[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 : O P I N I O N

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 44805Ashland County, Case No. 20-COA-001 2
Baldwin, J. {¶1} Debasmita Panda appeals the decision of the Ashland County Cour t 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 Ashlan d 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 trigg ered an obligation of the trial court to explore her understanding of t he consequences of a guilty plea that are unique to a non-citizen. Revised Code Section 29 43.031(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 ac cepting a plea of guilty or a plea of no contest to an indictment, inform ation, 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 d efendant 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, excl usion from admission to the United States, or denial of naturalizatio n 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 guil ty to that charge, you stand the possibility of being deported from the Un ited States at some point and not being permitted to return to the United S tates? 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 reco rding 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 f rom 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 asAshland County, Case No. 20-COA-001 4
to that. There has also been discussions with an immigration at torney 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 2 2 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 hou se 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, 2 019 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 natu ralized citizen. The trial court denied the motion holding that "the Defendant was fully a dvised of the potential immigration consequences of her plea and was afforded additiona l 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 knowin gly, 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 cou nsel.

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, th at 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 t hat 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 (10 th Dist. 1997). {¶11} Appellant must instead show that “(1) the court failed to provi de 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 co urt's decision on whether the R.C. 2943.031(D) elements have been est ablished (along with the factors of timeliness and prejudice * * *), not generally to the trial court's discretion once the statutory provisions have bee n met.” Id. at ¶ 34, 820 N.E.2d 355. “[A] defendant seeking relief under R.C. 29 43.031(D) must make his or her case before the trial court under the term s of that statute, * * * the trial court must exercise its discretion in determining whether the statutory conditions are met, and * * * an appellat e court reviews a trial court's decision on the motion under an abuse-o f-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 gu ilt. The Supreme Court of Ohio recently issued an opinion regarding an analogous fact pat tern and addressed the appropriate standard to apply to a claim of ineffective assista nce of counsel in this context: The Sixth Amendment to the United States Constitution guarantee s a defendant the effective assistance of counsel at “‘critical s tages 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 coun sel arising from the plea process, the defendant must meet the two-prong te st set outAshland 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 Stricklan d 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 whe ther 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, a n ineffective-assistance claim is not limited to affirmative misa dvice 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 fi rst prong of Strickland

. Id . “The severity of deportation * * * only underscores how criti cal 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 pro bability that, but for counsel's errors, he would not have pleaded guilt y 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) ¶¶1 5-16.Ashland County, Case No. 20-COA-001 8

ANALYSIS {¶14} The Supreme Court of Ohio requires that any motion seeking reli ef under R.C. 2943.031 be timely. State v. Khan, 2nd Dist. Montgomery No. 21718, 2007-Ohio4208, ¶ 31. In the case before us, the issue of timeliness is n ot 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 c ourt to provide the warning therein as a mandatory obligation by the us e 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 advisem ent 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 Leg islature intended the trial courts to provide a verbatim recitation of that language, thoug h section of the Code does not expressly include that requirement. {¶16} The Supreme Court of Ohio addressed the requirement of a verbat im 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 verb atim recital is required: A trial court accepting a guilty or no-contest plea from a defe ndant who is not a citizen of the United States must give verbatim th e warning set forth in R.C. 2943.031(A), informing the defendant that convict ion of the offense for which the plea is entered “may have the consequence s 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 paragra ph of the Francis syllabus: If some warning of immigration-related consequences was given a t the time a noncitizen defendant's plea was accepted, but the wa rning was not a verbatim recital of the language in R.C. 2943.031(A), a t rial 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 subs tantially complied with R.C. 2 943.031(A). {¶18} The Court defined “substantial compliance” as meaning “that und er the totality of the circumstances the defendant subjectively unders tands 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 c ompliance 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 r equires that the trial court “shall not accept a plea of guilty or nolo contendere fro m any defendant in any criminal proceeding unless the court first addresses the defend ant 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 andAshland 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 off ense for which the plea is entered “may have the consequences of deportation, exclusion fr om 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 w ith 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 Distric t 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 den ial of naturalization. Thus, in advising Defendant about the possible adverse immigration consequences of his guilty plea the trial court fai led to even mention two out of the three separate, distinct consequences se t forth in R.C. 2943.031(A). In our view, that does not constitute substan tial 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 ri ghts she was waiving when she was not fully advised of the rights that may b e 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 c ompliance, requires advisement of all three consequences described within that sect ion of the Revised Code. The Legislature determined all three issues were of such signif icant import that it included specific language for the trial court’s use when advising defen dants. The trial court in the case below failed to substantially comply because it did not ad dress the possible consequence of denial of naturalization. Concluding that a tria l court substantially complied with the requirement of the Code without any mention o f one of the consequences is tantamount to changing the language of the stat ute and we are not willing to adopt such an interpretation. Our conclusion is indi rectly 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 s ubstantially complied with statutory requirements by informing defendant of the three poss ible consequences of deportation, exclusion from admission and denial of naturalizat ion, but did not provide a verbatim recital of the advisement. {¶22} We hold that the trial court abused its discretion by finding t hat 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 ad visement was necessary and neither the trial court nor appellee argue to the contrary. Because there was notAshland County, Case No. 20-COA-001 12
substantial compliance with the statutory requirements, the ass ignment 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 re gard to the immigration consequences of her plea. Because we have sustained the assignm ent of error based upon the omission of a part of the mandatory advisement contain ed in R.C. 2943.031, we hold this portion of the argument moot. However, we cannot ign ore 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 assistan ce 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 r egarding the impact of R.C. 2943.031, we would have been compelled to remand the matte r 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 app eal 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 th at the fact that Panda has served her sentence, paid a fine and court costs does not r ender the matter moot. {¶26} The decision of the Ashland County Court of Appeals denying Pan da’s motion to withdraw her guilty plea is reversed, appellant’s con viction 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.