[Cite as State v. Panda, 2020-Ohio-3040.]


                                       COURT OF APPEALS
                                    ASHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO,                              :       JUDGES:
                                            :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                :       Hon. Craig R. Baldwin, J.
                                            :       Hon. Earle E. Wise, J.
-vs-                                        :
                                            :
DEBASMITA PANDA,                            :       Case No. 20-COA-001
                                            :
        Defendant - Appellant               :       OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Ashland County
                                                    Court of Common Pleas, Case No.
                                                    18-CRI-076




JUDGMENT:                                           Reversed, Vacated and Remanded



DATE OF JUDGMENT:                                   May 19, 2020



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

CHRISTOPHER R. TUNNELL                              RHYS B. CARTWRIGHT-JONES
Ashland County                                      42 N. Phelps St.
Prosecuting Attorney                                Youngstown, Ohio 44503-1130


By: COLE F. OBERLI
Assistant Prosecuting Attorney
110 Cottage Street
Ashland, Ohio 44805
Ashland County, Case No. 20-COA-001                                                   2


Baldwin, J.

        {¶1}   Debasmita Panda appeals the decision of the Ashland County Court of

Common Pleas denying her request to withdraw her guilty plea. Appellee is the State of

Ohio.

                        STATEMENT OF FACTS AND THE CASE

        {¶2}   Appellant, Debasmita Panda, appeared with counsel in the Ashland County

Court of Common Pleas to enter a change of plea to one count of forgery in violation of

2913.31(A)(3). A second count of forgery was dismissed by the appellee. The facts

leading to the arrest and indictment of Panda are not relevant to the resolution of this

appeal and are therefore omitted.

        {¶3}   Panda is not a citizen of the United States and that fact triggered an

obligation of the trial court to explore her understanding of the consequences of a guilty

plea that are unique to a non-citizen. Revised Code Section 2943.031(A) describes the

duty of the trial court upon discovering a defendant entering a plea is not a citizen:

               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:
Ashland County, Case No. 20-COA-001                                                  3


              “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.”

      {¶4}    The trial court discovered Panda's non-citizenship and engaged in the

following exchange:

      THE COURT Ms. Panda, are you a United States Citizen?

      MS. PANDA: No, Your Honor.

      THE COURT: So do you understand that by entering a plea of guilty to that

      charge, you stand the possibility of being deported from the United States

      at some point and not being permitted to return to the United States? Do

      you understand that is one of the results of being found guilty of a felony?

      You need to answer out loud because we are making an audio recording of

      this.

      MS. PANDA: Yes, Your Honor.

      THE COURT: Okay, and you discussed that with Attorney Mayer?

      MS. PANDA: Yes, Your Honor.

      MR. MAYER: If I may Judge.

      THE COURT: Yes.

      MR. MAYER: I can confirm that those discussions have occurred from the

      outside of the representation, and in fact, the Court did grant a continuance

      from the previously scheduled jury trial so as to allow further discussion as
Ashland County, Case No. 20-COA-001                                                  4


       to that. There has also been discussions with an immigration attorney as

       well to discuss some of the potential consequences, and so she appreciates

       the opportunity that you gave her to continue looking into that.

       THE COURT: So you are fully advised and aware of the potential

       immigration issues.

       MS. PANDA: Yes, Your Honor.

Change of Plea Hearing Transcript, Sep. 19, 2018, p. 4, lines 22 to p. 6, line 7.

       {¶5}   Panda's change of plea was accepted and she was sentenced on

November 5, 2018 to ninety days of house arrest, a $250.00 fine, court costs and two

years’ probation. Panda has paid the fine and costs, served house arrest and the trial

court ordered probation successfully terminated on October 22, 2019.

       {¶6}   Panda filed a motion to vacate her guilty plea on December 4, 2019 arguing

that the trial court failed to fulfill its obligation under R.C. 2943.031 by not advising her

that a guilty plea may prevent her from becoming a naturalized citizen. She also alleged

that she received ineffective assistance of counsel because her trial counsel failed to

advise her of her plea’s impact on her ability to become a naturalized citizen. The trial

court denied the motion holding that "the Defendant was fully advised of the potential

immigration consequences of her plea and was afforded additional time to consult

specifically with an immigration attorney to fully investigate the potential consequences

of a plea. The Court finds that the Defendant’s plea was knowingly, voluntarily and

intelligently entered." Entry, Dec. 24, 2019.

       {¶7}   Panda filed a notice of appeal and submitted one assignment of error:
Ashland County, Case No. 20-COA-001                                                 5


         {¶8}   “I. THE TRIAL COURT ERRED IN DENYING PANDA'S MOTION TO

VACATE HER GUILTY PLEA.”

         {¶9}   Though Panda offered only one assignment of error, she contends the error

arose from two different causes—the failure of the trial court to comply with the

requirements of R.C. 2943.031 and ineffective assistance of counsel.

                                 STANDARD OF REVIEW

         {¶10} Revised Code 2943.031 and Crim.R. 32.1 are the basis for Panda’s motion

for relief and while post-sentence motions filed under Crim.R. 32.1 are subject to the

manifest injustice standard, that requirement is not applicable when the appellant claims

a violation of R.C. 2943.031. State v. Oluoch, 10th Dist. Franklin No. 07AP-45, 2007-

Ohio-5560, ¶9. “R.C. 2943.031(D)’s explicit language mandates that a trial court set aside

a judgment of conviction and allow a defendant to withdraw his guilty plea if the defendant

satisfies four requirements. Showing manifest injustice is not included as one of the

requirements.” State v. Weber, 125 Ohio App.3d 120, 129,707 N.E.2d 1178 (10th Dist.

1997).

         {¶11} Appellant must instead show that “(1) the court failed to provide the

defendant with the advisement contained in R.C. 2943.031(A); (2) the advisement was

required; (3) the defendant is not a United States citizen; and (4) the offense to which the

defendant pled guilty may result in the defendant being subject to deportation, exclusion,

or denial of naturalization under federal immigration laws. Id. at 126.

         {¶12} The trial court’s decision regarding whether the elements have been

established is reviewed under an abuse of discretion standard.
Ashland County, Case No. 20-COA-001                                                   6


              To clarify, the exercise of discretion “applies to the trial court's

       decision on whether the R.C. 2943.031(D) elements have been established

       (along with the factors of timeliness and prejudice * * *), not generally to the

       trial court's discretion once the statutory provisions have been met.” Id. at ¶

       34, 820 N.E.2d 355. “[A] defendant seeking relief under R.C. 2943.031(D)

       must make his or her case before the trial court under the terms of that

       statute, * * * the trial court must exercise its discretion in determining

       whether the statutory conditions are met, and * * * an appellate court

       reviews a trial court's decision on the motion under an abuse-of-discretion

       standard in light of R.C. 2943.031(D). Id. at ¶ 36, 820 N.E.2d 355.

State v. Muhumed, 10th Dist. Franklin No. 11AP-1001, 2012-Ohio-6155, ¶¶ 8-10.

       {¶13} Panda also contends that her trial counsel rendered ineffective assistance

by failing to inform her of the consequences of a finding of guilt. The Supreme Court of

Ohio recently issued an opinion regarding an analogous fact pattern and addressed the

appropriate standard to apply to a claim of ineffective assistance of counsel in this context:

              The Sixth Amendment to the United States Constitution guarantees

       a defendant the effective assistance of counsel at “‘critical stages of a

       criminal proceeding,’ including when he enters a guilty plea.” Lee v. United

       States, ––– U.S. ––––, 137 S.Ct. 1958, 1964, 198 L.Ed.2d 476 (2017),

       quoting Lafler v. Cooper, 566 U.S. 156, 165, 132 S.Ct. 1376, 182 L.Ed.2d

       398 (2012); Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203

       (1985). When a defendant alleges ineffective assistance of counsel arising

       from the plea process, the defendant must meet the two-prong test set out
Ashland County, Case No. 20-COA-001                                                      7


      in Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See Hill at 58,

      106 S.Ct. 366 (applying Strickland to guilty pleas); State v. Xie, 62 Ohio

      St.3d 521, 524, 584 N.E.2d 715 (1992) (same).

             First, the defendant must show that counsel's performance was

      deficient. Strickland at 687, 104 S.Ct. 2052; Xie at 524, 584 N.E.2d 715.

      When an attorney's noncitizen client is considering a plea, the United States

      Supreme Court has held that “counsel must inform her client whether his

      plea carries a risk of deportation.” Padilla, 559 U.S. at 374, 130 S.Ct. 1473,

      176 L.Ed.2d 284. Given the grave consequences of deportation, an

      ineffective-assistance claim is not limited to affirmative misadvice or false

      information. Id. at 369-371, 130 S.Ct. 1473. The failure to give any advice

      at all about possible deportation consequences satisfies the first prong of

      Strickland. Id. “The severity of deportation * * * only underscores how critical

      it is for counsel to inform her noncitizen client that he faces a risk of

      deportation.” Id. at 373-374, 130 S.Ct. 1473.

             Second, the defendant must demonstrate prejudice resulting from

      counsel's deficient performance. Strickland at 687, 104 S.Ct. 2052. The

      defendant can show prejudice by demonstrating a “reasonable probability

      that, but for counsel's errors, he would not have pleaded guilty and would

      have insisted on going to trial.” Hill at 59, 106 S.Ct. 366; Xie at 524, 584

      N.E.2d 715.

State v. Romero, 156 Ohio St.3d 468, 2019-Ohio-1839, 129 N.E.3d 404 (2019) ¶¶15-16.
Ashland County, Case No. 20-COA-001                                                     8


                                         ANALYSIS

       {¶14} The Supreme Court of Ohio requires that any motion seeking relief under

R.C. 2943.031 be timely. State v. Khan, 2nd Dist. Montgomery No. 21718, 2007-Ohio-

4208, ¶ 31. In the case before us, the issue of timeliness is not addressed by the trial

court, nor is it asserted as a fault by appellee in its brief, so we consider that issue waived.

       {¶15} Revised Code R.C. 2943.031(A) describes the duty of the trial court to

provide the warning therein as a mandatory obligation by the use of the word “shall” most

often used to designate a clear requirement. The Code requires that “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.” Id. (Emphasis added.) Further, the language of the advisement is

separately set out, in quotation marks, suggesting that the Legislature intended the trial

courts to provide a verbatim recitation of that language, though section of the Code does

not expressly include that requirement.

       {¶16} The Supreme Court of Ohio addressed the requirement of a verbatim

recitation in State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355. In

the first paragraph of the syllabus, the Court held that a verbatim recital is required:

              A trial court accepting a guilty or no-contest plea from a defendant

       who is not a citizen of the United States must give verbatim the warning set

       forth in R.C. 2943.031(A), informing the defendant that conviction of the

       offense for which the plea is entered “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.”
Ashland County, Case No. 20-COA-001                                                 9


       {¶17} A failure to provide a verbatim recitation of the warning need not be

fatal, as the Supreme Court of Ohio noted in the second paragraph of the Francis

syllabus:

              If some warning of immigration-related consequences was given at

       the time a noncitizen defendant's plea was accepted, but the warning was

       not a verbatim recital of the language in R.C. 2943.031(A), a trial court

       considering the defendant's motion to withdraw the plea under R.C.

       2943.031(D) must exercise its discretion in determining whether the trial

       court that accepted the plea substantially complied with R.C. 2943.031(A).

       {¶18} The Court defined “substantial compliance” as meaning “that under the

totality of the circumstances the defendant subjectively understands the implications of

his plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d

474 (1990). The Supreme Court of Ohio referenced State v. Malcolm (2001), 257 Conn.

653, 778 A.2d 134, in support of its holding that substantial compliance is sufficient to

satisfy the requirement of the Revised Code. While that Court did find that substantial

compliance was sufficient, the statute at issue in that case is worded differently than R.C.

2943.031 and does not contain a mandatory advisement but only requires that the trial

court “shall not accept a plea of guilty or nolo contendere from any defendant in any

criminal proceeding unless the court first addresses the defendant personally and

determines that the defendant fully understands” the potential consequences of his plea.

Conn.Gen.Stat.Ann. 54-1j. Chief Justice Moyer and Justice Pfeiffer dissented in Francis

and noted that the unambiguous requirement of the statute was a verbatim recitation of

the advisement. Nevertheless, we are bound to comply with the holding in Francis and
Ashland County, Case No. 20-COA-001                                                10


determine whether the trial court “substantially complied” with the requirements of R.C.

2943.031 when it failed to provide a verbatim recitation.

       {¶19} The trial court did not comply with the first paragraph of the syllabus of

Francis, supra, because it failed to “give verbatim the warning set forth in R.C.

2943.031(A), informing the defendant that conviction of the offense for which the plea is

entered “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.” We

must next review whether the trial substantially complied with the mandate of R.C.

2943.031(A).

       {¶20} We conclude that the trial court did not substantially comply with R.C.

2943.031(A) because it failed to describe the plea’s potential impact on Panda’s ability to

become a naturalized citizen. We agree with the Second District Court of Appeals when

it determined that:

               The trial court failed to advise Defendant that his guilty plea might

       result in exclusion from admission to the United States, or denial of

       naturalization. Thus, in advising Defendant about the possible adverse

       immigration consequences of his guilty plea the trial court failed to even

       mention two out of the three separate, distinct consequences set forth in

       R.C. 2943.031(A). In our view, that does not constitute substantial

       compliance with R.C. 2943.031(A). See: State v. Zuniga, Lake App.

       Nos.2003-P-0082, 2004-P-0002, 2005-Ohio-2078.

State v. Hernandez-Medina, 2nd Dist. Clark No. 06CA0131, 2008-Ohio-418, ¶ 30.
Ashland County, Case No. 20-COA-001                                                 11


       {¶21} We find that appellant could not subjectively understand the rights she was

waiving when she was not fully advised of the rights that may be impacted by a finding of

guilty. Our conclusion is buttressed by the first paragraph in the syllabus in Francis

mandating a verbatim recitation of the advisement in R.C. 2943.031 which leads us to

conclude that the second paragraph, which permits substantial compliance, requires

advisement of all three consequences described within that section of the Revised Code.

The Legislature determined all three issues were of such significant import that it included

specific language for the trial court’s use when advising defendants. The trial court in the

case below failed to substantially comply because it did not address the possible

consequence of denial of naturalization. Concluding that a trial court substantially

complied with the requirement of the Code without any mention of one of the

consequences is tantamount to changing the language of the statute and we are not

willing to adopt such an interpretation. Our conclusion is indirectly supported by the

decision in State v. Sow, 10th Dist. Franklin No. 17AP-772, 2018-Ohio-4186, ¶ 17 where

the Tenth District Court of Appeals held that the trial court substantially complied with

statutory requirements by informing defendant of the three possible consequences of

deportation, exclusion from admission and denial of naturalization, but did not provide a

verbatim recital of the advisement.

       {¶22} We hold that the trial court abused its discretion by finding that it

substantially complied with the requirements of R.C. 2943.031. The trial court did not

provide a verbatim recitation and failed to include one of the potential consequences of a

guilty finding. Panda admitted she was not a citizen, so the advisement was necessary

and neither the trial court nor appellee argue to the contrary. Because there was not
Ashland County, Case No. 20-COA-001                                                    12


substantial compliance with the statutory requirements, the assignment of error is

sustained.

                                              II.

       {¶23} Panda also argued the trial court abused its discretion by not concluding

that she had received ineffective assistance of counsel with regard to the immigration

consequences of her plea. Because we have sustained the assignment of error based

upon the omission of a part of the mandatory advisement contained in R.C. 2943.031, we

hold this portion of the argument moot. However, we cannot ignore the fact that the trial

court did not clearly address this issue. The Supreme Court of Ohio concluded that a trial

court abuses its discretion by denying a motion to withdraw his guilty plea in this context

without considering the two-prong test for ineffective assistance of counsel established in

Strickland. State v. Romero, 156 Ohio St.3d 468, 2019-Ohio-1839, 129 N.E.3d 404

(2019). If this issue had not been made moot by our decision regarding the impact of

R.C. 2943.031, we would have been compelled to remand the matter to the trial court

under the holding of Romero.

       {¶24} Panda has served her sentence and paid fines and costs and her probation

has been terminated, so we sua sponte consider whether this appeal is moot. The issue

of mootness of a criminal case arises only if it is shown that there is no possibility that any

collateral legal consequences will be imposed upon the basis of the challenged

conviction. Cf. St. Pierre v. United States (1943), 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed.

1199; Fiswick v. United States (1946), 329 U.S. 211, 222, 67 S.Ct. 224, 91 L.Ed. 196,

State v. Wilson, 41 Ohio St.2d 236, 237, 325 N.E.2d 236, 237 (Ohio 1975).
Ashland County, Case No. 20-COA-001                                                13


      {¶25} In this matter we find there is a collateral legal consequence, the potential

impact on Panda’s immigration status. Therefore we conclude that the fact that Panda

has served her sentence, paid a fine and court costs does not render the matter moot.

      {¶26} The decision of the Ashland County Court of Appeals denying Panda’s

motion to withdraw her guilty plea is reversed, appellant’s conviction is vacated and this

matter is remanded to the Ashland County Court of Common Pleas for further

proceedings consistent with this opinion.


By: Baldwin, J.

Gwin, P.J. and

Wise, Earle, J. concur.
