Issa Kona is a good man who made a mistake that has continued to haunt him for nine years. Issa is 47 years old, immigrated to Cleveland, Ohio from Palestine 12 years ago, has been married for 18 years with four daughters, owns his own house and is a fabricator for a locally owned granite company. In 2006, he paid for a window at a national box store, but walked out with both the window and a $79.93 battery charger. While in the parking lot he allegedly struggled with store security – a key fact in dispute. In Ohio, the elements of robbery, Ohio R.C. 2911.02, are committing or attempting to commit a theft offense or fleeing immediately after the theft offense while (1) inflicting or attempting to inflict, or threatening to inflict physical harm on another, or (2) use or threaten the immediate use of force against another.
Issa was charged with robbery. In theory the case was defensible, except that Issa’s English is broken and his testimony may not have stood up to the security guards who insisted that he struggled with them. Prior to trial, the prosecutor offered no meaningful plea offer (i.e., misdemeanor theft), which was his only way to avoid the nebulous conviction for moral turpitude and potential deportation consequences. His trial counsel conferred with immigration counsel and his only option was to try the case to a jury.
On the morning of trial, Issa was offered for the first time an invitation to seek pre-trial diversion, essentially a form of probation where if successfully completed, the charges would be dropped and the case sealed. In Ohio, the diversion programs are treated differently by different courts, some require a formal plea on the record, and most provide deportation advisements. In Cuyahoga County, where Cleveland sits, Issa was never brought before a judge, he engaged in no colloquy with a judge, and was never given any deportation advisements as required by Ohio R.C. 2943.031. He simply filled out a diversion packet (which included an admission of guilt statement) and was approved to enter the program. He eventually completed all probation requirements.
Ohio’s immigration advisement statute, Ohio R.C. 2943.031, was enacted in 1989 to ensure that prior to pleading guilty or no contest to charges, non-U.S. citizens were advised and aware of deportation consequences, exclusion from admission, or denial of naturalization to the U.S. due to a conviction. Because of the important role that immigration advisement’s take for non-U.S. citizens, the Ohio legislature also provided a path to withdraw a conviction entered in violation of § 2943.031. In most cases, a defendant moving to withdraw a plea after sentencing has to show a “manifest injustice.” However, R.C. 2943.031 provides that if the required warning as to potential immigration consequences of a plea is not provided, the plea may be withdrawn. It was undisputed that Issa was never given the warning or advisement, not even in the diversion packet.
After Issa successfully completed the diversion program, the charges were dropped and the records of the case, including the arrest, were sealed. Kona was under the mistaken belief that when the dismissal occurred, his legal problems relating to these charges had concluded.
Years later, Issa applied to be a U.S. citizen, and immediately before his naturalization interview he discovered that his legal problems stemming from the dismissed charges were far from over. It was brought to his attention by immigration counsel that the admission of guilt statement to a felony robbery charge that he made in 2006 constituted a conviction for immigration purposes pursuant to 8 U.S.C. § 1101(a)(48)(A). What’s more, Issa was threatened with deportation.
In order to remove the threat of deportation, Issa filed a motion to vacate his diversion plea as he was never provided the required warning as to potential immigration consequences required by R.C. 2943.031.
Issa lost at the state trial court and the Ohio Court of Appeals. Both courts concluded that Issa never actually entered a plea and therefore was not entitled to any advisements or warnings. The counter to this argument was that if Issa did not enter a guilty plea, then at least, he entered into the equivalent of a no contest plea. Why else would the prosecutor require an admission of guilt statement? The most obvious answer appears to be that if he failed to complete the terms of diversion, then the prosecutor would have a set of facts upon which to convict him at any subsequent trial, i.e., his own statement or confession.
The Ohio Supreme Court has accepted this case for review with oral arguments to be scheduled this year. State v. Kona, No. 2014-0733 (Ohio Sept. 3, 2014). As one legal commentator has suggested, this is a case of right v. just: what’s legally right and what’s just. Technically speaking, there was no guilty plea on the record and as the argument goes, no advisements were required to be given. The important question that arises, however, is whether this outcome and potential deportation are fair and just. Merely providing the deportation advisements could have avoided these collateral consequences—the very consequences that R.C. 2943.031 was designed to prevent. Moreover, Issa’s admission of guilt was not made knowingly, intelligently or voluntarily since he was not aware of the deportation consequences at the time he made the admission.
Since 2006 when Issa’s case first appeared in the Cuyahoga County courts, the county prosecutor has changed its diversion policy. It now uses a diversion form that includes immigration advisements and in 2014 began requiring a guilty plea on the record in all diversion cases. Those changes likely help others avoid Issa’s fate, but they don’t do much for Issa, especially given that the prosecutor’s office defends what has happened to him. Meanwhile, he has been threatened with deportation and lives under the constant specter that one day he will be taken from his family and home. Ultimately, the Ohio Supreme Court will determine if this is a case that should be determined based upon a technicality or based upon what is just.
Joseph T. Burke is licensed to practice law in the State of Ohio and Hawaii and has practiced law for over 24 years with an emphasis on civil litigation and criminal law. He has served judicial clerkships with the Honorable William K. Thomas of the United States District Court for the Northern District of Ohio, the Honorable Ann McManamon of the Ohio Court of Appeals, Eighth Appellate District and the Honorable Paula Nakayama of the Hawaii Supreme Court. In 2014, he successfully argued and obtained a reversal of a conviction before the Ohio Supreme Court in State v. Codeluppi, 139 Ohio St. 3d 165, 2014-Ohio-1574, 10 N.E. 3d 691 (2014), which held that a highly detailed pleading of facts and law is not required to satisfy the notice requirements of State v. Schindler, 70 Ohio St. 3d 54, 636 N.E. 2d 319 (1994), and to trigger the right to a hearing on a motion to suppress. He is representing Issa Kona before the Ohio Supreme Court.
Editor’s Note (November 22, 2016): On November 21, 2016, the Ohio Supreme Court reversed the Court of Appeals.