Update: Issa Kona’s lawyer, Joe Burke, reports that on the day the decision came out, the prosecutor called to tell him the case against Kona would now be dismissed.
On November 21, 2016, the Supreme Court of Ohio handed down a merit decision in State v. Kona, Slip Opinion No. 2016-Ohio-7796. In a 4-3 opinion written by Justice Pfeifer, joined by Chief Justice O’Connor and Justices Lanzinger and O’Neill, the court held that a noncitizen defendant must be advised of immigration consequences of an admission of guilt required for entry into a pretrial diversion program. Justices O’Donnell and French dissented without opinion, and would dismiss the case as improvidently allowed. Justice Kennedy dissented, and would affirm the court of appeals. The case was argued June 10, 2015. Understandably, this one took awhile.
Issa Kona is not a U.S. citizen, but has been a legal resident since 2002. On April 1, 2006, he was arrested for allegedly trying to steal a $59 battery charger from a Home Depot store in Cleveland. A scuffle with one of the security guards ensued. Kona was charged with two counts of robbery. He was advised by an immigration lawyer that robbery and attempted robbery were deportable offenses, and he pled not guilty.
The Diversion Program
The day his trial was to start, Kona was granted a continuance to apply for the Cuyahoga County diversion program. To do so, Kona had to admit his guilt to the pending charges in a written statement, and was informed by diversion packet materials that in the event he failed to abide by all the conditions of the diversion program, the state had the right to use the written statement of guilt against him in court. The diversion packet contained no information about any consequences on immigration status for entering the program, such as deportation, exclusion from admission to the United States, and denial of naturalization.
Kona successfully completed the program, and the trial court dismissed all charges against him and ordered his record to be sealed.
Kona Attempts to Withdraw His Admission of Guilt
After the dismissal of all charges against him, Kona submitted an application for naturalization. He learned that he would be subject to deportation after the final processing of his application because of the admission of guilt he had signed to enter the pretrial diversion program. So, he decided to try and withdraw the admission of guilt and have his conviction vacated.
Kona filed a motion to unseal his record, which the trial court granted. Kona then moved to vacate his admission of guilt. At the hearing on this motion, Kona argued that his admission of guilt operated as a conviction under federal law, and he should have been given the advisements required under R.C. 2943.031. The state argued that the statutory advisements are not required when a defendant enters a pretrial diversion program because there is no guilty or no contest plea entered in open court. 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. While sympathizing with Kona’s plight, 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.
Key Statutes and Precedent
R.C. 2943.031 Immigration Advisement Statute
(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.)
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. 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.)
Padilla v. Kentucky, 559 U.S. 356 (2010)( effective assistance of counsel requires informing a criminal defendant of the immigration consequences of a criminal conviction before entering into a plea agreement.)
Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006) (“A conviction vacated for rehabilitative or immigration reasons remains valid for immigration purposes, while one vacated because of procedural or substantive infirmities does not.”)
State v. Francis, 2004-Ohio-6894 (A trial court accepting a guilty or no-contest plea from a defendant who is not a citizen of the United States must first inform the defendant that a conviction may have adverse immigration consequences.)
The Immigration Advisement Statute
R.C. 2943.031 requires a trial court to advise a non-citizen defendant of the possibility of “deportation, exclusion from admission to the United States, or denial of naturalization” resulting from a plea of guilty or no contest. If the trial court fails to give the advisement, and immigration consequences follow, the court must allow the defendant to withdraw his plea. A defendant need not demonstrate “manifest injustice” under Crim. R. 32.1 in order to do so.
Unintended Consequences for Noncitizens Entering a Diversion Program.
Under federal immigration law, if a criminal record is expunged or dismissed because a defendant successfully completed a diversion program, that doesn’t count to erase the conviction. Vacating a plea under R.C. 2943.031(D) would, however. In other words, vacating a conviction because of a substantive or procedural defect in the underlying proceedings is treated differently from vacating a conviction post-conviction through expungement or successful completion of a diversion program. The former can eliminate adverse immigration consequences, while the latter do not.
Justice Pfeifer reviews in some detail federal immigration law and the federal definition of “conviction,” concluding,
“Thus, participation in a diversion program can have unintended consequences for a noncitizen; even though a diversion-program participant avoids a conviction in state court, a noncitizen participant in such a program may still have a conviction on his or her record for immigration-law purposes[.]”
Advisements Must Be Given When Written Admission of Guilt is Required by Diversion Program
The majority held (as Kona had argued) that because R.C. 2943.031 requires warning noncitizens of the potential effects of convictions, it is triggered with an admission of guilt as part of a pretrial diversion program, since that admission creates a conviction under federal law. The court noted that otherwise a defendant who is amenable to pretrial diversion faces more dire immigration consequences than a more serious offender who isn’t eligible for diversion, who would still get the full protections of the statute. “[T]he defendants deemed to have committed the least serious offenses potentially suffer, without warning, the most serious consequences,” Pfeifer wrote.
Changes in the Cuyahoga County Diversion Program
At the time Kona entered the Cuyahoga County diversion program, a written admission of guilt was required to enter the program, even though the pretrial diversion program statute does not require it. The prosecutor told the court that beginning in 2014, all program participants get a full plea hearing with a judge, so the statutory admonishments are now given to noncitizens. And, the diversion packet has been changed, to include a warning in boldface to noncitizens that participation in the program could have the consequences of deportation, exclusion from admission, or denial of naturalization. So Kona’s situation should not arise again.
During oral argument, Chief Justice O’Connor had asked whether the court couldn’t just require that the advisements be given in this situation, and so it did. As to Kona himself, and any others who might be similarly situated, the court held that R.C. 2943.031(A) “requires that the trial court give an advisement to a defendant submitting an admission of guilt for entry into a pretrial diversion program. The court must inform the defendant that the admission 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.”
So, What Happens to Kona?
The trial court was ordered to set aside the prior conviction by vacating the dismissal of the case against Kona, to vacate the admission of guilt that Kona had executed as part of the pretrial diversion program, and to allow Kona to plead not guilty to the underlying charges. Of course, if Kona opts to go to trial and is found guilty of robbery, he could still face deportation and other immigration consequences. But as I noted after argument, and as Chief Justice O’Connor articulated during argument, what happened seemed more like shoplifting or petty theft than robbery, which hopefully for Kona has less drastic immigration consequences. Or perhaps Kona will be offered a plea to a non-deportable offense.
After oral argument, I predicted a win for Kona, writing this:
“[b]ut this argument barely seemed like an adversarial proceeding, largely because the Cuyahoga County Prosecutor’s Office has now changed its policy, and advisements are now required for written admissions into its diversion program. So this was an unusual oral argument, in that it seemed more like a problem solving session, trying to figure out how to give meaningful relief to Kona from collateral immigration consequences here. Surely, as the Chief noted, before making an admission that has such serious consequences, a person needs to know what those consequences are. And as Justice O’Neill noted, a defendant in this circumstance is giving up important Fifth Amendment protection.
“The prosecutor wasn’t pushing back terribly hard for relief for Kona, and was very honorable in that regard. He argued when he needed to.
“Still, this isn’t a walk in the park for Kona. Justice Lanzinger was the most sympathetic to his position, Justice O’Donnell the least. Justice O’Neill was also very sympathetic—his dissent as an appellate judge in Willoughby Hills v. Qasim, 2007-Ohio-2860 suggests he will side with Kona, as did most of his questions. I think the Chief, and Justices Pfeifer and O’Neill will join Justice Lanzinger to give relief to Kona here. Justice O’Donnell will likely dissent, and I think Justice French may, as well, although she said little at argument. As usual, no hint from Justice Kennedy.”
I also correctly predicted how the court would give relief to Kona:
“The question here is how to give relief to Kona. The easiest way out would be to declare a manifest injustice under Crim. R. 32.1, but I don’t think the court will take that route. I think Justice Lanzinger suggested the best solution, which is to extend the holding of State v. Francis to a written admission of guilt required for a diversion program, finding it to be the functional equivalent of a guilty or no contest plea, as defense counsel argued.”
Kudos to the majority on this one. I think they really stepped up and did the right thing.