Oral Argument Preview: Must Noncitizens be Warned of the Immigration Consequences of a Written Admission of Guilt Required by a Diversion Program? State of Ohio v. Issa Kona.

Update: On November 21, 2016, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here.

On June 10, 2015, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. Issa Kona, 2014-0733. At issue in this case is whether a noncitizen must be advised of the immigration consequences of a written admission of guilt required by a diversion program.

Case Background

On April 1, 2006, Issa Kona was arrested and charged with two counts of robbery for allegedly shoplifting a battery charger. Kona, who is Palestinian and has been living in the United States on a Green Card, was informed by counsel that a robbery or attempted robbery conviction would be a deportable offense. He pled not guilty, and applied for and was accepted into the Cuyahoga County Diversion Program.

The Cuyahoga County Diversion Program is a six-month rehabilitation program for adults who are accused of committing criminal offenses, who the prosecuting attorney believes are unlikely to be repeat offenders. As part of the application for admission, set by the prosecutor’s office, the defendant is required to submit a written statement admitting involvement in the crime. In exchange, upon completion of the diversion program, the charges against the defendant are dismissed and the defendant may have his or her record expunged. But in the event that the participant fails to complete the program, the statement may be used against the participant in court.

Kona, who agreed to the Diversion Program, was never advised that the necessary admission of guilt could lead to his deportation. He successfully completed the program, and the trial court dismissed all charges against him and ordered the record to be sealed.

Sometime after the dismissal, Kona submitted an application for naturalization. Upon submission, Kona was advised that he would be subject to deportation upon final processing of his application due to the admission of guilt required by the diversion program. He was also told that the only way to avoid deportation was to withdraw the admission of guilt and have the conviction vacated.

Kona filed a motion to unseal his record, which the trial court granted over the state’s opposition. Kona then moved to vacate his admission of guilt. The trial court denied Kona’s motion, and Kona appealed.

On appeal, the Eighth District Court of Appeals unanimously upheld the trial court’s ruling. The court held that the admission of guilt statement required for entry into the diversion program was not the equivalent of a guilty plea or plea of no contest. In addition, the court held that nothing in the statute governing pretrial diversion programs requires a trial court to advise a defendant of possible immigration consequences.

Key Statutes and Precedent

R.C. 2943.031 (Creates additional warning requirements for noncitizens)

(A)( “…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… 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.’”)

(D) (Requires courts to permit a defendant to withdraw a plea of guilty and enter an alternate plea if the court fails to provide the defendant with the advisement described in 2943.031(A) and the defendant can show that his plea may result in being subject to deportation, denial of admission into the country, or denial of naturalization.)

R.C. 2935.36 (Governs pre-trial programs and sets requirements for accused entering pre-trial diversion programs.)

8 U.S.C. 1101(a)(48)(A) (Defining “conviction” to include instances where a judge or jury  has found the alien guilty or the alien has entered a plea of guilty or no contest or has admitted sufficient facts to warrant a finding of guilt, and some punishment, penalty, or restraint on the alien’s liberty has been imposed.)

Crim.R. 11(C)(2) (In felony cases the court shall not accept a plea of guilty or no contest without first personally addressing the defendant and informing the defendant of the effect of the plea or determining that the defendant understands the effect of the plea.)

Crim.R. 32.1 (A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but court may allow plea to be set aside after judgment of conviction to correct manifest injustice.)

Padhiyar v. Holder, (560 Fed. Appx. 514, 2014 U.S. App. LEXIS 5444) (6th Cir. 2014) (noncitizen was deemed convicted under the Immigration and Nationality Act (“INA”) where the individual had admitted sufficient facts to warrant a finding of guilt despite the fact that his record was expunged and all charges against him were dismissed.)

State v. Yanez, 2002-Ohio-7076 (1st Dist.)(The purpose of R.C. 2943.031 is to inform noncitizens of the potential immigration consequences of a plea)

State v. Lababidi, 2012-Ohio-267 (8th Dist.) (A manifest injustice is defined as a “fundamental flaw in the past of justice so extraordinary that the defendant could not have sought redress from the resulting prejudice through another form of application reasonably available to him or her.”)

Kona’s Argument

Kona notes that before accepting a guilty plea, R.C. 2943.031(A) requires courts to provide a warning that the plea may result in deportation or denial of naturalization. He also points out that, under  Section 1101(a)(48)(A) of the Immigration and Nationality Act,  an admission of guilt operates as a guilty or no contest plea. As federal law treats an “admission of guilt” as a “guilty plea,” the trial court should have considered the two concepts to be equivalent, and should have advised Kona of the potential immigration consequences of his admission of guilt. As the trial court did not do so, R.C. 2943.031(D) and Crim R. 32.1 allow the court to set aside his guilty plea and enter a plea of not guilty.

Kona argues that several factors point toward the conclusion that his admission of guilt should be treated as a guilty plea. The diversion program that Kona entered required him to provide a “complete, detailed, and accurate statement admitting [his] involvement/guilt to the pending charges.” The court had to approve this admission before Kona would be allowed to enter the program. Further, if Kona failed to complete the program, the charges pending against him would be reinstated, and the prosecutor would be permitted to use his admission of guilt as a confession to the crime which he cannot contest, functionally similar to the effect of a guilty or no contest plea.

At the federal level, the Sixth Circuit Court of Appeals has held that an admission of guilt is sufficient to constitute a “conviction” under the INA even if the case against the individual has been dismissed and the record of charges has been expunged.

Kona further notes that the purpose of R.C. 2943.031 is to inform noncitizens of the potential consequences that their decisions in the courtroom may have on their status as immigrants. He argues that his admission of guilt falls within this purpose. Thus, he should have been advised that his mere participation in the program would have placed him at risk for deportation and would have resulted in a denial of his application for citizenship. Because he was not made aware of these consequences, his written admission of guilt was not knowingly, voluntarily and intelligently made.

Finally, Kona argues in the alternative that Crim.R. 32.1 allows the court to withdraw his admission of guilt where a manifest justice will otherwise occur. He points out that he has been made subject to deportation because he entered into the diversion program and executed an admission of guilt without being informed of the potential immigration consequences. This would result in the type of injustice that Crim.R. 32.1 was designed to rectify.

State’s Argument

The state argues that nothing in R.C.  2943.031 requires a trial court to advise a defendant of the possible immigration consequences of entering into a pretrial diversion program. It further argues that the plain meaning of the statute makes it clear that the appellant would not have been afforded advisory protections unless he entered a plea of guilty or no contest. In addition, the state argues that the admission of guilt required by the diversion program is not equivalent to a plea of guilty.

The state notes that there is nothing in the language of R.C. 2943.031 that requires a trial court to advise a defendant of possible immigration consequences if the defendant enters into a pretrial diversion program. The state argues that this language is clear and unambiguous, and should be applied as written with no further interpretation necessary. The trial court was correct in its determination that R.C. 2943.031 did not apply to the diversion program.

Further, the purpose of Kona’s written admission of guilt was not to enter a plea of guilty to any charges, but rather to allow Kona to participate in the diversion program. The state argues that Kona’s admission of guilt does not constitute a guilty plea. Kona never pled guilty or no contest, never admitted to all the elements of robbery necessary for a guilty plea, and was never found guilty by a judge or jury. In essence, the state argues that the trial court could not grant a motion to withdraw a plea that was never entered into.

Consequentially, the state also argues that Kona’s admission of guilt does not constitute a plea of guilt under the INA, arguing that his admission of guilt was not an admission of sufficient facts to warrant a finding of guilt for the crime of robbery.

Kona’s Proposed Proposition of Law No. I

A written admission of guilt required by a diversion program is the functional equivalent of a guilty and/or no contest plea for purposes of R.C. 2943.031(A).

Kona’s Proposed Proposition of Law No. 2

A noncitizen is required to be advised as to potential immigration consequences pursuant to R.C. 2943.031 when required to provide a written admission of guilt as condition precedent for admission into a pretrial diversion program.

Kona’s Proposed Proposition of Law No. 3

A written admission of guilt is not made knowingly, voluntarily, and intelligently when a noncitizen is not advised of potential immigration consequences.

Kona’s Proposed Proposition of Law No. 4

A trial court should, pursuant to Crim.R. 32.1, withdraw a written admission of guilt thereby vacating the conviction for immigration purposes, where a manifest injustice will otherwise occur.

Kona’s Proposed Proposition of Law No. 5

A trial court has jurisdiction to withdraw a written admission of guilt and vacate the conviction after a dismissal.

Amicus Curiae In Support of Kona

Four amici, the Cuyahoga Criminal Defense Lawyers Association (“CCDLA”), the Ohio Association of Criminal Defense Lawyers (“OACDL”), the Ohio Chapter of the American Immigration Lawyers Association (“AILA”), and a group of concerned Ohio Immigration Attorneys (“Concerned Attorneys”) all filed briefs in support of Kona.

Amici OACDL and Concerned Attorneys provide a history of immigration law in the United States, including information on deportation and bars to naturalization. The Concerned Attorneys provide additional information on the interaction of federal and state law in this case, including the federal definition of “conviction” for immigration purposes, and the treatment of expungements and sealed records.

In general, Amici argue that, under federal immigration law, Kona satisfied the requirements for conviction of a deportable offense when he submitted a statement admitting his guilt and was placed in the diversion program for six months. In addition, they argue that the trial court must adhere to the advisory requirements of R.C. 2943.031, arguing that the General Assembly did not intend to create a situation where a non-citizen is exposed to possible immigration consequences as a result of his or her participation in a diversion program without adequate warning. OACDL and CCDLA further contend that Kona is alternatively entitled to have the plea withdrawn pursuant to Crim.R. 32.1’s manifest injustice standard.

The AILA also argues that the Sixth Amendment’s right to effective assistance of counsel requires that Kona be informed of the consequences stemming from his decision to enter the diversion program. AILA cites Padilla v. Kentucky, 559 US 356, which requires clients be advised that criminal charges will carry a risk of immigration consequences. The AILA argues that under Padilla, Kona was constitutionally entitled to advisement that entering the diversion program could have immigration consequences.

Student Contributor: Michael Elliott

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