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Deportation concerns lead to domestic violence conviction reversal

Legal News Reporter

Published: December 4, 2017

A domestic violence case in Stow Municipal Court was recently reversed due after concerns over a Nepalese language interpreter were raised.

Defendant Suk B. Rai was arrested for domestic violence against his wife for a March 12, 2015 incident.

According to case summary from the 9th District Court of Appeals, Rai was a permanent United States resident after coming to America in 2010 from Bhutan.

Rai does not speak English.

Rai pleaded guilty as charged through a Nepalese interpreter.

He also signed a written waiver of his right to counsel and an acknowledgement of the possible consequences of his plea due to his non-citizenship.

Nearly two years later, Rai filed a motion to withdraw his plea under R.C. 2943.031, Crim.R. 32.1 and the Sixth Amendment. He requested an emergency hearing because “deportation was imminent.”

The trial court denied the motion without a hearing, calling Rai’s arguments “distorted.”

On appeal, Rai argued his translator did not tell him “verbatim in his mother tongue” that he risked being removed from the United States by pleading guilty.

Ninth District Judge Lynne S. Callahan agreed that a non-citizen must be given possible consequences of a guilty plea verbatim.

Judge Callahan noted that R.C. 2943.031(A) warns that non-citizens who plead guilty to anything other than certain minor misdemeanors are subject to deportation, exclusion from admission to the United States or denial of naturalization.

The trial court’s failure to use the statute’s language verbatim does not automatically allow a defendant to withdraw his plea.

However, Judge Callahan stated that the trial court judge improperly relied solely on the written acknowledgment and waiver of rights to “specially inform” Rai of the potential consequences of his plea.

According to Stow Municipal Court policy, the digitally recording of the proceeding had been deleted. The absence of a record means the defendant is presumed not to have received an advisement.

“As the record stands, it is impossible for (this court) to determine what advisement, if any, was administered prior to the municipal court’s acceptance of (Rai’s) guilty plea … Further, in the absence of a complete record, it is impossible for this court to determine what role the court-appointed interpreter played during the proceedings.”

The case was remanded.

Appellate judges Julie Schafer and Thomas Teodosio concurred.

The case is cited State v. Rai, 2017-Ohio-8655.