State v. Htoo

[Cite as State v. Htoo, 2018-Ohio-832.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) STATE OF OHIO C.A. No. 28635 Appellee v. APPEAL FROM JUDGMENT ENTERED IN THE KA TRAY HTOO STOW MUNICIPAL COURT COUNTY OF SUMMIT, OHIO Appellant CASE No. 2015 CRB 03468 DECISION AND JOURNAL ENTRY Dated: March 7, 2018 HENSAL, Presiding Judge. {¶1} Ka Tray Htoo appeals an order of the Stow Municipal Court that denied his motion to withdraw his guilty plea. For the following reasons, this Court reverses. I. {¶2} According to Mr. Htoo, he is a refugee from Myanmar and was admitted into the United States in 2011. In 2015, he pleaded guilty to one count of using a weapon while intoxicated and one count of improper handling of a firearm. According to Mr. Htoo, after he was convicted, he was notified by the immigration court that his offenses made him deportable. He, therefore, moved to vacate his convictions and reopen his case. Specifically, he argued that the municipal court failed to provide him with the notifications required under Revised Code Section 2943.031 before it accepted his guilty plea. The court denied his motion because it found that it would not have proceeded with the hearing unless someone who spoke Mr. Htoo’s language was available to assist Mr. Htoo or unless Mr. Htoo was proficient enough in English 2 for the hearing to proceed. The court also found that, even though the recording of Mr. Htoo’s plea hearing had been erased, it had reviewed all of Mr. Htoo’s rights before it accepted his guilty plea, including the ramifications of a conviction for a non-citizen. It also found that, since Mr. Htoo had waited over a year to file his motion, it would unfairly prejudice the State to grant the motion simply because there was no longer a record of the plea colloquy. Mr. Htoo has appealed, assigning two errors. II. ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED IN DENYING DEFENDANT/APPELLANT’S MOTION TO WITHDRAW GUILTY PLEA FOR LACK OF SUBSTANTIAL COMPLIANCE WHERE THE COURT DETERMINED THAT IT WOULD UNFAIRLY PREJUDICE THE STATE SINCE THE RECORD WAS DESTROYED. {¶3} Mr. Htoo argues that the municipal court incorrectly denied his motion to withdraw his guilty plea. He argues that he is entitled to withdraw his plea because the court failed to advise him of the immigration repercussions it could have. {¶4} Section 2943.031(A) provides that, before accepting a guilty plea, the court shall address the defendant personally and give him a specific advisement regarding the consequences his plea might have regarding his immigration status. Section 2943.031(D) provides that, if the court fails to provide the advisement described in subsection (A), the court shall set aside the judgment and permit the defendant to withdraw a plea of guilty * * * [if] 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 ...

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals