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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

NONCITIZENS (303)

Also see Interpreters.

 

Border control

Constitutional rights

Documents

Deportation and exclusion

Interpreters

Plea advisement

Vienna Convention claims

Sentencing

Other issues

 

R.C. 2943.031 -- Advice as to possible deportation, exclusion or denial of naturalization upon guilty or no

contest plea.

8 U.S.C. Sec. 1182(a)(2) -- Persons convicted of crimes involving moral turpitude excluded from reentering the

United States.

8 U.S.C. Sec. 1251(a)(2)(A) -- Deportation for commission of an aggravated felony of for having committed a

crime involving moral turpitude

8 U.S.C. Sec. 1427(d) and 1429 - If found subject to deportation, as would be inevitable upon conviction of an

aggravated felony, an alien would be unable to become a citizen.

 

 

Border control

 

Almendarez-Torres v. United States (1998), 523 U.S. 224 -- 8 U.S.C. 1326(a) makes it a crime for a deported alien to return without permission. The maximum sentence is two years. Division (b)(2) authorizes a twenty-year sentence if deportation had followed conviction of an aggravated felony. Though the indictment failed to allege the prior conviction, court upholds imposition of the greater sentence, construing the prior as a sentencing factor and not an element. See Scalia dissent.

 

United States v. Resendiz-Ponce (2007), 127 S.Ct. 782 -- Though a federal indictment failed to specifically allege an overt act constituting a substantial step towards commission of the charged offense of attempted unlawful reentry to the U.S., it was sufficient because "attempt" is understood to include such action. The constitutional requirements for an indictment are notice of the charge against which the defendant must defend and sufficient information to permit pleading a prior acquittal or conviction as a bar to prosecution.

 

United States v. Brignoni-Ponce (1975), 422 U.S. 873 -- Except at the border or its functional equivalent, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences drawn from those facts, that reasonably warrant suspicion that the vehicle contains illegal aliens. Also see United States v. Cortez (1981), 449 U.S. 411.

 

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Constitutional rights

 

United States v. Balsys (1998), 524 U.S. 666 -- Concern about possible prosecution in a foreign country is beyond the scope of the Fifth Amendment. Resident alien did not want to answer questions concerning WW II activities in Lithuania.

 

State v. Washington (2001), 144 Ohio App. 3d 482, 490 -- DEA agent who stopped defendant at an Amtrack station as a suspected drug courier actions contributed to reasonable belief he was not free to go. "Gilcrist asked Washington questions about his identity, nationality, and immigration status, and Washington did not produce his green card as requested. Under these circumstances, Washington would not reasonably believe he could unilaterally end the encounter or consider himself free to leave until so informed." Compare State v. Alexander, 151 Ohio App. 3d 590, 2003-Ohio-760.

 

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Documents

State v. Mohamed, 178 Ohio App. 3d 695, 2008-Ohio-5591 – Mother born in Somalia was charged as an adult with kidnapping, felonious assault, and child endangerment, it being alleged she and her husband had used a hot fork to discipline three children in their care. Her actual age was in dispute. The state submitted documents indicating a January 1st birthday which would have made her 18. The defense offered testimony that the age provided in such documents could not be relied upon, as documents prepared to permit emigration from refugee camps was prepared by Somalis who did not speak the same language as the Bantu refugees. There was a pattern of using either January 1st or July 1st as the birthdate. To establish jurisdiction the prosecutor had to establish age beyond a reasonable doubt. Court did not abuse its discretion ordering case transferred to the juvenile court.

State v. Roblero, 133 Ohio Misc. 2d 7, 2005-Ohio-4805 -- Defendant charged with no ops produced what on its face appeared to be a current Mexico drivers license. (1) Mexico is not a signatory to the United Nations Convention on Road Traffic, but is to the Organization of American States Convention on Regulation of Inter-American Motor Vehicle Traffic. (2) Proof that he has a valid foreign license is in the nature of an affirmative defense, and the court refuses to accept mere production of the foreign license as proof by a preponderance that the holder is validly licensed.(3) The exception for residents of other "states" in R.C. 4507.04 is limited to the territories and federal districts of the United States and the provinces of Canada. It does not include Mexico.

State v. Sanchez, 110 Ohio St. 3d 274, 2006-Ohio-4478 -- Syllabus: "(1) A detainer filed by the United States Bureau of Immigration and Customs Enforcement that does not purport to hold the defendant in custody does not nullify the triple-count provision of Ohio's speedy trial statute. (R.C. 2945.71(E), applied.)(2) A motion in limine filed by a defendant tolls speedy-trial time for a reasonable period to allow the state an opportunity to respond and the court an opportunity to rule. (R.C. 2945.72(E), applied.)"

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Deportation and exclusion

 

Carachuri-Rosendo v. Holder (2010), 130 S.Ct. 2577 – A lawful permanent resident faced deportation to Mexico following his second drug conviction in a Texas state court. He had served 20 days in the past for possession of marijuana. He got 10 days for possession of a single anxiety pill. This could have been prosecuted as a recidivist-felony under Texas law, but was not. Nonetheless the feds sought deportation on the basis that it could have been prosecuted as a felony in federal court. Supreme Court holds a subsequent offense is not an ‘aggravated felony” under 8 U.S.C. ¶1101(a)(43) when the state court conviction was not based on the fact of a prior conviction.

State v. Chavez-Juarez, 185 Ohio App. 3d 189, 2009-Ohio-6130 – Mexican illegal was deported before OMVI charges were resolved. Charge was dismissed without prejudice. Defendant nonetheless sought to have ICE agents found in contempt. Court finds ICE agents were not wholly beyond the power of the state court to find then in contempt. The federal courts have implied preemptive jurisdiction over immigration issues. Whether ICE violated the defendant’s rights during the deportation is a matter for the federal courts to decide.

 

Lopez v. Gonzales (1006), 127 S.Ct. 625 -- Conduct made a felony under state law but treated as a misdemeanor under the federal Controlled Substances Act is not a "felony punishable under the Controlled Substances Act" for purposes of the Immigration and Nationality Act. An "aggravated felony" conviction makes deportation and exclusion from reentry mandatory. Otherwise the defendant could apply to the Attorney General for cancellation of removal.

 

Gonzales v. Duenas-Alvarez (2007), 127 S.Ct. 815 -- For purposes of the Immigration and Nationality Act, "theft offense" includes aiding and abetting the commission of a theft offense. The court rejects the defendant's claim the California statute at issue reached beyond the "generic" definition of theft. For similar analysis in the context of the federal Armed Career Criminal Act see James v. United States (2007), 127 S.Ct. 1586.

 

 

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Interpreters

 

Columbus v. Lopez-Antonio, 153 Ohio Misc. 2d 4, 2009-Ohio-4892 – Defense counsel refused to stipulate the qualifications of a translator. Due process guarantees limited-English proficient defendants the same opportunity as others to speak in their defense and to understand what is taking place. This includes plea hearings. Opinion quotes a pattern voir dire on qualifications from a judicial handbook and cites a code of professional conduct for interpreters and translators. Interpreter found unqualified, notwithstanding more than two years of employment by the court as an interpreter. Among other defects, he did not have a mastery of legal vocabulary in either English or Spanish.

 

State v. Gegia, 156 Ohio App. 3d 112, 2004-Ohio-2124, ¶14 -- "Because appellant was given an opportunity to have an interpreter present and he refused, he cannot now argue on appeal that the absence of an interpreter somehow caused him prejudice." Record indicated the defendant adequately understood what was said during the plea hearing. Rights under the Vienna Convention are not the equivalent of constitutional rights.

 

State v. Ramirez (1999), 135 Ohio App. 3d 89 -- Murder suspect spoke only Spanish. Miranda warnings were given through the use of a translator, who had seven quarters of college Spanish and had lived in Mexico for six months. She worked from an English language advice card and made syntax errors demonstrated by defense language expert. The warnings were also incomplete and there was no advise of the right to have the Mexican Consul present during questioning. Suppression required.

 

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Plea advisement

 

Padilla v. Kentucky (2010), 130 S.Ct. 1473 – Counsel who fails to provide to provide advice concerning the immigration law consequences of a guilty plea is constitutionally defective. Remedy hinges on proof of prejudice, which the Padilla court does not address.

 

State v. Weber (1997), 125 Ohio App. 3d 120 -- A court must grant a motion to withdraw a guilty plea pursuant to R.C. 2943.031(D) if (1) the court failed to provide the advisement set forth in Division (A) about possible immigration law consequences, (2) such advice was required, (3) the defendant is not a U.S. citizen, and (4) conviction of the offense carries possible consequences under immigration law. In need not be shown that withdrawal of the plea is necessary to correct a manifest injustice or that the plea would not have been entered if proper advice had been given.

 

State v. Francis, 104 Ohio St. 3d 490, 2004-Ohio-6894 -- Syllabus: "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.'" In ruling on a motion to withdraw a guilty plea a court may apply the substantial compliance standard, and may consider the timeliness of the motion. The court expresses no opinion as to whether the defendant must show prejudice. See concurring and dissenting opinions.

 

State v. Yuen, Franklin App. No. 01AP-1410, 2002-Ohio-5083 -- There is no time limit for the filing of a motion to withdraw a guilty or no contest plea based on failure to advise in accordance with R.C. 2943.031. Compare State v. Tabbaa, 151 Ohio App. 3d 353, 2003-Ohio-299, interposing R.C. 1.47 to permit denial of motion when the staleness of the state's case would make the consequences of granting the motion unreasonable or absurd.

 

State v. Sok, 170 Ohio App. 3d 777, 2007-Ohio-729 -- Defendant facing deportation to Cambodia sought to withdraw guilty plea. Though he had been advised of possible immigration law consequences, counsel incorrectly advised him that plea to CCW would not be a problem. Denial of motion affirmed. See dissent.

 

State ex rel. White v. Suster, 101 Ohio St. 3d 212, 2004-Ohio-719 -- The exclusive remedy for a 2943.031(D) motion to withdraw a guilty plea is direct appeal.  Mandamus does not lie following repeated attempts to vacate plea by motion and appeal.

 

State v. Yanez, 150 Ohio App. 3d 510, 2002-Ohio-7076 -- (1) A motion to withdraw a guilty plea based on the failure to advise concerning immigration law consequences is not subject to the manifest injustice standard set forth in Crim. R. 32.1. If advice was not given, the plea must be vacated. (2) The court must personally address the defendant when providing the statutory advisement. Reference to the plea form is not enough. Substantial compliance with the statutory language is required. The statute is satisfied if the interpreter reads the warning in open court under the judge's supervision. Concurring judge believes strict compliance is required as the Eighth Circuit held in State v. Quran, 2002-Ohio-4917, ¶23.

 

State v. Rodriguez, Clark App. No. 01CA0062, 2002-Ohio-5489, vacating same case at 2002-Ohio-3568 -- A defendant must file a motion to withdraw his guilty plea in the trial court and make a showing there is the potential for deportation. The issue may not simply be raised on appeal, citing a silent record.

 

State v. Abi-Aazar, 149 Ohio App. 3d 359, 2002-Ohio-5026 -- Lebanese national pled to heroin possession and was granted intervention in lieu of conviction. Though sentence was not pronounced, and all further criminal proceedings were stayed, the INS picked him up and deportation was ordered. (1) On appeal defendant cannot challenge adequacy of required advice on immigration law consequences unless he has sought to withdraw his plea in the trial court. (2) No abuse of discretion in terminating intervention in lieu of conviction and imposing sentence after defendant was unable to complete rehabilitation program because of INS custody.

 

State v. Abi-Aazar, 154 Ohio App. 3d 278, 2003-Ohio-4780 -- A motion to withdraw a guilty plea must be granted when there has not been substantial compliance with the purpose of the advisement regarding immigration law consequences. Case involved a plea in furtherance of intervention in lieu of conviction. For purposes of immigration law, a guilty plea to a drug offense triggered deportation proceedings, even though without a sentence it did not constitute conviction under Ohio law. As a catch-22 proposition, under Ohio law, the ruling on the motion to withdraw is not appealable until sentence has been imposed.

 

State v. Arnold, Clark App. No. C.A. 02CA0002, 2002-Ohio-4977 -- R.C. 2943.031 advice is required when there is a guilty or no contest plea, but not when the defendant has been found guilty at trial.

 

State v. Traish (1999), 133 Ohio App. 3d 648 -- When resident alien pleaded guilty to domestic violence he was not advised in accordance with R.C. 2943.031. Trial court later dismissed a motion seeking in the alternative postconviction relief or to withdraw guilty plea, claiming it lacked jurisdiction as the case was on appeal. (1) Under the current version of R.C. 2953.21(C) the court could consider a postconviction action even while an appeal is pending. (2) Since citizenship status is not a matter of record cause must be remanded to the trial court. (3) Trial court has no discretion to deny motion provided advisement was required but not given, defendant is a non-citizen, and faces immigration law consequences. Compare State v. White (2001), 142 Ohio App. 3d 132 where procedural default is interposed.

 

State v. White, 163 Ohio St. 3d 377, 2005-Ohio-4898 -- Court erroneously overruled motion to withdraw guilty pleas filed years after the sentence had been served.  Defendant was not under an affirmative duty to advise the court he was a noncitizen. Res judicata does not apply.

 

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Vienna Convention claims

 

Medellin v. Texas (2008), 128 S.Ct. 1346 – The adverse decision in the Case Concerning Avena and Other Mexican Nationals (Mexico v. U.S.) by the International Court of Justice does not give rise to enforceable rights in U.S. courts on the part of individuals claiming to have been denied their rights under the Vienna Convention on Consular Relations. Also see Medellin v. Texas (2008), 129 S.Ct. 360.

 

Sanchez-Llamas v. Oregon (2006), 126 S.Ct. 2669 -- Assuming without deciding that the Vienna Convention on Consular Relations creates judicially enforceable rights on the part of citizens of other countries, suppression of evidence is not a remedy the Supreme Court may impose.  It is not a remedy called for within the body of the convention, and the Supreme Court does not have general supervisory authority over the state courts.  States may apply their normal procedural default rules to claims under the convention.

 

State v. Issa, 93 Ohio St. 3d 49, 54-57, 2001-Ohio-1290 -- Assuming, without deciding, that the Jordanian defendant in a capital trial had an individually enforceable right under Article 36 of the Vienna Convention on Consular Relations to be advised of his right to meet with consular officials, suppression of postarrest statements was not required. Issue was not raised before the trial court and plain error is found not to exist. Court also rejects claim that the consul could have been of assistance in preparing mitigation. See dissent.

 

State v. Tuck, 146 Ohio App. 3d 505, 2001-Ohio-7017 -- Regardless of whether a defendant has an individually enforceable right under Article 36 of the Vienna Convention on Consular Relations, suppression of evidence is not an available remedy. Also see United States v. Tuck (6th Cir, 2000), 232 F.3d 505.

 

State v. Lopez, Greene App. No. 99-CA-120, 2003-Ohio-3974 -- The trial court's failure to advise a Mexican national of his right to consult consular officials does not constitute plain error. Rights under an international treaty are not the equivalent of constitutional rights.  It is unsettled whether the Vienna Convention on Consular Relations creates rights that are judicially enforceable.  Also see State v. Loza (October 13, 1997), Butler App. No. CA96-10-214.

 

State v. Ahmed, 103 Ohio St. 3d 27, 2004-Ohio-4190, ¶51-55 -- Defendant had dual citizenship, and thus was not entitled to invoke the assistance or protection of one of the two countries while within the other.

 

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Sentencing

 

State v. Nunez, 164 Ohio App. 3d 420, 2005-Ohio-6261 -- Defendant was extradited from Mexico to stand trial for two murders. Mexico was concerned that he not face the death penalty of serving life without parole.  Documents from the county prosecutor and Justice Department offered assurances the maximum penalty would be thirty to life.  Additional time on firearm specifications was beyond the agreement and must be deleted from the sentence.

 

State v. Mateo, 150 Ohio App. 3d 489, 2002-Ohio-6852 -- A sentencing court is required to find imprisonment is consistent with the purposes of felony sentencing under R.C. 2929.11, and must weigh the seriousness and recidivism factors set forth in R.C. 2929.12. These do not permit imposing a prison sentence merely because the defendant is an illegal alien subject to immediate deportation.

 

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Other issues

 

State v. Montiel, 185 Ohio App. 3d 362, 2009-Ohio-6589 – Defendant pled guilty to domestic violence and was sentenced to time served. Fearing deportation, four years later he filed a motion to withdraw his guilty plea because he had not been advised of possible immigration law consequences. The court granted the motion. When the state proposed going forward on the case, the court sua sponte dismissed the case pursuant to Crim. R. 48(B). The state has failed to demonstrate an abuse of discretion. The Rule may be used to dismiss a case in the interest of justice. The punishment was sufficient and the other consequences of dismissal are collateral. Also see State v. Busch (1996), 76 Ohio St. 3d 613, concerning the inherent power of courts to “regulate the practice before it and protect the integrity of its proceedings.”

 

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