Terrence O’Donnell, Judge.
{¶ 1} Khaldoyn M. Tabbaa appeals from a May 24, 2002 judgment of the common pleas court denying his motion to withdraw a guilty plea he entered in 1990 in connection with a charge of theft, which arose from his failure to return two rented chain saws. On appeal, he contends that at the time of his plea, the court failed to provide a complete advisement to him as required by R.C. 2943.031 regarding immigration and nationality consequences of his guilty plea. We have concluded that Tabbaa’s application to withdraw that plea was not timely, and therefore affirm the judgment of the trial court.
{¶ 2} The record reflects that on June 27,1990, a grand jury indicted Tabbaa, a native of Jordan, for theft, a fourth-degree felony, in connection with his failure to return two chain saws which he had rented from ABC Rental. On October 19, 1990, he pled guilty to this charge, and thereafter, on November 13, 1990, the court sentenced him to a six-month term of imprisonment but suspended it and placed him on probation for one year.
{¶ 3} On December 19, 1990, Tabbaa filed a motion for leave to file a delayed appeal, which our court denied on January 11, 1991, due to his failure to comply with App.R. 5(A). Thereafter, on January 15, 1992, an immigration judge ordered him deported to Jordan; the deportation order, however, did not indicate the basis for that order.
{¶ 4} More than eleven and one-half years later, on May 8, 2002, Tabbaa filed a motion, which, although captioned “Motion for Post-Conviction Relief and to Withdraw Defendant’s Guilty Plea Pursuant to Rule 32.1,” stated that he sought relief afforded by R.C. 2943.031 and, alternatively, Crim.R. 32.1. He supported that motion with a copy of a “Memorandum of Oral Decision of the Executive Office for Immigration Review,” which ordered him deported to Jordan without specifying the basis for that order. The trial court denied his motion for postconviction relief and also denied his Crim.R. 32.1 motion to withdraw his plea. Tabbaa now appeals from that denial. He presents one assignment of error, which states:
{¶ 5} “The trial court erred when it denied appellant’s motion to vacate his guilty plea.”
{¶ 6} Tabbaa maintains that the court should have permitted him to withdraw his guilty plea because he claims the court failed to provide him the advisement required by R.C. 2943.031 when it accepted his guilty plea in 1990. The state argues that the court substantially complied with the statute, that res judicata bars Tabbaa’s challenge to his guilty plea, and that his motion to withdraw was not timely filed. The issue for our review then concerns whether the court erred
or abused its discretion in denying Tabbaa’s motion seeking relief afforded by R.C. 2943.031.
{¶ 7} R.C. 2943.031, effective October 2,1989, provides:
{¶ 8} “(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 * * *, 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.
{¶ 9} “ ‘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} “* * *
{¶ 11} “(D) 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} Here, Tabbaa captioned his motion as a “Motion for Post-Conviction Relief and to Withdraw Defendant’s Guilty Plea Pursuant to Rule 32.1”; a review of the content of the motion indicates, however, that he sought relief not under the postconviction-relief statute, but under R.C. 2943.031 and, alternatively, Crim.R. 32.1, based on the court’s failure to provide the immigration advisement required by R.C. 2943.031. Therefore, we evaluate his claim by both the criteria provided in Crim.R. 32.1 and in R.C. 2943.031.
{¶ 13} The record reflects the following colloquy at Tabbaa’s plea hearing:
{¶ 14} “MR. BOLDT: Your honor, if I may. One other item that may be of importance to the Court. He is here on a school visa, and I advised him fully of his rights.
{¶ 15} “THE COURT: Okay. Yes, sir. Thank you for that.
{¶ 16} “You are not a citizen of the United States?
{¶ 17} “THE DEFENDANT: No, sir.
{¶ 18} “THE COURT: You are visiting here as an alien student, is that it?
{¶ 19} “THE DEFENDANT: Yes, sir.
{¶ 20} “THE COURT: Now, you know that when you enter this plea, you are found guilty, and I will let the Immigration Department know, and they may cancel whatever visa rights you have, and send you back.
{¶ 21} “Now, where are you from, Palestine or—
{¶ 22} “THE DEFENDANT: Jordan.
{¶ 23} “THE COURT: Jordan. By entering this plea, you lose — you stand to lose — I don’t know what they will do. I have no control over them. But, I mean, there is that possibility that they will cancel your visa and send you home. Did you know that?
{¶ 24} “THE DEFENDANT: Yes. Sir.
{¶ 25} “THE COURT: You understand that?
{¶ 26} “THE DEFENDANT: Yes, sir.”
{¶ 27} The advisement provided by the court here falls short of what is prescribed by the statute, because the court only informed Tabbaa that his visa may be revoked and that the Immigration Department may “send [him] back,” without advising him that a conviction may also result in exclusion from admission to the United States or denial of naturalization.
{¶ 28} Although the court failed to provide a complete advisement as required by the statute, we nonetheless conclude that the court acted properly when it denied Tabbaa’s motion to withdraw his plea. We base this determination on the eleven-and-one-half-year delay between his plea and his application seeking to vacate his plea.
{¶ 29} We begin our analysis with the recognition that neither Crim.R. 32.1 nor R.C. 2943.031 expressly prescribes a time limit for an application to withdraw a guilty plea.
{¶ 30} Regarding Crim.R. 32.1, however, although the Supreme Court of Ohio, in
Free access — add to your briefcase to read the full text and ask questions with AI
Terrence O’Donnell, Judge.
{¶ 1} Khaldoyn M. Tabbaa appeals from a May 24, 2002 judgment of the common pleas court denying his motion to withdraw a guilty plea he entered in 1990 in connection with a charge of theft, which arose from his failure to return two rented chain saws. On appeal, he contends that at the time of his plea, the court failed to provide a complete advisement to him as required by R.C. 2943.031 regarding immigration and nationality consequences of his guilty plea. We have concluded that Tabbaa’s application to withdraw that plea was not timely, and therefore affirm the judgment of the trial court.
{¶ 2} The record reflects that on June 27,1990, a grand jury indicted Tabbaa, a native of Jordan, for theft, a fourth-degree felony, in connection with his failure to return two chain saws which he had rented from ABC Rental. On October 19, 1990, he pled guilty to this charge, and thereafter, on November 13, 1990, the court sentenced him to a six-month term of imprisonment but suspended it and placed him on probation for one year.
{¶ 3} On December 19, 1990, Tabbaa filed a motion for leave to file a delayed appeal, which our court denied on January 11, 1991, due to his failure to comply with App.R. 5(A). Thereafter, on January 15, 1992, an immigration judge ordered him deported to Jordan; the deportation order, however, did not indicate the basis for that order.
{¶ 4} More than eleven and one-half years later, on May 8, 2002, Tabbaa filed a motion, which, although captioned “Motion for Post-Conviction Relief and to Withdraw Defendant’s Guilty Plea Pursuant to Rule 32.1,” stated that he sought relief afforded by R.C. 2943.031 and, alternatively, Crim.R. 32.1. He supported that motion with a copy of a “Memorandum of Oral Decision of the Executive Office for Immigration Review,” which ordered him deported to Jordan without specifying the basis for that order. The trial court denied his motion for postconviction relief and also denied his Crim.R. 32.1 motion to withdraw his plea. Tabbaa now appeals from that denial. He presents one assignment of error, which states:
{¶ 5} “The trial court erred when it denied appellant’s motion to vacate his guilty plea.”
{¶ 6} Tabbaa maintains that the court should have permitted him to withdraw his guilty plea because he claims the court failed to provide him the advisement required by R.C. 2943.031 when it accepted his guilty plea in 1990. The state argues that the court substantially complied with the statute, that res judicata bars Tabbaa’s challenge to his guilty plea, and that his motion to withdraw was not timely filed. The issue for our review then concerns whether the court erred
or abused its discretion in denying Tabbaa’s motion seeking relief afforded by R.C. 2943.031.
{¶ 7} R.C. 2943.031, effective October 2,1989, provides:
{¶ 8} “(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 * * *, 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.
{¶ 9} “ ‘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} “* * *
{¶ 11} “(D) 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} Here, Tabbaa captioned his motion as a “Motion for Post-Conviction Relief and to Withdraw Defendant’s Guilty Plea Pursuant to Rule 32.1”; a review of the content of the motion indicates, however, that he sought relief not under the postconviction-relief statute, but under R.C. 2943.031 and, alternatively, Crim.R. 32.1, based on the court’s failure to provide the immigration advisement required by R.C. 2943.031. Therefore, we evaluate his claim by both the criteria provided in Crim.R. 32.1 and in R.C. 2943.031.
{¶ 13} The record reflects the following colloquy at Tabbaa’s plea hearing:
{¶ 14} “MR. BOLDT: Your honor, if I may. One other item that may be of importance to the Court. He is here on a school visa, and I advised him fully of his rights.
{¶ 15} “THE COURT: Okay. Yes, sir. Thank you for that.
{¶ 16} “You are not a citizen of the United States?
{¶ 17} “THE DEFENDANT: No, sir.
{¶ 18} “THE COURT: You are visiting here as an alien student, is that it?
{¶ 19} “THE DEFENDANT: Yes, sir.
{¶ 20} “THE COURT: Now, you know that when you enter this plea, you are found guilty, and I will let the Immigration Department know, and they may cancel whatever visa rights you have, and send you back.
{¶ 21} “Now, where are you from, Palestine or—
{¶ 22} “THE DEFENDANT: Jordan.
{¶ 23} “THE COURT: Jordan. By entering this plea, you lose — you stand to lose — I don’t know what they will do. I have no control over them. But, I mean, there is that possibility that they will cancel your visa and send you home. Did you know that?
{¶ 24} “THE DEFENDANT: Yes. Sir.
{¶ 25} “THE COURT: You understand that?
{¶ 26} “THE DEFENDANT: Yes, sir.”
{¶ 27} The advisement provided by the court here falls short of what is prescribed by the statute, because the court only informed Tabbaa that his visa may be revoked and that the Immigration Department may “send [him] back,” without advising him that a conviction may also result in exclusion from admission to the United States or denial of naturalization.
{¶ 28} Although the court failed to provide a complete advisement as required by the statute, we nonetheless conclude that the court acted properly when it denied Tabbaa’s motion to withdraw his plea. We base this determination on the eleven-and-one-half-year delay between his plea and his application seeking to vacate his plea.
{¶ 29} We begin our analysis with the recognition that neither Crim.R. 32.1 nor R.C. 2943.031 expressly prescribes a time limit for an application to withdraw a guilty plea.
{¶ 30} Regarding Crim.R. 32.1, however, although the Supreme Court of Ohio, in
State v. Bush,
96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522, held that the time limit set forth in the postconviction-relief statutes, R.C. 2953.21 and
2953.23, did not govern procedure under Crim.R. 32.1, it emphasized that “[t]his is not to say that timeliness is not a consideration, however, as an ‘undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the movant and militating against the granting of the motion.’ ” Id. 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522, at ¶ 14, quoting
State v. Smith
(1977), 49 Ohio St.2d 261, 3 O.O.3d 402, 361 N.E.2d 1324, paragraph three of the syllabus.
{¶ 31} Applying the timeliness standard for Crim.R. 32.1 reiterated in
Bush,
therefore, we conclude that the protracted delay in Tabbaa’s Crim.R. 32.1 motion, for which he did not offer any explanation or justification, adversely affected his credibility and militated against the granting of his motion. Therefore, the trial court acted within its discretion in denying it.
{¶ 32} Turning now to a review of Tabbaa’s claim under the procedure prescribed by R.C. 2943.031, we recognize that a time limit is similarly absent. We further recognize that R.C. 2943.031 provides that a court shall permit a defendant to withdraw a guilty plea when the court fails to provide the requisite advisement. However, in construing this statute, where any time limitation for an application is conspicuously absent, we are guided by the principle of statutory construction announced in
State ex rel. Cooper v. Savord
(1950), 153 Ohio St. 367, 41 O.O. 396, 92 N.E.2d 390, where the court stated in paragraph one of the syllabus:
{¶ 33} “The General Assembly will not be presumed to have intended to enact a law producing unreasonable or absurd consequences. It is the duty of the courts, if the language of a statute fairly permits or unless restrained by the clear language thereof, so to construe the statute as to avoid such a result.” See, also,
State v. Parks
(1983), 13 Ohio App.3d 85, 13 OBR 100, 468 N.E.2d 104.
{¶ 34} Similarly, we note that R.C. 1.47(C) provides that it is presumed that a just and reasonable result is intended in the enactment of a statute.
{¶ 35} Here, without any time limitation, a defendant could wait until the state’s evidence against him became stale, or witnesses died, or any other circumstances prejudicial to the state transpired, before seeking to withdraw a guilty plea, thereby imposing, among others, an unreasonable obligation on the state to maintain evidence and witness lists on all cases, ad infinitum. This cannot be within the contemplation of R.C. 2943.031, as we do not presume the General Assembly has intended to enact a law producing such unreasonable or absurd consequences. Therefore, although we recognize that R.C. 2901.04(A) provides that criminal statutes are to be strictly construed against the state and liberally construed in favor of the defendant, just as the Supreme Court of Ohio
grafted a timeliness standard onto Crim.R. 32.1, we are also compelled to read a similar timeliness requirement into R.C. 2943.031.
{¶ 36} Accordingly, because of the eleven-and-one-half-year delay between the occurrence of the alleged cause for withdrawal of his guilty plea, namely, the court’s failure to provide a complete immigration advisement at the 1990 plea hearing, and his application under the procedure of R.C. 2943.031 in 2002, unaccompanied by any explanation for the delay, the court properly denied his motion to withdraw his plea.
{¶ 37} Based on our evaluation of Tabbaa’s claim of defective immigration advisement under the criteria of both Crim.R. 32.1 and R.C. 2943.031, we affirm the judgment of the court.
Judgment affirmed.
Colleen Conway Cooney, P.J., concurs separately.
Diane Karpinski, J., dissents.