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State v. Garcia

December 9, 2008

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
GUILLERMO D. GARCIA, DEFENDANT-APPELLANT.



APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 87CR-02-566).

The opinion of the court was delivered by: Bryant, J.

(REGULAR CALENDAR)

OPINION

{¶1} Defendant-appellant, Guillermo D. Garcia, appeals from a judgment of the Franklin County Court of Common Pleas denying his motion to withdraw his guilty plea. Defendant assigns a single error:

THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO WITHDRAW GUILTY PLEA THEREBY DEPRIVING HIM OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.

Because the trial court did not abuse its discretion in denying defendant's motion to withdraw his guilty plea, we affirm.

{¶2} By indictment filed February 23, 1987, defendant was charged with one count of aggravated trafficking in violation of R.C. 2925.03, a second-degree felony. According to the indictment, defendant possessed cocaine in an amount equal to or exceeding three times the bulk amount.

{¶3} After filing a number of pretrial motions, defendant on May 4, 1987 appeared in court with local and New York counsel to enter a plea, pursuant to a plea agreement with the state, to the stipulated lesser-included offense of aggravated trafficking in violation of R.C. 2925.03(A)(4) and (B)(4), a felony of the third degree. The trial court conducted a Crim.R. 11 colloquy with defendant, accepted defendant's plea, and pursuant to defense counsel's request continued the sentencing hearing.

{¶4} At the hearing on May 28, 1987 sentencing hearing, the trial court sentenced defendant to 18 months determinate actual time plus a fine of $3,000. At the same time the court recommended non-deportation. The court journalized the plea and sentence in an entry filed June 1, 1987, but filed an amended entry July 20, 1987 specifying to whom the fine proceeds would be distributed. Approximately two months later, defendant pro se filed a motion to suspend sentence. The trial court overruled the motion on November 30, 1987.

{¶5} On January 15, 2008, defendant filed a motion to withdraw his guilty plea, asserting the plea was not entered knowingly, intelligently, and voluntarily. Specifically, defendant contended he was not advised of the possible deportation consequences of his guilty plea. Following the state's response, the trial court filed an entry on February 28, 2008, denying defendant's motion. Defendant appeals, asserting the trial court abused its discretion in overruling his motion to withdraw his guilty plea.

{¶6} Defendant contends that "[b]efore a court accepts a non-citizen defendant's guilty plea, the warnings set forth in R.C. 2943.031(A) must be given, informing him that a conviction could lead to deportation, exclusion from admission to the United States, or denial of naturalization." (Defendant's brief, 2, citing State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894.) Noting he was not told his guilty plea could adversely affect his status in the United States, defendant contends the plea violates R.C. 2943.031(A).

I. R.C. 2943.031

{¶7} Effective October 2, 1989, R.C. 2943.031 provides that "prior to accepting a plea of guilty or a plea of no contest to an indictment, information, or complaint charging a felony * * * the court shall address the defendant personally, provide the following advisement to the defendant * * * and determine that the defendant understands the advisement." The statutorily provided advisement states that "[i]f 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." R.C. 2943.031(A).

{ΒΆ8} If, after the effective date of the section, the trial court fails "to provide the defendant the advisement described" in R.C. 2943.031(A), the statute requires the trial court, on motion of defendant, to "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." R.C. 2943.031(D). The statute sets forth the conditions to be met to warrant withdrawal of a guilty plea under R.C. 2943.031: the advisement is required, the defendant shows he is not a citizen of the United States, and the defendant shows the conviction of the offense to which he pleaded ...


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