What’s On Their Minds: Must Noncitizens be Warned of the Immigration Consequences of a Written Admission of Guilt Required by a Diversion Program? State of Ohio v. Issa Kona.

By Marianna Bettman on June 24, 2015

Update: On November 21, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

“The access to justice that we are concerned about, what is the problem with requiring the court when there is a noncitizen and there is a situation like this, for the court to say you could have immigration problems, have you discussed this with an attorney—how difficult is that to do?” Justice Lanzinger, to the prosecutor.

“Do you agree that someone, before they make any kind of admission that has consequences, know what those consequences are?” Chief Justice O’Connor, to the prosecutor.

On June 10, 2015, the Supreme Court of Ohio heard oral argument in the case of State of Ohio v. Issa Kona, 2014-0733. At issue in this case is whether a noncitizen must be advised of the immigration consequences of a written admission of guilt required by a diversion program.

Case Background

On April 1, 2006, Issa Kona was arrested and charged with two counts of robbery for allegedly shoplifting a $79 battery charger (the brief said $79; at argument everyone said $59) and scuffling with several security guards. Kona, who is Palestinian, had been living lawfully in the United States on a green card since 2002, with his wife and four daughters. Kona was informed at the time by counsel that a robbery or attempted robbery conviction would be a deportable offense. He pled not guilty.

On September 20, 2006, Kona filed a motion requesting referral to the Cuyahoga County Pretrial Diversion Program. The trial court granted Kona’s motion on October 26, 2006.

The Cuyahoga County Diversion Program is a six-month rehabilitation program for adults who are accused of committing non-violent criminal offenses, who the prosecuting attorney believes are unlikely to be repeat offenders. As part of the application for admission, set in this case by the county prosecutor’s office, the defendant is required to submit a written statement admitting to the crime. In exchange, upon completion of the diversion program, the charges against the defendant are dismissed and the defendant may have his or her record judicially sealed. But in the event that the participant fails to complete the program, the statement may be used against the participant in court.

Kona, who agreed to the Diversion Program, was never advised that the necessary admission of guilt could lead to adverse immigration consequences such as deportation, exclusion from admission to the United States, and denial of naturalization. He successfully completed the program, and the trial court dismissed all charges against him and ordered the record to be sealed.

After then applying for U.S. citizenship, Kona learned that the admission of guilt required for admittance to the diversion program could subject him to deportation and other adverse immigration consequences. Kona filed a motion to unseal his record, which the trial court granted over the state’s opposition. Kona then moved to vacate his admission of guilt. The trial court denied Kona’s motion, and Kona appealed.

On appeal, the Eighth District Court of Appeals unanimously upheld the trial court’s ruling. The appeals court held that the admission of guilt statement required for entry into the diversion program was not the equivalent of a guilty or no contest plea. Because there was no formal plea, it could not vacate a conviction that did not exist. In addition, the court held that nothing in the statute governing pretrial diversion programs requires a trial court to advise a defendant of possible immigration consequences.

Read the oral argument preview of the case here.

Key Statutes and Precedent

R.C. 2943.031 Immigration Advisement Statute

(A)( “…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… 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.’”)

(D) (Requires courts to permit a defendant to withdraw a plea of guilty and enter an alternate plea if the court fails to provide the defendant with the advisement described in 2943.031(A) and the defendant can show that his plea may result in being subject to deportation, denial of admission into the country, or denial of naturalization.)

Crim.R. 11(C)(2) (In felony cases the court shall not accept a plea of guilty or no contest without first personally addressing the defendant and informing the defendant of the effect of the plea or determining that the defendant understands the effect of the plea.)

Crim.R. 32.1 (A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but court may allow plea to be set aside after judgment of conviction to correct manifest injustice.)

Crim. R. 48 (The state may, by leave of court and in open court, file an entry of dismissal of an indictment, information, or complaint and the prosecution shall thereupon terminate. If the court over objection of the state dismisses an indictment, information, or complaint, it shall state on the record its findings of fact and reasons for the dismissal.)

State v. Yanez, 2002-Ohio-7076 (1st Dist.)(The purpose of R.C. 2943.031 is to inform noncitizens of the potential immigration consequences of a plea)

State v. Francis, 2004-Ohio-6894 (A trial court accepting a guilty or no-contest plea from a defendant who is not a citizen of the United States must first inform the defendant that a conviction may have adverse immigration consequences. )

Useful Background Information on Immigration

Read this Guest In Sharper Focus Post

At Oral Argument

Arguing Counsel

Joseph T. Burke, Polito Paulozzi Rodstrom & Burke LLP, Fairview Park, for Appellant Issa Kona

T. Allan Rigas, Assistant Prosecuting Attorney, Cuyahoga County, for Appellee State of Ohio

Kona’s Argument

The written admission of guilt in this case, required by the Cuyahoga County prosecutor’s office for admission into the diversion program, was the functional equivalent of a guilty or a no contest plea, and met the definition of a conviction under federal immigration law. When such an admission is given, the advisements required by R.C. 2943.031 must be given.

R.C. 2943.031 was enacted as a broad remedial statute in 1989 to require noncitizens to receive an advisement about the effect a guilty or a no contest plea may have on their immigration status. The statute was enacted in response to congressional measures limiting deportation relief through the U.S. Attorney’s office. But in 1996, the immigration laws were amended, defining “conviction” for immigration purposes to mean admitting facts sufficient to warrant a finding of guilt and imposition of some form of punishment, penalty, or restraint on liberty. Thus, Kona’s written admission of guilt qualifies as a conviction under federal immigration law.

In this case, the written admission was to a charge of robbery, which is a deportable offense, with a long look back period, whereas misdemeanor theft has only a five year lookback period. Kona, like all noncitizens, has the right to be aware to the consequences before he enters a plea or its equivalent. Kona never would have entered this program had he known this admission of guilt was a conviction for purposes of federal immigration law, with collateral immigration consequences. The collateral consequences are far worse than the penalty involved. Kona continues to live under a cloud of fear of deportation. For immigration purposes, the federal immigration authorities don’t care if the case was dismissed, or if the record is judicially sealed.

The fact that the Cuyahoga County Prosecutor’s office has changed its policies for entry into the diversion program, taking a guilty plea on the record, and now requiring the advisements be given both in court and in the packet for the program shows discomfort with the way things had been done.

In this case, the statement of guilt and the diversion completion both must be vacated, and Kona will start anew in the system and take his chances that he will plead to or get a convicted of a lesser offense.

If the court finds that the admission of guilt is not the equivalent of a guilty or no contest plea, the court still has the discretion under Criminal rule 32.1 to set this aside as a manifest injustice, which should be done in this case.

Prosecutor’s Argument

The prosecutor conceded that the program requirements have been changed and advisements are now given, both in the diversion program packet, and in an in-court colloquy.

The defendant in this case is asking the court to create a legal fiction and call a written admission of guilt the equivalent of a guilty plea. What the defendant seeks here is a legislative fix. Furthermore, this is a matter for federal law. The federal authorities have exclusive jurisdiction to define how immigration is used and treated. States have not successfully been able to interfere with that.

The pretrial diversion program is a voluntary program. It has multiple conditions, including the waiver of some constitutional rights. A written admission of guilt, required to enter this program, does not trigger the advisements under the statute. That is only required in a plea situation in a court of law. Nor is the document Kona signed a conviction under Ohio law. This statute does not require advisements in this situation, nor is there any kind of constitutional requirement to do so. What is key here is that the written statement was never made in court nor was it ever filed in court.

There is no evidence in the record, nor is the state aware of any attempt to remove Kona from the country, and the five-year look back period for minor theft offenses has passed.

While this court could dismiss this case in the interest of justice under Crim. R. 48, that would be unwise, because then relief would be sought by anyone with a collateral disability he or she was unaware of. Nor do we know exactly what Kona was told by the immigration lawyer he consulted with.

What Was On Their Minds

Procedural Morass

How would this work procedurally, asked Chief Justice O’Connor? When someone successfully completes a diversion program, there is no conviction to vacate. So how would this work with the trial court?

Starting Over at Square One

The criminal case seems pretty cut and dried, commented Chief Justice O’Connor. If Kona gets convicted of theft, won’t that still precipitate INS actions? Justice O’Neill commented a short time later that he agreed with the Chief that Kona was facing an uphill battle on re-trial, but understood his argument that he had deserved the chance to try.

Wasn’t the case dismissed, asked Justice O’Donnell, questioning whether there was a plea or a conviction.

Immigration Advisement Statute

Was this enacted in response to what federal law was at the time, asked Justice Lanzinger? Should the statute be changed? State v. Francis extended to include any situation with a potential for deportation?

Couldn’t the court require the advisement in this situation, asked Chief Justice O’Connor?

Requirements of the Diversion Program

In order to get into this diversion program must the defendant admit to committing the crime, noted Justice O’Neill. What happened to the 5^th amendment?

Is Cuyahoga County the only county that has this statement within its pretrial diversion program, asked Justice Lanzinger?

Haven’t the requirements now changed, asked Justice French? (answer: yes)

The defendant didn’t know the diversion program was going to get him the same consequences as a conviction would. Nobody told him that, commented Chief Justice O’Connor, noting that was undisputed.

Do individuals entering the diversion program now get the advisements about potential immigration consequences, asked Justice Pfeifer?

Trying to Understand Federal Immigration Law

Because of the way the feds are interpreting the written statement, Kona potentially might not being able to be naturalized, and potentially could be deported, after being here legally for 12 years, asked Justice Lanzinger? Would a minor theft offense still put him in jeopardy? Later she asked why state and federal law couldn’t be harmonized, and the notifications be the same.

Is there a five year look back for these minor offenses, asked Chief Justice O’Connor? Isn’t Kona outside that five year window? How could that written statement trigger the immigration consequences with the INS the defendant is suggesting?

If this record was judicially sealed, how do the immigration people even know of this proceeding, asked Justice O’Neill?

Is there any evidence in the record the INS was pursuing the defendant, asked Justice O’Donnell?

The Written Admission of Guilt

Is this in the nature of a plea, asked Justice Lanzinger?

It’s this statement that is the problem here, isn’t it, asked Chief Justice O’Connor? The INS would determine the admission to this crime is one that puts the defendant on the list for potential deportation? (when defense counsel said that and the imposition of punishment, the Chief stated there was no punishment here.) Is the defendant’s lack of understanding of the deportation potential here enough to scrap everything that has happened and return to square one? How long does the specter of deportation hang over the defendant’s head? Was this really a robbery, or was it just shoplifting or petty theft?

Does the defendant only want to withdraw the admission of guilt, asked Justice O’Donnell, noting there was no conviction to vacate. Is an admission of guilt the equivalent of a guilty plea?

By what authority can the Cuyahoga County prosecutor’s office require a written admission of guilt to enter this diversion program, asked Justice O’Neill? How is that not a Fifth Amendment violation? If I am waiving such a right, is anyone going to mention to me that I can be deported?

How To Provide Relief

Could the court use Crim. R. 32.1 to vacate the proceedings for manifest injustice, asked Justice Lanzinger? There would be no problem in expanding State v. Francis, she commented, for the second time.

Isn’t this a federal problem, so is there not relief in the federal court here, alleging that the defendant is being unlawfully withheld because he has never been convicted of any offense, asked Justice O’Donnell? Could a federal court not say, this is not a conviction and therefore he cannot be deported? He commented that the defense was asking the court to invent a fiction—pretending the defendant was convicted– to dance around the immigration service, commenting that would have dire unintended consequences. Is there any discretion to determine the written admission was not a conviction? (Prosecutor: it is not a conviction under Ohio law.) Is there discretion for a trial court in the federal system to say that it is not a conviction (Prosecutor: I don’t think so.)

Could the court vacate all of this in the interest of justice, asked Chief Justice O’Connor? Is there any reason not to?

Should the court extend the application of the statute just to this one person, since this problem is not likely to recur due to the change in the advisements for those entering the diversion program, asked Justice Pfeifer? Or could this case be the vehicle to get others to do what Cuyahoga County is doing now?

And then, in the final moments of rebuttal, this exchange occurred between defense counsel and Justice Pfeifer. Pfeifer was following up on questions asked by the Chief about exactly what kind of jeopardy Kona was now in with the federal immigration people and for how long. Defense counsel, not for the first time, said he wasn’t an immigration lawyer and couldn’t speak knowledgeably about that. That answer brought this harsh rejoinder from Justice Pfeifer:

“You are here all morning making a big argument about how we should give relief to your client, but then when you are pursued about whether or not he is in need of relief because the time may have expired, you cop out. You say well I’m not an immigration lawyer. You’re in the Supreme Court arguing on behalf of a client. Don’t you think you should know?” Ouch!

How it Looks from the Bleachers

To Professor Bettman

Like a win for Kona, but this argument barely seemed like an adversarial proceeding, largely because the Cuyahoga County Prosecutor’s Office has now changed its policy, and advisements are now required for written admissions into its diversion program. So this was an unusual oral argument, in that it seemed more like a problem solving session, trying to figure out how to give meaningful relief to Kona from collateral immigration consequences here. Surely, as the Chief noted, before making an admission that has such serious consequences, a person needs to know what those consequences are. And as Justice O’Neill noted, a defendant in this circumstance is giving up important Fifth Amendment protection.

The prosecutor wasn’t pushing back terribly hard for relief for Kona, and was very honorable in that regard. He argued when he needed to.

Still, this isn’t a walk in the park for Kona. Justice Lanzinger was the most sympathetic to his position, Justice O’Donnell the least. Justice O’Neill was also very sympathetic—his dissent as an appellate judge in Willoughby Hills v. Qasim, 2007-Ohio-2860 suggests he will side with Kona, as did most of his questions. I think the Chief, and Justices Pfeifer and O’Neill will join Justice Lanzinger to give relief to Kona here. Justice O’Donnell will likely dissent, and I think Justice French may, as well, although she said little at argument. As usual, no hint from Justice Kennedy.

The question here is how to give relief to Kona. The easiest way out would be to declare a manifest injustice under Crim. R. 32.1, but I don’t think the court will take that route. I think Justice Lanzinger suggested the best solution, which is to extend the holding of State v. Francis to a written admission of guilt required for a diversion program, finding it to be the functional equivalent of a guilty or no contest plea, as defense counsel argued.

A real problem here was the lack of background about federal immigration law. (I had the same problem, which is why I posted the amicus background brief in In Sharper Focus) When federal law changed in 1996 to define “conviction” in a way at odds with much state law, that complicated matters.

Unraveling things for Kona is certainly a multi-step process—the Chief engaged for a very long time with defense counsel on the steps that would be required to start anew, which is essentially what Kona wants to do now, and at times was overtly irritated with counsel, especially when he interrupted her. But essentially, I think she took his point. There’s no guarantee that Kona won’t be convicted if he is allowed to start over, but he had to admit to robbery to get into the program, and this sounds way more like a petty theft offense, which apparently has less drastic collateral consequences. I’d take my chances with the system if I were him. It’s unfortunate that defense counsel didn’t share a bit of his oral argument time with one of his amici who could have better explained the exact differences for immigration purposes of a robbery and a theft conviction. Justice Pfeifer was very critical of this, and I thought fairly so.

I think Justice O’Donnell is going to find there was no conviction here, and nothing to erase. He didn’t like the idea of creating the fiction of a conviction.

To Student Contributor Michael Elliot

This is a clear-cut victory for Kona on the issues at bar, though it is clearly just the beginning of his fight with the INS. The court (and, I think, even the prosecutor) seems sympathetic to Kona’s predicament, and there seems to be a fairly simple way to resolve this issue. I’d say the real question here is whether the court will issue a holding reinterpreting the advisement statute to include admissions of guilt or simply find that a manifest injustice occurred under Criminal Rule 32.1. I think the court seems willing to take the additional step and fix the loophole in the state’s advisement requirement.

Counsel for Kona wants to vacate the admission of guilt statement, and, after a bit of prodding from the Chief, revealed that Kona’s strategy was to go back to the criminal court and reduce the charge to theft, which is looked upon more favorably under the INA. This would require the Court to hold that an admission of guilt is the functional equivalent of a guilty plea, something the justices seem to be ready to do. The Chief Justice seemed hesitant at first that anything could be done to help Kona at the state level, but after teasing out Kona’s strategy, she seemed to become more supportive. Justice O’Neill doesn’t like that the diversion program has a guilty plea requirement, and twice mentioned that he thought there was a Fifth Amendment violation, an issue not brought up by Kona’s counsel.

The prosecutor wants the advisement law to be interpreted as written, and argues that the court does not have the authority to address this issue. The court clearly disagrees, and I think it was a mistake, especially after Justice O’Neill’s “hint,” for counsel not to continue pressing the issue after being informed early on, and under no uncertain terms, that he was wrong. Justice Lanzinger challenged the State, asking why it would be so difficult to simply adjust the advisement statute to include admissions like Kona’s, and I don’t think she was satisfied with the answer. In addition, the prosecutor mentioned that he believed that Kona couldn’t challenge the INA interpretation at the federal court level, as the definition of a guilty plea under the INA was specifically meant to cover this type of diversionary program. Since a few members of the court seemed initially to believe that Kona should be challenging the INA interpretation in federal court, this really hurts his case. The court simply doesn’t seem to be willing to leave Kona without remedy, so I think this was a crucial admission, whether or not it is true.

Again, I think Kona has a win here. The court is sympathetic to Kona’s predicament, and though Cuyahoga County has since closed the loophole that got us here in the first place, the justices will want to ensure that defendants are aware of the consequences of their admissions of guilt.