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State v. Rai

Court of Appeals of Ohio, Ninth District, Summit

November 22, 2017

STATE OF OHIO Appellee
v.
SUK B. RAI Appellant

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

          JASON LORENZON, Attorney at Law, for Appellant.

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

          DECISION AND JOURNAL ENTRY

          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.

         {¶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 his guilty plea. Mr. Rai contends the consequences ...


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