COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70898 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION MIGUEL FELIX : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 17, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-285,053-B JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DIANE SMILANICK, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: MIGUEL FELIX, pro se #A272-027 Grafton Correctional Inst. 2500 Avon Belden Road Grafton, Ohio 44044 (Cont.) APPEARANCES (Cont.) STEPHEN WILLIAM GUMPL #A180-820 Grafton Correctional Inst. 2500 S. Avon Belden Road Grafton, Ohio 44044 - 3 - PRYATEL, J.: Defendant-appellant Miguel Felix appeals the decision of the Cuyahoga County Court of Common Pleas, which denied his "Motion to Withdraw His Guilty Plea or Alternatively for Post Conviction Relief Pursuant to 2953.21." For the reasons stated below, we reverse and remand this matter to the court below. I. Statement of Facts Appellant was indicted by the Cuyahoga County Grand Jury on multiple drug-related offenses on August 21, 1992 in Case No. CR- 285053. On February 17, 1993, he pled guilty to two counts in the indictment for drug trafficking of an amount equal to or exceeding three times bulk, R.C. 2925.03. He was sentenced to a term of five to fifteen years with five years actual on count three and a term of three to fifteen with three years actual on count seven, he was fined $10,000, and he was subject to forfeiture of monies and contraband seized. Appellant appealed his conviction and sentence in a direct appeal to this court. His conviction and sentence were affirmed in State v. Felix (Dec. 15, 1994), Cuyahoga App. No. 66617, unreported. - 4 - On February 16, 1996, appellant filed a Motion to Withdraw His Guilty Plea or Alternatively For Post Conviction Relief. The trial court denied appellant's motion on March 20, 1996; however, this court granted appellant leave to bring his untimely appeal of this denial on September 3, 1996. On December 11, 1996, this court remanded this matter to the court below to issue findings of fact and conclusions of law. On January 14, 1997, this matter was returned from the court below with the findings of fact and conclusions of law. Appellant brings two assignments of error for our review. II. Appellant's first assignment of error states: A TRIAL COURT ABUSES ITS DISCRETION, AND COM- MITS PREJUDICIAL ERROR, WHEN IT FAILS TO INFORM AN ALIEN RESIDENT THAT HE COULD BE DEPORTED AS A RESULT OF ENTERING A GUILTY PLEA TO A FELONY, PURSUANT TO O.R.C. SECTION 2943.031, AND IN FURTHER DENYING APPELLANT'S MOTION TO WITHDRAW THE PLEA PURSUANT TO O.R.C. SECTION 2943.031. In his first assigned error, appellant challenges the lower court's denial of his motion to vacate his plea and sentence or, alternatively, for post-conviction relief. Specifically, appel- lant contends that when the court failed to inform him, as re- quired by R.C. 2943.031, that he could be deported as a result of his guilty plea, the trial court erred when it denied his motion to withdraw the guilty plea. We agree. - 5 - R.C. 2943.031(A) states in relevant part: 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. "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." The record reflects that the court failed to advise the appellant of the possibility of deportation prior to the taking of his plea as required by the mandatory language of the statute. The state argues that the matter before us is res judicata. We do not agree. The supreme court stated, in State v. Perry (1967), 10 Ohio St.2d 175, at paragraph nine of the syllabus, that: *** [u]nder the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding ex- cept an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment. (Emphasis in original.) Although the record reflects that appellant attempted to bring this error to the attention of this court in his direct appeal in - 6 - his pro se Assignment of Error No. IV, the proof required to show that the appellant was not a citizen was dehors the record; hence, the court would have been unable to consider this issue on direct appeal. State v. Ishmail (1976), 54 Ohio St.2d 402. Consequently, this claim could not be "reasonably raised on direct appeal." Further, a review of the decision in appellant's direct appeal reveals that this court did not address appellant's fourth assigned error on its merits. Therefore, it cannot be said that the issue before us is res judicata. Appellant brought his motion to vacate his plea pursuant to R.C. 2943.031(D), which states in pertinent part: Upon motion of the defendant, the court shall set aside the judgment and permit the defen- dant to withdraw a plea of guilty or no con- test and enter a plea of not guilty by reason of insanity, if, after the effective date of this section, 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. This court has held that: *** in order for R.C. 2943.031 advisements to apply, the record must affirmatively demon- strate that a defendant is not a citizen of the United States through affidavit or other documentation. State v. Thomas (Mar. 18, 1993), Cuyahoga App. Nos. 63719, 63720, unre- ported. This court has held further that there must be some showing of prejudicial effect caused by the trial court's failure to advise a - 7 - defendant with respect to possible deportation before a motion to vacate a guilty plea will be granted. State v. Guild (Jan. 13, 1994), Cuyahoga App. No. 63407, unreported. State v. Isleim (Aug. 18, 1994), Cuyahoga App. No. 66201, unre- ported at 5. A review of the record demonstrates that appellant supported his motion with documentation that affirmatively demonstrated (1) that he was not a citizen of the United States and (2) that the conviction of the offense to which he pleaded guilty resulted in prejudice in that a deportation order was issued against him by the United States Department of Justice. We, therefore, find that the trial court erred when it failed to follow the explicit mandate of R.C. 2943.031(D) and permit the appellant to withdraw his plea where the record reflects that (1) he was not a citizen of the United States, (2) the court failed to advise him of the possibility of deportation and (3) the appellant demonstrated actual prejudice by his deportation order. Accord- ingly, appellant's first assignment of error is well taken, and the denial of the motion to withdraw the plea is reversed and the matter remanded to the lower court for further proceedings consis- tent with this determination. III. Appellant's second assignment of error states: - 8 - DEFENSE COUNSEL WAS INEFFECTIVE, IN VIOLATION OF THE UNITED STATES CONSTITUTION, AMENDMENT SIX, MADE APPLICABLE WITHIN THE MEANING OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, AND THE COURT ERRED TO THE PREJUDICE OF THE DEFENDANT WHEN THE COURT INADVERTENTLY DID NOT EXPLAIN TO THE DEFENDANT THAT HIS GUILTY PLEA WOULD SUBJECT HIM TO DEPORTATION. Because we find our decision on appellant's first assigned error to be dispositive of the matter before us, we need not address the merits of appellant's second assigned error. App.R. 12(A). - 9 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, C.J. and KENNETH A. ROCCO, J. CONCUR JUDGE AUGUST PRYATEL* *SITTING BY ASSIGNMENT: August Pryatel, retired Judge of the Eighth Appellate District, sitting by assignment of the Supreme Court of Ohio. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .