On June 10, 2015, the Supreme Court of Ohio heard 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. The case has now been under submission for over a year. Based on the oral argument, it appeared the justices were struggling over exactly how to resolve this case.
Issa Kona, a Palestinian who had been living lawfully in the United States on a green card since 2002 with his wife and four daughters, was arrested in April of 2006 and charged with two counts of robbery for allegedly shoplifting a $59 battery charger, and then scuffling with several security guards. Kona was informed at the time by counsel that a robbery or attempted robbery conviction would be a deportable offense. He pled not guilty.
Kona filed a motion requesting referral to the Cuyahoga County Pretrial Diversion Program, which was granted. In order to be accepted into the diversion program at that time, the Cuyahoga County Prosecutor’s office required the defendant to give a written statement admitting to the crime. In exchange, upon completion of the diversion program, the charges against the defendant are dismissed and the defendant can get his or her record judicially sealed. But if 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 adverse immigration consequences such as deportation, exclusion from admission to the United States, and denial of naturalization. He successfully completed the program, and the trial court dismissed all charges against him and ordered the record to be sealed.
After then applying for U.S. citizenship, Kona learned that the admission of guilt required for admittance to the diversion program could subject him to deportation and other adverse immigration consequences. 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 appeals court held that the admission of guilt statement required for entry into the diversion program was not the equivalent of a guilty or no contest plea. Because there was no formal plea, it could not vacate a conviction that did not exist. 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.
Kona’s chief argument in the case was that the admission of guilt required to enter the diversion program was the functional equivalent of a guilty or no contest plea, thus triggering the warnings required in R.C. 2943.031. That statute requires the court to give non-citizens certain advisements as to possible deportation, exclusion or denial of naturalization consequences upon a guilty or no contest plea.
The prosecutor argued that a written admission of guilt, then required to enter the diversion program, does not trigger the advisements under the statute, nor is there any constitutional requirement to give them. But the prosecutor also told the court that the program requirements have since been changed and advisements are now given, both in the diversion program packet, and in an in-court colloquy.
What was undisputed was that no one told Kona the diversion program yielded the same consequences as a conviction would.
What To Do?
The delay in this case is not unexpected. It was quite apparent at this very hot oral argument that the court couldn’t figure out how it wanted to resolve this case. Was it just correcting a “manifest injustice” in a single case (not usually the high court’s approach) or should there be a broader holding? Apparently the solution hasn’t been obvious.
You can watch the oral argument in this case here.