State v. Bravo , 2017 Ohio 272 ( 2017 )

[Cite as State v. Bravo, 2017-Ohio-272.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27881
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ROSA SALTOS BRAVO COURT OF COMMON PLEAS
(fka ROSA L. CARDENAS) COUNTY OF SUMMIT, OHIO
CASE No. CR 2004 03 1017
Appellant
DECISION AND JOURNAL ENTRY
Dated: January 25, 2017
CARR, Presiding Judge.
{¶1} Appellant Rosa Bravo (fka Cardenas) appeals her conviction in the Summit
County Court of Common Pleas. This Court affirms.
I.
{¶2} Bravo is an Ecuadorian national, living in the United States of America. In April
2004, Bravo was indicted on one count of tampering with records, one count of possessing
criminal tools, and one count of forgery, all of which implicated the use of a fraudulent social
security card to obtain an Ohio driver’s license. With the assistance of a Spanish interpreter, she
pleaded guilty to the charges of possessing criminal tools and forgery, which were both felonies
of the fifth degree. The State dismissed the records tampering charge. The trial court sentenced
Bravo, who was again assisted by a Spanish interpreter, to two years of community control,
which was to commence on June 29, 2004. The sentencing entry was served on the Immigration
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and Naturalization Service (“INS”). Upon recommendation of the Adult Probation Department,
the trial court terminated Bravo’s community control effective April 7, 2006.
{¶3} In May 2015, Bravo filed a motion to reopen the proceedings and vacate her
conviction. She effectively sought to withdraw her guilty plea on the basis that it was not
knowingly, voluntarily, and intelligently entered because, due in part to the ineffective assistance
of counsel at the plea hearing, she did not understand the immigration ramifications of her plea.
The State opposed the motion. The trial court denied Bravo’s motion without analysis. Bravo
appealed, raising five assignments of error for review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S MOTION
TO WITHDRAW HER GUILTY PLEA AND VACATE HER CONVICTION
PURSUANT TO OHIO CRIMINAL RULE 32.1 AS THE APPELLANT
ESTABLISHED THAT SHE WAS DEPRIVED OF HER RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL[.]
{¶4} Bravo argues that the trial court erred by denying her motion to withdraw her
guilty plea pursuant to Crim.R. 32.1 on the basis that she was denied the effective assistance of
counsel during her change of plea hearing. Bravo argues that trial counsel was ineffective for
failing to advise her of the risk of deportation should she plead guilty. This Court disagrees.
{¶5} In this assignment of error, Bravo does not challenge the trial court’s denial of her
motion to withdraw her guilty plea on the basis of R.C. 2943.031(D) which enunciates the
standard for withdrawal of a plea based on the trial court’s failure to give a noncitizen of the
United States the advisement specified by statute prior to accepting a plea of guilty or no contest.
Instead, she relies on R.C. 2943.031(F) which does not prevent a trial court from allowing a
noncitizen defendant to withdraw her plea pursuant to Crim.R. 32.1, either in lieu of the standard
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enunciated in R.C. 2943.031(D) or in addition to it. Although Bravo’s motion was
predominantly premised on the narrow relief offered pursuant to R.C. 2943.031(D), she did
reference Crim.R. 32.1 very briefly, arguing that she should be permitted to withdraw her plea
because her attorney failed to advise her regarding the immigration consequences of her plea.
“‘Criminal defendants who are not United States citizens are permitted to withdraw a guilty plea
in two distinct ways: (1) upon the finding that they were not given the warning required by R.C.
2943.031(A)(1) (and that the court was not relieved of that requirement under R.C. 2943.031(B))
of the potential consequences to their resident status in the United States when they pled guilty to
criminal charges (among other related requirements contained in R.C. 2943.031(D)), or (2) when
a court finds, pursuant to Crim.R. 32.1, that it is necessary to correct manifest injustice.’” State
v. Cardenas, 2d Dist. Darke No. 2015-CA-16, 2016-Ohio-5537, ¶ 14, quoting State v. Toyloy,
10th Dist. Franklin No. 14AP-463, 2015-Ohio-1618, ¶ 12. To the limited extent that she argued
for relief pursuant to Crim.R. 32.1, this Court addresses her argument.
{¶6} Crim.R. 32.1 provides that a trial court “after sentence may set aside the judgment
of conviction and permit the defendant to withdraw his or her plea” to correct a “manifest
injustice.” Bravo relies on State v. Francis, 104 Ohio St. 3d 490, 2004-Ohio-6894, ¶ 26, for the
proposition that the standard in R.C. 2943.031(D) supplants the requirement that a defendant
must demonstrate “manifest injustice” to justify withdrawal of her plea. While Francis clearly
recognizes that R.C. 2943.031(D) enunciates a distinct standard to allow a noncitizen defendant
to withdraw her plea where a trial court has failed to give the proper statutory advisement, the
statute does not prohibit a noncitizen defendant from seeking to withdraw her plea via the more
conventional standard enunciated in Crim.R. 32.1. Specifically, R.C. 2943.031(F) provides:
“Nothing in this section shall be construed as preventing a court, in the sound exercise of its
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discretion pursuant to Criminal Rule 32.1, from setting aside the judgment of conviction and
permitting a defendant to withdraw his plea.” Accordingly, the statute recognizes two distinct
opportunities, with their respective standards, for a noncitizen defendant to seek to withdraw her
plea.
{¶7} The crux of Bravo’s argument is that her plea was not constitutionally valid
because trial counsel was ineffective for failing to advise her regarding the immigration
ramifications of entering a guilty plea. This Court has held that “‘[a] guilty plea is not voluntary
if it is the result of ineffective assistance of counsel.’” State v. Liu, 9th Dist. Summit No. 24112,
2008-Ohio-6793, ¶ 22, quoting State v. Banks, 9th Dist. Lorain No. 01CA007958, 2002-Ohio-
4858, ¶ 16. “The Sixth Amendment guarantees a criminal defendant the right to the effective
assistance of counsel.” Liu at ¶ 22, citing Banks at ¶ 16.
{¶8} This Court uses a two-step process as set forth in Strickland v. Washington, 466
U.S. 668, 687 (1984), to determine whether a defendant’s right to the effective assistance of
counsel has been violated.
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.
Id.
{¶9} This Court has stated:
When the Strickland test is applied to guilty pleas, the defendant must first show
that counsel’s performance was deficient. State v. Xie, 62 Ohio St. 3d 521, 524
(1992); Strickland, 466 U.S. at 687. Next, the defendant must show that there is a
reasonable probability that but for counsel’s errors, he would not have pleaded
guilty. Xie, 62 Ohio St. 3d at 524, quoting Hill v. Lockhart, 474 U.S. 52, 59
(1985). “[T]he mere fact that, if not for the alleged ineffective assistance, the
defendant would not have entered the guilty plea, is not sufficient to establish the
5
necessary connection between the ineffective assistance and the plea; instead, the
ineffective assistance will only be found to have affected the validity of the plea
when it precluded the defendant from entering the plea knowingly and
voluntarily.” State v. Doak, 7th Dist. Columbiana Nos. 03CO15 and 03CO31,
2004-Ohio-1548, ¶ 55, quoting State v. Whiteman, 11th Dist. Portage No. 2001-P-
0096, 2003-Ohio-2229, ¶ 24.
State v. Gegia, 157 Ohio App. 3d 112, 2004-Ohio-2124, ¶ 17 (9th Dist.).
{¶10} The Ohio Supreme Court has recognized that a court need not analyze both
prongs of the Strickland test, where the issue may be disposed upon consideration of one of the
factors. State v. Bradley, 42 Ohio St. 3d 136, 143 (1989). Specifically,
“[a]lthough we have discussed the performance component of an ineffectiveness
claim prior to the prejudice component, there is no reason for a court deciding an
ineffective assistance claim to approach the inquiry in the same order or even to
address both components of the inquiry if the defendant makes an insufficient
showing in one. In particular, a court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies. The object of an ineffectiveness
claim is not to grade counsel’s performance. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed. Courts should strive to
ensure that ineffectiveness claims not become so burdensome to defense counsel
that the entire criminal justice system suffers as a result.”
Id., quoting Strickland, 466 U.S. at 697.
{¶11} In addressing the first prong of Strickland, the United States Supreme Court held
that an attorney’s performance is deficient when he has failed, at a minimum, to advise a
noncitizen defendant-client that “pending criminal charges may carry a risk of adverse
immigration consequences.” Padilla v. Kentucky, 559 U.S. 356, 369 (2010). Moreover, an
attorney’s performance is deficient when his advice regarding deportation issues which are
readily determinable is incorrect. Id. Later, the United States Supreme Court considered
whether Padilla applied retroactively. Chaidez v. United States, 133 S. Ct. 1103 (2013).
Concluding that Padilla enunciated a new rule, the Chaidez court held that it did not have
6
retroactive effect. Id. at 1105. Accordingly, “defendants whose convictions became final prior
to Padilla therefore cannot benefit from its holding.” Id. at 1113.
{¶12} Bravo premises her ineffective assistance of counsel claim solely on counsel’s
failure to advise her regarding immigration issues arising out of her guilty plea. Because her
conviction became final in 2004, prior to the United States Supreme Court’s opinion in Padilla,
Bravo cannot rely on it to establish counsel’s deficient performance merely because he did not
advise her that there may be adverse immigration consequences if she were to plead guilty.
Chaidez, 133 S. Ct. at 1113. As she failed to allege any other conduct by trial counsel that was
deficient, she had not established the ineffective assistance of counsel. Accordingly, this Court
concludes that the trial court did not err by denying her motion to withdraw her guilty plea
pursuant to Crim.R. 32.1. on the basis of the ineffective assistance of trial counsel.
{¶13} To the extent that Bravo asks that we apply the reasoning and holding in Mezo v.
Holder, 615 F.3d 616 (6th Cir.2010), we decline. Mezo addressed the application of the
equitable tolling doctrine to permit the Board of Immigration Appeals to reopen her appeal for
the reason that she received ineffective assistance of counsel in conjunction with hearings before
an immigration judge. Id. at 620. Mezo was not subjected to criminal charges or criminal
proceedings. Accordingly, it has no applicability to the issues raised in this assignment of error.
{¶14} The first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE COURT FAILED TO GIVE THE VERBATIM ADVISEMENT
REQUIRED UNDER ORC 2943.031[.]
{¶15} Bravo argues that the trial court erred by denying her motion to withdraw her
guilty plea because the trial court failed to provide her with the statutory advisement as required
7
in R.C. 2943.031(A)/(D). In the alternative, she argues that the trial court failed to ensure that
she understood the advisement. This Court disagrees.
{¶16} As a general matter, the decision to grant or deny a motion to withdraw a guilty
plea lies within the sound discretion of the trial court. State v. Smith, 49 Ohio St. 2d 261, 264
(1977). An abuse of discretion is more than an error of judgment; it means that the trial court
was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983). When applying the abuse of discretion standard, this Court may not
substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St. 3d
619, 621 (1993).
{¶17} “[T]he extent of the trial court’s exercise of discretion on a motion to withdraw a
plea is determined by the particular provisions that govern the motion under which the defendant
is proceeding and the caselaw interpreting those provisions.” Francis, 104 Ohio St. 3d 490,
2004-Ohio-6894, at ¶ 33. The high court continued:
Thus, for example, when a defendant who is a United States citizen files a typical
Crim.R. 32.1 motion to withdraw a plea after sentencing, the trial court’s exercise
of discretion is governed by the manifest-injustice standard of that rule.
Similarly, when a defendant’s motion to withdraw is premised on R.C.
2943.031(D), the standards within that rule guide the trial court’s exercise of
discretion.
Id.
{¶18} In this case, Bravo argues that the trial court failed to comply with the mandates
of R.C. 2943.031. R.C. 2943.031(A) states:
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:
8
“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.”
Upon request of the defendant, the court shall allow him additional time to
consider the appropriateness of the plea in light of the advisement described in
this division.
{¶19} R.C. 2943.031(D) states:
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
[October 2, 1989], 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.
{¶20} At the plea hearing, the trial court judge determined that Bravo had been in the
United States for six years and that she was an Ecuadorean national. After engaging in a
colloquy with Bravo regarding the constitutional rights she would be waiving by pleading guilty,
the judge further advised her:
Now, also, if you’re not a citizen of this country, a conviction of this offense to
which you’re pleading guilty may have the consequences of deportation,
exclusion of admission to the United States, or denial of the naturalization
process.
Do you understand that also?
Bravo, through an interpreter, asserted that she understood.
{¶21} Bravo relies on Francis, 104 Ohio St. 3d 490, 2004-Ohio-6894, for the proposition
that the trial court’s failure to give the R.C. 2943.031(A) warning verbatim requires the trial
court to grant the defendant’s motion to withdraw her guilty plea. The Ohio Supreme Court
held:
9
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.”
Francis at paragraph one of the syllabus.
{¶22} The Francis court, however, rejected the requirement for strict compliance with
the statutory language, adopting instead a substantial compliance requirement, as follows:
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).
Id. at paragraph two of the syllabus.
{¶23} The Francis court reasoned that “the R.C. 2943.031(A) notification is similar to
the nonconstitutional notifications of Crim.R. 11(C)(2), such as the nature of the charges and the
maximum penalty involved, and, therefore, implicates the same [substantial compliance]
standard.” Id. at ¶ 45. The high court defined “substantial compliance” as “that under the
totality of the circumstances the defendant subjectively understands the implications of his plea
and the rights he is waiving. * * * The test is whether the plea would have otherwise been
made.” Id. at ¶ 48, quoting State v. Nero, 56 Ohio St. 3d 106, 108 (1990). The Francis court
emphasized, however, that “[t]his specific determination” is merely one of many factors for the
trial court to consider when ruling on a motion to withdraw a guilty plea pursuant to R.C.
2943.031. Id. at ¶ 48.
{¶24} In this case, Bravo had the services of a Spanish-language interpreter. Although
the trial court did not recite the advisement verbatim, it nearly did so. A comparison of the
statutory language and the trial court’s advisement indicates no substantive difference that would
10
have prevented Bravo, under the totality of the circumstances, from understanding the
implications of her plea relative to the immigration consequences. This Court concludes that the
trial court substantially complied with mandates of R.C. 2943.031 in providing the required
advisement.
{¶25} Moreover, the trial court inquired into the interpreter’s qualifications, determining
that she was from the International Institute and that she had experience in the criminal courts.
The trial court further asked Bravo and her defense counsel whether they accepted that person as
Bravo’s interpreter for purposes of the criminal proceedings. Both defense counsel and Bravo
asserted that they did. The trial court repeatedly inquired of Bravo whether she understood the
court’s colloquy, including the nature of the charges, possible penalties, her constitutional rights,
as well as the R.C. 2943.031(A) advisement. When the interpreter needed the trial court to
repeat certain facts like a date and the offense level of one of the charges, she asked the court to
do so. Bravo never indicated that she did not understand the proceedings or any statement by the
court. Accordingly, this Court cannot say that the trial court abused its discretion by denying
Bravo’s motion to withdraw her guilty plea based on her allegation that she did not understand
the R.C. 2943.031(A) advisement.
{¶26} To the extent that Bravo argues deficiency of the statutory advisement based on
trial counsel’s ineffective assistance, we decline to address it beyond our discussion in the first
assignment of error, as it is beyond the scope of this captioned assignment of error. State v.
Miller, 9th Dist. Summit No. 27048, 2015-Ohio-279, ¶ 18.
{¶27} The second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE COURT ERRED IN DISMISSING THE APPELLANT’S MOTION FOR
POST CONVICTION RELIEF WITHOUT FIRST HOLDING AN
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EVIDENTIARY HEARING DESPITE THE APPELLANT PROVIDING
COMPELLING EVIDENCE THAT SHE WAS DENIED DUE PROCESS AND
THE EFFECTIVE ASSISTANCE OF COUNSEL[.]
{¶28} Bravo asserts in her recitation of this assignment of error that the trial court erred
by dismissing her motion for postconviction relief without a hearing. She argues in the
substance of her brief, however, that the trial court erred by denying her post-sentencing motion
to withdraw her guilty plea without first holding a hearing. This Court disagrees.
{¶29} Although Bravo refers to a petition for postconviction relief in her assignment of
error, she is actually arguing about a motion to withdraw her plea. See State v. Bush, 96 Ohio
St.3d 235, 2002-Ohio-3993 (recognizing a petition for postconviction relief and a motion to
withdraw a plea as independent forms of relief). Accordingly, we constrain our discussion to the
bases for relief sought in the trial court. Specifically, Bravo sought to withdraw her plea
pursuant to R.C. 2943.031(D) and, to a much lesser extent, Crim.R. 32.1. She premised her
motion on the trial court’s failure to give the advisement required by R.C. 2943.031(A) and the
manifest injustice that arose out of the ineffective assistance of defense counsel who failed to
advise her regarding the immigration consequences of her plea.
{¶30} This Court reviews the trial court’s judgment regarding a motion to withdraw a
guilty plea, whether premised on R.C. 2943.031 or Crim.R. 32.1, for an abuse of discretion.
Francis, 2004-Ohio-6894, at ¶ 33. Neither R.C. 2943.031(D) nor Crim.R. 32.1 by their terms
require that the trial court hold a hearing prior to ruling on a motion to withdraw a guilty plea. In
addition, Bravo concedes that this Court recognizes that “[a]n evidentiary hearing on a post-
sentence motion to withdraw a guilty plea is not required if the ‘record indicates that the movant
is not entitled to relief and the movant has failed to submit evidentiary documents sufficient to
12
demonstrate a manifest injustice.’” State v. Razo, 9th Dist. Lorain No. 05CA008639, 2005-
Ohio-3793, ¶ 20, quoting State v. Russ, 8th Dist. Cuyahoga No. 81580, 2003-Ohio-1001, ¶ 12.
{¶31} In this case, Bravo appended evidentiary materials to her motion to withdraw her
plea. Significantly, she appended the entire transcript from her change of plea hearing from
which the trial court could determine whether or not the trial court judge had complied with the
mandates of R.C. 2943.031(A)/(D). In addition, Bravo appended her 25-paragraph affidavit in
which she averred that her attorney did not discuss the immigration consequences of pleading
guilty with her.1 She did not aver, however, that the trial court failed to provide the statutory
advisement regarding such consequences.
{¶32} Based on a review of the record, this Court cannot say that the trial court abused
its discretion by failing to hold an oral evidentiary hearing on Bravo’s motion to withdraw her
guilty plea. The court had before it a transcript of the plea hearing from which it could
determine whether the trial court had provided the R.C. 2943.031(A) advisement. In addition, it
had Bravo’s affidavit in which she did not allege that the trial court had failed to provide the
requisite advisement. Moreover, Bravo did not aver that the interpreter failed to interpret
properly or that she did not understand what the interpreter said. Because the trial court had
before it evidence from which it could determine the trial court’s compliance with R.C.
2943.031(D) twelve years earlier it did not err by failing to hold an oral hearing on Bravo’s
motion pursuant to R.C. 2943.031. In addition, because defense counsel’s ineffectiveness could
not be premised on his failure to discuss the immigration consequences of a guilty plea with
Bravo, as discussed in the first assignment of error, Bravo failed to submit evidentiary materials
to demonstrate a manifest injustice required for Crim.R. 32.1 relief. Therefore, the trial court did
1
Bravo further appended a full transcript of the sentencing hearing and all relevant
journal entries relating to her conviction.
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not err by failing to hold a hearing on Bravo’s motion to withdraw her guilty plea. See Razo at ¶
20. The third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE COURT ERRED IN FAILING TO SWEAR IN THE INTERPRETER,
VERIFYING THE INTERPRETER’S CREDENTIALS, AND ESTABLISHING
THAT THE INTERPRETER WAS FLUENT IN BOTH THE ENGLISH AND
THE SPANISH LANGUAGES PRIOR TO USING THE INTERPRETER FOR
INTERPRETATION DURING THE HEARING[.]
{¶33} Bravo argues that the trial court erred by failing to swear in the interpreter, verify
the interpreter’s credentials, and establish that the interpreter was competent to interpret during
the change of plea hearing. Although this Court is troubled by the manner in which the trial
court handled the interpreter issues, we may not address the merits of Bravo’s arguments because
they are barred by the doctrine of res judicata.2
{¶34} As an initial matter, we emphasize the importance of the trial court’s actions to
ensure that a defendant, whose lack of understanding and inability to communicate in English
renders her incompetent, receives the meaningful services of an interpreter. The inability or
limited ability to understand English implicates issues of a defendant’s competence to stand trial
or enter a plea. See State v. Pina, 49 Ohio App. 2d 394, 400-401 (2d Dist.1975). Moreover,
“[t]he failure to ensure that non-English speaking defendants are given the same opportunity as
others to be present, to speak in their defense and to understand what is taking place, in whatever
language they possess, reaches constitutional proportions.” Id. at 401. The constitutional rights
implicated include due process, equal protection, confrontation, and the effective assistance of
counsel. Columbus v. Lopez-Antonio, 153 Ohio Misc.2d 4, 6-7, 2009-Ohio-4892, ¶ 3-4 (M.C.);
2
Although these claims are barred by res judicata in this appeal from the denial of a
motion to withdraw her plea, Bravo is not precluded from filing a motion for a delayed appeal as
a direct appeal was never filed.
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see also Pina, supra. The legislature attempted to preserve a non-English speaking criminal
defendant’s constitutional rights through enactment of requirements for appointing qualified
interpreters. R.C. 2311.14.
{¶35} At the time Bravo pleaded guilty in June 2004, the version of R.C. 2311.14 in
effect stated in relevant part:
(A)(1) Whenever because of a hearing, speech, or other impairment a party to or
witness in a legal proceeding cannot readily understand or communicate, the court
shall appoint a qualified interpreter to assist such person. * * *
(B) Before entering upon official duties, the interpreter shall take an oath that the
interpreter will make a true interpretation of the proceedings to the party or
witness, and that the interpreter will truly repeat the statements made by such
party or witness to the court, to the best of the interpreter’s ability.
***
{¶36} Although there was limited guidance for a court in determining whether an
interpreter was “qualified,” Evid.R. 604 directed application of rules relating to the qualification
of experts as discussed in Evid.R. 702, as well as requiring the interpreter to swear an oath to
interpret truly. Prior to that time, the matter of an interpreter’s qualification was historically left
to the sound discretion of the trial court. Fennen v. State, 14 Ohio Cir. Dec. 583, 583-584 (1903).
{¶37} In addition, in 1975, the Pina court provided the following guidance to assist the
trial court in an effort to ensure that a non-English speaking defendant’s right to due process is
maintained:
If a witness does not understand English, an interpreter will be sworn to interpret
the oath to him and his testimony to the court. 56 Ohio Jurisprudence 2d 516,
Witnesses, Section 86; 172 A.L.R. 923. An interpreter is considered and must be
sworn as any other witness. While the manner of eliciting the testimony of the
witness through an interpreter is within the discretion of the trial court, the proper
method is not to address the question to the interpreter but to the witness. The
question is then repeated by the interpreter without any remarks of his own, and
the answers must be repeated literally by the interpreter in the first person. The
interpreter should give the answer, and the whole answer of the witness, adding
nothing to it. 58 American Jurisprudence 309, Witnesses, Section 556. The
15
interpreter as well as the witness is subject to cross-examination on the terms and
expression used. 58 American Jurisprudence 365, Witnesses, Section 662. To the
same effect is 98 Corpus Juris Secundum 27, Witnesses, Section 326. While
considerable latitude exists as to the method of translation[,] and refusal of the
court to obtain a full translation of the answers of the witness may not necessarily
constitute a fatal error, when a plea of guilty is accepted in a criminal case it is our
opinion that it is prejudicial error not to require a translation and record of what
the defendant says or to accept the conclusion of the interpreter that the message
of the court has been conveyed, the defendant understands and pleads guilty.
Under the latter perfunctory method, there is no way by which the court can
personally address the defendant and possibility that the court can find or be
factually assured that the defendant understands and knowingly waives and pleads
guilty. * * * Further, in a criminal case the defendant is entitled to hear the
proceedings in a language he can understand. 15 Ohio Jurisprudence 2d 641,
Criminal Law, Section 267; 15A Ohio Jurisprudence 2d 331, Criminal Practice
and Procedure, Section 279. How this is accomplished is within the discretion of
the trial judge; however, it must be accomplished.
Pina, 49 Ohio App. 2d at 398-399.
{¶38} Since that time, the Supreme Court of Ohio has adopted Sup.R. 80-89 addressing
interpreter issues. Sup.R. 88(A) requires a court to appoint a Supreme Court certified foreign
language interpreter when such is necessary to allow a witness or party to participate in the
proceedings in a meaningful way. Sup.R. 88(D) requires that any appointed interpreter be
certified except under limited circumstances. Sup.R. 81-85 addresses the requirements and
process for certification, while Sup.R. 84 expressly notes that interpreters shall be subject to the
“Code of Professional Conduct for Court interpreters and Translators.” The Code consists of 10
Canons which serve as directives for interpreters in their service to the court, as well as provide
guidance to the court in rendering a determination in conjunction with Evid.R. 702 regarding the
qualifications of any individual interpreter. The Canons require, inter alia, accuracy and
completeness, impartiality, proficiency, and a complete representation of the interpreter’s
qualifications. In addition, the Supreme Court of Ohio has developed a handbook for courts to
facilitate efforts to establish the qualifications of an interpreter. Lopez-Antonio at ¶ 13, citing
16
Chapter X (“Establishing Qualifications for Interpreters”) of The Supreme Court of Ohio,
Interpreters in the Judicial System: A Handbook for Ohio Judges (providing “model voir dire for
establishing the qualifications of an interpreter”).
{¶39} In this case, the trial court did not appoint Bravo’s interpreter. Instead, defense
counsel procured the interpreter’s services. The trial court did not administer an oath to the
interpreter; nor did the trial court engage in much colloquy with the interpreter to assess her
qualifications. Although the trial court asked the interpreter where she worked and indicated that
he was familiar with that agency, the court made no inquiry into the interpreter’s proficiency in
Spanish, and particularly any Spanish dialect spoken in the area of Ecuador in which Bravo had
lived. In fact, the trial court speculated, in the absence of any evidence, that Bravo likely did not
require the services of an interpreter given that she had lived in the United States for six years
and was self-employed.3 Such treatment of the interpreter issue would not remotely comport
with the requirements of due process under the current legal precedent and Supreme Court
guidance. Indeed, the trial court’s failures would likely not pass muster under the limited legal
guidance as it existed at the time of Bravo’s change of plea hearing. Nevertheless, as troubling
as the trial court’s disregard of Bravo’s due process rights is, this Court is precluded from
addressing her substantive arguments in this regard because they could have and should have
been raised on direct appeal.
3
It appeared from the record that Bravo worked as domestic help for a private
individual.
17
{¶40} The doctrine of res judicata precludes a party from relitigating any issue that was,
or should have been, litigated in a prior action between the parties. State v. Zhao, 9th Dist.
Lorain No. 03CA008386, 2004-Ohio-3245, ¶ 7, citing State v. Meek, 9th Dist. Lorain No.
03CA008315, 2004-Ohio-1981. The doctrine of res judicata is applicable regarding challenges
to the use of interpreters. See State v. Ibrahim, 10th Dist. Franklin No. 14AP-355, 2014-Ohio-
5307, ¶ 12. Here, as in Ibrahim, Bravo alleges errors relating to the qualifications, certification,
and swearing in of the interpreter. As these issues could have been raised and fully litigated on
direct appeal, they are barred by the doctrine of res judicata. The fourth assignment of error is
overruled.
ASSIGNMENT OF ERROR V
THE COURT FAILED TO GIVE THE DEFENDANT THE FULL WARNING
REGARDING POST-RELEASE CONTROL. THE JUDGE SHOULD HAVE
ADVISED THE DEFENDANT THAT SHE COULD HAVE RECEIVED
“UPTO THREE-YEARS POST-RELEASE CONTROL” AT THE DISCRETION
OF THE ADULT PAROLE BOARD AND FAILED TO DO SO[.] [sic]
{¶41} Bravo alludes to an error in the imposition of post-release control in further
support of her argument that she was denied due process. This Court finds the argument
misplaced.
{¶42} The issue of post-release control arises when the trial court sentences a criminal
defendant to a term of imprisonment. See R.C. 2967.28; R.C. 2929.19(B)(2). The trial court
sentenced Bravo to a period of community control, not to any term of imprisonment.
Accordingly, the issue of post-release control is not implicated in this case. The fifth assignment
of error is overruled.
18
III.
{¶43} Bravo’s assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, J.
SCHAFER, J.
CONCUR.
19
APPEARANCES:
FARHAD SETHNA, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.