Franklin County Criminal Law Casebook
Reproduced with permission from
David L. Strait and the Franklin County Public Defender Office
Deportation and exclusion
Vienna Convention claims
R.C. 2943.031 -- Advice as to possible
deportation, exclusion or denial of naturalization upon guilty or no
8 U.S.C. Sec. 1182(a)(2) -- Persons convicted
of crimes involving moral turpitude excluded from reentering the
8 U.S.C. Sec. 1251(a)(2)(A) -- Deportation for
commission of an aggravated felony of for having committed a
8 U.S.C. Sec. 1427(d) and 1429 - If found
subject to deportation, as would be inevitable upon conviction of an
felony, an alien would be unable to become a citizen.
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.
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.
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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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,
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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),
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Deportation and exclusion
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.
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
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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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.
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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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
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.
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,
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.
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,
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
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.
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
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
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
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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
State v. Issa, 93 Ohio St. 3d 49,
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.
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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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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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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