State v. Ramirez

[Cite as State v. Ramirez, 2019-Ohio-3050.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2018-12-233

: OPINION
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:

ALEXIS RAMIREZ, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2010-03-0542

Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government
Services Center, 315 High Street, 11th Floor, Hamilton, OH 45011, for appellee

Jazmin E. Harris, 15 E. Eighth Street, Cincinnati, OH 45202, for appellant

S. POWELL, P.J.

{¶ 1} Appellant, Alexis Ramirez, appeals the decision of the Butler County Court of

Common Pleas denying his motion to withdraw his no contest plea to single counts of

aggravated burglary, aggravated robbery, felonious assault, and tampering with evidence,

as well as two counts of kidnapping, and three counts of rape. For the reasons outlined

below, we affirm the trial court's decision.
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Facts and Procedural History

{¶ 2} On April 28, 2010, the Butler County Grand Jury returned an indictment

charging Ramirez with the nine above-named offenses. The charges arose after Ramirez

knocked on the door to the 64-year-old victim's home and demanded she give him money.

Ramirez, who at that time was heavily intoxicated and allegedly high on marijuana, was

holding a black pellet gun with a t-shirt covering his face. When the victim told Ramirez she

did not have any money to give him, Ramirez forced his way into the victim's home and

ordered the victim to take off her clothes. The victim refused. Ramirez then struck the

victim in the head with the pellet gun. This blow to the victim's head resulted in the victim

suffering a laceration to her head that required several staples to close.

{¶ 3} After striking the victim in the head, Ramirez again demanded the victim take

off her clothes. Unsure of what Ramirez would do if she refused for a second time, the

victim relented to Ramirez's demands and took off her clothes. Ramirez then raped the

victim in various rooms throughout the victim's home both orally and vaginally. These rapes

lasted over an hour and caused the victim to sustain significant injuries to her person. After

raping the victim multiple times, Ramirez then ordered the victim drive him to a nearby ATM.

While en route to the ATM, Ramirez demanded the victim to let him drive. The victim

refused. Ramirez then swung the car door open, grabbed the victim's purse, and fled on

foot. There is no dispute that Ramirez was just 14 years old at the time the offenses

occurred. There is also no dispute that Ramirez is not a United States citizen.1

{¶ 4} On August 20, 2010, the parties appeared before the trial court for a change

of plea hearing. As part of this hearing, Ramirez notified the trial court he wanted to

withdraw his plea of not guilty by reason of insanity and enter a plea of no contest to all nine

1. Ramirez was born in Mexico and brought to the United States by his family when he was four years old.
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charges. Prior to accepting Ramirez's plea, there is no dispute that the trial court adhered

to its statutory duty set forth in R.C. 2943.031(A) by notifying Ramirez that by entering a no

contest plea he "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." See

State v. Perry, 5th Dist. Muskingum No. CT2018-0045, 2019-Ohio-2699, ¶ 24 ("Revised

Code R.C. 2943.031(A) describes the duty of the trial court to provide the warning therein

as a mandatory obligation by the use of the word 'shall' most often used to designate a clear

requirement").

{¶ 5} Upon being so advised, the trial court asked Ramirez if he understood the

advisement and the implications of what may occur if he entered a no contest plea. Ramirez

responded that he understood that he "could get deported for what [he had] done" and that

he "could not be a citizen and try to come back." Following this exchange, the trial court

engaged Ramirez in the necessary Crim.R. 11 plea colloquy. Once the plea colloquy

concluded, the trial court asked Ramirez how he wished to plea. Ramirez responded by

entering a plea of no contest to each of the nine charges set forth in the indictment. The

trial court accepted Ramirez's no contest plea upon finding the plea was knowingly,

intelligently, and voluntarily entered. Satisfied with Ramirez's no contest plea, the trial court

then issued its decision finding Ramirez guilty as charged.

{¶ 6} On October 8, 2010, the trial court held a sentencing hearing. As part of this

hearing, the trial court notified Ramirez that it was its "understanding" that he would be

deported following his release from prison. There is nothing in the record to indicate this

came as a surprise to Ramirez or that Ramirez had not previously been advised by his trial

counsel of the immigration consequences resulting from his conviction. This includes the

fact that Ramirez would be deported upon his release from prison. Rather, when asked if

he understood that he would be deported upon his release, as well as if he understood the

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consequences of being classified as a Tier III sex offender, Ramirez responded, "Yes, sir."

{¶ 7} Following this exchange, the trial court heard from Ramirez's trial counsel in

mitigation. As part of mitigation, Ramirez's trial counsel argued the trial court should impose

a comparatively lighter sentence on Ramirez, an undocumented immigrant who would be

deported following his release from prison, when considering the significant costs to house

an inmate within the state penitentiary system. Specifically, Ramirez's trial counsel stated

that "[w]hen this case all started the sheriff of this county placed a holder on [Ramirez] and

notified the immigration authorities, and I don't think there's a question that whatever

sentence he gets, at the very end of this, he is going to be deported to Mexico." Ramirez's

trial counsel also stated that "[Ramirez] will never legally be allowed back into this country

again." There is again nothing in the record to indicate this came as a surprise to Ramirez

or that Ramirez had not previously been advised by his trial counsel of the immigration

consequences resulting from his conviction. This, once again, includes the fact that

Ramirez would be deported upon his release from prison.

{¶ 8} Ramirez's trial counsel also argued that a lighter sentence should be imposed

due to Ramirez's young age, immaturity, and below average intelligence. This was in

addition to Ramirez's lack of insight and judgment, apparent inability to control his impulses,

and heavy intoxication at the time the offenses occurred. Ramirez's trial counsel also noted

that he had recently been appointed trial counsel in several other cases that carried less

significant sentences than what Ramirez faced in this case. This included a case where his

client was alleged to have murdered the victim by beating the victim with a baseball bat.

Concluding, Ramirez's trial counsel argued that Ramirez was not "evil," "that's not who he

is," but that Ramirez was instead just a "little kid, and that's the way I look at him."

{¶ 9} Following mitigation, the trial court provided Ramirez with his right to

allocution. As part of allocution, Ramirez informed the trial court that he knew society looked

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at him "as a monster and they have every right to," but that he nevertheless wanted the

victim and the victim's family "to sleep at night knowing that I got what I deserved." Ramirez

also informed the trial court that he knew he "really hurt" the victim, that he "did something

terrible to an innocent lady," and that he did not blame anybody else for what he did.

Ramirez further admitted that he "did it," that he could not live with himself, and that he was

"really stupid" and ashamed of his actions. Ramirez additionally stated that he was sorry

for making such a terrible mistake, that he hated himself, and that he did not know how to

live anymore. Concluding, Ramirez stated, "I'm guilty and whatever you give me, I'll do it."

{¶ 10} After Ramirez exercised his right to allocution, the trial court addressed

Ramirez personally and notified him that this case had been very difficult when considering

"victim and the victim's family have been through a terrible, unspeakable incident." Shortly

thereafter, and upon noting that it had considered the necessary sentencing statutes, the

trial court sentenced Ramirez to a mandatory 28-year prison term. The trial court also

notified Ramirez that he "will be deported" upon his release from prison. Just as before,

there is nothing in the record to indicate this came as a surprise to Ramirez or that he had

not previously been advised by his trial counsel of the immigration consequences resulting

from his conviction. This, as noted above, includes the fact that Ramirez would be deported

upon his release from prison.

{¶ 11} On October 19, 2010, the trial court issued a sentencing entry setting forth its

decision sentencing Ramirez to a mandatory 28-year prison term. As part of its sentencing

entry, the trial court specifically stated that "[u]pon completion of sentence defendant is to

be deported."

{¶ 12} On November 8, 2010, Ramirez appealed his conviction and sentence to this

court. On appeal, Ramirez did not argue that his plea was defective due to his trial counsel's

alleged failure to advise him that he would be deported if the trial court accepted his no

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contest plea and found him guilty. Ramirez instead argued: (1) the juvenile court erred by

finding he was not amenable to rehabilitation within the juvenile system; (2) the trial court

erred by finding him competent to stand trial; and that (3) the trial court erred by failing to

find a number of charges were allied offenses of similar import. Finding merit to Ramirez's

claim that the trial court erred by failing to merge one of the kidnapping charges with one of

the rape offenses, this court reversed and remanded the matter to the trial court for the

limited purpose of resentencing. State v. Ramirez, 12th Dist. Butler No. CA2010-11-305,

2011-Ohio-6531, appeal not allowed, 131 Ohio St.3d 1511, 2012-Ohio-1710. .

{¶ 13} On July 26, 2013, the trial court held a resentencing hearing. The record on

appeal does not contain a transcript of this hearing. The record nevertheless establishes

that the trial court resentenced Ramirez to the same mandatory 28-year prison term.

Approximately two weeks later, on August 12, 2013, the trial court issued a resentencing

entry. This resentencing entry, just as the trial court's original sentencing entry, also

specifically stated that "[u]pon completion of sentence defendant is to be deported."

Ramirez did not appeal from the trial court's resentencing decision.

{¶ 14} On June 23, 2017, six years ten months and three days after Ramirez entered

his no contest plea, Ramirez moved to withdraw his plea in accordance with Crim.R. 32.1.

Pursuant to that rule, a defendant who seeks to withdraw his or her plea after the imposition

of the sentence has the burden of establishing the existence of a manifest injustice. State

v. Reeder, 12th Dist. Butler Case Nos. CA2013-05-075 and CA2013-07-126, 2014-Ohio-

2233, ¶ 23. Manifest injustice relates to a fundamental flaw in the proceedings that results

in a miscarriage of justice or is inconsistent with the demands of due process. State v.

Hendrix, 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610, ¶ 13. "This sets forth an

extremely high standard that is allowable only in extraordinary cases." State v. Tringelof,

12th Dist. Clermont Nos. CA2017-03-015 and CA2017-03-016, 2017-Ohio-7657, ¶ 10,

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citing State v. Sturgill, 12th Dist. Clermont No. CA2014-09-066, 2015-Ohio-1933, ¶ 9.

{¶ 15} Ramirez supported his motion to withdraw by alleging his trial counsel

provided him with ineffective assistance by failing to advise him of the immigration

consequences he faced by entering a no contest plea. This, as Ramirez alleged, included

the fact that he would be deported upon his release from prison if the trial court accepted

his no contest plea and found him guilty. As part of his motion, Ramirez claimed his

arguments were supported by a memorandum in support and an affidavit executed by his

mother. However, while a memorandum in support was attached, there was no affidavit

executed by Ramirez's mother (or anybody else) attached to the motion. There can be no

dispute that the affidavit executed by Ramirez's mother was never made a part of the record

before the trial court or with this court on appeal.

{¶ 16} Ramirez's arguments advanced in his motion to withdraw were based

primarily on the United States Supreme Court's decision in Padilla v. Kentucky, 559 U.S.

356, 130 S.Ct. 1473 (2010). In Padilla, the Supreme Court held that the Sixth Amendment

imposes upon a defendant's trial counsel, in negotiating a guilty or no contest plea, the duty

to accurately advise a noncitizen client concerning the immigration consequences of the

plea. Id. at 364. "Counsel breaches this duty by either providing affirmative misadvice

about immigration consequences or by not providing any advice at all when advice is

warranted." State v. Tapia-Cortes, 12th Dist. No. CA2016-02-031, 2016-Ohio-8101, ¶ 14,

citing id. at 370-371, 374. Therefore, when the immigration consequences can easily be

determined from reading the removal statute, and the deportation consequence is "truly

clear," the Supreme Court found "the duty to give correct advice is equally clear." Padilla

at 369.

{¶ 17} On November 30, 2018, the trial court issued a decision denying Ramirez's

motion to withdraw his no contest plea. In so holding, the trial court stated:

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The Defendant claims the manifest injustice in this case by a
bald assertion of ineffective assistance of counsel. There is no
affidavit or reference to new evidence or information to support
the argument that defense counsel was ineffective. There is no
evidence to support the argument that the Defendant did not
comprehend the consequences of a conviction on this case on
the [Defendant's] residency status, deportation and exclusion
from the United States at the time of the plea or sentencing.

The trial court concluded by finding Ramirez had failed to meet his burden of proof under

Crim.R. 32.1 that required him to provide "evidence that would support a finding of manifest

injustice."

Appeal

{¶ 18} Ramirez now appeals the trial court's decision, raising two assignments of

error for review. In each of his two assignments of error, Ramirez argues the trial court

erred by denying his motion to withdraw his no contest plea upon finding Ramirez failed to

establish that a manifest injustice had occurred.2 Raising the same general arguments he

advanced before the trial court, Ramirez supports his claim by relying on the United States

Supreme Court's decision in Padilla. After a full and thorough review of the record, we find

no merit to any of Ramirez's claims raised herein.3 That is to say we find the trial court's

decision to deny Ramirez's motion to withdraw was not unreasonable, arbitrary, or

2. When faced with these same basic arguments, the court has addressed the merits of the appellant's claim
rather than overruling the appeal based on the doctrine of res judicata. See State v. Guzman, 12th Dist. Butler
No. CA2015-11-198, 2016-Ohio-1487, ¶ 8 (noting that this court would address the merits of appellant's claim
rather than rely on the doctrine of res judicata where appellant argued the trial court erred by denying his
motion to withdraw his guilty plea by alleging "his defense counsel was ineffective for failing to advise him of
the immigration consequences of his plea" in accordance with the holding set forth in Padilla).

3. The state requested this court to avoid ruling on the merits of Ramirez's two assignments of error due to
this court having already affirmed Ramirez's conviction and sentence on direct appeal. However, being just
15 years old at the time he entered his no contest plea, we believe Ramirez should have his claims addressed
on the merits rather than overruled on other more procedural grounds. We find this to be appropriate despite
this court's prior holding that when a case is remanded to the trial court solely for the limited purpose of
resentencing, and the sentence is not void, the trial court does not have jurisdiction to entertain a motion to
withdraw a plea. State v. Simon, 12th Dist. Butler No. CA2015-05-081, 2015-Ohio-4448, ¶ 19-20;
discretionary appeal not allowed, 144 Ohio St.3d 1507, 2016-Ohio-652, citing State v. Wilson, 129 Ohio St.3d
214, 2011-Ohio-2669, ¶ 15 ("[i]n a remand based only on an allied-offenses sentencing error, the guilty
verdicts underlying a defendant's sentences remain the law of the case and are not subject to review").

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unconscionable so as to constitute an abuse of discretion. The trial court's decision denying

Ramirez's motion to withdraw must therefore be affirmed.

Standard of Review

{¶ 19} The decision to grant or deny a motion to withdraw a guilty or no contest plea

is within the trial court's sound discretion. State v. Carter, 12th Dist. Clinton Nos. CA2010-

07-012 and CA2010-08-016, 2011-Ohio-414, ¶ 16. This court reviews a trial court's

decision to deny a motion to withdraw a plea brought under Crim.R. 32.1 under an abuse

of discretion standard. State v. Ward, 12th Dist. Clermont No. CA2008-09-083, 2009-Ohio-

1169, ¶ 8, citing State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, ¶ 32. An abuse of

discretion is more than an error of law or judgment. State v. Miller, 12th Dist. Butler No.

CA2016-01-007, 2016-Ohio-7360, ¶ 7. Rather, it suggests the "trial court's decision was

unreasonable, arbitrary or unconscionable." State v. Perkins, 12th Dist. Clinton No.

CA2005-01-002, 2005-Ohio-6557, ¶ 8. A decision is unreasonable when it is "unsupported

by a sound reasoning process." State v. Abdullah, 10th Dist. Franklin No. 07AP-427, 2007-

Ohio-7010, ¶ 16, citing AAAA Ents., Inc. v. River Place Community Urban Redevelopment

Corp., 50 Ohio St.3d 157, 161 (1990).

Analysis

{¶ 20} As noted above, relying primarily on the Supreme Court's decision in Padilla,

Ramirez argues his trial counsel provided him with ineffective assistance by not advising

him of the immigration consequences he faced by entering a no contest plea. This, as

stated previously, includes the fact that Ramirez would be deported upon his release from

prison if the trial court accepted his no contest plea and found him guilty. We find no merit

to Ramirez's claims.

{¶ 21} Ineffective assistance of counsel is a proper basis for seeking a post-sentence

withdrawal of a plea. State v. Taveras, 12th Dist. Warren No. CA2016-06-054, 2017-Ohio-

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1496, ¶ 17. When an alleged error underlying a motion to withdraw is ineffective assistance

of counsel, the defendant must show (1) that his counsel's performance was deficient and

(2) that there is a reasonable probability that, but for counsel's errors, he would not have

entered his or her plea. State v. Guerrero, 12th Dist. Butler No. CA2010-09-231, 2011-

Ohio-6530, ¶ 5, citing Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052

(1984). "The proponent of an ineffective assistance claim must establish both elements to

warrant relief." State v. Robinson, 12th Dist. Butler No. CA2014-12-256, 2015-Ohio-4649,

¶ 48. Therefore, rather than focusing on whether a defendant entered his plea knowingly,

intelligently, and voluntarily, when "the defendant asserts a claim of ineffective assistance

of counsel, the court must focus on counsel's deficient performance and the prejudice

arising from that deficiency." (Emphasis omitted.) State v. Romero, Slip Opinion No. 2019-

Ohio-1839, ¶ 18. This requires the court to "determine whether the totality of circumstances

supports a finding that counsel's performance was deficient, and if so, whether the deficient

performance was prejudicial to the defendant." Id. at ¶ 34.

{¶ 22} Before addressing Ramirez's claims under Padilla, we note that Ramirez also

argues his trial counsel provided him ineffective assistance since his trial counsel "virtually

did nothing, just pled [him] to the indictment." However, contrary to Ramirez's claim, the

record indicates his trial counsel did much more than just plead him to the indictment.

Ramirez's trial counsel filed a demand for discovery, a request for a bill of particulars, a

motion for an evaluation of Ramirez's competency to stand trial, a written plea of not guilty

by reason of insanity, and a motion for continuance so that his trial counsel could have more

time to review the competency report finding Ramirez competent to stand trial. This hardly

constitutes doing "virtually nothing" as Ramirez suggests.

{¶ 23} The record indicates Ramirez's trial counsel also vigorously defended

Ramirez's interests at the competency hearing, as well as at both the change of plea and

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sentencing hearings. This was in addition to counsel arguing that a number of the charges

should be merged as allied offenses of similar import at sentencing – an argument this court

found meritorious on appeal. See Ramirez, 2011-Ohio-6531 at ¶ 62 ("[i]nsofar as the trial

court failed to merge the offense of kidnapping and the first rape at sentencing, the judgment

of the trial court imposing individual sentences for these offenses is reversed and this matter

is remanded for further proceedings according to law and consistent with this opinion").

{¶ 24} Ramirez himself even acknowledged that he was satisfied with his trial

counsel's performance prior to entering his no contest plea. Specifically, as Ramirez stated

at the change of plea hearing:

THE COURT: Did you go over these plea forms with [your trial
counsel]?

THE DEFENDANT: Yes, sir.

THE COURT: And have you been satisfied with the advice and
counsel [your trial counsel] has given you?

THE DEFENDANT: Yes, sir.

THE COURT: Did you and [your trial counsel] have enough time
to discuss your plea this morning?

THE DEFENDANT: We did.

THE COURT: Did you and [your trial counsel] have enough time
to go over each one of these charges and how much time you
might be facing – how much incarceration and other penalties
you may be facing if you plead no contest?

THE DEFENDANT: Yes, sir.

THE COURT: And [trial counsel] has answered all of your
questions?

THE DEFENDANT: All of them.

Therefore, even with just a modest review of the record, Ramirez's claim that his trial

counsel "virtually did nothing, just pled [him] to the indictment" is incorrect and not supported

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by the record.

{¶ 25} The same is true regarding Ramirez's claim that his trial counsel engaged in

professional misconduct by exhibiting a "lack of empathy and care" for Ramirez as a 15-

year-old child facing a significant 83-year prison sentence. However, based on Rule 1.3 of

the Rules of Professional Conduct, Ramirez's trial counsel had no duty other than "to act

with commitment and dedication" to Ramirez's interests in defending against the serious

nature of the charges levied against him. Yet, even then, the record in this case reveals

Ramirez's trial counsel actually did exhibit both empathy and care for Ramirez. This is clear

when considering Ramirez's trial counsel's statement during mitigation that he believed

Ramirez was not "evil," "that's not who he is," but instead that Ramirez was just a "little kid,

and that's the way I look at him." Therefore, even if we were to find Ramirez's trial counsel

had a duty to exhibit "empathy and care" for Ramirez, which we do not, the record indicates

Ramirez's trial counsel exhibited both empathy and care when defending Ramirez's

interests before the trial court. Ramirez's claims otherwise lack merit.

{¶ 26} Turning now to Ramirez's claims under Padilla, as noted above, Ramirez

argues his trial counsel was ineffective for not advising him that he would be deported if the

trial court accepted his no contest plea and found him guilty, "no ifs or buts." Ramirez

supports this claim by making the bold and bare assertion that the mere fact he pled no

contest "to the charges that he did is irrefutable proof that his attorney failed to research the

immigration law as he was required to do under Padilla v. Kentucky." Therefore, based

solely on the fact that he entered a no contest plea, Ramirez claims that it is "clear" his trial

counsel failed to research and advise him – as his youthful, "profoundly disturbed," non-

citizen client – of the immigration consequences he faced by entering a no contest plea.

We disagree.

{¶ 27} Under the first prong of Strickland, it must first be determined whether

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Ramirez's trial counsel "fulfilled his duty under the Sixth Amendment to inform his client

whether his guilty [or no contest] pleas carry a risk of deportation." Romero, 2019-Ohio-

1839 at ¶ 21. However, while it must be determined whether Ramirez's trial counsel fulfilled

this duty, the simple fact that Ramirez pled no contest is not "irrefutable proof" that his trial

counsel failed in his responsibilities under Padilla. This is because the decision whether to

enter a plea is reserved solely for the defendant. See State v. Doty, 12th Dist. Clermont

No. CA2018-07-055, 2019-Ohio-917, ¶ 15, citing McCoy v. Louisiana, __U.S.__, 138 S.Ct.

1500, 1508 (2018); see also Rule 1.2(a) of the Rules of Professional Conduct ("[i]n a

criminal case, the lawyer shall abide by the client's decision as to a plea to be entered").

Therefore, while Ramirez suggests otherwise, rather than mandating a defendant to accept

or reject a plea agreement, "[t]he attorney is there to give informed advice, to relate worse

case scenarios to his [or her] client, and to make a recommendation regardless of whether

it makes the client upset." State v. Shugart, 7th Dist. Mahoning No. 08 MA 238, 2009-Ohio-

6807, ¶ 37.

{¶ 28} We acknowledge that there may be some question as to whether Ramirez's

trial counsel merely advised Ramirez that he could be deported upon his release from prison

rather than the fact that he would be deported. But, when reviewing the record in its entirety,

we find it more likely that Ramirez's trial counsel properly advised Ramirez of the

immigration consequences he faced should he enter a no contest plea; namely, that he

would be deported upon his release from prison. This includes the exchanges between

Ramirez, Ramirez's trial counsel, and the trial court at both the change of plea and

sentencing hearings. This is most telling when reviewing Ramirez's trial counsel's

statements at sentencing, wherein Ramirez's trial counsel stated during mitigation not only

that "[w]hen this case all started the sheriff of this county placed a holder on [Ramirez] and

notified the immigration authorities, and I don't think there's a question that whatever

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sentence he gets, at the very end of this, he is going to be deported to Mexico," but also

that "[Ramirez] will never legally be allowed back into this country again." Because there is

nothing in the record to indicate this came as a surprise to Ramirez, we find it fair to assume

that Ramirez had previously been advised by his trial counsel that he would be deported

upon his release from prison if the trial court accepted his no contest plea and found him

guilty. Such a finding would negate any claim that Ramirez's trial counsel was deficient as

to support Ramirez's ineffective assistance of counsel claim raised herein.

{¶ 29} But, rather than relying on speculation and conjecture on our part, we instead

defer back to the burden of proof as set forth by Crim.R. 32.1; specifically, that it was

Ramirez who had the burden of demonstrating that a manifest injustice had occurred. See

State v. Noe, 12th Dist. Warren No. CA98-01-011, 1998 Ohio App. LEXIS 4173, *11 (Sept.

8, 1998) ("[t]o prevail under Crim.R. 32.1 on an ineffective assistance of counsel claim, the

appellant bears the burden of proof"). Therefore, having no clear indication one way or the

other, we agree with the trial court's decision finding Ramirez failed to provide any "evidence

that would support a finding of manifest injustice" as required by Crim.R. 32.1. "The

credibility and weight of the defendant's assertions in support of a motion to withdraw a plea

* * * are matters entrusted to the sound discretion of the trial court." Romero, 2019-Ohio-

1839 at ¶ 34, citing State v. Smith, 49 Ohio St.2d 261, 264 (1977); and State v. Francis,

104 Ohio St.3d 490, 2004-Ohio-6894, ¶ 56. Accordingly, because Ramirez failed to

establish that a manifest injustice had occurred, the trial court did not err by denying

Ramirez's motion to withdraw his no contest plea.

{¶ 30} In so holding, we note that even if Ramirez had provided evidence indicating

his trial counsel was somehow deficient, which he did not, Ramirez failed to establish any

resulting prejudice therefrom. Under the second prong of Strickland, Ramirez must show

prejudice by establishing that "'there [was] a reasonable probability that, but for counsel's

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errors, he would not have pleaded guilty and would have insisted on going to trial.'"

Romero, 2019-Ohio-1839 at ¶ 28, quoting Hill v. Lockart, 474 U.S. 52, 59, 106 S.Ct. 366

(1985). This, as noted above, requires the court to consider the totality of the circumstances

in order to asses "whether it would be rational for a defendant to go to trial instead of

pleading guilty [or no contest.]" Id., citing Lee v. United States, __U.S.__ , 137 S.Ct. 1958,

1966 (2017). The court's evaluation of prejudice may include any relevant factors. Id. at ¶

34. This includes, but is not limited to, (1) the consequences of going to trial by focusing

on the defendant's perspective; (2) the importance that the defendant placed on avoiding

deportation; (3) the defendant's connections to the United States; and (4) judicial

advisement of immigration consequences. Id. at ¶ 29-33.

{¶ 31} In this case, the record plainly establishes that the trial court complied with

the statutory requirements set forth in R.C. 2943.031(A) by notifying Ramirez that by

entering a no contest plea he "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." While the trial court's advisement under R.C. 2943.031(A) does not cure an

attorney's failure to advise his client of the immigration consequences faced by entering a

no contest plea, "a judicial advisement about the immigration consequences of the

defendant's plea may weigh against a finding of prejudice[.]" Romero, 2019-Ohio-1839 at

¶19, 33. Therefore, although not dispositive of the issue, the fact that the trial court complied

with that statute supports the trial court's decision finding Ramirez failed to establish a

manifest injustice had occurred. This is particularly true here when considering the

extensive, overwhelming, and uncontroverted evidence of Ramirez's guilt. See, e.g., State

v. Scott, 12th Dist. Preble No. CA2018-10-015, 2019-Ohio-1292, ¶ 40 (trial court did not err

by denying appellant's motion to withdraw his guilty plea where the record was "devoid of

any evidence that [appellant] was provided with any other than sound advice in light of the

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overwhelming evidence against him").

{¶ 32} This holding is further supported by the fact Ramirez waited nearly seven

years after he entered his no contest before filing his motion to withdraw. "'An undue delay

between the occurrence of the alleged cause for withdrawal of a guilty [or no contest] plea

and the filing of a motion under Crim.R. 32.1 is a factor adversely affecting the credibility of

the movant and militating against the granting of the motion.'" State v. Worthington, 12th

Dist. Brown No. CA2014-12-022, 2015-Ohio-3173, ¶ 40, quoting State v. Smith, 49 Ohio

St.2d 261 (1977), paragraph three of the syllabus. The fact that Ramirez waited nearly

seven years before filing his motion to withdraw clearly militates against granting Ramirez's

motion. See, e.g., State v. Daniels, 12th Dist. Butler No. CA2018-10-194, 2019-Ohio-2274,

¶ 22 ("appellant waited nearly six years after his conviction to move to withdraw his plea

which weighs against granting the motion"); State v. Robinson, 12th Dist. Butler No.

CA2013-05-085, 2013-Ohio-5672, ¶ 19 (appellant waiting four years after his conviction to

move to withdraw his plea "clearly militates against" granting appellant's motion to

withdraw).

{¶ 33} What this court finds most significant, however, are Ramirez's statements

made to the trial court during allocution. This includes Ramirez's statement that he knew

society looked at him "as a monster and they have every right to," but that he nevertheless

wanted the victim and the victim's family "to sleep at night knowing that I got what I

deserved." Ramirez also informed the trial court that he knew he "really hurt" the victim,

that he "did something terrible to an innocent lady," and that he did not blame anybody else

for what he did. Ramirez further admitted that he "did it," that he could not live with himself,

that he was "really stupid," and ashamed of his actions. This was in addition to Ramirez's

statements that he was sorry for making such a terrible mistake, that he hated himself, and

that he did not know how to live anymore, that he was "guilty," and that he would serve

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whatever prison sentence the trial court imposed; "I'm guilty and whatever you give me, I'll

do it."

{¶ 34} When considering these statements, it is clear that Ramirez fell on the mercy

of the trial court knowing that he faced a maximum 83-year prison sentence that would have

almost certainly guaranteed he would spend the rest of his life in prison. Even when

focusing on this issue from Ramirez's perspective, the fact that Ramirez would be deported

following his release from prison had little, if any, impact on his decision to enter a plea of

no contest. This becomes even more apparent when considering the record is devoid of

any evidence to indicate Ramirez was surprised when the trial court specifically informed

him at the sentencing hearing that he would be deported following his release from prison.

Had that been the case, Ramirez could have easily raised the issue with either his trial

counsel or the trial court prior to the trial court issuing its sentencing decision. Ramirez,

however, did neither.

{¶ 35} Rather than raising the issue with the trial court prior to the trial court issuing

its sentencing decision, or with this court on appeal, Ramirez instead waited nearly seven

years after he entered his no contest plea before filing his motion to withdraw. For Ramirez

to now claim he would have not entered a no contest plea appears disingenuous and falls

well short of what could be considered a "manifest injustice" for purposes of satisfying

Crim.R. 32.1. Ramirez must do more than present "post hoc assertions" about how he

would have pled but for his trial counsel's alleged deficiencies. Lee, __U.S.__ , 137 S.Ct.

at 1968. To hold otherwise would render what constitutes a "manifest injustice" virtually

meaningless. This is because "a defendant without any viable defense 'will rarely be able

to show prejudice' from accepting a plea agreement." Romero, 2019-Ohio-1839 at ¶ 30,

quoting id at 1966. Therefore, because Ramirez did not meet his burden of establishing

that a manifest injustice had occurred, Ramirez's claim that he received ineffective

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assistance of counsel must also fail. This is because Ramirez failed to prove both that his

trial counsel was deficient and that he suffered any resulting prejudice therefrom.

Accordingly, finding no error in the trial court's decision, Ramirez's two assignments of error

lack merit and are overruled.

Conclusion

{¶ 36} The trial court did not err by denying Ramirez's motion to withdraw his no

contest plea upon finding he failed to establish a manifest injustice as required by Crim.R.

32.1. A defendant should be permitted to withdraw his or her plea only in extraordinary

cases. State v. Murray, 12th Dist. Brown No. CA2015-12-029, 2016-Ohio-4994, ¶ 15. This

is not one of those cases. Therefore, finding no error in the trial court's decision, Ramirez's

two assignments of error lack merit and are overruled.

{¶ 37} Judgment affirmed.

PIPER and M. POWELL, JJ., concur.

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