State v. Francis

104 Ohio St. 3d 490
CourtOhio Supreme Court
DecidedDecember 22, 2004
DocketNo. 2003-1767
StatusPublished
Cited by197 cases

This text of 104 Ohio St. 3d 490 (State v. Francis) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Francis, 104 Ohio St. 3d 490 (Ohio 2004).

Opinions

Alice Robie Resnick, J.

{¶ 1} This appeal involves R.C. 2943.031, which supplies the language a trial court accepting a plea of guilty or no contest is to use to warn a noncitizen criminal defendant of the possible consequences (deportation, exclusion, or denial of naturalization) of a criminal conviction. Specifically, we consider what standards to apply in ruling on a motion to withdraw a guilty plea based on alleged failure to comply with the statute.

I

Facts and Case History

{¶ 2} Appellant Andrea Marie Francis was indicted in 1993 on one count of theft and one count of trafficking in food stamps. In March 1993, under a plea agreement, she pleaded guilty to grand theft, a fourth-degree felony, and the second count was nolled. The trial court sentenced appellant to one year of incarceration, suspended the sentence, placed appellant on probation, and ordered restitution. Appellant did not appeal and, apparently, satisfactorily completed her probation.

{¶ 3} On August 7, 2002, appellant moved the trial court under R.C. 2943.031 to vacate her guilty plea, basing her motion on the trial court’s alleged failure at the time it accepted her plea to comply with that statute’s requirement to warn her of the possible consequences of a criminal conviction to a noncitizen of the United States. Appellant through her motion claimed that, because of her conviction, she was “statutorily ineligible” to become a United States citizen. She further asserted that the warning was a mandatory requirement for accepting a guilty plea and that, under R.C. 2943.031(D), the trial court now was required to allow her to withdraw her plea because the specific warning had not been given.

{¶ 4} At appellant’s 1993 plea hearing, the following exchange occurred:

{¶ 5} “THE COURT: Where were you born?

{¶ 6} “ * * *

{¶ 7} “THE DEFENDANT: Jamaica.

{¶ 8} “THE COURT: Are you a citizen?

{¶ 9} “THE DEFENDANT: No. I’m trying to become one.

{¶ 10} “THE COURT: Do you understand that if you enter a guilty plea to the felony that it would affect your rights in this country?

{¶ 11} “THE DEFENDANT: Yes.

{¶ 12} “THE COURT: Have you gone over that with your lawyer?

{¶ 13} “THE DEFENDANT: Yes.”

[492]*492{¶ 14} This conversation was the only discussion the trial court had in 1993 with appellant regarding the guilty plea’s effect on her rights as a noncitizen. The trial court did not give the R.C. 2943.031(A) warning verbatim. After this exchange, the trial court explained to appellant the rights she was waiving pursuant to Crim.R. 11 by pleading guilty, received appellant’s acknowledgement that she understood the rights she was waiving, and accepted the plea.

{¶ 15} In December 2002, the trial court denied appellant’s R.C. 2943.031 motion through a journal entry that gave no explanation. The trial court did not hold a hearing on the motion.

{¶ 16} The Eighth District Court of Appeals affirmed, focusing on the fact that appellant had filed her R.C. 2943.031 motion to withdraw her guilty plea more than nine years after she had entered her guilty plea. Following its earlier decision of State v. Tabbaa, 151 Ohio App.3d 353, 2003-Ohio-299, 784 N.E.2d 143, the court of appeals stated that an unreasonable delay in filing an R.C. 2943.031 motion weighs against granting the motion. The court of appeals held that because appellant waited more than nine years to file her motion, it was untimely as a matter of law and was therefore properly denied. In light of its holding on the timeliness of appellant’s motion, the court of appeals declined to consider appellant’s contention that the trial court’s failure to recite verbatim the language of R.C. 2943.031(A) at her 1993 plea hearing entitled her, as a matter of law, to withdraw her plea under R.C. 2943.031(D).

II

R.C. 2943.031

{¶ 17} R.C. 2943.031(A), effective October 2, 1989, sets forth the required warning (referred to as an “advisement”) as follows:

{¶ 18} “(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:

{¶ 19} “ ‘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.’ ”

[493]*493{¶ 20} By the unambiguous terms of R.C. 2943.031, a trial court accepting a guilty or no-contest plea from a defendant who is not a citizen of the United States must give verbatim the warning set forth in R.C. 2943.031(A), informing the defendant that conviction of the offense for which the plea is entered “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.” Furthermore, to ensure compliance with the statute, a trial court accepting a plea should never assume that any defendant is a United States citizen but must give the R.C. 2943.031(A) warning verbatim to every criminal defendant (other than certain defendants pleading to a minor misdemeanor) unless a defendant affirmatively has indicated either in writing or orally on the record that he or she is a citizen of the United States. R.C. 2943.031(B). This practice also precludes a defendant who later reveals that he or she was not a citizen at the time of the plea from invoking R.C. 2943.031(D) as grounds for withdrawing the plea.

{¶ 21} R.C. 2943.031(D) details the consequences of a trial court’s failure to comply with R.C. 2943.031(A):

{¶ 22} “Upon motion of the defendant, the court shall set aside the judgment and permit the defendant to withdraw a plea of guilty * * * and enter a plea of not guilty * * * 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.”

{¶ 23} Furthermore, R.C. 2943.031(E) provides:

{¶ 24} “In the absence of a record that the court provided the advisement described in division (A) of this section and if the advisement is required by that division, the defendant shall be presumed not to have received the advisement.”

{¶ 25} Along with Ohio, at least 17 states and the District of Columbia require through statute or court rule that trial judges advise criminal defendants entering into plea agreements of the immigration-related consequences of the plea. See

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Cite This Page — Counsel Stack

Bluebook (online)
104 Ohio St. 3d 490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-francis-ohio-2004.