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What's Up in the 8th

The 8th District's New Year starts not with a bang, but a whimper, the whimper coming from James Varholic, who finds the court has affirmed the denial of his motion for return of forfeited property.  A surprising result only to Varholic, and I'm not even sure about that;  the pickup truck at issue was ordered forfeited back in 2007, and Varholic didn't raise the issue through his first three appeals.  Let's put it this way:  when your appeals get Roman numerals, like Super Bowls or bad movie sequels, if by the time Varholic IV comes out and you raise an issue that you didn't raise in I, II, or III, you're out of luck.

Back in the day, the 8th was quite solicitous of non-citizen defendants seeking to vacate their pleas for failure of the court to advise them of the consequences of a plea on their immigration status, as required by RC 2943.031.  In one notable case, the 8th vacated a plea that had been entered 48 years earlier on the grounds that the statute embodied the legislature's intent to make sure that alien defendants were informed of the possible adverse effects of a plea, even though the legislature hadn't gotten around to implementing that intent until some 30 years later.  But that's so 15 minutes ago, as the defendant in State v. Preciado learns. 

The opinion's second paragraph informs us that "Preciado is not an American citizen and is not in the United States lawfully," which makes us wonder why there's a third paragraph.  Last I checked, the boys at INS don't need a guilty plea to give you a one-way ticket over the Rio Grande if you're not in the country legally.  But the opinion doesn't stop there.

The law on this is pretty simple:  If a defendant shows that the advisement wasn't given, the trial court "shall" vacate the plea.  The opinion notes that the trial court found that because the transcript of the plea hearing had been destroyed in the interim, "there was no longer any evidence regarding whether Preciado had been advised of the immigration consequences of his plea."  But the statute deals with that, too:  subsection (E) provides, "in the absence of a record that the court provided the advisement described in division (A) of this section and if the advisement is required by that division, the defendant shall be presumed not to have received the advisement."

The complicating factor is that the plea was entered 20 years ago, and Preciado was notified of the deportation proceedings against him three years before he filed the motion to vacate.  That brings up the issue of timeliness, and the panel relies heavily upon the Supreme Court's 2004 decision in State v. Francis:

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.

But "timeliness" here should be the time between when a defendant is informed that deportation proceedings have been instituted and his filing of the motion to vacate.  The obvious purpose of the statute is to make a defendant aware of the immigration consequences of a plea; it makes no sense to fault him for waiting until The Man comes a'knockin' before filing the motion to vacate.  The opinion would have been on safe ground in finding that the three-year delay in Peciado's filing his motion made it untimely; instead, it mentions only the 20-year period.

More worrisome is the court's treatment of Preciado's claim that counsel was ineffective for failing to advise him of the immigration consequences.  The panel acknowledges that the attorney's failure to advise the client can satisfy Strickland's deficiency prong, but the defendant still has to prove prejudice, which means showing that "he would have prevailed against the charges at trial."  The panel again relies on another case, its decision earlier this year in State v. Huang

But there are substantial differences between the two cases.  The "prejudice" point in Huang was dicta; the record on the motion to vacate clearly demonstrated that the attorney had advised the client that his plea would almost certainly result in deportation.  And the reason the record showed that was because the trial judge had conducted a hearing on the motion to vacate, something that didn't happen in Peciado.  It's hard to see how a defendant could show he would have prevailed at trial if he doesn't have an opportunity to present any evidence or witnesses on that point.

Peciado comes to the right result, but has some unfortunate language.

The defendant in State v. Andre shows the benefits of the Big Eye.  Andre is convicted of felonious assault for trying to hit a woman with his car in a grocery store parking lot after she yelled at him for parking in a handicapped spot.  (And who among us wouldn't have done the same thing?  Yelled at him, I mean, not tried to run her over.)  The testimony is conflicting, but this is a bench trial, and the judge splits the baby, as judges are wont to do in those situations:  guilty of the crime, but sentenced to two years of community control sanctions.

The testimony is conflicting, and the panel has no trouble deciding that the victim's testimony is legally sufficient for conviction.  But there's a surveillance video of the incident, and the majority decides that it clearly conflicts with the victim's testimony -- the victim testified that Andre "gunned the engine" as he approached her, while the video shows his brake lights coming on -- and reverses on the basis of manifest weight.  Wait, didn't I say "majority"?  And doesn't a reversal on manifest weight require unanimity?  We learn something this week:  while unanimity is required to reverse a jury verdict on manifest weight grounds, only a majority is required to reverse the verdict in a bench trial.  As Casey Stengel said, you can look it up.

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