State v. Nardiello

[Cite as State v. Nardiello, 2017-Ohio-8933.] IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 13-17-21 v. SHANE A. NARDIELLO, OPINION DEFENDANT-APPELLANT. Appeal from Tiffin-Fostoria Municipal Court Trial Court No. CRB 1100132 Judgment Affirmed Date of Decision: December 11, 2017 APPEARANCES: David L. Doughten for Appellant Charles R. Hall, Jr. for Appellee Case No. 13-17-21 SHAW, J. {¶1} Defendant-appellant Shane A. Nardiello (“Nardiello”) appeals the June 15, 2017 judgment of the Tiffin-Fostoria Municipal Court overruling his motion to withdraw his no contest plea. Nardiello assigns as error the trial court’s failure to give him the proper advisement pursuant to R.C. 2943.031(A) for a non-citizen prior to entering his no contest plea. Facts and Procedural History {¶2} Nardiello is a citizen of the United Kingdom, legally residing in the United States. On February 16, 2011, a complaint was filed alleging that, during a traffic stop, Nardiello was found to be in possession of anabolic steroids, in violation of R.C. 4729.51(C)(3), a misdemeanor of the first degree. The record indicates that Nardiello was stopped for speeding in the Village of Republic in Seneca County, Ohio. After he was issued a citation, Nardiello gave law enforcement written consent to search his vehicle. One glass vial of 9.1 grams of Testosterone Propionate was found in the glove compartment along with $6,000 of cash. Nardiello was issued a copy of the complaint and was summoned to appear before the Tiffin-Fostoria Municipal Court on February 23, 2011. {¶3} On February 16, 2011, Nardiello’s counsel filed a notice of appearance. Nardiello’s counsel also entered a written not guilty plea on his behalf and a waiver of his speedy trial rights. Counsel further requested that a pre-trial be scheduled for -2- Case No. 13-17-21 the matter. The trial court granted the request and scheduled the first pre-trial in the case for March 23, 2011. {¶4} On March 23, 2011, Nardiello’s counsel appeared for the first pre-trial. The trial court’s journal entry indicates that Nardiello was not present at this pre- trial. The case was continued for a second pre-trial in order for discovery to be completed. {¶5} On July 28, 2011, Nardiello appeared in court for a change of plea hearing, where he entered a plea of no contest to the charge alleged in the complaint. The trial court accepted Nardiello’s no contest plea and found him guilty. The trial court sentenced Nardiello to a suspended sentence of 30 days in jail, a $250 fine, one-year probation, and a six-month license suspension. {¶6} Nearly six years later, on March 20, 2017, Nardiello filed a motion to withdraw his 2011 no contest plea. Nardiello argued that he was entitled to withdraw his no contest plea because the trial court failed to advise him of the possible adverse immigration consequences of his conviction prior to accepting his no contest plea as required by R.C. 2943.031(A). Nardiello attached his own affidavit to the motion claiming that the trial court did not give ...

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