[Cite as State v. Rivera, 2014-Ohio-3378.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

STATE OF OHIO, : 

 Plaintiff-Appellee, : CASE NO. CA2013-05-072 

 

 : O P I N I O N

 - vs - 8/4/2014 

 : 

FRANCISCO JUAIRO NAUPA RIVERA : 

a.k.a. Francisco J. Naupa, 

 : 

 Defendant-Appellant. 

 : 

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

Case No. CR13-02-0194 

Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government 

Services Center, 315 High Street, 11th Fl., Hamilton, Ohio 45011, for plaintiff-appellee 

Joni Turner-Statzer, 7936 Acorn Trail, Maineville, Ohio 45039, for defendant-appellant 

 HENDRICKSON, J. 

{¶ 1} Defendant-appellant, Francisco Juairo Naupa Rivera, appeals from a decision 

in the Butler County Court of Common Pleas denying his presentence motion to withdraw his 

guilty plea to charges of burglary and sexual battery. For the reasons outlined below, we 

affirm the decision of the trial court. 

{¶ 2} Rivera is not a United States citizen, but has obtained lawful permanent 
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residence status. His mother, father, and younger brother are all living in the United States. 

While Spanish is spoken at home, Rivera is 23 years old and has spent over half of his life in 

the United States. Additionally, Rivera graduated from high school in the United States and 

was a student at a local university. 

{¶ 3} In 2012, Rivera was indicted on one count of burglary, two counts of criminal 

trespass, and one count of trespass in habitation. On February 8, 2013, Rivera appeared for 

a motion to suppress hearing where he was represented by Attorney Herbert J. Haas. When 

he arrived, Rivera was asked to go forward on a bill of information regarding sexual battery. 

After consulting with his family and Attorney Haas, Rivera withdrew his motion to suppress 

and entered a guilty plea to both burglary and sexual battery. The criminal trespass and 

trespass in habitation charges merged with the burglary charge. 

{¶ 4} At the hearing, the following exchange took place: 

THE COURT: We're going to do a variety of paperwork with you 

today, Mr. Rivera. If at any time you do not understand what I'm 

asking you please stop me and I'll allow you time to talk to your 

attorney. And then we will proceed after you've had a chance to 

consult with your attorney. How old are you? 

THE DEFENDANT: Twenty-three. Twenty-three. 

THE COURT: Twenty-three years old. And how far did you get 

in school? 

THE DEFENDANT: College. 

THE COURT: And you read, write and understand the English 

language? 

THE DEFENDANT: Yes. 

THE COURT: And is anyone forcing you? 

THE DEFENDANT: No, sir. 

THE COURT: Is anyone forcing you, threatening you or 

pressuring you to enter this plea? 

THE DEFENDANT: No, sir. 
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THE COURT: Has anyone made you any promises in exchange 

for this plea other than the fact that I assume that the sexual 

battery issue won't be presented to the Grand Jury with this plea, 

right? 

MR. HAAS: That's correct. 

THE COURT: Other than that has there been any other 

promises given to you? 

THE DEFENDANT: No. Your Honor. 

THE COURT: Okay. Are you a citizen of the United States? 

THE DEFENDANT: No, Your Honor. 

THE COURT: Okay. Just so you know, if you're not a citizen of 

the United States you're hereby advised a conviction of the 

offense to which you are pleading guilty may have the 

consequences of deportation, exclusion from admission into the 

United States, or denial of naturalization pursuant to the laws of 

the United States; do you understand that? 

THE DEFENDANT: Yes, sir. 

{¶ 5} Additionally, because Rivera was pleading guilty to a bill of information, the 

colloquy continued: 

THE COURT: Okay. First we're going to go over some 

information on the bill of information. You understand, sir, that 

you have a right to wait 24 hours after being served with the bill 

of information? What that means is we can come back here on 

Monday and do the same thing since today's a Friday. But you 

have indicated that you're willing to waive your right to wait 24 

hours and go ahead and proceed today on the bill of information. 

Is that what you wish to do? 

THE DEFENDANT: Yes, sir. 

THE COURT: Okay. The next thing you're giving up is your right 

to be - - have this sexual battery case, or rape, whatever would 

have been presented at the Grand Jury. You have a right to 

have that presented to the Grand Jury for their determination. 

And you can either - - and by signing this waiver of indictment 

document you're indicating to the Court that you don't wish to 

have this matter presented to the Grand Jury. Because the 

Grand Jury could have indicted you for this sexual battery 

offense. They could have indicted you for a more serious 
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offense. They could have no billed or dismissed the case. But 

you've indicated to the Court that you wish to waive indictment. 

Is that what you wish to do? 

THE DEFENDANT: Yes, Your Honor. 

{¶ 6} After this exchange, the trial court discussed Rivera's request to have the 

information filed for sexual battery and recited facts for both the burglary and sexual battery 

offenses. Rivera indicated that the facts for these offenses were true and accurate. Rivera 

also stated that Attorney Haas went over all the documents with him and he was satisfied 

with his representation. The trial court reviewed the sentence possibilities and enumerated 

the rights Rivera would be giving up by pleading guilty. Rivera indicated that he did not have 

questions regarding any statements made by the trial court or trial counsel and then pled 

guilty to burglary and sexual battery. 

{¶ 7} In March 2013, Rivera filed a presentence motion to withdraw his guilty plea. A 

three-day hearing was conducted where several witnesses testified on behalf of Rivera, 

including Rivera and Rivera's family members. An interpreter, Joanne Bernal, and Rivera's 

immigration attorney, Paul Shonk, also testified. Attorney Hass testified on behalf of the 

state. 

{¶ 8} Following the hearing, the trial court denied Rivera's motion to withdraw his 

guilty plea. The trial court found that Rivera was represented by competent counsel, was 

afforded a complete Crim.R.11 plea hearing, was afforded a full and complete hearing on his 

motion to withdraw, and understood the nature of the charges and the possible 

consequences of pleading guilty, including deportation and prison time. The trial court further 

found that while specific reasons for the withdrawal were set forth in Rivera's motion, the 

reasons were not worthy to withdraw his guilty plea. On April 9, 2013, Rivera was sentenced 

to 12 months in prison for burglary and 54 months in prison for sexual battery to run 

consecutively. 
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{¶ 9} Rivera now appeals, asserting two assignments of error for review. 

{¶ 10} Assignment of Error No. 1: 

{¶ 11} THE TRIAL COURT ERRED BY DENYING [RIVERA'S] PRE-SENTENCE [sic] 

MOTION TO WITHDRAW HIS GUILTY PLEA. 

{¶ 12} Assignment of Error No. 2: 

{¶ 13} THE TRIAL COURT ERRED BY NOT FINDING THAT [RIVERA] RENDERED 

HIS PLEA WITHOUT HAVING EFFECTIVE ASSISTANCE OF COUNSEL. 

{¶ 14} Under his first assignment of error, Rivera argues that the trial court erred by 

denying his presentence motion to withdraw his guilty plea. Rivera asserts that his motion 

should have been granted because (1) he was never informed that a consequence of 

pleading guilty to sexual battery was mandatory deportation, (2) the trial court failed to 

determine that he understood the nature of the charges against him as required by Crim.R. 

11, and (3) he only pled guilty because Attorney Haas intimidated him by threatening he 

would not receive a fair trial. Under his second assignment of error, Rivera argues that 

Attorney Haas as counsel was ineffective because Attorney Haas failed to inform him that his 

plea would result in deportation. Also, Rivera asserts Attorney Haas refused to withdraw 

Rivera's guilty plea, and thus "deprived him of the advantage that immediate withdraw would 

have given him." Because they are related, we will address Rivera's assignments of error 

together. 

{¶ 15} Crim.R. 32.1 permits a defendant to file a motion to withdraw a guilty plea prior 

to sentencing. Generally, a presentence motion to withdraw a guilty plea should be freely 

and liberally granted. State v. Xie, 62 Ohio St.3d 521, 526 (1992). Nevertheless, a 

defendant does not have "an absolute right to withdraw a guilty plea prior to sentencing." Id.

at paragraph one of the syllabus. Rather, the trial court must conduct a hearing to determine 

whether there is a "reasonable and legitimate basis for the withdrawal of the plea." Id.
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{¶ 16} The decision to grant or deny a presentence motion to withdraw a guilty plea 

rests within the trial court's discretion. Id. at paragraph two of the syllabus. A reviewing court 

defers to the judgment of the trial court because "the good faith, credibility and weight of the 

movant's assertions in support of the motion are matters to be resolved by that court." Id. at 

525, quoting State v. Smith, 49 Ohio St.2d 261, 264 (1977). An abuse of discretion implies 

that the trial court's ruling was "unreasonable, arbitrary, or unconscionable." State v. Metcalf, 

12th Dist. Butler No. CA2002-12-299, 2003-Ohio-6782, ¶ 10.

{¶ 17} In determining whether to grant a presentence motion to withdraw a guilty plea, 

the trial court should consider the circumstances surrounding the defendant's plea. Metcalf 

at ¶ 11. The factors to be weighed include: (1) whether the state will be prejudiced by 

withdrawal; (2) the representation afforded to the defendant by counsel; (3) the extent of the 

Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion to withdraw; (5) whether 

the trial court gave full and fair consideration to the motion; (6) whether the timing of the 

motion was reasonable; (7) the reasons for the motion; (8) whether the defendant understood 

the nature of the charges and potential sentences; (9) whether the accused was perhaps not 

guilty or had a complete defense to the charge. State v. Ward, 12th Dist. Clermont No. 

CA2008-09-083, 2009-Ohio-1169, ¶ 7. No one factor is conclusive in the determination of 

whether a plea should be allowed to be withdrawn. Id., citing State v. Fish, 104 Ohio App.3d 

236, 240 (1st Dist.1995). 

Notification of Deportation

{¶ 18} Rivera argues that his plea should have been withdrawn and his counsel was 

ineffective based on Attorney Haas's failure to inform him that pleading guilty rendered him 

deportable. Specifically, Rivera asserts that Attorney Haas never directly answered 

questions as to whether he informed Rivera pleading guilty to sexual battery resulted in 

mandatory deportation at the hearing held on his motion to withdraw. 
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{¶ 19} When an alleged error underlying a motion to withdraw a guilty plea is the 

ineffective assistance of counsel, the defendant must show (1) that his counsel's 

performance was deficient and (2) that there is a reasonable probability that, but for counsel's 

errors, he would not have pled guilty. Xie, 62 Ohio St.3d at 524, citing Strickland v. 

Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Additionally, in Padilla v. Kentucky, 559 

U.S. 356, 130 S.Ct. 1473 (2010), the United States Supreme Court held that Strickland, 

which outlines the standard for an ineffective assistance of counsel claim, applies in 

analyzing whether counsel was effective in notifying a criminal defendant of the deportation 

consequences of his plea. 

{¶ 20} Under the first prong of Strickland, the Padilla court held that when the 

deportation consequences of pending criminal charges are "truly clear," a criminal defense 

attorney has an equally clear duty to give correct advice regarding those charges. Padilla at 

357. Nevertheless, in recognizing that immigration law is often "complex" and creates 

"numerous situations in which the deportation consequences of a particular plea are unclear 

or uncertain," the Supreme Court held that where the law is not "succinct and 

straightforward," a criminal defense attorney need only "advise a noncitizen client that 

pending criminal charges may carry a risk of adverse immigration consequences." Id.

{¶ 21} In the case at bar, Attorney Shonk testified that pleading guilty to a sexual 

battery offense renders a defendant who is not a United States citizen deportable. Assuming 

arguendo that Attorney Shonk is correct, and that the immigration code is clear that sexual 

battery renders a person who is not a United States citizen deportable, the trial court did not 

abuse its discretion in denying Rivera's presentence motion to withdraw his guilty plea. See 

8 U.S.C.A. 1227(a)(2)(A)(i) and 1227(a)(2)(A)(iii). 

{¶ 22} Attorney Haas testified that he explained to Rivera and his family the possible 

sentences for pleading or going to trial. Attorney Haas testified: "The most important thing 
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about Mr. Rivera's case are two things [sic]. One, he was facing felony charges. And if he 

was convicted of those felony charges, not possible deportation, guaranteed deportation." 

Attorney Haas further testified that: "The worst that could happen on any given day with this 

plea was an eight-year sentence and deportation. * * * Deportation was never off the table." 

Attorney Haas continued: "A nonresident, or somebody here who's illegally (sic.), gets in 

trouble. They get their punishment. They also get deported. It's a two-step process. It's 

unfortunate, but that's what the law requires, and he was made aware of that, clearly." 

Rivera and his family members testified that he was never made aware of the deportation 

consequences of his plea. 

{¶ 23} The trial court believed the testimony of Attorney Hass, stating: "I found Mr. 

Haas to be a very credible witness under a lengthy, detailed, cross-examination by Ms. 

Turner. I found him - - his answers to be credible, logical." Acting as the trier of fact, the trial 

court is in the best position to resolve factual questions and evaluate witness credibility. 

State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353, ¶ 12. 

Consequently, the trial court found Rivera was notified that a plea would result in deportation. 

{¶ 24} Further, even if we were to assume that Rivera's trial counsel was deficient, 

Rivera is unable to establish that he would not have pled guilty to sexual battery absent his 

attorney's alleged deficiency as he was informed, at the very least, that pleading guilty to his 

burglary charge would result in deportation. Attorney Haas clearly notified Rivera that 

pleading guilty to at least one of the charges would result in his deportation. Additionally, 

Attorney Shonk testified that he had conversations with Rivera regarding the immigration 

consequences of pleading guilty to the burglary charge.1

 Finally, the trial court provided 

 

1. An alien is deemed deportable under federal immigration law for committing certain criminal offenses that are 

considered aggravated felonies. 8 U.S.C.A. 1227(a)(2)(A)(iii). According to 8 U.S.C.A. 1101(a)(43)(G), an 

"aggravated felony" includes "a theft offense (including receipt of stolen property) or burglary offense for which 

the term of imprisonment [of] at least one year." Consequently, by pleading guilty to the burglary offense, Rivera 

was deportable. 
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Rivera with the statutory warnings under R.C. 2943.031 that his conviction may result in 

deportation, exclude him from admission to the United States, or impact his ability to become 

a United States citizen. Nonetheless, Rivera pled guilty to both burglary and sexual battery. 

Rivera is therefore unable to establish the second prong of Strickland. See State v. Aguirre, 

12th Dist. Butler No. CA2011-03-001, 2012-Ohio-144, ¶ 26. Additionally, we note that Rivera 

was not prejudiced by Attorney Haas failing to file a motion to withdraw his guilty plea. Rivera 

obtained other counsel who filed a motion approximately one month after his plea. 

Timeliness of the motion was not a basis for which the trial court denied Rivera's motion. 

Consequently, we find that the trial court did not abuse its discretion in denying Rivera's 

presentence motion to withdraw his guilty plea on the basis of ineffective assistance of 

counsel. 

Crim.R. 11

{¶ 25} Next, Rivera contends that his plea was not voluntary and the trial court failed to 

comply with Crim.R. 11(C)(2)(a). Specifically, Rivera asserts that the trial court failed to 

determine that he understood the nature of the charges at the plea hearing because the trial 

court did not prod further into his affirmative or negative responses of "yes, sir" or "no, sir" 

and he was not provided with an interpreter. 

{¶ 26} The procedure for a court's acceptance of a guilty plea is clearly laid out within 

Crim.R. 11. State v. Todd, 12th Dist. Clermont No. CA2003-02-012, 2003-Ohio-6786, ¶ 6. 

The relevant portion of Crim.R. 11(C)(2)(a) requires that a court "shall not accept a plea of 

guilty * * * without first addressing the defendant personally and * * * determining that the 

defendant is making the plea voluntarily, with understanding of the nature of the charges and 

of the maximum penalty involved * * *." 

{¶ 27} A court, "need only substantially comply with the requirements of Crim.R. 11 

that involve the waiver of nonconstitutional rights." Todd at ¶ 11, citing State v. Ballard, 66 
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Ohio St.2d 473, 476 (1981). Substantial compliance requires the court to determine under a 

totality of the circumstances that the defendant subjectively understood the implications of his 

plea and the rights he waived. State v. Nero, 56 Ohio St.3d 106, 108 (1990). "[T]here is no 

easy or exact way * * * to determine what someone subjectively understands. If the 

defendant receives the proper information, then we can ordinarily assume that he 

understands that information." State v. Carter, 60 Ohio St.2d 34, 38 (1979). 

{¶ 28} The trial court is not required to explain the various elements of the offense; 

however it may be called upon to clarify any misunderstanding on the part of the defendant 

where the defendant indicates confusion with regards to the charges. State v. Fitzpatrick, 

102 Ohio St.3d 321, 2004-Ohio-3167, ¶ 57, 61. There is no requirement that a court enter 

into a discussion with a defendant or defendant's counsel to ensure there is an 

understanding where no uncertainty is otherwise indicated. State v. Dotson, 12th Dist. 

Preble No. CA2007-11-025, 2008-Ohio-4965, ¶ 10. 

{¶ 29} In this instance, the following exchange took place at the plea hearing: 

THE COURT: First we're going to hear facts as to the sexual 

battery and then we'll hear a statement of facts as to the 

burglary. And then I'll ask you a question about them. 

[THE PROSECUTOR]: That being by information, Your Honor, 

under case number CR2013-02-0194 the facts at trial would 

show that on or about September 14th, 2012 in the early morning 

hours of that date at 15 East Collin Street, City of Oxford, Butler 

County, Ohio[,] the Defendant, Francisco Rivera did engage in 

sexual conduct with Sarah * * *, being not the spouse of the 

offender and when the offender knew that [Sarah's] ability to 

apprise the nature of, or control her own conduct is substantially 

impaired. Constitutes the offense of sexual battery[,] felony of 

the third degree in violation of revised code Section 

2907.03(a)(2). 

* * * 

THE COURT: Okay. And Mr. Rivera, did you hear the statement 

of facts as it relates to the sexual battery charge? 

THE DEFENDANT: Yes, Your Honor. 
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THE COURT: Do you agree that those are true and accurate? 

THE DEFENDANT: Yes, Your Honor. 

An almost identical exchange occurred after the facts of the burglary were read into the 

record. 

{¶ 30} The trial court provided Rivera with information regarding facts surrounding the 

offenses and inquired as to the accuracy of the charges. Rivera argues under the 

circumstances of this case, the trial court's inquiry was insufficient because he was not 

provided an interpreter. In denying Rivera's motion, the trial court noted that Rivera had 

spent over half his life in the United States and was attending college. The trial court also 

observed that Rivera never appeared to be confused during the plea and never requested an 

interpreter. When asked whether he could read, write, and understand the English language, 

Rivera responded, "yes." Rivera's immigration counsel did not have an interpreter present 

when he met with Rivera. Additionally, as noted above, Rivera was informed of his right to 

wait 24 hours after being served with the bill of information before pleading to sexual battery. 

The trial court found that Rivera was afforded at least 45 minutes to consult with his attorney 

and his family. In light of the foregoing, we find that the trial court did not abuse its discretion 

in denying Rivera's presentence motion to withdraw his guilty plea on the basis that his plea 

was not voluntary. 

Intimidation by Attorney

{¶ 31} Furthermore, Rivera asserts that the trial court erred in not accepting his 

presentence motion to withdraw his guilty plea because he was intimidated by Attorney Haas. 

Rivera contends that Attorney Haas told him he would not prevail at trial because the county 

is racist and he would not receive a fair trial because the judge had connections to the 

university where the crimes occurred and was going to "throw the book at him." 

{¶ 32} Rivera relies on State v. Gonder, 2d Dist. Greene No. 2003-CA72, 2004-Ohio-
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4051. In Gonder the Second District held that the trial court abused its discretion in denying 

a defendant's motion to withdraw his guilty plea where the trial court never indicated that it 

did not believe the testimony of the defendant and his mother about his attorney's advice that 

he should plea because of the racist nature of the people in the county. 

{¶ 33} In contrast, in this case, Attorney Haas did take the witness stand and was 

subjected to a lengthy cross-examination. Attorney Haas denied making statements to 

Rivera that the judge or the community was bias against him. Additionally, Attorney Haas 

testified that he did not know that the judge had any connections to the university where the 

crimes occurred until after the plea was entered. The trial court believed the testimony of 

Attorney Hass, stating: "I found Mr. Haas to be a very credible witness." Again, acting as the 

trier of fact, the trial court is in the best position to resolve factual questions and evaluate 

witness credibility. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353, at ¶ 12. 

Consequently, we find that the trial court did not abuse its discretion in denying Rivera's 

presentence motion to withdraw his guilty plea on the basis that he was intimidated by his 

attorney. 

{¶ 34} In light of the foregoing, we find that the trial court did not abuse its discretion in 

denying Rivera's presentence motion to withdraw his guilty plea. Additionally, we find that 

trial counsel was not deficient. Even if Rivera's counsel was deficient, Rivera failed to show 

that he would not have pled guilty or was prejudiced by any alleged deficiency. Rivera's first 

and second assignments of error are overruled. 

{¶ 35} Judgment affirmed. 

RINGLAND, P.J., and S. POWELL, J., concur.