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Date: 12-02-2020

Case Style:


Case Number: . C-190698

Judge: Candace C. Crouse


Plaintiff's Attorney: Joseph T. Deters, Hamilton County Prosecuting Attorney, Melynda J. Machol,
Assistant Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting

Defendant's Attorney:

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Cincinnati, OH - Criminal defense lawyer represented defendant Jose Hernandez with filed a motion to withdraw his guilty plea and/or vacate his conviction on the basis that the trial court fail to advise him of the possible immigration-related consequences of his plea.

{¶1} In January 1998, defendant-appellant Jose Hernandez pled guilty to
repeatedly raping his stepdaughter and entered into court failed to advise him of the
possible immigration-related consequences of his plea. The trial court denied the
{¶2} He has appealed, arguing in one assignment of error that the trial
court erred in denying his motion since no R.C. 2943.031 advisement was given at
the time of his plea. For the reasons discussed below, we overrule the sole
assignment of error and affirm the judgment of the trial court.
The R.C. 2943.031 Advisement
{¶3} Trial courts are required to advise a defendant of possible immigration
consequences before accepting a guilty plea, unless the defendant states on the
record or in writing that he is a United States citizen. R.C. 2943.031(B).
(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 * * *, 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:
“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.”
* * *
(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.
R.C. 2943.031.
{¶4} The state concedes that the four factors listed in R.C. 2943.031(D)
have been met, but argues that Hernandez’s motion to withdraw his guilty plea was
properly denied because he failed to demonstrate prejudice and the motion was
{¶5} An appellate court reviews a trial court’s decision on a motion to
withdraw a plea pursuant to R.C. 2943.031 under an abuse-of-discretion standard.
State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 32. “The
exercise of discretion we discuss 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 discussed below), not generally to the trial court’s discretion
once the statutory provisions have been met.” (Emphasis sic.) Id. at ¶ 34.
{¶6} Despite the fact that the General Assembly did not include a timeliness
provision in R.C. 2943.031, the Francis court held that the timeliness of the
defendant’s motion to withdraw his guilty plea should be considered. Id. at ¶ 40. The
court stated:
The more time that passes between the defendant’s plea and the filing of
the motion to withdraw it, the more probable it is that evidence will
become stale and that witnesses will be unavailable. The state has an
interest in maintaining the finality of a conviction that has been
considered a closed case for a long period of time. It is certainly
reasonable to require a criminal defendant who seeks to withdraw a plea
to do so in a timely fashion rather than delaying for an unreasonable
length of time.
{¶7} The Francis court held that in weighing untimeliness, a court must
consider the facts of the case, such as when the immigration-related consequences of
the plea became known to the defendant. Id. at ¶ 42.
{¶8} Hernandez contends that Francis did not state that timeliness should
be considered in all circumstances. Rather, Hernandez contends that timeliness only
becomes a consideration if there was some advisement regarding immigration
consequences given at the plea hearing. Since there was no advisement given at his
plea hearing, Hernandez argues that timeliness is not a factor that should be
{¶9} The state agrees that the trial court did not provide any immigration
advisement whatsoever at the plea hearing. The state does not argue, and we do not
find, substantial compliance, as there was no compliance by the trial court.
Nevertheless, the state contends that timeliness is a factor we must consider even
though the trial court did not give any immigration advisement.
{¶10} We agree with the state that Francis made timeliness a factor, even for
cases in which no advisement was given. While the facts of Francis demonstrated
that some advisement was given, the court clearly stated that “[t]imeliness of the
motion is just one of many factors that the trial court should take into account when
exercising its discretion in considering whether to grant the motion.” Francis, 104
Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, at ¶ 40. Chief Justice Moyer’s
concurrence seems to read the majority opinion similarly when he argued that the
“holding * * * violates the plain language of R.C. 2943.031(D) * * * [because]
timeliness of the filing of the motion is not among the statutory criteria.” Id. at ¶ 59-
60. The Chief Justice wrote, “While the state’s interest in finality is undeniable, we
should not use the protection of that interest as a justification for disregarding the
plain language of a statute.” Id. at ¶ 64.
{¶11} Several other courts of appeals have agreed with our interpretation of
Francis. See, e.g., State v. Walker, 2017-Ohio-511, 78 N.E.3d 922, ¶ 18 (10th Dist.)
(“Other courts addressing Francis have found that timeliness is a factor to consider
even when a trial court did not give any immigration advisement.”); State v. Alonzo,
3d Dist. Seneca No. 13-15-26, 2016-Ohio-160, ¶ 19 (“[e]ven assuming arguendo that
the record supports Alonzo’s claim that the advisement was not given to him, the
withdrawal of the plea is not automatic simply because the court failed to give the
R.C. 2943.031(A) advisement.”); State v. Lein, 8th Dist. Cuyahoga No. 103954,
2016-Ohio-5330, ¶ 14 (defendant’s 20-year delay in filing a motion to withdraw his
plea rendered it untimely even where the R.C. 2943.031(A) advisement was
presumed not given); State v. Reyes, 12th Dist. Butler Nos. CA2015-06-113, CA2015-
06-114 and CA2015-06-115, 2016-Ohio-2771, ¶ 24, (“based upon the particular
circumstances of a case, a trial court may deny a motion to withdraw a plea filed
pursuant to R.C. 2943.031(D) solely on the basis of timeliness.”).
{¶12} Hernandez points us to State v. Kona, 148 Ohio St.3d 539, 2016-Ohio7796, 71 N.E.3d 1023, ¶ 41, where the court held that since no R.C. 2943.031(A)
advisement was given, the trial court erred in not granting the defendant’s motion to
withdraw his guilty plea. However, the issue in Kona was whether the defendant’s
admission of facts sufficient to establish guilt as part of a pretrial diversion program
invoked the advisement requirement of R.C. 2943.031(A). Id. at ¶ 1. Timeliness was
not raised by the state and was not discussed by the court. See id. at ¶ 13. Therefore,
we cannot find that Kona either expressly or impliedly overruled Francis.
{¶13} As an intermediate appellate court, we are, of course, bound to follow
Supreme Court precedent. See Reyes at ¶ 21 (“It is axiomatic that a court of appeals
must follow established Ohio Supreme Court precedent.”). Therefore, despite the
fact that R.C. 2943.031(D) mentions nothing about timeliness, we find that pursuant
to Francis, timeliness is a factor that must be considered in this case.
{¶14} In his motion to withdraw his guilty plea, Hernandez claimed that (1)
when he pled guilty he was under the impression that he would not be deported as a
result of his plea; (2) the Ohio Parole Board was under the impression that he would
not be deported; and (3) the delay in filing his motion from December 2016 to July
2019 was due to his attorney, not him.
{¶15} First, there is abundant evidence demonstrating that although
Hernandez was not read the R.C. 2943.031(A) advisement at his plea hearing, he was
aware of the immigration-related consequences of his plea well before December
2016. At the plea hearing, defense counsel stated, and Hernandez agreed, that they
had spent “a lot of time * * * many hours” going over his guilty plea. Then, the
following exchange occurred:
THE COURT: Are there any other underlying agreements upon which the
proposed plea is based other than what has been stated for the record?
DEFENSE COUNSEL: There is not. In fact, I did inform him in addition,
because of the nature of the charge, nature of the conviction * * * that he
was subject to deportation. He is not a citizen of the United States. I want
to make that clear also.
{¶16} Furthermore, the prosecutor stated:
We also [sic] dismissing what is called the sexual predator spec because
in this particular instance, I don’t believe it is going to have any meaning,
since it is certainly our understanding that when the defendant is
convicted of a felony, he will be deported after he serves his time here,
and he will never be in the United States to be subject to any kind of
notification. So it has really no meaning, so we will dismiss the
specification attached to count 1 also.
{¶17} Second, Hernandez signed a written plea agreement prior to the
hearing. The plea form asked, “Are you a citizen of the United States of America?”
Hernandez answered, “No.” The plea form then recited the R.C. 2943.031(A)
advisement. Hernandez signed at the bottom of the form. At the plea hearing, the
court asked Hernandez if he had read the plea form, discussed it with defense
counsel, understood its meaning, and signed it. Hernandez responded affirmatively.
{¶18} Third, Ohio Department of Rehabilitation and Correction (“ODRC”)
and parole board documents put Hernandez on notice of deportation well before July
2019. On April 23, 1998, Hernandez signed a form given to him by ODRC advising
him that he was wanted by “US Immigration” and that there had been a “detainer
placed.” In its February 2001 denial of parole, the parole board stated, “Inmate
should serve at least ˝ his maximum sentence before being deported to El
Salvador.” Then, inexplicably, in its July 2013 denial of parole, the board questioned
whether Hernandez would be deported (“Offender currently has a detainer for
deportation. * * * The board has been notified that deportation is unlikely”). Despite
any wrongful assumption made by the parole board in 2013, Hernandez had been
advised years earlier that he would be deported, and so the parole board’s statement
that he might not be deported does not excuse his delay.
{¶19} Fourth, the length of the delay (21 years) supports a finding that
Hernandez’s motion was untimely. “Waiting 24 years to file his R.C. 2943.031(D)
motion since entering his guilty pleas was, while not dispositive alone as a matter of
law, untimely and unreasonable, as many courts of appeals have found with lesser
delays.” State v. Leon, 6th Dist. Huron No. H-18-018, 2019-Ohio-1178, ¶ 43 (listing
decisions from other courts of appeals).
{¶20} Finally, Hernandez’s complete failure to explain the delay in filing the
motion supports a holding that the motion was untimely. See Walker, 2017-Ohio-
511, 78 N.E.3d 922, at ¶ 25. As illustrated above, his claim that he was unaware of
the consequences of his plea until December 2016 is without merit.
{¶21} The trial court did not explain its reasoning in denying Hernandez’s
motion to withdraw his guilty plea. However, the state’s motion in response to
Hernandez’s motion to withdraw conceded that the four R.C. 2943.031(D) factors
had been met and focused on the issue of timeliness. Since we agree that
Hernandez’s motion was untimely, we cannot say that the trial court abused its
discretion in denying his motion to withdraw his guilty plea.

Outcome: The sole assignment of error is overruled and the judgment of the trial
court is affirmed.

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