rejecting the intermediate appellate court’s determination, in the context of a claim under Ohio’s version of § 16-713, “that, as a matter of law, untimeliness ... was a sufficient factor in and of itself to justify the trial court’s decision to deny the motion”
How later courts described this case
- rejecting the intermediate appellate court’s determination, in the context of a claim under Ohio’s version of § 16-713, “that, as a matter of law, untimeliness ... was a sufficient factor in and of itself to justify the trial court’s decision to deny the motion”
Written by the judges who cited it.
The opinion
Moyer, C.J.,
concurring in judgment only.
{¶ 58} I concur with the majority’s holding to the extent that it reverses the judgment of the court of appeals that held that appellant’s motion to withdraw her plea was untimely as a matter of law. However, I disagree with the following two conclusions: (1) timeliness of a motion to withdraw may be a factor in a trial court’s consideration of a motion filed pursuant to R.C. 2943.031(D) and (2) a trial court’s warning issued pursuant to R.C. 2943.031(A) is subject to review under a substantial-compliance standard. I address each conclusion separately.
*503 I. Timeliness
{¶ 59} The majority holds that “[t]imeliness of the motion is just one of many factors that the trial court should take into account when exercising its discretion in considering whether to grant [a motion filed pursuant to R.C. 2943.031(D) ].” I disagree with this holding because it violates the plain language of R.C. 2943.031(D).
{¶ 60} The trial court is limited to considering four enumerated criteria when confronted with a motion to withdraw a plea filed pursuant to R.C. 2943.031(D). 2 Notably, timeliness of the filing of the motion is not among the statutory criteria.
{¶ 61} R.C. 2943.031(D) provides that the trial court “shall set aside the judgment and permit the defendant to withdraw a plea of guilty” if the enumerated criteria are established. (Emphasis added.) This court has consistently held that “when it is used in a statute, the word ‘shall’ denotes that compliance with the commands of that statute is mandatory.” (Emphasis sic.) Dept. of Liquor Control v. Sons of Italy Lodge 0917 (1992), 65 Ohio St.3d 532, 534 , 605 N.E.2d 368 .
{¶ 62} Thus, a trial court confronted with an R.C. 2943.031(D) motion to withdraw a plea is permitted to consider only the four statutorily enumerated factors, and when those factors are established, the court is required to grant the motion to withdraw.
{¶ 63} The majority disregards this clear statutory mandate when it holds that a trial court has the discretion to consider the timeliness of an R.C. 2943.031(D) motion to withdraw a plea.
{¶ 64} The majority then seeks to support its disregard of the plain language of the statute with reference to the state’s interest in maintaining the finality of convictions. While the state’s interest in finality is undeniable, we should not use the protection of that interest as a justification for disregarding the plain language of a statute.
{¶ 65} The majority also likens a motion to withdraw a plea under R.C. 2943.031(D) to a Crim.R. 32.1 motion to withdraw a plea by observing that neither the statute nor the rule contains a timeliness requirement. The majority notes that this court read such a requirement into Crim.R. 32.1 in State v. Bush, 96 Ohio St.3d 235 , 2002-Ohio-3993 , 773 N.E.2d 522 . However, our holding in *504 Bush is inapplicable to this case because of the important differences between Crim.R. 32.1 and R.C. 2943.031(D).
{¶ 66} R.C. 2943.031(D) requires the trial court to vacate a plea when the statutorily enumerated factors are established, whereas Crim.R. 32.1 grants the trial court discretion in deciding whether a guilty plea should be vacated. Compare R.C. 2943.031(D) (providing that when the enumerated factors are established, “the court shall set aside the judgment and permit the defendant to withdraw a plea of guilty”) with Crim.R. 32.1 (stating that “to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea”). (Emphasis added.)
{¶ 67} Furthermore, R.C. 2943.031(D), unlike Crim.R. 32.1, does not require the defendant to make a showing of manifest injustice before permitting the defendant to withdraw his or her plea.
{¶ 68} These differences demonstrate that the General Assembly intended R.C. 2943.031(D) to be an independent means of withdrawing a plea that is not governed by the requirements of Crim.R. 32.1. Thus, our holding in Bush does not support the majority’s decision to depart from the plain language of R.C. 2943.031(D).
II. Substantial Compliance
{¶ 69} I further disagree with the majority’s conclusion that trial courts need only substantially comply with R.C. 2943.031(A). The plain language of that provision mandates application of a strict-compliance standard.
{¶ 70} As the majority recognizes, “R.C. 2943.031(A) is crystal clear in supplying the specific language the trial court is to use in warning a defendant of the possible consequences of pleading guilty or no contest. The statute even goes so far as to place the required language within quotation marks, leaving no doubt that the General Assembly desires the warning to be given exactly as provided.” Despite this recognition, the majority applies a substantial-compliance standard of review to R.C. 2943.031(A) and in doing so, holds that trial courts need not do what is expressly mandated by the statute.
{¶ 71} The majority states that precedent supports application of a substantial-compliance standard. However, in State v. Pless (1996), 74 Ohio St.3d 333, 340 , 658 N.E.2d 766 , we emphasized that when the requirements of a provision “are clear and unambiguous, * * * we are constrained to enforce the statute as written. If we were to ignore th[e] statute, * * * no clear and unambiguous statute would be safe from a ‘substantial compliance’ interpretation.”
{¶ 72} The requirements set forth in R.C. 2943.031(A), like those in the statute at issue in Pless , are clear and unambiguous. R.C. 2943.031(A) states that “the court shall* * * provide the following advisement to the defendant * * *:
*505 {¶ 73} “ ‘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 * * * 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.’ ” (Emphasis added.)
{¶ 74} Use of the word “shall” and placement of the required advisement in quotation marks demonstrate that the General Assembly intended the trial court to give, verbatim, the warning in R.C. 2943.031(A). Accordingly, I would hold that a trial court must strictly comply with R.C. 2943.031(A) by reading the quoted language to the defendant at the plea hearing.
{¶ 75} When trial courts take the time to simply follow the clear direction of a statute, cases such as this do not clutter court dockets.
{¶ 76} In this case, the trial court failed to recite verbatim the R.C. 2943.031(A) advisement. Rather, the trial court asked the appellant whether she understood that pleading guilty to the felony “would affect [her] rights in this country” and whether she had discussed the effect of pleading guilty with her attorney.
{¶ 77} Because the trial court failed to strictly comply with R.C. 2943.031(A), I would remand this cause to the trial court for a determination of whether the appellant has established the other three R.C. 2943.031(D) elements and thus is entitled to withdraw her guilty plea pursuant to R.C. 2943.031(D).
Pfeifer, J., concurs in the foregoing opinion.
. R.C. 2943.031(D) allows a defendant to withdraw his or her plea if “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.”