies to the trial court’s decision on a motion filed pursuant to R.C. 2943.031(D). Francis at ¶ 32. 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; see also [State v.] Oluoch, [10th Dist. Franklin No. 07AP-45,

] at ¶ 25. To clarify, the exercise of discretion “applies to the trial court’s decision on whether the R.C. 2943.031(D) elements have been established (along with the factors of timeliness and prejudice * * *), not generally to the trial court’s discretion once the statutory provisions have been met.” Id. at ¶ 34. “[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, * * * the trial court must exercise its discretion in determining whether the statutory conditions are met, and * * * an appellate court reviews a trial court’s decision on the motion under an abuse-of-discretion standard in light of R.C. 2943.031(D).” Id. at ¶ 36.

{¶15} Although Aquino filed prior motions to withdraw his guilty plea, this is the

first time he requested that his plea be withdrawn pursuant to R.C. 2943.031; therefore, his

motion on this basis is not barred by res judicata. Muhumed at ¶ 22 (prior motions to

withdraw guilty plea pursuant to Crim.R. 32.1 that do not raise the issue of the trial court’s

failure to provide the advisement set forth in R.C. 2943.031 for non-citizens as grounds for

the withdrawal will not bar a subsequent motion to withdraw pursuant to R.C. 2943.031.)

{¶16} Although res judicata does not bar Aquino’s motion to withdraw under R.C.

2943.031, we find that he is not entitled to relief because the record demonstrates that the trial court was not required to advise Aquino under R.C. 2943.031(A) that his plea could

affect his status in the United States because Aquino and his counsel both stated that

Aquino was a United States citizen.

{¶17} R.C. 2943.031(A) requires a trial court to specifically advise non-citizen

defendants entering either a guilty or no contest plea that their conviction “may have the

consequences of deportation, exclusion from the admission to the United States, or denial

of naturalization.” However, R.C. 2943.031(B) provides that the advisement is not

required if “[t]he defendant states orally on the record that he is a citizen of the United

States.” R.C. 2943.031(B)(2).

{¶18} In this case, during the plea colloquy, the court advised Aquino that his plea

could have an effect on his “status here.” Aquino responded through his interpreter, “He

say, I understand what you’re saying, but I am an American citizen.” Aquino’s defense

counsel then stated: “He is naturalized.” Accordingly, because Aquino and his defense

counsel indicated that he is a naturalized citizen, the trial court was not required to advise

Aquino of the effect of his plea regarding his status in the United States. The fact that

Aquino is a naturalized citizen is of no consequence. R.C. 2943.031(B)(2) does not

differentiate between naturalized and natural-born American citizens. The rights of

citizenship of the native-born and of the naturalized person are of the same dignity and are

coextensive. Schneider v. Rusk,

,

,

(1964); see

also Luria v. United States,

,

,

(1913) (under the federal constitution, a naturalized citizen stands on an equal footing with the native citizen

in all respects save that of eligibility to the presidency).

{¶19} Accordingly, the trial court did not abuse its discretion in denying

Aquino’s motion to withdraw his guilty plea without conducting an evidentiary hearing

because he is not entitled to relief under R.C. 2943.031. Aquino’s assignment of error is

therefore overruled.

{¶20} 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

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

Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

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