from Tiffin-Fostoria Municipal Court Trial Court No. CRB
L. Doughten for Appellant.
Charles R. Hall, Jr. for Appellee.
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.
and Procedural History
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,
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,
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.
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.
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.
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).
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
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
(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."
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.
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.
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,
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.
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).
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 ...