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State v. Perry

Court of Appeals of Ohio, Fifth District, Muskingum

July 1, 2019

STATE OF OHIO Plaintiff - Appellee
v.
WENROSS S. PERRY Defendant-Appellant

          Appeal from the Musking County Court of Common Pleas, Case No. CR2017-0179

          For Plaintiff-Appellee D. MICHAEL HADDOX Prosecuting Attorney By: GERALD V. ANDERSON II Assistant Prosecuting Attorney

          For Defendant-Appellee JOSEPH N. PHILLIPS

          JUDGES: Hon. John W. Wise, P.J., Hon. Craig R. Baldwin, J., Hon. Earle E. Wise, J.

          OPINION

          BALDWIN, J.

         {¶1} Wenross S. Perry appeals the decision of the Muskingum County Court of Common Pleas denying his request to withdraw his guilty plea. Appellee is the State of Ohio.

         STATEMENT OF FACTS AND THE CASE

         {¶2} The facts leading to Appellants arrest are unnecessary for the consideration and resolution of the issues before this court and are therefore omitted.

         {¶3} Appellant was charged with possession of drugs with a forfeiture specification, a third degree felony in violation of R.C. 2925.11(A) as well as trafficking in drugs with a forfeiture specification, also a third degree felony in violation of R.C. 2925.03(A)(2).

         {¶4} Appellant entered a plea of not guilty on May 17, 2017, then changed his plea to guilty to one count of violating 2925.03(A)(2), trafficking in drugs, on June 19, 2017. (The violation of R.C. 2925.11(A) was dismissed by the state.) During the plea hearing, the following exchange occurred:

THE COURT: And you understand that you are a resident of the United States but you're not a United States citizen to the point that by entering this plea you could be deported?
THE DEFENDANT: Yes, sir.
THE COURT: You also understand you have a right to contact your consulate and that type of thing, if you need to. You understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And that could also be a possible consequence to you entering the plea. You understand that?
THE DEFENDANT: Yes, sir.
THE COURT: I normally would as at this point in time, are you a U.S. citizen?
THE DEFENDANT: I'm a resident of the United States.

         Plea Hearing, June 19, 2017, pp. 8-10.

         {¶5} Appellant's guilty plea was accepted and he was sentenced to a twelve month prison term, given eighty-three days credit for time served and ordered to forfeit $5, 055.00 that was on his person when he was arrested.

         {¶6} On November 20, 2017, Appellant received a Notice to Appear in Immigration Court. Removal proceedings were initiated as a result of his conviction in this case pursuant to Sections 2327(a)(2)(A)(iii) and 237(a)(2)(B)(i) of the Immigration and Nationality Act.

         {¶7} Appellant filed a motion to withdraw his guilty plea as a result of the initiation of the deportation proceedings. He attached his affidavit containing the following statements:

2. Affiant states that he is a lawful permanent resident of the United States; he is not a United States Citizen.
3. Affiant states that he is a citizen of Jamaica.
4. Affiant states that he pled guilty to one count of Trafficking in Drugs -Marijuana, with a forfeiture specification, in violation of R.C. § 2925.03(A)(2), a third degree felony, in Muskingum County Court of Common Pleas case number CR2017-0179 on June 19, 2017.
5. Affiant states that he was not given any explanation of his rights or the consequences of entering his plea, and further, that he did not understand the consequences of his plea and was not aware that a conviction for the ...

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