[Cite as State v. Romero, 2017-Ohio-2950.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Craig R. Baldwin, J.
Plaintiff-Appellee : Hon. Earle E. Wise, Jr., J.
:
-vs- :
:
CARLOS ROMERO : Case No. 2016CA00201
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No.
2016CR0331
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: May 22, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO KIM ALABASI
STARK COUNTY PROSECUTOR 5368 St. Clair
BY: RONALD MARK CALDWELL Cleveland, OH 44103
110 Central Plaza South, Ste. 510
Canton, OH 44702-1413
Stark County, Case No. 2016CA00201 2
Gwin, P.J.
{¶1} Appellant Carlos Romero [“Romero”] appeals the October 21, 2016
decision from the Stark County Court of Common Pleas that denied his post-sentence
motion to withdraw his negotiated guilty plea. The appellee is the State of Ohio.
Facts and Procedural History
{¶2} Romero is a 50 year-old man born in Honduras. Romero married a United
States citizen in 1995 and legally obtained his permanent residence or "green card" status
on April 1, 1998.
{¶3} On March 21, 2016, the Stark County Grand Jury returned an indictment
that charged Romero with: 1). possession of marijuana in violation of R.C. 2925.11(A), a
felony of the third degree per R.C. 2925.11(C)(3)(a), 2). trafficking in marijuana in violation
of R.C. 2925.03(A)(2), a felony of the third degree per R.C. 2025.03(C)(3)(e), and 3),
possession of cocaine in violation of R.C. 2925.11(A)(3), a felony of the fifth degree per
R.C. 2925.11(C)(4)(a).
{¶4} On June 1, 2016, Romero appeared with counsel and entered guilty pleas
to the charges set forth in the indictment. Sentencing was deferred until June 29, 2016
pending the completion of a pre-sentence investigation report1. Romero was sentenced
by Judgment Entry filed July 6, 2016 to community control sanctions (intensive supervised
probation) for a period of three years. In addition to this sentence, Romero was ordered
to perform 100 hours of community service, and his driver's license was suspended for
six months.
1 A transcript of Romero’s June 1, 2016 plea hearing is attached as “Court’s Exhibit A” to the
Judgment Entry Denying Defendants’ Emergency Motion to Withdraw Pleas and Vacate Sentences, filed
October 21, 2016. No transcript of Romero’s June 29, 2016 Sentencing Hearing has been filed with this
Court.
Stark County, Case No. 2016CA00201 3
{¶5} Romero filed an Emergency Motion to Withdraw Pleas and Vacate
Judgment on October 14, 2016 claiming that his attorney failed to advise him of the
immigration consequences that would result from his guilty pleas. The trial court
overruled the motion by judgment entry filed October 21, 2016 citing language from the
transcript indicating that the appropriate immigration warnings pursuant to R.C.
2943.031 were read to Romero before accepting his pleas. The trial court concluded
that because of the compliance with R.C. 2943.031, Romero's pleas were entered
knowingly, voluntarily, and intelligently.
Assignment of Error
{¶6} “I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO
WITHDRAW PLEA AND VACATE CONVICTION PURSUANT TO OHIO RULE 32.1.”
Law and Analysis
{¶7} The entry of a plea of guilty is a grave decision by an accused to dispense
with a trial and allow the state to obtain a conviction without following the otherwise difficult
process of proving his guilt beyond a reasonable doubt. See Machibroda v. United States,
368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473(1962). A plea of guilty constitutes a complete
admission of guilt. Crim. R. 11(B)(1). “By entering a plea of guilty, the accused is not
simply stating that he did the discreet acts described in the indictment; he is admitting
guilt of a substantive crime.” United v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 762, 102
L.Ed.2d 927(1989).
Withdraw of Guilty plea Crim.R. 32.1.
{¶8} Crim.R. 32.1 provides that a trial court may grant a defendant’s post
sentence motion to withdraw a guilty plea only to correct a manifest injustice. Therefore,
Stark County, Case No. 2016CA00201 4
“[a] defendant who seeks to withdraw a plea of guilty after the imposition of sentence has
the burden of establishing the existence of manifest injustice.” State v. Smith, 49 Ohio
St.2d 261,361 N.E.2d 1324(1977), paragraph one of the syllabus. Although no precise
definition of “manifest injustice” exists, in general, “‘manifest injustice relates to some
fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is
inconsistent with the demands of due process.’” State v. Wooden, 10th Dist. Franklin No.
03AP–368, 2004–Ohio–588, ¶ 10, quoting State v. Hall, 10th Dist. Franklin No. 03AP–
433, 2003–Ohio–6939; see, also, State v. Odoms, 10th Dist. Franklin No. 04AP–708,
2005–Ohio–4926, quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699
N.E.2d 83(1998) (“[a] manifest injustice has been defined as a ‘clear or openly unjust
act’”). Under this standard, a post-sentence withdrawal motion is allowable only in
extraordinary cases. Smith, 49 Ohio St.2d at 264, 361 N.E.2d 1324.
{¶9} “A motion made pursuant to Crim.R. 32.1 is addressed to the sound
discretion of the trial court, and the good faith, credibility and weight of the movant’s
assertions in support of the motion are matters to be resolved by that court.” Smith at
paragraph two of the syllabus. Thus, we review a trial court’s denial of a motion to
withdraw a guilty plea under an abuse-of-discretion standard, and we reverse that denial
only if it is unreasonable, arbitrary, or unconscionable. Odoms, 2005–Ohio–4926.
Withdraw of Guilty plea for non-citizen.
{¶10} However, “[c]riminal defendants who are not United States citizens are
permitted to withdraw a guilty plea in two distinct ways: (1) upon the finding that they were
not given the warning required by R.C. 2943.031(A)(1)2 (and that the court was not
2
The required warning is “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
Stark County, Case No. 2016CA00201 5
relieved of that requirement under R.C. 2943.031(B)) of the potential consequences to
their resident status in the United States when they pled guilty to criminal charges (among
other related requirements contained in R.C. 2943.031(D)3), or (2) when a court finds,
pursuant to Crim.R. 32.1, that it is necessary to correct manifest injustice.” (Footnotes
omitted.) State v. Toyloy, 10th Dist. Franklin No. 14AP–463, 2015-Ohio-1618, 2015 WL
1913431, ¶ 12.
{¶11} R.C. 2943.031(F) “clarifies that the statute does not prevent a trial court
from granting a plea withdrawal under the procedural rule, Crim.R. 32.1.” Toyloy, ¶ 12.
Thus, R.C. 2943.031 provides “an independent means of withdrawing a guilty plea
separate and apart from and in addition to the requirements of Crim.R. 32.1.” State v.
Weber, 125 Ohio App.3d 120, 129, 707 N.E.2d 1178 (10th Dist. 1997). Accordingly, when
a motion to withdraw plea is premised under R.C. 2943.031(D), the usual “manifest
injustice” standard applied to Crim.R. 32.1 motions does not apply; rather, the standards
in R.C. 2943.031 apply. State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820
N.E.2d 355, ¶ 26.
Appellate Review.
{¶12} However, regardless of whether the motion to withdraw the guilty plea is
based on R.C. 2943.031 or Crim.R. 32.1, an appellate court reviews a trial court’s decision
on the motion under an abuse of discretion standard. Francis at ¶ 32. Generally, “[a] trial
consequences of deportation, exclusion from admission to the United States, or denial of naturalization
pursuant to the laws of the United States.” R.C. 2943.031(A).
3 R.C. 2943.031(D) provides: “Upon motion of the defendant, the court shall set aside the judgment
and permit the defendant to withdraw a plea of guilty or no contest and enter a plea of not guilty or not guilty
by reason of insanity, if * * * 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.”
Stark County, Case No. 2016CA00201 6
court abuses its discretion when it makes a decision that is unreasonable,
unconscionable, or arbitrary.” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966,
986 N.E.2d 971, ¶ 34, citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144
(1980). See also, State v. Cardenas, 2nd Dist. Darke No. 2015-CA-16, 2016-Ohio-5537,
61 N.E.3d 20, ¶ 14-¶16.
Ineffective Assistance as a Ground for Withdrawing a Guilty Plea.
{¶13} In his motion, Romero alleged ineffective assistance of counsel as a ground
for withdrawing his guilty pleas.
{¶14} A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was prejudiced
by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122
L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).
{¶15} In order to warrant a finding that trial counsel was ineffective, the petitioner
must meet both the deficient performance and prejudice prongs of Strickland and Bradley.
Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251(2009);
Accord, Buck v. Davis, __U.S. ___, 137 S.Ct. 759, 775, ___L.Ed.2d ___ (U.S. Feb. 22,
2017).
Attorney’s duty to a non-citizen client.
{¶16} A defense attorney has a duty to advise a noncitizen client that, “pending
criminal charges may carry a risk of adverse immigration consequences,” and, if it is “truly
Stark County, Case No. 2016CA00201 7
clear” what those consequences are, counsel must correctly advise the defendant of the
consequences. Padilla v. Kentucky, 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284
(2010). A defense attorney’s failure to advise his client accordingly satisfies the first prong
of Strickland, as it constitutes deficient performance. Id. However, because
“[i]mmigration law can be complex,” when the relevant immigration “law is not succinct
and straightforward * * *, a criminal defense attorney need do no more than advise a
noncitizen client that pending criminal charges may carry a risk of adverse immigration
consequences.” Padilla, 559 U.S. 369, 130 S.Ct. 1473. Nevertheless, when the
immigration consequences of a guilty plea can be “easily determined from reading the
removal statute,” and “the deportation consequence is truly clear * * * the duty to give
correct advice is equally clear.” Id.
{¶17} In Padilla the Court explained the importance of a defendant understanding
his or her potential for deportation,
Finally, informed consideration of possible deportation can only
benefit both the State and noncitizen defendants during the plea-bargaining
process. By bringing deportation consequences into this process, the
defense and prosecution may well be able to reach agreements that better
satisfy the interests of both parties. As in this case, a criminal episode may
provide the basis for multiple charges, of which only a subset mandate
deportation following conviction. Counsel who possess the most
rudimentary understanding of the deportation consequences of a particular
criminal offense may be able to plea bargain creatively with the prosecutor
in order to craft a conviction and sentence that reduce the likelihood of
Stark County, Case No. 2016CA00201 8
deportation, as by avoiding a conviction for an offense that automatically
triggers the removal consequence. At the same time, the threat of
deportation may provide the defendant with a powerful incentive to plead
guilty to an offense that does not mandate that penalty in exchange for a
dismissal of a charge that does.
559 U.S. at 373, 130 S.Ct. 1473, 176 L.Ed.2d 284.
{¶18} Further, in Padilla, the Supreme Court rejected the government’s
proposition that Strickland should apply only “to the extent that [Padilla] ha[d] alleged
affirmative misadvice.” Id. at 369, 130 S.Ct. 1473. The court agreed with Padilla that “there
is no relevant difference ‘between an act of commission and an act of omission’ in this
context.” Id. at 370, 130 S.Ct. 1473, quoting brief of respondent, 30. See also Strickland
at 690, 104 S.Ct. 2052; State v. Ayesta, 8th Dist. No. 101383, 2015-Ohio-1695, 2015 WL
2091679, ¶ 15 (noting that counsel breaches its duty under Padilla “by either providing
affirmative misadvice about immigration consequences, or by not providing any advice at
all when advice is warranted”). The Padilla court observed that “[a] holding limited to
affirmative misadvice would invite” the following two absurd results: (1) “it would give
counsel an incentive to remain silent on matters of great importance, even when answers
are readily available,” and (2) “it would deny a class of clients least able to represent
themselves the most rudimentary advice on deportation even when it is readily available.”
Id. at 370–71, 130 S.Ct. 1473
{¶19} Indeed, “[w]hen attorneys know that their clients face possible exile from
this country and separation from their families, they should not be encouraged to say
nothing at all.” Id. at 370, 130 S.Ct. 1473. The court further noted that “‘“[p]reserving the
Stark County, Case No. 2016CA00201 9
client’s right to remain in the United States may be more important to the client than any
potential jail sentence.”’” Id. at 368, 130 S.Ct. 1473, quoting INS v. St. Cyr, 533 U.S. 289,
322, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), quoting 3 Bender, Criminal Defense
Techniques, Sections 60A.01–02 (1999). Thus, the court concluded that the “severity of
deportation—‘the equivalent of banishment or exile,’ * * *—only underscores how critical
it is for counsel to inform her noncitizen client that he faces a risk of deportation.” Id. at
373–74, 130 S.Ct. 1473.
{¶20} Padilla concerned a noncitizen defendant who pled guilty to the charge of
drug distribution, a deportable offense under 8 U.S.C. 1227(a) (2)(B)(i). Padilla’s attorney
did not advise him of the deportation consequences of his plea, and affirmatively
misadvised Padilla that he had nothing to worry about with respect to his immigration
status. Padilla asserted, “he would have insisted on going to trial if he had not received
incorrect advice from his attorney.” 559 U.S. at 359, 130 S.Ct. 1473. The Supreme Court
held that Padilla’s trial counsel’s failure to inform Padilla “whether his plea carrie[d] a risk
of deportation” constituted deficient performance under the first prong of Strickland, as
the relevant immigration statute was “succinct, clear, and explicit.” 559 U.S. at 374, 368,
130 S.Ct. 1473. The court did not address the issue of prejudice, and remanded the case
for the lower court to determine the prejudice issue in the first instance.
{¶21} In Padilla, the Court gave a brief history of immigration law. The Court
noted,
[F]rom 1917 forward, there was no such creature as an automatically
deportable offense. Even as the class of deportable offenses expanded,
Stark County, Case No. 2016CA00201 10
judges retained discretion to ameliorate unjust results on case-by-case
bases.
559 U.S. at 362, 130 S.Ct. 1473. However, this procedure known as a judicial
recommendation against deportation, or JRAD is no longer part of our law. The Court
explained,
Congress first circumscribed the JRAD provision in the 1952
Immigration and Nationality Act (INA), and in 1990 Congress entirely
eliminated it, 104 Stat. 5050. In 1996, Congress also eliminated the
Attorney General’s authority to grant discretionary relief from deportation,
110 Stat. 3009–596, an authority that had been exercised to prevent the
deportation of over 10,000 noncitizens during the 5-year period prior to
1996, INS v. St. Cyr, 533 U.S. 289, 296, 121 S.Ct. 2271, 150 L.Ed.2d 347
(2001). Under contemporary law, if a noncitizen has committed a
removable offense after the 1996 effective date of these amendments, his
removal is practically inevitable but for the possible exercise of limited
remnants of equitable discretion vested in the Attorney General to cancel
removal for noncitizens convicted of particular classes of offenses. See 8
U.S.C. § 1229b. Subject to limited exceptions, this discretionary relief is not
available for an offense related to trafficking in a controlled substance. See
§ 1101(a)(43)(B); § 1228.
559 U.S. at 363-364, 130 S.Ct. 1473 (footnotes omitted)(emphasis added).
{¶22} In the case at bar, the record indicates that the DHS notified Romero that
he was subject to deportation under sections 237(a)(2)(A)(iii) and 237(a)(2)(B)(i) of the
Stark County, Case No. 2016CA00201 11
Immigration and Nationality Act [“INA”], which are codified in the United States Code as
8 U.S.C. §1227(a)(2)(A)(iii), and 8 U.S.C. §1227(a)(2)(B)(i). Section 1227(a)(2)(A)(iii)
provides that “[a]ny alien who is convicted of an aggravated felony at any time after
admission is deportable.” We note that an “aggravated felony” includes “illicit trafficking
in a controlled substance * * * including a drug trafficking crime * * *.” 8 U.S.C. §
1101(a)(43)(B). A “controlled substance” is defined as “a drug or other substance, or
immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter.”
21 U.S.C. § 802(6). State v. Cardenas, 2nd Dist. Darke No. 2015-CA-16, 2016-Ohio-
5537, 61 N.E.3d 20, ¶45. Marijuana is a Schedule I drug. 21 U.S.C. § 812(c). Gonzales
v. Raich, 545 U.S. 1, 14, 125 S.Ct. 2195, 162 L.Ed.2d 1(2005). Accordingly, Romero’s
conviction for trafficking between five thousand and twenty thousand grams of marijuana
qualifies as an “aggravated felony.”
{¶23} Likewise, Section 1227(a)(2)(B)(i) provides that “[a]ny alien who at any time
after admission has been convicted of a violation of * * * any law or regulation of a State,
the United States, or a foreign country relating to a controlled substance * * * other than
a single offense involving possession for one’s own use of 30 grams or less of marijuana,
is deportable.” Accordingly, Romero’s convictions are for violating Ohio law relating to
control substances.
{¶24} In State v. Cardenas, the Second District Court of Appeals observed,
While the use of the word “deportable” in the aforementioned code
provisions indicates that deportation is not a certainty or immediate, in
analyzing the same term in a similar provision of the United States Code,
the Eighth District Court of Appeals explained that:
Stark County, Case No. 2016CA00201 12
While the word “deportable,” in its most literal interpretation, means
“able to be deported,” as the United States Supreme Court has recognized,
the practical result of such a conviction is that the alien almost always will
be deported. See Padilla at 360–364 [130 S.Ct. 1473] (explaining how
federal law has changed since the 1990s and stating that “[u]nder
contemporary law, if a noncitizen has committed a removable offense * * *
his removal is practically inevitable but for the possible exercise of limited
remnants of equitable discretion vested in the Attorney General to cancel
removal for noncitizens convicted of particular classes of offenses. See 8
U.S.C. 1229b.” Courts have been describing the level of certainty of
deportation for deportable offenses as “virtually automatic” and
“unavoidable,” United States v. Couto, 311 F.3d 179, 184 (2d Cir. 2002),
“certain,” INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347,
325 (2001), and “presumptively mandatory,” Hernandez v. State, 124 So.3d
757, 763 (Fla.2012).
Ayesta, 8th Dist. Cuyahoga No. 101383, 2015-Ohio-1695, 2015 WL
2091679 at ¶ 7.
2016-Ohio-5537, 61 N.E.3d 20, ¶46. Indeed, in Padilla the United States Supreme
Court found,
In the instant case, the terms of the relevant immigration statute are
succinct, clear, and explicit in defining the removal consequence for
Padilla’s conviction. See 8 U.S.C. § 1227(a)(2)(B)(i) (“Any alien who at any
time after admission has been convicted of a violation of (or a conspiracy or
Stark County, Case No. 2016CA00201 13
attempt to violate) any law or regulation of a State, the United States or a
foreign country relating to a controlled substance ..., other than a single
offense involving possession for one’s own use of 30 grams or less of
marijuana, is deportable”). Padilla’s counsel could have easily determined
that his plea would make him eligible for deportation simply from reading
the text of the statute, which addresses not some broad classification of
crimes but specifically commands removal for all controlled substances
convictions except for the most trivial of marijuana possession offenses.
559 U.S. at 368-369, 130 S.Ct. 147.
{¶25} In the case at bar, the trial court never made a finding concerning whether
Romero’s attorney properly advised him, or did not properly advise him, that his guilty
pleas would result in Romero’s deportation. The trial court instead relied upon the fact
that the court had advised Romero in accordance with R.C. 2943.031. In Padilla, the trial
court did not give the defendant any advisement concerning the deportation
consequences of his plea prior to accepting his guilty plea.
R.C. 2943.031 warning.
{¶26} In Ohio, R.C. 2943.031 obligates a trial court, prior to accepting a guilty plea
from a noncitizen defendant, to provide the following advisement: “you are hereby advised
that conviction of the offense to which you are pleading guilty * * * 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.” R.C. 2943.031(A).
{¶27} The trial court gave Romero the following admonishment,
Stark County, Case No. 2016CA00201 14
THE COURT: If you are not a citizen of the United States, you
are going to be advised and you are hereby advised that a conviction of the
offense to which you are pleading guilty may have the consequence of
deportation, exclusion from admission to the United States, or denial of
naturalization pursuant to the laws of the United States.
Transcript of Plea & PSI, June 1, 2016 at 5. (Emphasis added). Accordingly, the
plea hearing transcript reveals the trial court complied with R.C. 2943.031(A). See
State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, syllabus.
{¶28} In his affidavit, Romero does not allege that his attorney gave him
inaccurate or incomplete advice concerning the immigration consequences of his pleas,
4. Further, Affiant says that his attorney…never advised him of the
immigration consequences of his guilty pleas to drug possession and
trafficking, most importantly, that he would be immediately deported.
Affidavit of Carlos Humberto Romero, attached as “Exhibit C,” Emergency Motion
to Withdraw Pleas and Vacate Judgment, filed Oct. 14, 2016.
{¶29} Romero provides no explanation as to his failure to inquire in open court in
response to the trial court’s warnings under R.C. 2943.031(A).
{¶30} While Ohio courts, including this one, have previously held that a trial court’s
proper advisement under R.C. 2943.031 cures the prejudice resulting from an attorney’s
deficient performance, more recently, Ohio courts and federal courts have begun to back
away from that principle and are holding that a proper advisement may preclude a finding
of prejudice. State v. Kostyuchenko, 1st Dist. Hamilton No. C-130257, 2014-Ohio-324, 8
N.E.3d 353, ¶15 (“But the plea form and the R.C. 2943.031 advisement, because they
Stark County, Case No. 2016CA00201 15
informed Kostyuchenko only that he “may” be deported, did not provide the degree of
“accura[cy]” concerning immigration consequences that Padilla demands when, as here,
federal immigration law plainly mandates deportation. See Padilla, 559 U.S. at 364, 130
S.Ct. 1473, 176 L.Ed.2d 284. Therefore, neither counsel’s review of the plea form with
Kostyuchenko, nor the trial court’s compliance with R.C. 2943.031, effectively precluded
a finding that Kostyuchenko had been prejudiced by counsel’s violation of his duty under
Padilla to advise him that he would be deported.”); State v. Cardenas, 2nd Dist. Darke
No. 2015-CA-16, 2016-Ohio-5537, 61 N.E.3d 20, ¶49; State v. Yapp, 8th Dist. Cuyahoga
Nos. 101247, 101248, 2015-Ohio-1654, ¶16 (“Therefore, we clarify that a trial court’s R.C.
2943.031(A) advisement does not necessarily foreclose the possibility of finding prejudice
under Padilla and move away from the progeny of Bains [8th Dist. Cuyahoga No. 94330,
2010-Ohio-5143] that seemed to expansively interpret Bains as a bright line rule that the
advisement cures all prejudice.”); State v. Arrunategui, 9th Dist. Summit No. 26547, 2013-
Ohio-1525, ¶15 (“While the State argues that compliance with Revised Code Section
2943.031(A) in and of itself prevents Arrunategui from successfully proving he was
prejudiced by counsel’s performance, this Court will not go so far as to hold that
compliance with that statute is always determinative of the issue of prejudice when a
defendant claims ineffective assistance of counsel.”); State v. Galdamez, 10th Dist.
Franklin No. 14AP-527, 2015-Ohio-3681, ¶25; State v. Tapia-Cortes, 12th Dist. Butler No.
CA2016-Ohio-02-031, 2016-Ohio-8108, ¶30; See also, United States v. Kayode, 777
F.3d 719, 728–29 (5th Cir. 2014) (while judicial admonishments [regarding the possible
deportation consequences of a plea] are not a substitute for effective assistance of
counsel, they are relevant under the second Strickland prong in determining whether a
Stark County, Case No. 2016CA00201 16
defendant was prejudiced by counsel’s error); United States v. Urias-Marrufo, 744 F.3d
361, 368-369(5th Cir. 2014) (“It is counsel’s duty, not the court’s, to warn of certain
immigration consequences, and counsel’s failure cannot be saved by a plea colloquy.
Thus, it is irrelevant that the magistrate judge asked Urias whether she understood that
there might be immigration consequences and that she and her attorney had discussed
the possible adverse immigration consequences of pleading guilty.” (Footnotes omitted)).
{¶31} Thus, under the current view, compliance with R.C. 2943.031(A) is not
determinative; it is merely one factor for the trial court to consider.
Prejudice under Strickland.
{¶32} Generally under the second prong of Strickland, a defendant must show
there is a reasonable probability that, but for counsel’s errors, he would not have pled
guilty. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 303(1985). In the
specific context of a defense counsel’s failure to advise a defendant of the immigration
consequences of a guilty plea, the United States Supreme Court has held that a
defendant demonstrates prejudice by “convinc[ing] the court that a decision to reject the
plea bargain would have been rational under the circumstances.” Padilla, 559 U.S. at
372, 130 S.Ct. 1473, 176 L.Ed.2d 284; State v. Galdamez, 10th Dist. Franklin No. 14AP-
527, 2015-Ohio-3681, ¶37.
Conclusion.
{¶33} Accordingly, because the trial court denied the motion solely on the basis
of the R.C. 2943.031 advisement we find it appropriate to remand the case for the parties
to develop a record regarding whether Romero’s decision to reject the plea bargain would
Stark County, Case No. 2016CA00201 17
have been rational under the circumstances. In State v. Francis, the Ohio Supreme Court
noted,
There is no specific requirement to hold a hearing in this situation.
However, it sometimes is difficult for an appellate court to review a trial
court’s ruling on a motion to withdraw a plea to determine whether an abuse
of discretion occurred when no hearing was held.
In State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715, at paragraph one
of the syllabus, this court acknowledged the importance of a hearing to aid
in developing a record that could be examined by a reviewing court to
determine whether a trial court properly exercised its discretion in ruling on
a motion to withdraw a plea. Xie stands for the proposition that, unless it is
clear that denial of the motion is warranted, a trial court should hold a
hearing. See, also, Garmendia, supra, Montgomery App. No. 2002-CA-18,
2003-Ohio-3769, 2003 WL 21658528, at ¶ 12, which mentions the
importance of a trial-court hearing on an R.C. 2943.031(D) motion to
establish whether the defendant has met the statutory factors, including that
the defendant has shown that he or she is not a citizen of the United States
and that there may be immigration-related consequences from the
conviction resulting from the plea. In some situations when a hearing
should have been held, a trial court’s failure to have held a hearing amounts
to an abuse of discretion. We find this case to be one in which a hearing
should have been held.
Stark County, Case No. 2016CA00201 18
104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶50-¶51; State v.
Galdamez, 10th Dist. Franklin No. 14AP-527, 2015-Ohio-3681, 41 N.E.3d 467,
¶45; State v. Arrunategui, 9th Dist. Summit No. 26547, 2013-Ohio-1525, ¶15.
{¶34} Accordingly, we find the trial court abused its discretion in denying Romero’s
motion without a hearing to determine whether Romero’s decision to reject the plea
bargain would have been rational under the circumstances.
{¶35} We reverse the judgment of the Stark County Court of Common Pleas and
remand the case for proceedings consistent with this decision.
By Gwin, P.J.,
Baldwin, J., and
Wise, Earle, J., concur
State v. Romero
Combined Opinion