[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

v. Kona, Slip Opinion No. 2016-Ohio-7796.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2016-OHIO-7796

THE STATE OF OHIO, APPELLEE, v. KONA, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State v. Kona, Slip Opinion No. 2016-Ohio-7796.] 

When in accordance with the requirements of a pretrial diversion program a 

noncitizen defendant admits sufficient facts to warrant a finding of guilt, the 

trial court must provide to the defendant the advisement contained in R.C. 

2943.031(A) that the admission of guilt may affect his or her immigration 

status. 

(No. 2014-0733—Submitted June 10, 2015—Decided November 21, 2016.) 

APPEAL from the Court of Appeals of Cuyahoga County, 

No. 100191, 2014-Ohio-1242. 

_________________ 

PFEIFER, J. 

{¶ 1} In this case, we hold that when in accordance with the requirements 

of a pretrial diversion program a noncitizen defendant admits sufficient facts to 

warrant a finding of guilt, the trial court must provide to the defendant the 
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2

advisement contained in R.C. 2943.031(A) that the admission of guilt may affect 

his or her immigration status, i.e., that it “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.” 

Factual and Procedural Background 

{¶ 2} Defendant-appellant, Issa Kona, is not a United States citizen but has 

been a legal resident since 2002. On April 1, 2006, Kona was arrested for allegedly 

attempting to steal a battery charger worth around $80 from a Home Depot store in 

Cleveland. The police report states that he was followed out of the store by security 

guards, who demanded the battery charger, and that a physical confrontation ensued 

with at least one of the guards. 

{¶ 3} On May 2, 2006, Kona was indicted by the Cuyahoga County Grand 

Jury on two counts of robbery pursuant to R.C. 2911.02. R.C. 2911.02 reads: 

(A) No person, in attempting or committing a theft offense 

or in fleeing immediately after the attempt or offense, shall do any 

of the following: 

(1) Have a deadly weapon on or about the offender’s person 

or under the offender’s control; 

(2) Inflict, attempt to inflict, or threaten to inflict physical 

harm on another; 

(3) Use or threaten the immediate use of force against 

another. 

The bill of particulars filed by the state on June 8, 2006, alleged that Kona had, in 

committing or fleeing from the commission of a theft offense, inflicted, attempted 

to inflict, or threatened to inflict harm on someone and also had used or threatened 

the immediate use of force on that same person. Kona pleaded not guilty; he sought 
January Term, 2016 

3

guidance from an immigration attorney and was advised that attempted robbery and 

theft are offenses for which he could be deported if convicted. 

{¶ 4} On September 20, 2006, the day that trial was set to begin, the court 

granted Kona a continuance to apply for the Cuyahoga County diversion program. 

On October 30, 2006, with the approval of the prosecuting attorney, the trial court 

admitted Kona into the diversion program. The entry read: 

In accordance with the provisions of R.C. 2935.36, the 

prosecutor’s office has found that the defendant has met eligibility 

requirements for acceptance into the Cuyahoga County pretrial 

diversion program. 

* * * 

In all cases admitted into the diversion program, the 

defendant shall be granted a $1000.00 personal bond (CSR), and 

shall be placed under the supervision of the probation department’s 

court supervised release program/diversion unit. 

Upon consideration, the court hereby approves the 

defendant’s participation in said program, and orders that this case 

to [sic] be placed in an inactive status until further notice. 

{¶ 5} The trial court spoke only through its entry; Kona was not brought 

before the judge into open court. There was no mention in the entry about any 

possible effect on Kona of enrollment in the diversion program as far as possible 

deportation, exclusion from admission to the United States, or denial of 

naturalization. 

{¶ 6} As a prerequisite of participating in the diversion program, Kona was 

required to complete a diversion packet. One document in the packet, titled 

“Criteria for Acceptance,” required him to “admit his guilt, in regard to the pending 
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4

charges, in a written statement.” The document he executed to satisfy this 

requirement was titled “Admission of Guilt Statement,” and contained Kona’s 

name and criminal-case number. The document provided this instruction: 

You are to provide a complete, accurate, and truthful 

statement concerning your present criminal charge(s). This 

statement must admit to the crimes for which you are charged. 

{¶ 7} Kona’s statement read: 

On April 1, 2006, I entered the Home Depot located at 11901 

Berea Road, Cleveland, Ohio and took a battery charger, removed it 

from its package, and hid it in my coat. I purchased a window for 

$180.00 and exited the store. 

As I left the store, I was confronted and apprehended by 

three (3) store security men. The battery charger was found in my 

coat and recovered. 

The total value was $59.00. 

{¶ 8} Another document in the diversion packet, titled “General Rules,” 

informed Kona that should he not abide by all of the conditions of the diversion 

agreement, his case would be brought to court as if he had not participated in the 

diversion program and the state would have the right to use the written admission 

of guilt in its case against him. The diversion packet also contained a waiver-ofrights form, but that form contained no information regarding any possible effect 

that participation in the diversion program might have on his immigration status. 

{¶ 9} Kona successfully completed the diversion program, and on May 4, 

2007, the trial court, upon the state’s recommendation, dismissed the case against 
January Term, 2016 

5

Kona; further, the court granted Kona’s motion for expungement and sealed the 

record. 

{¶ 10} But Kona’s admission of guilt had consequences. Kona later learned 

that under federal immigration law, an admission of guilt made pursuant to a 

diversion program can constitute a conviction affecting immigration status. 8 

U.S.C. 1101(a)(48)(A). After the dismissal, Kona had submitted an application for 

naturalization and was advised by immigration officials that he would be subject to 

deportation upon the final processing of his application due to the admission of 

guilt he had signed as part of the pretrial diversion program. Kona testified that 

after learning the effect of his admission of guilt, he consulted with several 

immigration lawyers, who advised him that the only way to avoid deportation 

would be to withdraw the admission of guilt and have the conviction vacated. 

{¶ 11} Kona filed a motion to unseal the record, to which the state filed a 

brief in opposition. But the trial court granted the motion on September 10, 2008. 

Then, on October 20, 2008, Kona filed a motion to vacate his plea. In a journal 

entry of February 25, 2009, the trial court ordered Kona to file a supplemental 

motion within 21 days. He filed that motion on March 6, 2009, and the state filed 

its response on March 25, 2009. 

{¶ 12} On April 21, 2009, the trial court held a hearing. Kona argued that 

his admission of guilt operated as a conviction under federal law and that he was 

entitled to all the protections he would have been afforded had he actually entered 

a guilty plea, including those protections under Crim.R. 11 and R.C. 2943.031. 

R.C. 2943.031(A) requires courts to alert noncitizens that a guilty plea or no-contest 

plea, “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.” 

{¶ 13} The state argued that R.C. 2943.031 does not require a trial court to 

advise a defendant entering a pretrial diversion program of possible immigration 
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6

consequences. Since Kona had not entered a plea of guilty or no contest, the state 

argued, the trial court had not been required to follow Crim.R. 11 or R.C. 2943.031. 

{¶ 14} On July 2, 2013, the trial court, in an entry without any analysis, 

denied Kona’s amended motion to withdraw his plea and vacate the judgment. 

Kona appealed to the Eighth District Court of Appeals. That court stated, 

“Although we sympathize with Kona and agree that the application of the 

immigration laws in his case result in a manifest injustice, we cannot agree with 

him that the trial court erred here.” 2014-Ohio-1242, ¶ 19. The court concluded 

that “because Kona did not enter a plea of guilty or no contest as part of his pretrial 

diversion program, the trial court was not required to follow the mandates of 

Crim.R. 11 and R.C. 2943.031. * * * A trial court cannot withdraw a plea that was 

never entered into, nor can it vacate a conviction that does not exist.” Id. at ¶ 22. 

{¶ 15} The cause is before this court upon the allowance of a discretionary 

appeal. 140 Ohio St.3d 1414, 2014-Ohio-3785, 15 N.E.3d 883. 

Law and Analysis 

{¶ 16} For a noncitizen, the most significant aspect of a criminal conviction 

may not be the resulting criminal sanction but the conviction’s effect on 

immigration status. “[D]eportation is an integral part—indeed, sometimes the most 

important part—of the penalty that may be imposed on noncitizen defendants who 

plead guilty to specified crimes.” (Footnote deleted.) Padilla v. Kentucky, 559 

U.S. 356, 364, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). R.C. 2943.031 recognizes 

the seriousness of possible effects of convictions on noncitizens; it requires a trial 

court, before it accepts a defendant’s plea, to advise the defendant on the possibility 

of “deportation, exclusion from admission to the United States, or denial of 

naturalization” resulting from the plea. The statute reads: 

(A) 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, 
January Term, 2016 

7

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: 

“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.” 

Upon request of the defendant, the court shall allow him 

additional time to consider the appropriateness of the plea in light of 

the advisement described in this division. 

R.C. 2943.031. 

{¶ 17} The statute requires that the advisement be given to every defendant 

making a plea of guilty or no contest, unless the defendant has stated orally on the 

record that he is a citizen of the United States or has answered a written question 

on the form on which he enters a plea of guilty that he is a citizen of the United 

States. R.C. 2943.031(B). 

{¶ 18} If the trial court fails to give the advisement and immigration 

implications arise from the plea, the court must allow the defendant to withdraw his 

plea. R.C. 2943.031(D) sets forth the circumstances under which the court must 

accept the withdrawal of the plea: 

Upon motion of the defendant, the court shall set aside the 

judgment and permit the defendant to withdraw a plea of guilty or 
SUPREME COURT OF OHIO

8

no contest and enter a plea of not guilty * * * if * * *the court fails 

to provide the defendant the advisement described in division (A) of 

this section, the advisement is required by that division, and the 

defendant shows that he is not a citizen of the United States and that 

the conviction of the offense to which he pleaded guilty or no contest 

may result in his being subject to deportation, exclusion from 

admission to the United States, or denial of naturalization pursuant 

to the laws of the United States. 

{¶ 19} In State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 

N.E.2d 355, this court held that motions to withdraw pleas under R.C. 2943.031(D) 

after sentencing has occurred are not subject to the Crim.R. 32.1 standard that 

requires a defendant to demonstrate manifest injustice before a court may permit 

him to withdraw his plea. “The General Assembly has apparently determined that 

due to the serious consequences of a criminal conviction on a noncitizen’s status in 

this country, a trial court should give the R.C. 2943.031(A) warning and that failure 

to do so should not be subject to the manifest-injustice standard even if sentencing 

has already occurred.” Id. at ¶ 26. R.C. 2943.031 creates “a substantive statutory 

right for certain criminal defendants and that * * * right therefore prevails over the 

general procedural provision of Crim.R. 32.1.” Id. at ¶ 27. R.C. 2943.031 provides 

an independent procedure, available after judgment, allowing a challenge to a 

substantive defect in the underlying proceedings. 

{¶ 20} The vacation of a plea pursuant to R.C. 2943.031(D) has important 

consequences in immigration proceedings; because it concerns a procedural or 

substantive defect in the underlying conviction, the vacation is recognized for 

immigration purposes. A vacation for procedural or substantive reasons addresses 

the validity of the underlying conviction and eliminates the criminal ground for 

deportation. On the other hand, “[i]f the criminal record is expunged or dismissed 
January Term, 2016 

9

because of post-conviction behavior such as successfully completing probation, or 

for rehabilitative purposes, then the federal immigration agencies do not recognize 

the expungement or dismissal as erasing the conviction.” Andrew Moore, Criminal 

Deportation, Post-Conviction Relief and the Lost Cause of Uniformity, 22 

Geo.Immigr.L.J. 665, 668 (2008). 

{¶ 21} In In re Adamiak, 23 I. & N. Dec. 878 (BIA 2006), the Board of 

Immigration Appeals addressed the case of an Ohio permanent resident who faced 

immigration consequences—removal from the country as an alien convicted of an 

aggravated felony—as a result of a guilty plea he had made to a drug-trafficking 

offense. During the course of the immigration proceedings, Patryk Adamiak sought 

to withdraw his guilty plea through the procedure outlined in R.C. 2943.031, and 

the trial court granted the withdrawal of the plea. An immigration judge, however, 

held that the withdrawal of the plea had no effect for immigration purposes because 

Adamiak had been convicted of a felony under the definition of a “conviction” in 

8 U.S.C. 1101(a)(48), and she found him removable as charged. Adamiak at 879. 

{¶ 22} But the board reversed the decision of the immigration judge, 

concluding that “the court’s vacation of that conviction should be recognized for 

immigration purposes” and that the conviction should no longer be considered 

valid. Id. at 881. The board noted that it views vacation of convictions for 

procedural defects differently from other postconviction vacations: 

In our decisions addressing the effect of State court orders 

vacating convictions, we have distinguished between situations in 

which a conviction is vacated based on post-conviction events, such 

as rehabilitation, and those in which a conviction is vacated because 

of a defect in the underlying criminal proceedings 

Id. at 879. 
SUPREME COURT OF OHIO

10 

{¶ 23} The board explained that it recognized the vacation of Adamiak’s 

conviction because the vacation was related to a defect in the underlying 

proceedings and did not result from the rehabilitation of Adamiak or an attempt by 

the trial court to help him avoid immigration hardships. The board held: 

 The Ohio court’s order permitting withdrawal of the 

respondent’s guilty plea is based on a defect in the underlying 

proceedings, i.e., the failure of the court to advise the respondent of 

the possible immigration consequences of his guilty plea, as 

required by Ohio law. To remedy the defect in the original 

proceedings, the trial court ordered that the respondent be afforded 

a new trial on the underlying drug trafficking charge. Under these 

circumstances, we find that the Ohio court’s vacation of the 

respondent’s conviction should be recognized in immigration 

proceedings. 

In re Adamiak, 23 I. & N. Dec. at 879-880. 

{¶ 24} The Sixth Circuit Court of Appeals has also adopted this view: 

[W]hen a court vacates an alien’s conviction for reasons solely 

related to rehabilitation or to avoid adverse immigration hardships, 

rather than on the basis of a procedural or substantive defect in the 

underlying criminal proceedings, the conviction is not eliminated 

for immigration purposes. Matter of Pickering, 23 I & N Dec. 621, 

624 (BIA 2003). This interpretation of the law is consistent with 

that of other circuits and with our own interpretation. A conviction 

vacated for rehabilitative or immigration reasons remains valid for 
January Term, 2016 

11 

immigration purposes, while one vacated because of procedural or 

substantive infirmities does not. 

Pickering v. Gonzales, 465 F.3d 263, 266 (6th Cir.2006). The policy reasons for 

creating the distinction between convictions vacated for procedural or substantive 

reasons and other rehabilitative or immigration reasons “are rooted in Congress’s 

desire to achieve uniformity in the treatment of criminal behavior for deportation 

purposes and to prevent state judges and prosecutors from defeating federal 

immigration policy by providing ameliorative relief through changes to the criminal 

record.” Moore, Criminal Deportation, Post-Conviction Relief and the Lost Cause 

of Uniformity, 22 Geo.Immigr.L.J. at 665. 

{¶ 25} This disparate treatment of vacated convictions follows from the 

development of the definition of “conviction” in federal immigration law. “Over 

the years, the BIA has wrestled with the question of when a ‘conviction’ occurred 

under state statutes providing for varying degrees of deferred adjudication.” 

Murillo-Espinoza v. Immigration & Naturalization Serv., 261 F.3d 771, 774 (9th 

Cir.2001). The board described the problem in In re Ozkok, 19 I. & N. Dec. 546, 

550-551 (BIA 1988): 

[T]he Board has attempted over the years to reconcile its definition 

of a final conviction with the evolving criminal procedures created 

by the various states. Having reviewed our decisions in this regard, 

we must acknowledge that the standard which we have applied to 

the many variations in state procedure may permit anomalous and 

unfair results in determining which aliens are considered convicted 

for immigration purposes. * * * 

We find no rational or legal reason for according * * * aliens 

different immigration status based on the criminal procedures of the 
SUPREME COURT OF OHIO

12 

states where they committed a crime. Under the approach we have 

taken in the past, form has been placed over substance, and aliens 

who are clearly guilty of criminal behavior and whom Congress 

intended to be considered “convicted” have been permitted to 

escape the immigration consequences normally attendant upon a 

conviction. 

{¶ 26} Out of concern that a more uniform approach was needed to 

determine what would constitute a conviction for immigration purposes, the court 

in Ozkok adopted a three-part test under which an alien was considered “convicted” 

when “(1) the alien had been found guilty or pleaded guilty or nolo contendere or 

had admitted sufficient facts to warrant a finding of guilty; (2) the judge had ordered 

some form of punishment; and (3) a judgment of guilt could be entered without 

further proceedings relating to guilt if the person violated terms of his probation or 

other court order.” Murillo-Espinoza at 774, citing Ozkok at 551-552. 

{¶ 27} In 1996, as part of the Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996, Division C of Public Law No. 104-208, 110 Stat. 3009-

546 (enacted September 30, 1996) (“IIRIRA”), Congress, defined the meaning of 

the term “conviction” for immigration purposes, essentially adopting two elements 

of the Ozkok test: 

The term “conviction” means, with respect to an alien, a 

formal judgment of guilt of the alien entered by a court or, if 

adjudication of guilt has been withheld, where— 

(i) a judge or jury has found the alien guilty or the alien has 

entered a plea of guilty or nolo contendere or has admitted sufficient 

facts to warrant a finding of guilt, and 
January Term, 2016 

13 

(ii) the judge has ordered some form of punishment, penalty, 

or restraint on the alien’s liberty to be imposed. 

8 U.S.C. 1101(a)(48)(A). 

{¶ 28} In In re Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA 1999), the board, 

examining the legislative history of the IIRIRA, discussed the significance of 

Congress’s not adopting the third prong of Ozkok: 

The legislative history of section 322 of the IIRIRA underscores the 

breadth of the new definition: 

 “Ozkok * * * does not go far enough to address situations 

where a judgment of guilt or imposition of sentence is suspended, 

conditioned upon the alien’s future good behavior. * * * In some 

States, adjudication may be “deferred” upon a finding or confession 

of guilt, and a final judgment of guilt may not be imposed if the alien 

violates probation until there is an additional proceeding regarding 

the alien’s guilt or innocence. In such cases, the third prong of the 

Ozkok definition prevents the original finding or confession of guilt 

to be considered a ‘conviction’ for deportation purposes. This new 

provision, by removing the third prong of Ozkok, clarifies 

Congressional intent that even in cases where adjudication is 

‘deferred,’ the original finding or confession of guilt is sufficient to 

establish a ‘conviction’ for purposes of the immigration laws.” See 

H.R. Conf. Rep. No. 104-828, at 224 (1996). 

Id. at 518. The board concluded that 
SUPREME COURT OF OHIO

14 

Congress intends that an alien be considered convicted, based on an 

initial finding or admission of guilt coupled with the imposition of 

some punishment, even in a state where further proceedings relating 

to the alien’s actual guilt or innocence may be required upon his 

violation of probation in order for him to be considered convicted 

under the state law. 

Id. Thus, even though a defendant can escape a conviction under state law by not 

violating probation and ultimately having the case dismissed, a conviction for 

federal-immigration-law purposes occurs upon the admission of facts sufficient to 

warrant a finding of guilt coupled with a restraint on liberty. The fact that a 

conviction is not automatic upon the violation of the terms of the diversion 

agreement was significant under Ozkok but is not significant under the statute. 

“[The] statutory definition of ‘conviction’ has eliminated the ‘further proceedings’ 

consideration from the analysis, thus ending disparate treatment of aliens turning 

on the technicalities of their states’ deferred adjudication procedures.” Susan L. 

Pilcher, Justice Without A Blindfold: Criminal Proceedings and the Alien 

Defendant, 50 Ark.L.Rev. 269, 321 (1997). 

{¶ 29} 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: 

[A]n admission of guilt coupled with any restraint on liberty—such 

as having to complete a specified drug or alcohol awareness 

program—is a conviction under immigration law. If a prosecutor 

requires an admission of guilt to enter a pretrial diversion program 

and this admission is recorded, then for immigration purposes the 
January Term, 2016 

15 

alien’s participation in pretrial diversion is deemed a conviction all 

the same. This is true even if, as a result of successful completion 

of the diversion program, the prosecutor drops the charges. While 

the purpose of pretrial programs is to permit first-time offenders to 

rehabilitate without any criminal record on their file, where 

admission of guilt is required to participate, the result has been that 

aliens who participate in these programs have a conviction for 

immigration purposes and may be deportable depending on the type 

of crime committed. 

(Footnotes deleted.) Dinesh Shenoy & Salima Oines Khakoo, One Strike and 

You’re Out! The Crumbling Distinction Between the Criminal and the Civil for 

Immigrants in the Twenty-First Century, 35 Wm. Mitchell L. Rev. 135, 158-159 

(2008). 

{¶ 30} Such is the case with Kona. In this case, Kona participated in 

Cuyahoga County’s pretrial diversion program, which was established pursuant to 

R.C. 2935.36. The statute provides: 

(A) The prosecuting attorney may establish pre-trial 

diversion programs for adults who are accused of committing 

criminal offenses and whom the prosecuting attorney believes 

probably will not offend again. The prosecuting attorney may 

require, as a condition of an accused’s participation in the program, 

the accused to pay a reasonable fee for supervision services that 

include, but are not limited to, monitoring and drug testing. The 

programs shall be operated pursuant to written standards approved 

by journal entry by the presiding judge or, in courts with only one 

judge, the judge of the court of common pleas * * *. 
SUPREME COURT OF OHIO

16 

{¶ 31} Ohio’s pretrial-diversion-program statute does not require a 

defendant to admit guilt prior to being admitted into a program, but the Cuyahoga 

County program that Kona participated in did make that a requirement for entry 

into the program. A criterion for acceptance into the program at the time Kona 

entered it was that “[t]he applicant must admit his guilt, in regard to the pending 

charges, in a written statement.” By meeting this requirement, Kona also satisfied 

the first element of the 8 U.S.C. 1101(a)(48)(A)(i) definition of “conviction”: “the 

alien * * * has admitted sufficient facts to warrant a finding of guilt.” 

{¶ 32} The second element of the definition of “conviction” is that “(ii) the 

judge has ordered some form of punishment, penalty, or restraint on the alien’s 

liberty to be imposed.” As a participant in the diversion program, Kona was subject 

to the following requirements: 

5. As a condition of a personal bond, an applicant shall be 

placed under the supervision of the Probation Department’s Court 

Supervised Release Program/Diversion Unit. 

* * * 

9. The applicant must be willing to make himself available 

for conferences with a Division Officer * * * between the hours of 

8:30 a.m. and 4:00 p.m., unless other arrangements are made. 

* * * 

14. The applicant must be willing to pay restitution, fines, 

court costs, administrative fees, including an offender’s fee, which 

will include a community works service charge, in an amount 

determined by a Diversion Officer, and/or provide volunteer work 

to a non-profit community service organization. 

* * * 
January Term, 2016 

17 

17. The applicant must submit to evaluation and treatment 

for alcohol and substance abuse or mental health problems. * * * 

* * * 

18. The applicant must not leave the county of his/her 

residence without permission from the Division Officer. Written 

permission must be obtained before leaving the State. 

Kona thus suffered a deprivation of liberty, satisfying the second element of the 

federal definition of “conviction.” 

{¶ 33} The dismissal of the robbery charges against Kona after his 

successful participation in Cuyahoga County’s diversion program is meaningless 

under federal immigration law; his admission of guilt yields a conviction for 

purposes of immigration law. Only if his “conviction” is vacated for substantive 

or procedural reasons, i.e., through R.C. 2943.031(D), can Kona escape 

immigration law implications of his admission of guilt. 

{¶ 34} There is no dispute about the fact that Kona received no warning 

from the trial court that preparing and signing an admission-of-guilt form as a 

requirement to enter Cuyahoga County’s diversion program could have a 

significant effect on his immigration status. R.C. 2943.031 exists to force courts to 

advise noncitizens that their pleas of guilty or no contest may lead to a conviction 

that has a serious impact on their immigration status, potentially more serious than 

any criminal sanction. That is, the statute protects defendants from voluntarily 

submitting to a conviction without notice of how that act could affect their 

immigration status. For all relevant purposes, in federal immigration law—about 

which R.C. 2943.031 exists to provide a warning—there is no functional difference 

between a guilty or no-contest plea and an admission of guilt. A conviction, as 

defined in federal law, flows from all three. 
SUPREME COURT OF OHIO

18 

{¶ 35} Because R.C. 2943.031 requires warning noncitizens of the potential 

effects of convictions, it is triggered upon a defendant’s admission of guilt as part 

of a pretrial diversion program, since that admission creates a conviction under 

federal law. R.C. 2943.031 requires courts to inform defendants about the effect 

not of the plea, but of the conviction that follows the plea. The statute requires the 

judge to inform the defendant, “[Y]ou are hereby advised that conviction of the 

offense to which you are pleading guilty * * * 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.” (Emphasis added.) It is 

the conviction that has consequences in the immigration system. For purposes of 

R.C. 2943.031, an admission of guilt is tantamount to a guilty plea because a 

conviction—for federal purposes—follows it. 

{¶ 36} The very purpose of R.C. 2943.031 demands that admissions of guilt 

made pursuant to diversion programs be included within its ambit. Otherwise, a 

defendant amenable to pretrial diversion—whose presence in the program means 

that, pursuant to R.C. 2935.36, he or she is a person whom the prosecuting attorney 

believes “probably will not offend again”—becomes susceptible, without warning, 

to the immigration effects of an admission of guilt; meanwhile, the more serious 

offender, who is not offered diversion, gets the full benefit of the protections of 

R.C. 2943.031. Not requiring R.C. 2943.031 protections for defendants admitting 

guilt in pretrial diversion proceedings also runs contrary to R.C. 2935.36—the 

defendants deemed to have committed the least serious offenses potentially suffer, 

without warning, the most serious consequences. 

{¶ 37} We therefore hold that R.C. 2943.031(A) requires that the trial court 

provide 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 
January Term, 2016 

19 

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

States. 

{¶ 38} Pursuant to R.C. 2943.031(D), upon the motion of the defendant, the 

court must set aside the prior judgment if four factors are fulfilled: (1) the court 

failed to provide the defendant the advisement before the admission of guilt, (2) the 

advisement was required, (3) the defendant is not a citizen of the United States, and 

(4) the conviction for the offense to which a plea was entered results in the 

defendant’s being subject to deportation, exclusion from admission to the United 

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

find that the trial court abused its discretion in not finding that all four factors were 

satisfied in this case. Upon remand, the trial court should set aside the prior 

judgment by vacating the dismissal, vacating the admission of guilt, and allowing 

Kona to plead not guilty to the underlying charges. 

{¶ 39} We note that there have been changes made to the Cuyahoga County 

pretrial diversion program since Kona’s entry into it in 2006. The diversion packet 

now has a prominent warning to noncitizens on the application page: 

**NOTICE: If you are not a citizen of the United States, 

you are hereby advised that application and/or admission to the 

Diversion Program 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. 

(Boldface sic.) 

{¶ 40} More importantly, the state relates in its brief, “The prosecutor’s 

diversion program has been amended. It now requires a full plea of guilt to be 

entered on the record, with the plea not accepted by the trial court.” At oral 

argument, the state reiterated that beginning in 2014, defendants entering Cuyahoga 
SUPREME COURT OF OHIO

20 

County’s pretrial diversion program participate in a plea hearing with a judge. So 

at least from 2014, noncitizen defendants have been receiving from the trial judge 

the notice required by R.C. 2943.031 of potential immigration effects of 

participation in Cuyahoga County’s diversion program. Cuyahoga County 

identified a problem and took steps to rectify it, and we commend it for that. 

Conclusion 

{¶ 41} We hold that R.C. 2943.031(A) required the trial court to advise 

Kona that his admission of guilt made for purposes of entering into Cuyahoga 

County’s pretrial diversion program 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. Because the trial court failed to give that 

advisement, and because Kona has sufficiently proved the elements of R.C. 

2943.031(D), the trial court must vacate the dismissal of the case against Kona and 

vacate the admission of guilt that he executed as part of the pretrial-diversionprogram process. 

{¶ 42} Accordingly, we reverse the judgment of the court of appeals and 

remand the cause to the trial court. 

Judgment reversed, 

and cause remanded. 

O’CONNOR, C.J., and LANZINGER and O’NEILL, JJ., concur. 

O’DONNELL and FRENCH, JJ., dissent and would dismiss the cause as 

improvidently allowed. 

KENNEDY, J., dissents and would affirm the judgment for the reasons stated 

by the court of appeals. 

_________________ 

Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, T. Allan 

Regas, and Diane Smilanick, Assistant Prosecuting Attorneys, for appellee. 
January Term, 2016 

21 

 Polito, Paulozzi, Rodstrom & Burke, L.L.P., Joseph T. Burke, and Michael 

G. Polito, for appellant. 

Harlan D. Karp, Tina R. Haddad, and Tanya Linetsky, pro se, urging 

reversal as amici curiae. 

 Law Offices of Jennifer Peyton, Jennifer I. Peyton, and Daniel Natalie; 

Margaret Wong and Associates, Co., L.P.A., and Scott Bratton, urging reversal for 

amicus curiae American Immigration Lawyers Association, Ohio Chapter. 

 Russell S. Bensing, urging reversal for amicus curiae Ohio Association of 

Criminal Defense Lawyers. 

 John T. Forristal, urging reversal for amicus curiae Cuyahoga Criminal 

Defense Lawyers Association. 

_________________