State v. Panda , 2020 Ohio 3040 ( 2020 )

[Cite as State v. Panda, 2020-Ohio-3040.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
DEBASMITA PANDA, : Case No. 20-COA-001
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County
Court of Common Pleas, Case No.
18-CRI-076
JUDGMENT: Reversed, Vacated and Remanded
DATE OF JUDGMENT: May 19, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL RHYS B. CARTWRIGHT-JONES
Ashland County 42 N. Phelps St.
Prosecuting Attorney Youngstown, Ohio 44503-1130
By: COLE F. OBERLI
Assistant Prosecuting Attorney
110 Cottage Street
Ashland, Ohio 44805
Ashland County, Case No. 20-COA-001 2
Baldwin, J.
{¶1} Debasmita Panda appeals the decision of the Ashland County Court of
Common Pleas denying her request to withdraw her guilty plea. Appellee is the State of
Ohio.
STATEMENT OF FACTS AND THE CASE
{¶2} Appellant, Debasmita Panda, appeared with counsel in the Ashland County
Court of Common Pleas to enter a change of plea to one count of forgery in violation of
2913.31(A)(3). A second count of forgery was dismissed by the appellee. The facts
leading to the arrest and indictment of Panda are not relevant to the resolution of this
appeal and are therefore omitted.
{¶3} Panda is not a citizen of the United States and that fact triggered an
obligation of the trial court to explore her understanding of the consequences of a guilty
plea that are unique to a non-citizen. Revised Code Section 2943.031(A) describes the
duty of the trial court upon discovering a defendant entering a plea is not a citizen:
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:
Ashland County, Case No. 20-COA-001 3
“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.”
{¶4} The trial court discovered Panda's non-citizenship and engaged in the
following exchange:
THE COURT Ms. Panda, are you a United States Citizen?
MS. PANDA: No, Your Honor.
THE COURT: So do you understand that by entering a plea of guilty to that
charge, you stand the possibility of being deported from the United States
at some point and not being permitted to return to the United States? Do
you understand that is one of the results of being found guilty of a felony?
You need to answer out loud because we are making an audio recording of
this.
MS. PANDA: Yes, Your Honor.
THE COURT: Okay, and you discussed that with Attorney Mayer?
MS. PANDA: Yes, Your Honor.
MR. MAYER: If I may Judge.
THE COURT: Yes.
MR. MAYER: I can confirm that those discussions have occurred from the
outside of the representation, and in fact, the Court did grant a continuance
from the previously scheduled jury trial so as to allow further discussion as
Ashland County, Case No. 20-COA-001 4
to that. There has also been discussions with an immigration attorney as
well to discuss some of the potential consequences, and so she appreciates
the opportunity that you gave her to continue looking into that.
THE COURT: So you are fully advised and aware of the potential
immigration issues.
MS. PANDA: Yes, Your Honor.
Change of Plea Hearing Transcript, Sep. 19, 2018, p. 4, lines 22 to p. 6, line 7.
{¶5} Panda's change of plea was accepted and she was sentenced on
November 5, 2018 to ninety days of house arrest, a $250.00 fine, court costs and two
years’ probation. Panda has paid the fine and costs, served house arrest and the trial
court ordered probation successfully terminated on October 22, 2019.
{¶6} Panda filed a motion to vacate her guilty plea on December 4, 2019 arguing
that the trial court failed to fulfill its obligation under R.C. 2943.031 by not advising her
that a guilty plea may prevent her from becoming a naturalized citizen. She also alleged
that she received ineffective assistance of counsel because her trial counsel failed to
advise her of her plea’s impact on her ability to become a naturalized citizen. The trial
court denied the motion holding that "the Defendant was fully advised of the potential
immigration consequences of her plea and was afforded additional time to consult
specifically with an immigration attorney to fully investigate the potential consequences
of a plea. The Court finds that the Defendant’s plea was knowingly, voluntarily and
intelligently entered." Entry, Dec. 24, 2019.
{¶7} Panda filed a notice of appeal and submitted one assignment of error:
Ashland County, Case No. 20-COA-001 5
{¶8} “I. THE TRIAL COURT ERRED IN DENYING PANDA'S MOTION TO
VACATE HER GUILTY PLEA.”
{¶9} Though Panda offered only one assignment of error, she contends the error
arose from two different causes—the failure of the trial court to comply with the
requirements of R.C. 2943.031 and ineffective assistance of counsel.
STANDARD OF REVIEW
{¶10} Revised Code 2943.031 and Crim.R. 32.1 are the basis for Panda’s motion
for relief and while post-sentence motions filed under Crim.R. 32.1 are subject to the
manifest injustice standard, that requirement is not applicable when the appellant claims
a violation of R.C. 2943.031. State v. Oluoch, 10th Dist. Franklin No. 07AP-45, 2007-
Ohio-5560, ¶9. “R.C. 2943.031(D)’s explicit language mandates that a trial court set aside
a judgment of conviction and allow a defendant to withdraw his guilty plea if the defendant
satisfies four requirements. Showing manifest injustice is not included as one of the
requirements.” State v. Weber, 125 Ohio App.3d 120, 129,707 N.E.2d 1178 (10th Dist.
1997).
{¶11} Appellant must instead show that “(1) the court failed to provide the
defendant with the advisement contained in R.C. 2943.031(A); (2) the advisement was
required; (3) the defendant is not a United States citizen; and (4) the offense to which the
defendant pled guilty may result in the defendant being subject to deportation, exclusion,
or denial of naturalization under federal immigration laws. Id. at 126.
{¶12} The trial court’s decision regarding whether the elements have been
established is reviewed under an abuse of discretion standard.
Ashland County, Case No. 20-COA-001 6
To clarify, the exercise of discretion “applies to the trial court's
decision on whether the R.C. 2943.031(D) elements have been established
(along with the factors of timeliness and prejudice * * *), not generally to the
trial court's discretion once the statutory provisions have been met.” Id. at ¶
34, 820 N.E.2d 355. “[A] defendant seeking relief under R.C. 2943.031(D)
must make his or her case before the trial court under the terms of that
statute, * * * the trial court must exercise its discretion in determining
whether the statutory conditions are met, and * * * an appellate court
reviews a trial court's decision on the motion under an abuse-of-discretion
standard in light of R.C. 2943.031(D). Id. at ¶ 36, 820 N.E.2d 355.
State v. Muhumed, 10th Dist. Franklin No. 11AP-1001, 2012-Ohio-6155, ¶¶ 8-10.
{¶13} Panda also contends that her trial counsel rendered ineffective assistance
by failing to inform her of the consequences of a finding of guilt. The Supreme Court of
Ohio recently issued an opinion regarding an analogous fact pattern and addressed the
appropriate standard to apply to a claim of ineffective assistance of counsel in this context:
The Sixth Amendment to the United States Constitution guarantees
a defendant the effective assistance of counsel at “‘critical stages of a
criminal proceeding,’ including when he enters a guilty plea.” Lee v. United
States, ––– U.S. ––––, 137 S.Ct. 1958, 1964, 198 L.Ed.2d 476 (2017),
quoting Lafler v. Cooper, 566 U.S. 156, 165, 132 S.Ct. 1376, 182 L.Ed.2d
398 (2012); Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203(1985). When a defendant alleges ineffective assistance of counsel arising
from the plea process, the defendant must meet the two-prong test set out
Ashland County, Case No. 20-COA-001 7
in Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See Hill at 58,
106 S.Ct. 366 (applying Strickland to guilty pleas); State v. Xie, 62 Ohio
St.3d 521, 524, 584 N.E.2d 715 (1992) (same).
First, the defendant must show that counsel's performance was
deficient. Strickland at 687, 104 S.Ct. 2052; Xie at 524, 584 N.E.2d 715.
When an attorney's noncitizen client is considering a plea, the United States
Supreme Court has held that “counsel must inform her client whether his
plea carries a risk of deportation.” Padilla, 559 U.S. at 374, 130 S.Ct. 1473,
176 L.Ed.2d 284. Given the grave consequences of deportation, an
ineffective-assistance claim is not limited to affirmative misadvice or false
information. Id. at 369-371, 130 S.Ct. 1473. The failure to give any advice
at all about possible deportation consequences satisfies the first prong of
Strickland. Id. “The severity of deportation * * * only underscores how critical
it is for counsel to inform her noncitizen client that he faces a risk of
deportation.” Id. at 373-374, 130 S.Ct. 1473.
Second, the defendant must demonstrate prejudice resulting from
counsel's deficient performance. Strickland at 687, 104 S.Ct. 2052. The
defendant can show prejudice by demonstrating a “reasonable probability
that, but for counsel's errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill at 59, 106 S.Ct. 366; Xie at 524, 584
N.E.2d 715.
State v. Romero, 156 Ohio St.3d 468, 2019-Ohio-1839, 129 N.E.3d 404 (2019) ¶¶15-16.
Ashland County, Case No. 20-COA-001 8
ANALYSIS
{¶14} The Supreme Court of Ohio requires that any motion seeking relief under
R.C. 2943.031 be timely. State v. Khan, 2nd Dist. Montgomery No. 21718, 2007-Ohio-
4208, ¶ 31. In the case before us, the issue of timeliness is not addressed by the trial
court, nor is it asserted as a fault by appellee in its brief, so we consider that issue waived.
{¶15} Revised Code R.C. 2943.031(A) describes the duty of the trial court to
provide the warning therein as a mandatory obligation by the use of the word “shall” most
often used to designate a clear requirement. The Code requires that “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.” Id. (Emphasis added.) Further, the language of the advisement is
separately set out, in quotation marks, suggesting that the Legislature intended the trial
courts to provide a verbatim recitation of that language, though section of the Code does
not expressly include that requirement.
{¶16} The Supreme Court of Ohio addressed the requirement of a verbatim
recitation in State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355. In
the first paragraph of the syllabus, the Court held that a verbatim recital is required:
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.”
Ashland County, Case No. 20-COA-001 9
{¶17} A failure to provide a verbatim recitation of the warning need not be
fatal, as the Supreme Court of Ohio noted in the second paragraph of the Francis
syllabus:
If some warning of immigration-related consequences was given at
the time a noncitizen defendant's plea was accepted, but the warning was
not a verbatim recital of the language in R.C. 2943.031(A), a trial court
considering the defendant's motion to withdraw the plea under R.C.
2943.031(D) must exercise its discretion in determining whether the trial
court that accepted the plea substantially complied with R.C. 2943.031(A).
{¶18} The Court defined “substantial compliance” as meaning “that under the
totality of the circumstances the defendant subjectively understands the implications of
his plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d
474 (1990). The Supreme Court of Ohio referenced State v. Malcolm (2001), 257 Conn.
653, 778 A.2d 134, in support of its holding that substantial compliance is sufficient to
satisfy the requirement of the Revised Code. While that Court did find that substantial
compliance was sufficient, the statute at issue in that case is worded differently than R.C.
2943.031 and does not contain a mandatory advisement but only requires that the trial
court “shall not accept a plea of guilty or nolo contendere from any defendant in any
criminal proceeding unless the court first addresses the defendant personally and
determines that the defendant fully understands” the potential consequences of his plea.
Conn.Gen.Stat.Ann. 54-1j. Chief Justice Moyer and Justice Pfeiffer dissented in Francis
and noted that the unambiguous requirement of the statute was a verbatim recitation of
the advisement. Nevertheless, we are bound to comply with the holding in Francis and
Ashland County, Case No. 20-COA-001 10
determine whether the trial court “substantially complied” with the requirements of R.C.
2943.031 when it failed to provide a verbatim recitation.
{¶19} The trial court did not comply with the first paragraph of the syllabus of
Francis, supra, because it failed to “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.” We
must next review whether the trial substantially complied with the mandate of R.C.
2943.031(A).
{¶20} We conclude that the trial court did not substantially comply with R.C.
2943.031(A) because it failed to describe the plea’s potential impact on Panda’s ability to
become a naturalized citizen. We agree with the Second District Court of Appeals when
it determined that:
The trial court failed to advise Defendant that his guilty plea might
result in exclusion from admission to the United States, or denial of
naturalization. Thus, in advising Defendant about the possible adverse
immigration consequences of his guilty plea the trial court failed to even
mention two out of the three separate, distinct consequences set forth in
R.C. 2943.031(A). In our view, that does not constitute substantial
compliance with R.C. 2943.031(A). See: State v. Zuniga, Lake App.
Nos.2003-P-0082, 2004-P-0002, 2005-Ohio-2078.
State v. Hernandez-Medina, 2nd Dist. Clark No. 06CA0131, 2008-Ohio-418, ¶ 30.
Ashland County, Case No. 20-COA-001 11
{¶21} We find that appellant could not subjectively understand the rights she was
waiving when she was not fully advised of the rights that may be impacted by a finding of
guilty. Our conclusion is buttressed by the first paragraph in the syllabus in Francis
mandating a verbatim recitation of the advisement in R.C. 2943.031 which leads us to
conclude that the second paragraph, which permits substantial compliance, requires
advisement of all three consequences described within that section of the Revised Code.
The Legislature determined all three issues were of such significant import that it included
specific language for the trial court’s use when advising defendants. The trial court in the
case below failed to substantially comply because it did not address the possible
consequence of denial of naturalization. Concluding that a trial court substantially
complied with the requirement of the Code without any mention of one of the
consequences is tantamount to changing the language of the statute and we are not
willing to adopt such an interpretation. Our conclusion is indirectly supported by the
decision in State v. Sow, 10th Dist. Franklin No. 17AP-772, 2018-Ohio-4186, ¶ 17 where
the Tenth District Court of Appeals held that the trial court substantially complied with
statutory requirements by informing defendant of the three possible consequences of
deportation, exclusion from admission and denial of naturalization, but did not provide a
verbatim recital of the advisement.
{¶22} We hold that the trial court abused its discretion by finding that it
substantially complied with the requirements of R.C. 2943.031. The trial court did not
provide a verbatim recitation and failed to include one of the potential consequences of a
guilty finding. Panda admitted she was not a citizen, so the advisement was necessary
and neither the trial court nor appellee argue to the contrary. Because there was not
Ashland County, Case No. 20-COA-001 12
substantial compliance with the statutory requirements, the assignment of error is
sustained.
II.
{¶23} Panda also argued the trial court abused its discretion by not concluding
that she had received ineffective assistance of counsel with regard to the immigration
consequences of her plea. Because we have sustained the assignment of error based
upon the omission of a part of the mandatory advisement contained in R.C. 2943.031, we
hold this portion of the argument moot. However, we cannot ignore the fact that the trial
court did not clearly address this issue. The Supreme Court of Ohio concluded that a trial
court abuses its discretion by denying a motion to withdraw his guilty plea in this context
without considering the two-prong test for ineffective assistance of counsel established in
Strickland. State v. Romero, 156 Ohio St.3d 468, 2019-Ohio-1839, 129 N.E.3d 404(2019). If this issue had not been made moot by our decision regarding the impact of
R.C. 2943.031, we would have been compelled to remand the matter to the trial court
under the holding of Romero.
{¶24} Panda has served her sentence and paid fines and costs and her probation
has been terminated, so we sua sponte consider whether this appeal is moot. The issue
of mootness of a criminal case arises only if it is shown that there is no possibility that any
collateral legal consequences will be imposed upon the basis of the challenged
conviction. Cf. St. Pierre v. United States (1943), 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed.
1199; Fiswick v. United States (1946), 329 U.S. 211, 222, 67 S.Ct. 224, 91 L.Ed. 196,
State v. Wilson, 41 Ohio St.2d 236, 237, 325 N.E.2d 236, 237 (Ohio 1975).
Ashland County, Case No. 20-COA-001 13
{¶25} In this matter we find there is a collateral legal consequence, the potential
impact on Panda’s immigration status. Therefore we conclude that the fact that Panda
has served her sentence, paid a fine and court costs does not render the matter moot.
{¶26} The decision of the Ashland County Court of Appeals denying Panda’s
motion to withdraw her guilty plea is reversed, appellant’s conviction is vacated and this
matter is remanded to the Ashland County Court of Common Pleas for further
proceedings consistent with this opinion.
By: Baldwin, J.
Gwin, P.J. and
Wise, Earle, J. concur.