OPINION
SHAW, P.J.
{¶1} Defendant-appellant Samuel Nil Armah Aryee ("Aryee") appeals the June 14, 2016 judgment of the Tiffin-Fostoria Municipal Court overruling his motion to withdraw his no contest plea. Aryee assigns as error the trial court's finding that he was given the proper advisement pursuant to R.C. 2943.031(A) for a non-citizen upon entering his no contest plea.
Facts and Procedural History
{¶ 2} Aryee is a citizen of Ghana, residing in the United States as a lawful permanent resident. On May 23, 2014, a complaint was filed alleging that Aryee committed an act of domestic violence against his wife in violation of R.C. 2919.25(A), a misdemeanor of the first degree. The complaint detailed law enforcement's arrival to the scene and a conversation with Aryee and his wife. Aryee's wife indicated to law enforcement that Aryee had "assaulted her by hitting, slapping, punching, kicking, hitting her with a pot, a wooden spoon, and strangled her." (Doc. No. 1). Aryee's wife was observed to have bruises on her arms, marks on her neck, a bloody lip, and a large knot on the right portion of her forehead. Aryee was determined to be the primary aggressor and was placed into custody for domestic violence.
{¶ 3} On July 8, 2014, Aryee entered a plea of no contest. The trial court found him guilty of the domestic violence offense and sentenced him the same day.
{¶ 4} On May 26, 2016, Aryee filed a motion to withdraw his 2014 no contest plea. Aryee argued that he was entitled to withdraw his no contest plea because the trial court failed to advise him of the possible immigration consequences of his conviction prior to accepting his no contest plea as required by R.C. 2943.031(A). Aryee attached to his motion to withdraw documentation from the Department of Homeland Security demonstrating that Aryee received a notice on January 29, 2016, informing him that he was subject to deportation due to his July 2014 domestic violence conviction. Aryee also attached an affidavit to the motion claiming that he was not advised of the possible immigration consequences prior to entering his no contest plea, and further claimed that he would not have entered the no contest plea had he known his conviction would result in his removal from the United States. The State filed a response, urging the trial court to deny Aryee's motion, arguing that the trial court complied with statute by giving the R.C. 2943.031(A) advisement to Aryee at his arraignment.
{¶ 5} The trial court conducted a hearing on Aryee's motion to withdraw on June 14, 2016 and issued a judgment entry the same day overruling Aryee's motion.
{¶ 6} Aryee appeals from this judgment entry, raising one assignment of error.
WHEN ACCEPTING APPELLANT'S UNDERLYING PLEA, THE TRIAL COURT DID NOT ADVISE HIM OF THE IMMIGRATION CONSEQUENCES AS REQUIRED BY R.C. 2943.031(A) NOR DETERMINE THAT HE UNDERSTOOD THE ADVISEMENT. APPELLANT TIMELY SOUGHT TO WITHDRAW HIS PLEA UNDER R.C. 2943.031(D) AFTER THE FEDERAL GOVERNMENT SOUGHT TO DEPORT HIM BECAUSE OF THE CONVICTION IN THIS CASE. YET THE TRIAL COURT REFUSED TO LET APPELLANT WITHDRAW HIS PLEA. THE TRIAL COURT'S REFUSAL IS PREJUDICIAL ERROR.
Relevant Law: R.C. 2943.031
{¶ 7} Section 2943.031(A) of the Revised Code requires a trial court to give the following advisement to defendants entering either a guilty plea or a plea of no contest, unless the defendant indicates that he is a citizen, in accordance with R.C. 2943.031(B):
(A) Except as provided in division (B) of this section, prior to accepting a plea of guilty or a plea of no contest to an indictment, information, or complaint charging a felony or a misdemeanor other than a minor misdemeanor if the defendant previously has not been convicted of or pleaded guilty to a minor misdemeanor, the court shall address the defendant personally, provide the following advisement to the defendant that shall be entered in the record of the court, and determine that the defendant understands the advisement:
If you are not a citizen of the United States, you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) 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.
{¶ 8} Section 2943.031(D) of the Revised Code specifies the remedy for a trial court's failure to advise as required under R.C. 2943.031(A). State v. Yuen, 10th Dist. Franklin No. 01AP-1410, 2002-Ohio-5083, ¶ 18. "Under R.C. 2943.031(D), a defendant who has not received the advisement required by R.C. 2943.031(A) may move to set aside the judgment and withdraw his guilty plea. This motion and an appeal from the denial of the motion provide the exclusive remedies for an alleged violation of R.C. 2943.031(A)." State ex rel. White v. Suster, 101 Ohio St.3d 212, ¶ 7.
{¶ 9} Section 2943.031(D) of the Revised Code reads in relevant part as follows:
Upon motion of the defendant, the court shall set aside the judgment and permit the defendant to withdraw a plea of guilty or no contest and enter a plea of not guilty or not guilty by reason of insanity, if, after the effective date of this section, the court fails to provide the defendant the advisement described in division (A) of this section, the advisement is required by that division, and 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 no contest may result in his being subject to deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.
{¶ 10} Under R.C. 2943.031(E), the absence of a record showing that the court gave the advisement required by R.C. 2943.031(A) creates a presumption that the advisement was not given. State v. Alonzo, 3d Dist. Seneca No. 13-15-26, 2016-Ohio-160, ¶ 15 citing Mayfield Hts. v. Grigoryan, 8th Dist. Cuyahoga No. 101498, 2015-Ohio-607, ¶ 19.
The R.C. 2943.031(A) Advisement
{¶ 11} The record establishes that on May 27, 2014, Aryee was conveyed to the trial court for arraignment at 9:00 a.m. on the domestic violence charge. An excerpted recording from the initial portion of these proceedings establishes that the trial court gave the R.C. 2943.031(A) advisement to those present in the courtroom at 9:20:53 a.m. Specifically, the trial court stated the following on the record.
Now you should be made aware if you're not a citizen of the United States, you're hereby advised that the conviction for the offense to which you're pleading guilty or no contest may have the consequence of deportation, exclusion from admission to the United States or denial of naturalization, citizenship pursuant to the laws of the United States.
(Joint Exs. May 27, 2014 Recording).
{¶ 12} The record indicates that the trial court began to conduct Aryee's arraignment at 9:22:11 a.m., shortly after the trial court gave the R.C. 2943.031(A) advisement, during which the trial court personally addressed Aryee to discuss the nature of the charge against him. The following exchange occurred on the record relative to the R.C. 2943.031(A) advisement given at the beginning of the arraignment proceeding:
Trial Court: Mr. Aryee, were you present when I first came out and I was going over your rights in court?
Defendant: Yes.
Trial Court: Did you understand those rights as I explained them?
Defendant: Yes, Your Honor.
(May 27, 2014 Hrg. at 4).
{¶ 13} Aryee's arraignment was subsequently continued until June 3, 2014, so that he could retain legal counsel. Aryee entered a plea of not guilty at the June 3, 2014 hearing.
{¶ 14} Aryee appeared for a change of plea hearing on July 8, 2014, pursuant to a negotiated plea agreement. The following dialogue transpired between Aryee, defense counsel, and the trial court:
Trial Court: [Defense Counsel], I've heard the recommendation of the Prosecutor. Have you had an opportunity to speak with your client about his proposed change of plea?
Defense Counsel: Yes, Your Honor.
Trial Court: Do you believe he understands the implications of a change of plea here today?
Defense Counsel: Yes, Your Honor. Including the fact that although it's not contained in these negotiations, he has a potential immigration situation, so I have recommended immigration attorneys to him, but yes, he understands what's involved.
Trial Court: Okay. Mr. Aryee, do you need more time to speak with [Defense Counsel] about this?
Defendant: No.
Trial Court: Is this what you want to do?
Defendant: Yeah.
Trial Court: You understand I'm not bound by that recommendation. I can impose a greater or lesser penalty as I deem appropriate?
Defendant: Yes, sir.
Trial Court: Are you satisfied with the plea?
Defendant: Yes.
Trial Court: And are you satisfied with [defense counsel's] representation?
Defendant: Yes, sir.
Trial Court: [Defense Counsel], how does your client propose to plead?
Defense Counsel: No contest with consent to a finding of guilty, Your Honor.
Trial Court: And you understand, Mr. Aryee, by entering a plea of no contest, you're admitting the truth of the facts as alleged on the face of the complaint?
Defendant: Yes, sir.
Trial Court: And you understand what the maximum possible penalties are?
Defendant: Yes, sir.
Trial Court: At this time, I would accept your plea of no contest.
(July 8, 2014 Plea Hrg. at 3-4).
{¶ 15} The thrust of Aryee's argument on appeal is that he should be entitled to withdraw his no contest plea based upon his position that the trial court failed to comply with the statute because it did not give a personal R.C. 2943.031(A) advisement to Aryee at the time he entered his no contest plea, and because it failed to ascertain whether Aryee actually understood potential consequences of entering the no contest plea on his immigration status.
{¶ 16} Aryee directs our attention to the Supreme Court of Ohio's decision in State v. Francis in support of his position that the R.C. 2943.031(A) advisement must be given at the time a non-citizen defendant's no contest or guilty plea is accepted by the trial court. See Francis, 104 Ohio St.3d 490, 2004-Ohio-6894. However, as noted by the Court in Francis, "[t]aken as a whole, R.C. 2943.031's emphasis is on the mechanical question of whether the defendant received the warning required by R.C. 2943.031(A)." Francis at ¶ 30. Thus, the primary objective of the statute is to ensure that notice of the adverse immigration consequences is given to the non-citizen defendant by the trial court and that the defendant was fully apprised of any immigration consequences prior to making the decision to enter a guilty or no contest plea. Here, the record clearly establishes that the trial court gave Aryee the R.C. 2943.031(A) advisement prior to accepting his no contest plea.
{¶ 17} Aryee argues that the record fails to establish that he understood the consequences of his no contest plea on his immigration status. We find that the circumstances outlined in the excerpted portions from the record above demonstrate that Aryee understood the immigration consequences.1 In a personal dialogue with the trial court at the arraignment, Aryee personally acknowledged on the record that he understood the rights explained to him by the trial court immediately after the R.C. 2943.031(A) advisement was given. Moreover, at the change of plea hearing, defense counsel represented to the trial court, prior to the trial court's acceptance of Aryee's no contest plea, that he and Aryee had again discussed the potential immigration consequences implicated in the R.C. 2943.031(A) advisement. Aryee then proceeded with the hearing to enter his no contest plea.
{¶ 18} While the better practice, and in our view the practice clearly contemplated under the statute, would be to personally address the defendant at the time of the change of plea hearing, we find that the facts in this case demonstrate that the trial court substantially complied with the principal intent and purpose of the statute, which is to provide a non-citizen defendant notice of the adverse immigration consequences implicated by his no contest or guilty plea. See Francis, 104 Ohio St.3d 490, 2004-Ohio-6894 at ¶ 48 (holding that the substantial compliance standard applies to R.C. 2943.031).2
{¶ 19} In sum, we find no error in the trial court's decision overruling Aryee's motion to withdraw his no contest plea because the record in this instance demonstrates that the mandatory R.C. 2943.031(A) advisement was given to Aryee and that Aryee understood the potential consequences on his immigration status when he entered his no contest plea. Accordingly, we find that Aryee has failed to establish that he is entitled to withdraw his no contest plea under R.C. 2943.031(D).
{¶ 20} For all these reasons, the assignment of error is overruled and the judgment is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
