Immigrant Can Withdraw Admission of Guilt to Avoid Deportation
If a pretrial diversion program requires a noncitizen to admit guilt, a trial court must warn the accused that he or she could be deported, the Ohio Supreme Court ruled today.
The Supreme Court voted 4-3 to allow Cleveland immigrant Issa Kona to withdraw his admission of guilt to a 2006 robbery charge because the process did not include a warning from the trial court of the consequences, which led to Kona unknowingly facing deportation.
Writing for the Court majority, Justice Paul E. Pfeifer explained that under federal immigration law the admission of guilt that allowed Kona to participate in a program for those not likely to re-offend had the same consequences as those for offenders of more serious crimes who must enter a plea. When a noncitizen enters a plea before a judge, state law requires the judge to warn the defendant of the potential immigration status consequences. Justice Pfeifer noted that not all diversion programs require those accused to admit their guilt and that Cuyahoga County has since changed its diversion program practices to notify noncitizens of the consequences.
Kona Stole Battery Charger from Home Depot
Kona has been a legal resident since 2002. In 2006, he was arrested for allegedly trying to steal a battery charger from a Home Depot store in Cleveland. The police report stated that security guards followed him out of the store, and physical confrontation with at least one of the guards ensued when they demanded the charger.
Kona was indicted by a Cuyahoga County grand jury on two counts of robbery. Kona pleaded not guilty and sought guidance from an immigration attorney, who advised him that attempted robbery and theft offenses could lead to his deportation if convicted. On the day his trial was to begin, a Cuyahoga County trial court allowed Kona to apply for the county’s diversion program, and a month later, with the approval of the prosecuting attorney, the court admitted Kona to the program through an entry in court records. Kona was not brought before a judge in open court, and there was no mention about the effects of his enrollment on his immigration status.
As a requirement for participation, Kona had to complete a diversion packet, which included a “criteria for acceptance” document that stated he had to admit his guilt to the pending charges in a written statement. Kona completed the required admission of guilt form, writing that he put the battery charger in his coat, bought a window for $180, and left the store. He stated he was apprehended by three security officers who recovered the charger, which he indicated was valued at $59, from his coat.
The packet warned Kona that if he did not abide by the program rules, he could be brought to court where his written admission could be used against him. He completed the program in 2007, and the trial court dismissed the case against him and expunged and sealed the case record.
After the case’s dismissal, Kona applied for naturalization and was advised by immigration officials that once his application was fully processed he would be deported because of the admission of guilt form he signed. He was informed that under federal law, 8 U.S.C. 1101(a)(48)(A), an admission of guilt even when part of a diversion program, can constitute a conviction affecting immigration status.
Kona asked the trial court to unseal his record and to vacate his plea. In 2009, the court conducted a hearing where Kona argued his admission operated as a conviction under federal law and he was entitled to all the protections he would have had if he actually pleaded guilty before a judge, including the provision in R.C. 2943.031 that the law requires a court to alert noncitizens that a guilty or no-contest plea “may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization.”
Prosecutors argued that R.C. 2943.031 does not require a warning to a noncitizen entering a pretrial program because Kona had not pleaded guilty or no-contest. In 2013, the trial court denied Kona’s request, and he appealed to the Eighth District Court of Appeals, which stated that it sympathized with Kona and agreed that the “application of the immigration laws in his case result in a manifest injustice,” but that the trial court was correct. The Eighth District noted that because Kona never pleaded guilty, the trial court did not have to provide the warning and the trial court cannot vacate a conviction that does not exist. Kona appealed to the Supreme Court, which agreed to hear the case.
Law Enacted to Recognize Impact on Immigration Status
Justice Pfeifer wrote that for noncitizens the most significant aspect of a criminal conviction may not be the sanction, but its effect on immigration status, and that Ohio lawmakers recognized the seriousness of the impact when they adopted R.C. 2943.01. He noted the law requires the trial court to personally address the accused noncitizen and advise of the consequences a plea has on immigration status. If a trial court fails to give the warning, the law requires the court to allow the plea to be withdrawn.
Justice Pfeifer explained that the withdrawal of the plea and the vacation of the conviction is significant in immigration proceedings. If a conviction is vacated for a “procedural or substantive” reason that questions the validity of the conviction, then the vacated conviction will not be used as grounds for deportation. But a conviction that is vacated by expungement or completing probation is grounds for deportation, he wrote.
Federal Government Defines “Conviction”
To bring uniformity to the deportation laws, Congress defined the term “conviction” for immigration purposes by adopting definitions developed in federal immigration case law, Justice Pfeifer noted. A “conviction” under federal law requires the alien to be found guilty, plead guilty or no contest, or admitted sufficient facts to warrant a finding of guilt, and the judge must impose some form of “punishment, penalty, or restraint on the alien’s liberty.”
“Thus, even though a defendant can escape a conviction under state law by not violating probation and ultimately having the case dismissed, a conviction for federal-immigration-law purposes occurs upon the admission of facts sufficient to warrant a finding of guilt coupled with a restraint on liberty,” Justice Pfeifer wrote.
A diversion program can then have unintended consequences for a noncitizen, he added, because it can contain an admission of guilt coupled with a restraint on liberty. Even if the prosecutor drops the charges for the successful completion of a program, the noncitizen may face deportation.
Ohio’s law authorizing pretrial diversion programs does not require an admission of guilt to participate, but Cuyahoga County’s did. Kona satisfied the first part of the federal conviction definition when he had to write the statement to enter the program. Justice Pfeifer explained that the program’s provisions required participants to be supervised by the county probation department; be willing to meet with probation officers during the day; pay restitution, fines and fees; do voluntary work for a community service organization; submit to evaluation and treatment for drug and alcohol abuse; and receive probation officer permission to leave the county. Justice Pfeifer concluded those are deprivations of liberty that meet the second part of the federal government’s conviction definition.
Dismissing Kona’s robbery charges for completing the diversion program was meaningless for immigration purposes, Justice Pfeifer noted, and he could only escape immigration implications if his conviction was vacated for substantive or procedural reasons. Justice Pfeifer explained that Kona did not receive a warning from the court about the impact of preparing the admission form, and that R.C. 2943.031 exists to protect noncitizens from voluntarily submitting to a conviction without notice of how it affects their immigration status.
“For all relevant purposes, in federal immigration law—about which R.C. 2943.031 exists to provide a warning—there is no functional difference between a guilty or no-contest plea and an admission of guilt. A conviction, as defined in federal law, flows from all three,” he wrote.
Law Applies to Diversion Program Admissions
Justice Pfeifer explained the warning law must apply to diversion programs that require an admission of guilt. If not, noncitizens whom prosecutors select for the programs because they believe the defendants probably will not offend again become susceptible to the immigration impacts without warning, while more serious offenders who prosecutors do not offer diversion get the full benefit of the warning when they appear in court.
The Court remanded the case to the trial court to vacate the admission and allow Kona to plead not guilty to the criminal charges. Justice Pfeifer noted the county’s diversion packet now includes a prominent warning in bold type on the application page about the consequences of admitting guilt. The state also indicated that since 2014 the county now requires those entering a diversion program to participate in a plea hearing before a judge.
“So at least from 2014, noncitizen defendants have been receiving from the trial judge the notice required by R.C. 2943.031 of potential immigration effects of participation in Cuyahoga County’s diversion program. Cuyahoga County identified a problem and took steps to rectify it, and we commend it for that,” he concluded.
Chief Justice Maureen O’Connor and Justices Judith Ann Lanzinger and William M. O’Neill joined Justice Pfeifer’s opinion.
Justices Terrence O’Donnell and Judith L. French dissented without a written opinion, but stated they would dismiss the case as improvidently allowed.
Justice Sharon L. Kennedy dissented without a written opinion and would affirm the trial court’s ruling for the reasons stated by the Eighth District.
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