State v. Razo

Batchelder, Judge. ¶ 1 Appellant, Ranulfo Razo, appeals from the judgment in the Lorain County Court of Common Pleas that found him guilty of rape. We affirm. I ¶ 2 On March 20, 2002, the Lorain County Grand Jury indicted Razo on ten separate counts of rape, in violation of R.C. 2907.02(A)(1)(b); each count of rape carried a sexually violent predator specification. Razo had assigned trial counsel, as well as a second attorney whom the trial court judge had appointed to translate the proceedings into Spanish. The trial court judge found this second attorney to be fluent in Spanish to assist Razo in understanding the implications of entering a guilty plea. Razo withdrew his earlier entered plea of not guilty to the charges and entered a plea of guilty to every count contained in the indictment, and the state nolled the sexually violent predator specifications. The trial court found Razo guilty, classified him as a sexual predator, and sentenced him accordingly. Razo timely appeals and asserts two assignments of error for review. As Razo’s assignments of error concern similar issues of law and fact, we will address them together. *581 II First Assignment of Error “The trial court abused its discretion by finding that [Razo’s] lack of English proficiency did not impair his ability to understand the proceedings or communicate with the court.” Second Assignment of Error “The trial court abused its discretion by failing to provide [Razo] with a qualified interpreter in violation of his constitutional rights.” ¶ 3 In his first assignment of error, Razo avers that the trial court erred when it failed to appoint an independent interpreter to translate the proceedings into Spanish for Razo. Therefore, Razo avers that his constitutional rights, as contained in the Sixth and Fourteenth Amendments, were violated and that his guilty plea was not entered knowingly, intelligently, or voluntarily because he lacked the ability to understand the implications of entering a guilty plea without the assistance of an interpreter. Additionally, in his second assignment of error, Razo acknowledges that the second attorney is fluent in Spanish; however, he avers that his counsel was not a “qualified interpreter.” Therefore, Razo avers that the trial court abused its discretion when it failed to appoint “the most qualified, reasonably available interpreter in order to protect [Razo’s] constitutional rights.” Razo’s averments lack merit. ¶ 4 “[I]n a criminal case the defendant is entitled to hear the proceedings in a language he can understand.” State v. Pina (1975), 49 Ohio App.2d 394, 399, 3 O.O.3d 457, 361 N.E.2d 262. Nevertheless, the trial court has the discretion to determine whether the defendant requires an interpreter for assistance. State v. Saah (1990), 67 Ohio App.3d 86, 95, 585 N.E.2d 999; State v. Quinones (Oct. 14, 1982), 8th Dist. No. 44463, 1982 WL 5957. Accordingly, an appellate court will not disturb a decision of the trial court regarding the necessity of an interpreter absent an abuse of discretion. Id. An abuse of discretion is more than an error of judgment, but instead demonstrates “perversity of will, passion, prejudice, partiality, or moral delinquency.” Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621, 614 N.E.2d 748. When applying the abuse-of-discretion standard, an appellate court may not substitute its judgment for that of the trial court. Id. ¶ 5 Crim.R. 11(C) governs the trial court’s acceptance of a guilty plea to a felony offense. Particularly, this rule provides: “(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following: *582 “(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing. “(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence. “(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.” Crim.R. 11(C). ¶ 6 In order to comply with this rule, the trial court must determine whether the defendant completely understands the ramifications of entering a plea of guilty. State v. Duran-Nina (Oct. 30, 1997), 8th Dist. Nos. 71159 and 71160, 1997 WL 675450. Accordingly, to determine his understanding, the trial court must engage in an oral dialogue with the defendant who is entering the plea. Id.; State v. Caudill (1976), 48 Ohio St.2d 342, 2 O.O.3d 467, 358 N.E.2d 601, paragraph two of the syllabus. ¶ 7 Although the courts should strive to literally comply with Crim.R. 11, the Supreme Court of Ohio has articulated that “a trial court in accepting a plea of guilty, need only substantially comply with the mandates of Crim.R. 11(C).” (Emphasis added.) Duran-Nina, supra, citing State v. Stewart (1977), 51 Ohio St.2d 86, 92, 5 O.O.3d 52, 364 N.E.2d 1163; State v. Nero (1990), 56 Ohio St.3d 106, 107, 564 N.E.2d 474. ■ “Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving. Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. The test is whether the plea would have otherwise been made.” (Citations omitted.) Nero, 56 Ohio St.3d at 108, 564 N.E.2d 474. ¶ 8 A review of the record in the present case reveals that Razo did not orally or by written motion request the trial court to appoint another interpreter to assist him during the course of the proceedings. Additionally, the record indicates that Razo’s second counsel was fluent in Spanish, was present at the proceedings, and was able to provide “whatever explanation may be appropriate” in Spanish to Razo. Finally, the record demonstrates that at no time did Razo communicate to the court that he was confused or lacked understanding as *583 to the implications of entering a guilty plea or the rights he would be waiving. Rather, the colloquy between the trial court and Razo at the plea hearing illustrates that the trial court thoroughly addressed Razo, in accordance with Crim.R. 11(C), and that Razo did understand, as he affirmatively answered each question posed by the trial court without requesting an explanation. Thus, there is no evidence in the record that Razo did not enter his plea knowingly, intelligently, or voluntarily, or that he would not have entered the plea if the court had appointed an interpreter. See Nero, 56 Ohio St.3d at 108, 564 N.E.2d 474. ¶ 9 We now turn to Razo’s averment that his counsel was not a qualified interpreter. ¶ 10 Evid.R. 604 states that “[a]n interpreter is subject to the provisions of these rules relating to the qualification as an expert and the administration of an oath or affirmation that he will make a true translation.” Although Evid.R. 604 provides that “an interpreter be administered an oath or affirmation that she will make a true translation},] * * * [t]he primary concern regarding a ‘functionary’ such as an interpreter is one of qualification^], not veracity or fidelity.” State v. Ruiz (Mar. 16,1994), 9th Dist. No. 16063,1994 WL 78620. See United States v. Perez (C.A.5, 1981), 651 F.2d 268, 273. In this case, Razo’s second counsel was not sworn in; however, Razo failed to alert the court of this failure. Consequently, Razo’s failure to alert the court of this failure constitutes a waiver of this issue on appeal. See State v. Mejia (Sept. 3, 1998), 8th Dist. No. 72716, 1998 WL 564039 (finding the appellant’s failure to object to the trial court’s failure to administer the oath to the interpreter precluded the appellant from assigning error in that regard). ¶ 11 Obviously, Razo’s second counsel was an officer of the court and had all the obligations attendant thereto. Moreover, Razo has not demonstrated that his counsel was not properly qualified or that he lacked veracity or fidelity. See Ruiz, supra; Duran-Nina, supra. In fact, at one point during the plea hearing, the trial court asked Razo whether he was “satisfied with [the] translation,” and Razo replied, “Yes.” It would indeed be a foolish result for a trial court to find that a qualified attorney, expert in a foreign tongue, would not guarantee due process better than an interpreter ignorant of the law. That would be the triumph of form over substance. ¶ 12 Based on the record in this case, we cannot say that the trial court abused its discretion by failing to appoint an independent interpreter. Therefore, we do not find that Razo’s constitutional rights were violated. However, we do find that the trial court complied with the requirements of Crim.R. 11(C) before it accepted Razo’s plea, and that his plea was entered knowingly, intelligently, and *584 voluntarily. Accordingly, Razo’s first and second assignments of error are overruled. Ill ¶ 13 Razo’s assignments of error are overruled. The judgment in the Lorain County Court of Common Pleas is affirmed. Judgment affirmed. Baird, J., concurs. Carr, P.J., concurs in judgment only.