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10th District: Absence of transcript doesn’t mean plea can be withdrawn
JESSICA SHAMBAUGH
Special to the Legal News
Published: November 19, 2012
A 10th District Court of Appeals panel ruled that a Westerville Mayor’s Court’s inability to provide a transcript from a case that occurred years ago did not give the defendant a right to untimely withdraw his plea.
In the recent opinion, the three-judge appellate panel rejected Mateo Zabala’s claim that he should be permitted to withdraw a no contest plea entered in 2007 because the trial court was unable to produce a transcript record proving that he was properly advised about the consequences of such a plea for a non-citizen.
“The fact that a mayor’s court could not provide a transcript of all the proceedings before it on a given day years later does not make all the convictions of non-citizens voidable when documentary evidence and witness testimony indicate that the required advisement for non-citizens was given,” 10th District Judge Gary Tyack wrote for the court.
Case summary details that Zabala pleaded no contest to possessing drug paraphernalia and a trafficking charge in the Westerville Mayor’s Court in 2007.
Zabala is a Columbian citizen married to an American citizen. He was concerned that his convictions in the mayor’s court could prevent him from gaining American citizenship, according to case summary.
Years after his sentencing, Zabala moved to withdraw his plea. The Franklin County Municipal Court denied his motion and he appealed to the 10th District, claiming there was no record of the original trial proceedings and that he was not properly informed about the consequences of his plea.
On review, the 10th District judges found Zabala had prior convictions in Pennsylvania, Delaware County and Granville for drug offenses and operating a vehicle while intoxicated.
They also found that Zabala signed a form advising him of the consequences of his plea when he entered it and that there was testimony stating the advisement was given orally.
“In short, the record shows that the required advisement was in fact given both in writing and orally,” Tyack wrote.
Zabala also questioned the trial court’s decision to put weight in testimony from the retired judge who served as a magistrate in the mayor’s court.
“There is no reason to doubt the credibility of this judge/magistrate,” Tyack continued.
“All three assignments of error having been overruled, the judgment of the Franklin County Municipal Court is affirmed.”
Fellow 10th District Judge Lisa Sadler concurred in judgment and Presiding Judge Susan Brown joined the opinion to form the majority.
The case is cited Westerville v. Zabala, case No. 2012-Ohio-5194.