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State v. Nardiello

Court of Appeals of Ohio, Third District, Seneca

December 11, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
SHANE A. NARDIELLO, DEFENDANT-APPELLANT.

         Appeal from Tiffin-Fostoria Municipal Court Trial Court No. CRB 1100132

          David L. Doughten for Appellant.

          Charles R. Hall, Jr. for Appellee.

          OPINION

          SHAW, J.

         {¶1} Defendant-appellant Shane A. Nardiello ("Nardiello") appeals the June 15, 2017 judgment of the Tiffin-Fostoria Municipal Court overruling his motion to withdraw his no contest plea. Nardiello assigns as error the trial court's failure to give him the proper advisement pursuant to R.C. 2943.031(A) for a non-citizen prior to entering his no contest plea.

         Facts and Procedural History

         {¶2} Nardiello is a citizen of the United Kingdom, legally residing in the United States. On February 16, 2011, a complaint was filed alleging that, during a traffic stop, Nardiello was found to be in possession of anabolic steroids, in violation of R.C. 4729.51(C)(3), a misdemeanor of the first degree. The record indicates that Nardiello was stopped for speeding in the Village of Republic in Seneca County, Ohio. After he was issued a citation, Nardiello gave law enforcement written consent to search his vehicle. One glass vial of 9.1 grams of Testosterone Propionate was found in the glove compartment along with $6, 000 of cash. Nardiello was issued a copy of the complaint and was summoned to appear before the Tiffin-Fostoria Municipal Court on February 23, 2011.

         {¶3} On February 16, 2011, Nardiello's counsel filed a notice of appearance. Nardiello's counsel also entered a written not guilty plea on his behalf and a waiver of his speedy trial rights. Counsel further requested that a pre-trial be scheduled for the matter. The trial court granted the request and scheduled the first pre-trial in the case for March 23, 2011.

         {¶4} On March 23, 2011, Nardiello's counsel appeared for the first pre-trial. The trial court's journal entry indicates that Nardiello was not present at this pre-trial. The case was continued for a second pre-trial in order for discovery to be completed.

         {¶5} On July 28, 2011, Nardiello appeared in court for a change of plea hearing, where he entered a plea of no contest to the charge alleged in the complaint. The trial court accepted Nardiello's no contest plea and found him guilty. The trial court sentenced Nardiello to a suspended sentence of 30 days in jail, a $250 fine, one-year probation, and a six-month license suspension.

         {¶6} Nearly six years later, on March 20, 2017, Nardiello filed a motion to withdraw his 2011 no contest plea. Nardiello argued that he was entitled to withdraw his no contest plea because the trial court failed to advise him of the possible adverse immigration consequences of his conviction prior to accepting his no contest plea as required by R.C. 2943.031(A). Nardiello attached his own affidavit to the motion claiming that the trial court did not give him the statutory advisement prior to accepting his no contest plea, and further claiming that he had just recently been advised by "immigration attorneys" that his 2011 misdemeanor drug offense would preclude him from obtaining a green card and becoming a citizen of the United States. Nardiello averred that he would not have entered the no contest plea had he known his conviction would jeopardize him obtaining United States citizenship in the future. Nardiello further explained that he was now married to a United States Citizen.

         {¶7} After conducting two hearings, the trial court summarily overruled Nardiello's motion to withdraw his no contest plea in a general "check box" journal entry. Specifically, in the section reading "In addition, the Court orders" the trial court simply wrote "Motion to withdraw plea denied." (Doc. No. 20). However, we note that a review of the transcript from the second hearing held on Nardiello's motion reveals that the trial court concluded that the motion should be overruled based upon the untimeliness of its filing and Nardiello's failure to establish that he had suffered any prejudice-i.e., any actual adverse immigration consequences- as a result of his 2011 misdemeanor conviction. (See Doc. No. 28 at 10).

         {¶8} Nardiello filed this appeal asserting the following assignment of error.

THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING THE APPELLANT'S MOTION TO WITHDRAW FROM AN INVALID PLEA.

Relevant Law: R.C. 2943.031[1]

         {¶9} Section 2943.031(A) of the Revised Code requires a trial court to give the following advisement to defendants entering either a guilty plea or a plea of no contest, unless the defendant indicates that he is a citizen, in accordance with R.C. 2943.031(B):

(A) Except as provided in division (B) of this section, prior to accepting a plea of guilty or a plea of no contest to an indictment, information, or complaint charging a felony or a misdemeanor other than a minor misdemeanor if the defendant previously has not been convicted of or pleaded guilty to a minor misdemeanor, 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 (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."


         {¶10} Section 2943.031(D) of the Revised Code specifies the remedy for a trial court's failure to advise as required under R.C. 2943.031(A). State v. Yuen, 10th Dist. Franklin No. 01AP-1410, 2002-Ohio-5083, ¶ 18. "Under R.C. 2943.031(D), a defendant who has not received the advisement required by R.C. 2943.031(A) may move to set aside the judgment and withdraw his guilty plea. This motion and an appeal from the denial of the motion provide the exclusive remedies for an alleged violation of R.C. 2943.031(A)." State ex rel. White v. Suster, 101 Ohio St.3d 212, 2004-Ohio-719 ¶ 7.

         {¶11} Section 2943.031(D) of the Revised Code reads in relevant part as follows:

Upon motion of the defendant, the court shall 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, if, after the effective date of this section, the court fails to provide the defendant the advisement described in division (A) of this section, the advisement is required by that division, and the defendant shows that he is not a citizen of the United States and 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.


         {¶12} Under R.C. 2943.031(E), the absence of a record showing that the court gave the advisement required by R.C. 2943.031(A) creates a presumption that the advisement was not given. State v. Alonzo, 3d Dist. No. 13-15-26, 2016-Ohio-160, ¶ 15 citing Mayfield Hts. v. Grigoryan, 8th Dist. Cuyahoga No. 101498, 2015-Ohio-607, ¶ 19.

         {¶13} The record establishes that on May 22, 2017, the trial court held a hearing on Nardiello's motion to withdraw his no contest plea. Nardiello's counsel argued that the June 28, 2011 change of plea transcript did not evince that the non- citizen advisement in R.C. 2943.031(A) was given to Nardiello before he entered his no contest plea.

         {¶14} The trial court informed Nardiello's counsel that the R.C. 2943.031(A) non-citizen advisement is "typically done at the arraignment." (Doc. No. 27 at 3). The trial court further explained that "[i]t is generally not done at a change of plea, whether they're a citizen or not a citizen, in particular, Mr. Nardiello, when you have an attorney." (Id. at 4).

         {¶15} Nardiello's counsel inquired further into the trial court's explanation, which appeared to make a distinction regarding the trial court's obligation to give the statutorily mandated advisement based upon whether the defendant was represented by counsel. The trial court reiterated, "It's done at the arraignment for everyone, whether you're a citizen or not. Everybody gets the advisement at the ...


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