State v. Kurdi

[Cite as State v. Kurdi, 2022-Ohio-4459.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY

STATE OF OHIO, CASE NO. 2021-L-125

Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas

MOHAMMAD Y. KURDI,
Trial Court No. 2020 CR 000920
Defendant-Appellant.

OPINION

Decided: December 12, 2022
Judgment: Reversed and remanded

Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner and Teri R. Daniel,
Assistant Prosecutors, Lake County Administration Building, 105 Main Street, P.O. Box
490, Painesville, OH 44077 (For Plaintiff-Appellee).

Maya Lugasy, Robert Brown LLC, 1468 West 9th Street, Suite 705, Cleveland, OH
44113; and Hannah Christ, Kramer Law Clinic, 10900 Euclid Avenue, Cleveland, OH
44106 (For Defendant-Appellant).

THOMAS R. WRIGHT, J.

{¶1} Appellant, Mohammad Y. Kurdi, appeals the judgment of the Lake County

Court of Common Pleas, denying his post-sentence motion to withdraw his guilty plea.

At issue is whether appellant, a lawful, non-citizen resident of the United States, was

entitled to an evidentiary hearing on his post-sentence motion to withdraw his guilty plea

where the record demonstrates he has a colorable claim for ineffective assistance of

counsel. We reverse the judgment of the trial court and remand the matter for further

proceedings.
 {¶2} Appellant, a native citizen of Jordan, has been a lawful resident of the

United States since 2013. In September 2020, appellant was charged with one count of

aggravated trafficking in drugs, in violation of R.C. 2925.03(A)(1), a felony of the third

degree. In a separate case, appellant was charged with one count of possession of

cocaine, in violation of R.C. 2925.11, a felony of the fifth degree; one count of carrying

concealed weapons, in violation of R.C. 2923.12(A)(1), a misdemeanor of the first degree;

and possession of dangerous drugs, in violation of R.C. 4729.51(E)(1)(c), a misdemeanor

of the first degree. Upon advice of counsel, appellant entered pleas of guilty to the

aggravated trafficking count and possession of cocaine count and, although the matters

were unrelated, they were consolidated for purposes of sentencing. Before entering the

pleas of guilty, appellant acknowledges he was informed by counsel that pleading guilty

to aggravated trafficking in drugs may lead to his deportation. And, during the plea

hearing, appellant concedes the trial court also advised appellant that pleading guilty may

lead to his deportation or removal from the United States, pursuant to the statutory

requirements of R.C. 2943.031.

{¶3} Appellant was ultimately sentenced to 137 days in the Lake County Jail on

the possession of cocaine count and 29 days in jail for aggravated trafficking in drugs with

two years of community control in each case. Appellant subsequently filed a post-

sentence motion to withdraw his guilty plea, which was denied without a hearing. The

trial court determined that appellant did not receive ineffective assistance of counsel. This

appeal follows. Appellant’s assignments of error provide:

{¶4} “[1.] The trial court abused its discretion when it denied appellant’s motion

to withdraw his guilty pleas and vacate his conviction where appellant showed that he

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was prejudiced by the failure of his attorney to adequately inform him of the immigration

consequences of his plea.

{¶5} “[2.] The trial court abused its discretion when it denied appellant’s motion

to withdraw his guilty plea without a full evidentiary hearing.”

{¶6} “A motion to withdraw a plea of guilty or no contest may be made only before

sentence is imposed; but to correct a manifest injustice the court after sentence may set

aside the judgment of conviction and permit the defendant to withdraw his or her

plea.” Crim.R. 32.1; State v. Reyes, 11th Dist. Portage No. 2013-P-0049, 2014-Ohio-

1679, ¶12. A manifest injustice has been described as “an obvious, unjust act or

fundamental flaw in the proceedings.” (Citations omitted.) State v. Bell, 11th Dist. Portage

No. 2018-P-0016, 2018-Ohio-4373, ¶10. A ruling on a post-sentence motion to withdraw

a guilty plea is reviewed for an abuse of discretion. State v. Selvaggio, 11th Dist. Lake

No. 2017-L-128, 2018-Ohio-3532, ¶12.

{¶7} “‘While a trial court must conduct a hearing to determine whether there is a

reasonable and legitimate basis for the withdrawal of a guilty plea if the request is made

before sentencing, the same is not true if the request is made after the trial court has

already sentenced the defendant. [State v. Xie, 62 Ohio St.3d 521 (1992),] paragraph one

of the syllabus. * * * ‘[A] trial court need not hold an evidentiary hearing on a post-sentence

motion to withdraw a guilty plea if the record indicates the movant is not entitled to relief

and the movant has failed to submit evidentiary documents sufficient to demonstrate a

manifest injustice.’ (Citation omitted.) State v. Caskey, 11th Dist. Lake No. 2010-L-014,

2010-Ohio-4697, ¶11.” State v. Peete, 11th Dist. Trumbull No. 2018-T-0094, 2019-Ohio-

25113, ¶17.

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 {¶8} A plea negotiation is a critical phase of a criminal prosecution for purposes

of the Sixth Amendment right to effective assistance of counsel. Hill v. Lockhart, 474 U.S.

52, 57, 106 S.Ct.52, 88 L.Ed.2d 203 (1985). A claim of ineffective assistance of counsel

involves a two-prong analysis. See, e.g., Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed. 674 (1984). First, a court must determine whether counsel’s

performance fell below an objective standard of reasonable representation. The second

prong requires the appellant to establish prejudice. Id.

{¶9} Appellant contends that he received ineffective assistance of counsel

because his trial counsel failed to inform him that, by entering his plea, he would be

mandatorily deported. He asserts that counsel’s statement that, by entering the plea, he

ran the risk of deportation was insufficient because the advice led him to believe he could

challenge the deportation.

{¶10} In his motion to withdraw, appellant supported his contentions with an

affidavit in which he averred that both the trial court and his attorney advised him, prior to

entering his pleas, that he “may” be deported. These averments are uncontested. Shortly

after his pleas were accepted, he was taken into immigration custody and was told his

charges required automatic deportation. Based upon his conversations with his attorney

and the trial judge, appellant averred he thought he could challenge deportation if

authorities initiated proceedings. Had he known he could not so challenge deportation,

he asserted he would have never entered his plea.

{¶11} Appellant’s trial counsel also submitted an affidavit in which she averred

that she was informed by appellant’s counsel in a separate case that “there did not appear

to be an immigration hold” on appellant while he was incarcerated for the underlying

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charges. She additionally asserted that, while she was aware of immigration concerns,

she did not advise appellant that entering the plea would result in automatic deportation;

after speaking with appellant’s family and their immigration attorney, however, she was

advised appellant would be deported as a result of his plea.

{¶12} In support of his arguments on appeal, appellant cites the United States

Supreme Court’s opinion in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176

L.Ed.2d 284 (2010). In Padilla, the defendant was a lawful, permanent resident of the

United States for more than 40 years. Id. At 359. He faced deportation as a result of

pleading guilty to the transportation of a large amount of marijuana. Id. The defendant

asserted his counsel was ineffective because she not only failed to advise him of the

consequence of deportation but also advised him he need not worry about his immigration

status because he had been a resident of the United States for such a lengthy duration.

Id. He relied on counsel’s erroneous advice when he entered the plea, which made his

deportation a relative certainty. Id.

{¶13} The Supreme Court determined that the defendant’s counsel was deficient

for failing to “advise her client regarding the risk of deportation.” Id. at 367. The Court

recognized the problems a defense attorney might encounter in properly advising a client

of deportation resulting from a criminal conviction given the complexities of immigration

law. Id. at 369. The Court nevertheless underscored, however, when it is clear a

defendant will be deported based upon the charges at issue, counsel has a duty to give

correct advice. Id. Alternatively, where the deportation consequences are unclear or

uncertain, an attorney need do no more than advise the noncitizen client that the charges

may carry a risk of deportation. Id. The decision was underscored by the Court’s

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recognition of the unique role that deportation can play in criminal punishment. Id. at 373.

As the Supreme Court explained, “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.” Id. Given the unique and extreme consequence of deportation, it is incumbent

on counsel to warn their clients when a guilty plea would have such an impact. Id. “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.”

(Internal citation omitted) Id. at 373-374.

{¶14} In its judgment entry denying appellant’s post-sentence motion to withdraw,

the trial court focused upon trial counsel’s and the court’s advisement regarding the a risk

of removal. The court concluded the advisement was not “incorrect or false, nor did

counsel fail to give him any advice.” The court therefore concluded counsel’s

performance was not deficient. Further, even assuming counsel’s performance was

deficient, the court determined that appellant did not establish that deportation was a

determinative issue in his decision to enter the pleas. Additionally, the court found “the

evidence presented by the defendant [did not] indicate that he has strong connections

and significant familial ties to the United States.” Thus, the court concluded appellant did

not establish prejudice.

{¶15} With respect to the trial court’s analysis of counsel’s performance, Padilla

did not simply state that as long as some advisement is given of the possibility of

deportation, then counsel’s performance is constitutionally sufficient. Rather, the Court

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specifically stated that when immigration consequences 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.” (Emphasis added.) Id. 559 U.S. at 369. The trial

court did not conduct an inquiry into whether the removal statute(s) at issue clearly

revealed the mandatory nature of deportation and thus, its reliance on the advice that was

actually given was inadequate.

{¶16} 8 U.S.C. 1227(a) defines classes of deportable aliens. 8 U.S.C.

1227(a)(2)(A)(iii) provides that “[a]ny alien * * * in and admitted to the United States, upon

the order of the Attorney General, be removed if the alien is within one or more of the

following classes of deportable aliens: * * * [a]ny alien who is convicted of an aggravated

felony at any time after admission is deportable.” The term “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). Methamphetamine, the drug which formed the basis of appellant’s

aggravated trafficking in drugs charge, is a Schedule III drug. See 21 U.S.C. 812(c),

“Schedule III”(a)(1). Further, cocaine, which was the predicate drug upon which is

possession charge was based, is a Schedule II drug. 21 U.S.C. 812(c), “Schedule

II”(a)(4). Hence, appellant’s conviction for aggravated trafficking in drugs, at the least, is

an “aggravated felony” and accordingly, a “deportable” offense.

{¶17} Moreover, Section 1227(a)(2)(B)(i) provides that: “[a]ny alien * * * in and

admitted to the United States, upon the order of the Attorney General, be removed if the

alien is within one or more of the following classes of deportable aliens: * * * [a]ny alien

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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.” Appellant’s convictions, aggravated trafficking

in drugs and possession of cocaine, are violations of Ohio law relating to controlled

substances. They are therefore “deportable” offenses.

{¶18} Although the term “deportable” suggests that deportation is a potential

consequence of a state conviction relating to controlled substances, courts, including

Padilla, have observed that the term implies that deportation is, under contemporary law,

“practically inevitable” Padilla, at 363-364; see also State v. Ayesta, 8th Dist. Cuyahoga

No. 101383, 2015-Ohio-1695, ¶7; State v. Cardenas, 2d Dist. Darke No. 2015-CA-16,

2016-Ohio-5537, ¶46; State v. Romero, 5th Dist. Stark No. 2016CA00201, 2017-Ohio-

2950, ¶24.

{¶19} Furthermore, we recognize that deportation is triggered by “order of the

Attorney General.” The state points out that this phrase suggests that the conviction

makes an individual eligible for deportation, but does not automatically require

deportation; that is, according to the state’s reading, deportation is only triggered if the

Attorney General orders the same. Still, Padilla, qualifies this interpretation; to wit, there

are “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. [Sec.]

1229b. Subject to limited exceptions, this discretionary relief is not available for an

offense related to trafficking in a controlled substance.” Padilla, at 364. And, more

significantly, 8 U.S.C. 1228(c) creates a “presumption of deportability,” providing: “An

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alien convicted of an aggravated felony shall be conclusively presumed to be deportable

from the United States.” To the extent appellant’s convictions is an “aggravated felony,”

the Attorney General has no discretion to cancel appellant’s removal.

{¶20} In light of the foregoing, appellant’s convictions were clear from the relevant

statutes. In this regard, pursuant to Padilla, counsel was required to advise appellant that

his convictions would trigger a conclusive presumption of deportability. Counsel did not

do so and therefore her performance was deficient.

{¶21} As pertains to prejudice in this context, the governing United States

Supreme Court case is Lee v. United States, ___ U.S. ___, 137 S.Ct. 1958, 198 L.E.2d

476 (2017). In Lee, the defendant was advised by his attorney that he would not be

deported as a result of pleading guilty. Id. at 1962. Based on this advisement, the

defendant pleaded guilty to an aggravated felony and was sentenced to one year and

one day in prison. Id. at 1963. The attorney’s advice was wrong: the defendant was

subject to mandatory deportation as a result of his plea. Id. The defendant was granted

a hearing on his motion to vacate, at which both he and his trial counsel testified that

deportation was the determinative issue in his decision to plead guilty. Id. The defendant

contended that he never would have entered a guilty plea had he known the result would

be deportation. Id. The attorney acknowledged that although the defense was weak, he

would have advised the defendant to go to trial had he known of the mandatory

deportation consequences to the plea. Id. Nevertheless, the district court denied the

motion to vacate. Id. at 1964. The Sixth Circuit affirmed, concluding that the defendant

could not show that he was prejudiced by his counsel’s erroneous advice. Id.

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 {¶22} On appeal to the Supreme Court, the government defended the decision, in

part, by arguing that the defendant could not “convince the court that a decision to reject

the plea bargain would have been rational under the circumstances,” as stated in Padilla

at 372. The Court rejected this argument noting that, unlike the Government, it could not

say that it would be unreasonable for someone in Lee’s position to risk additional prison

time in exchange for holding on to some chance of avoiding deportation. Lee at 1968-

1969. The Supreme Court ultimately reversed the trial court’s judgment, concluding that

Lee had adequately demonstrated a reasonable probability that he would have rejected

the plea had he been aware that it would lead to mandatory deportation; both Lee and his

lawyer testified that “deportation was the determinative issue” to Lee; his responses

during his plea colloquy confirmed the significance he placed on deportation; and Lee

had significant connections to the United States, while he had no ties to South Korea.”

Id. at 1967-1968.

{¶23} In reaching this conclusion, the Court held: “When a defendant claims that

his counsel’s deficient performance deprived him of a trial by causing him to accept a

plea, the defendant can show prejudice by demonstrating a ‘reasonable probability that,

but for counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.’” Lee, at 1969, quoting Hill at 59. More fundamentally, the Hill v. Lockhart

inquiry focuses on a defendant’s decisionmaking, which may not turn solely on the

likelihood of conviction after trial. Lee at 1966. “The decision whether to plead guilty also

involves assessing the respective consequences of a conviction after trial and by plea.

When those consequences are, from the defendant’s perspective, similarly dire, even the

smallest chance of success at trial may look attractive.” Id., citing INS v. St. Cyr, 533 U.S.

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289, 322-323, 121 S.Ct. 2271, 150 L.Ed.2d 347. When the inquiry is focused on what

the individual defendant would have done, the possibility of even a highly unlikely result

may be relevant to the extent it would have affected the defendant’s decision. Lee at

1967. “Courts should not upset a plea solely because of post hoc assertions from a

defendant about how he would have pleaded but for his attorney’s deficiencies. Rather,

they should look to contemporaneous evidence to substantiate a defendant’s expressed

preferences.” Id. See also State v. Bozso, 162 Ohio St.3d 68, 2020-Ohio-3779, 164

N.E.3d 344 (applying Lee).

{¶24} As in Lee, regardless of the arguably improbable result of an acquittal had

he proceeded to trial, appellant’s motion and affidavit demonstrate that the inaccurate

advice of counsel (bolstered by the court’s inaccurate statements) fundamentally induced

his decision to plead guilty insofar as it created the reasonable belief he could challenge

what he believed to be a possible (not mandatory) deportation. In his attached affidavit,

appellant specifically averred the following, in pertinent part:

{¶25} 7. Prior to entering my plea, * * * I was advised by [the trial judge], as
well as by my lawyer, that if I entered these pleas I may be subject
to deportation.

{¶26} 8. * * *

{¶27} 9. Shortly after my pleas, I was taken into immigration custody. I was
made aware that drug trafficking charges amount to automatic
deportation from the United States.

{¶28} 10. Based on my conversations with my attorneys, and the
advisement of the Judge, I thought that if I entered the plea, I would
be able to fight the deportation. That is not the case.

{¶29} 11. I now know that with drug trafficking convictions, mitigation is not
taken into account.
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 {¶30} 12. Had I had this knowledge in advance of my plea, I would never
have entered this plea.

{¶31} Appellant’s trial counsel also submitted a corroborating affidavit, in which

she averred the following, in relevant part:

{¶32} 5. Although I was aware of immigration concerns, I advised
[appellant] to enter into this plea agreement * * *.

{¶33} 6. I did not advise [appellant] that entering a plea of guilty to either of
these charges would definitively result in automatic deportation.

{¶34} 7. * * *

{¶35} 8. If I had known that [appellant] would be automatically deported as
a result of this plea agreement, I would have consulted with [counsel]
regarding possible defenses as well as further plea negotiations.

{¶36} According to the trial court, these affidavits do not establish that deportation

was “the determinative issue” in appellant’s decision to plead guilty. What else does one

have to do to get a hearing in this district?

{¶37} There is no dispute that trial counsel advised appellant that his plea of guilty

“may” lead to his deportation. It is also uncontested that the trial court advised appellant

that pleading guilty “may” lead to his deportation. These points form the basis of

appellant’s motion. The rules of evidence provide that statements can be adopted by

silence. Under such circumstances, such adoptions do not implicate hearsay prohibitions

and adoption by silence may occur where the statement was understood, the party was

free to disavow it, and does not deny its truth, even though a reasonable person would

have done so. See, e.g., State v. Hardison, 9th Dist. Summit No. 23050, 2007-Ohio-366,

¶9. Hearsay is not an issue here. Still, the policy behind the exception applies with equal
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force in this case. Where neither defense counsel, the trial court, nor the prosecutor

denied appellant’s averments, their silence, in the face of the motion, can be viewed as

an adoption.

{¶38} In ruling upon appellant’s motion to withdraw, the trial court does not refute

the averment that it merely advised of the possibility of deportation, and improperly relies

on Padilla for the proposition that trial counsel need only advise a defendant of “the

deportation risk.” As Lee clarifies, if immigration consequences are easily determined

from the relevant removal statute, an attorney has a duty to give correct advice. In light

of these points, appellant was entitled to an evidentiary hearing.

{¶39} The dissenting opinion maintains that appellant’s pre-sentence awareness

that an ICE hold had been placed upon him somehow undermines his post-sentence

motion. It does not. Appellant was aware that he may be deported and that he would

face further immigration proceedings. The ICE hold was therefore not surprising and even

expected. The ICE hold did not convey that deportation was mandatory and its existence

is therefore of no consequence.

{¶40} The dissenting opinion mimics the trial court’s careless description of

appellant’s affidavit as “self-serving,” as though it is not credible as a matter of law.

Appellant’s credibility, or lack thereof, may be a valid determinative factor in ruling on the

motion after an evidentiary hearing. “But [appellant] does not deserve to have his claims

dismissed out of hand with the usual bromides about relying on a ‘self-serving affidavit.’”

State v. Dunlap, 161 Ohio St.3d 1416, 2021-Ohio-181, 161 N.E.3d 704, ¶ 5 (Donnelly, J.,

dissenting).

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 {¶41} “A defendant in this scenario is rarely ever going to have anything to back

up a plea-withdrawal motion other than his own claims about what happened. And only

an evidentiary hearing will establish whether those claims are true.” Id. “To say that a

defendant’s claims in support of withdrawing his plea do not warrant an evidentiary

hearing because they are not already backed up by solid, admissible evidence puts the

defendant in an impossible position and ensures that an evidentiary hearing is never

warranted no matter how specific and convincing a defendant’s claims might be.” Id.;

accord Bozso, 2020-Ohio-3779, at ¶ 44 (Donnelly, J., dissenting) (“a defendant cannot

be expected to make a record of the fact that he has been misinformed about a crucial

issue at the time he is operating under that misinformation”). Additionally, appellant’s

“self-serving” affidavit does not stand alone, but alongside the supporting affidavit of trial

counsel and the corroborating fact that appellant is willing to risk a much more severe

penalty, including a prison sentence, by withdrawing his plea and going to trial.

{¶42} Moreover, the fact that an affidavit is self-serving does not render it

improper. All affidavits submitted in litigation are “self-serving” to the extent they serve the

interests of the party submitting the instrument (otherwise, why would they be submitted

at all?). Accordingly, the facile and dismissive designation of an affidavit as “self-serving”

needs qualification, if not extermination from the critical lexicon. While parties may not

thwart the purposes of procedural rules by submitting affidavits that create sham issues

or contradict their own depositions, see Belknap v. Vigorito, 11th Dist. Trumbull No. 2003-

T-0147, 2004-Ohio-7232, ¶26-27, sworn affidavits that inform a court’s analysis and

which are neither conclusory nor contradictory of some prior point must be given due

weight.

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 {¶43} Appellant’s affidavit, which was additionally supported by trial counsel’s

affidavit, succinctly averred that: (1) the judge and his lawyer advised him he may be

subject to deportation (facts not disputed); (2) he believed he could fight the possibility of

deportation (a reasonable inference to draw from the undisputed facts); but (3) learned,

after pleading guilty, his plea subjected him to automatic deportation. These averrments

should not be dismissed with a “wave of the hand” simply because they are “self-serving.”

The motion and affidavits, taken together, were more than sufficient to justify a hearing

on appellant’s motion.

{¶44} The dissenting opinion further justifies affirming the trial court’s conclusion

that appellant suffered no prejudice—reached without the benefit of an evidentiary

hearing—due to appellant’s failure to provide a transcript of the plea hearing for appellate

review. “When portions of the transcript necessary for resolution of assigned errors are

omitted from the record, the reviewing court has nothing to pass upon and thus, as to

those assigned errors, the court has no choice but to presume the validity of the lower

court’s proceedings, and affirm.” Knapp v. Edwards Laboratories, 61 Ohio St.2d 197,

199, 400 N.E.2d 384 (1980).

{¶45} Here, however, a transcript of the plea hearing is not necessary for

resolution of this appeal. The only reference to the plea colloquy in appellant’s motion

pertains to the deportation advisement given by the trial judge, which is not disputed by

the trial court in its entry or by the parties on appeal. If not true, appellee could have

supplemented the record with the plea transcript. See App.R. 9(B)(5). And, “‘[i]n fairness

to the parties, a Court of Appeals which contemplates a decision upon an issue not briefed

should * * * give the parties notice of its intention and an opportunity to brief the issue.’”

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See Toledo’s Great Eastern Shoppers City, Inc. v. Abde’s Black Angus Steak House No.

III, Inc., 24 Ohio St.3d 198, 202 (1986), quoting C. Miller Chevrolet v. Willoughby Hills, 38

Ohio St.2d 298, 301 (1974). The dissent has not recommended this act of fairness.

{¶46} Accordingly, the dissent’s view that appellant was required to provide a

transcript of the plea hearing to inform this court’s analysis on the error he assigns makes

little sense. Why would appellant be required to provide evidence of a fact that is not at

issue to demonstrate that the fact did not occur? The dissent asserts the transcript is

“important, if not necessary in a matter such as this * * *.” The facts germane to the

resolution of the appeal are not in dispute and thus requiring a transcript for appellant to,

in effect, prove a negative is misplaced.

{¶47} “An appellant has the duty to ensure that the record or whatever parts

thereof are necessary for the determination of the appeal are filed with the appellate

court.” (Citations omitted.) Aurora v. Belinger, 180 Ohio App.3d 178, 2008-Ohio-6772,

¶30 (11th Dist.) An appellant is not obligated, therefore, to provide transcriptions of

proceedings which are extraneous to the determination of the appeal. The dissent’s

statement that appellant’s failure to provide a record of the plea proceedings was

somehow error is a misapplication of appellate procedural law.

{¶48} With this in mind, we recognize that there could be times when the plea

transcript is necessary on appeal such as where a trial court denies an evidentiary hearing

because the motion is belied by that transcript, but that is not the case here. See State

v. Madeline, 11th Dist. Trumbull No 2000-T-0156, 2002 WL 445036, *6 (Mar. 22, 2022)

(an evidentiary hearing is not required if the record, on its face, conclusively and

irrefutably contradicts the allegations in the motion). Here, however, the trial court did

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not find that its deportation advisement at the plea was other than appellant avers and it

did not deny the motion on this basis.

{¶49} Nevertheless, the dissent asserts that, based on whatever may have

occurred at the plea hearing, the trial court “could have reasonably concluded that it would

not have been rational for appellant to reject the plea agreement.” (Emphasis added.)

This is nothing more than unnecessary speculation and runs contrary to the basic tenets

of appellate review. Moreover, it is not the relevant inquiry under Lee. The inquiry, under

Lee, focuses on a defendant’s thought process, which may have nothing to do with the

likelihood of obtaining a favorable result after trial. Lee, at 1966. Indeed, as the Court

underscored, even the smallest chance of winning at trial may look attractive in the face

of mandatory deportation. Id. In sum, an evaluation of a defendant’s decision-making

strategy in an automatic deportation case is not based upon what an otherwise

reasonable defendant (or judge) might do, but what that defendant would do, in light of

the dire consequences of deportation. See id. at 1966-1967.

{¶50} The dissent additionally asserts Lee is inapplicable. We disagree. While

there are factual differences, they are not substantive, legal differences. When a person

is misinformed as to deportation risk, and that misinformation induces his plea, he is

entitled to withdraw his plea. In Lee he was advised he would not be deported, when it

was a certainty and, in this matter, he was informed he may be deported, when

deportation was a certainty. This distinction is of no substance. To tell somebody he will

not be deported when he will be deported or to tell somebody they may be deported when

they will is still misinformation. And when the misinformation induces a plea that

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otherwise would not have been entered, the defendant is still entitled to a hearing on a

properly filed motion.

{¶51} The concept is akin to informed consent in a medical context. Few would

say that if a doctor advised you before a surgery that you “may” die, but death were, in

fact, a certainty, that the omisadvisement would have no bearing.

{¶52} The record before this court for review does not contradict appellant’s plea-

withdrawal averments. Further, pursuant to the law set forth by the United States

Supreme Court in Lee, which the trial court neither acknowledged nor applied, appellant’s

allegations accepted as true would require the court to permit withdrawal of the plea.

Thus, the trial court was required to hold an evidentiary hearing before ruling on the

motion. More evidence must be adduced to draw an informed conclusion on the issue of

prejudice resulting from trial counsel’s deficient advice.

{¶53} This is not an aberrant conclusion for an Ohio appellate court to reach. For

example, the First Appellate District has addressed a motion to withdraw a guilty plea

under substantially similar circumstances. See State v. Diol, 1st Dist. Hamilton No. C-

180249, 2019-Ohio-2197. In support of his motion, the defendant in Diol submitted his

own affidavit and a transcript of the plea hearing, which included defense counsel’s

erroneous advice as to the deportation consequences of a guilty plea. Id. at ¶ 38. The

First District held that the trial court abused its discretion in failing to hold an evidentiary

hearing because the defendant “[had] alleged facts, which if accepted as true, would

require the court to permit the guilty pleas to be withdrawn.” Id. at ¶ 40. See also State

v. Ahmed, 8th Dist. Cuyahoga No. 108548, 2020-Ohio-4057, ¶ 20; State v. Perry, 5th

Dist. Muskingum No. CT2018-0045, 2019-Ohio-2776, ¶ 45-46; State v. Arrunategui, 9th

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Dist. Summit No. 26547, 2013-Ohio-1525, ¶ 14-15; and State v. Yahya, 10th Dist. Franklin

No. 10AP-1190, 2011-Ohio-6090, ¶ 23 (each court holding that the trial court’s failure to

conduct a hearing on a motion to withdraw a guilty plea based on insufficient or inaccurate

deportation advisements was an abuse of discretion).

{¶54} Trial counsel provided the wrong advice. Counsel had a duty, because

mandatory deportation was clear from the federal statutory scheme, to provide accurate

advice. The wrong advice induced appellant to forfeit his constitutional right to a jury trial.

That appellant was so induced is clear from the record. Appellant’s allegations and

supporting materials demonstrate, at the least, the trial court was required to hold an

evidentiary hearing.

{¶55} Appellant’s second assignment of error has merit.

{¶56} Appellant’s first assignment of error essentially requests this court to enter

judgment in his favor on the pleadings. Our adjudication of his second assignment of

error requires the trial court to hold a hearing on appellant’s motion, take testimony, and

evaluate the credibility of the testimony advanced at the hearing. Because, as we have

held, the facts are sufficiently plead that, if believed, withdrawal would be necessary to

correct a manifest injustice. Under these circumstances, a hearing is necessary for the

trial court to assess the evidence at issue and enter a judgment on the merits. See State

v. Whiteman, 11th Dist. Portage No. 2001-P-0096, 2003-Ohio-2229, ¶19 (in a post-

sentence motion to withdraw a guilty plea, a hearing is required if the facts alleged by a

defendant, accepted as true would require a trial court to permit withdrawal.) See also

State v. Baker, 2018-Ohio-669, ¶13 (2d.Dist.) (a trial court must hold a hearing on a post-

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sentence motion to withdraw guilty plea if it is necessary to correct a manifest injustice.)

In this respect, appellant’s first assignment of error is overruled.

{¶57} For the reasons discussed in this opinion, the judgment of the Lake County

Court of Common Pleas is reversed and remanded for further proceedings.

MATT LYNCH, J., concurs,

CYNTHIA WESTCOTT RICE, J., dissents with a Dissenting Opinion.

_______________________

CYNTHIA WESTCOTT RICE, J., dissents with a Dissenting Opinion.

{¶58} I believe the record is sufficient to support a finding that counsel and the

trial court gave Appellant the required deportation warning prior to entering his plea. I do

not perceive any prejudice and/or manifest injustice such that a hearing was necessary.

I would therefore conclude the trial court did not abuse its discretion in denying appellant’s

post-sentence motion to withdraw his plea of guilty. I accordingly dissent.

{¶59} At his plea hearing, counsel, as well as the trial court advised appellant that

he may be deported because of his plea. At sentencing, appellant’s counsel, Attorney

Bethany Stewart, advised the court, inter alia, that appellant understood ICE had placed

a hold on him. Under Crim.R. 32.1, a defendant may file a motion to withdraw a plea of

guilty before sentence is imposed. A presentence motion to withdraw a plea of guilty

“should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527

(1992). Despite his awareness that he may be deported and his awareness of the ICE

hold, appellant did not seek withdrawal of his plea prior to sentencing. Had he done so,
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the trial court would be obligated to give his request greater deference. Because

appellant waited until after he was sentenced, the trial court was not required to be as

charitable, especially when the court was aware of the facts of the case and the penalties

appellant faced if convicted.

{¶60} Moreover, appellant admits in his affidavit that he did not consult an

immigration attorney regarding his deportation status. Further, appellant could have

consulted an immigration attorney once he was on notice that ICE had placed a hold on

him. Again, he did not do so. Requiring defense counsel or the court to determine, with

precision, the effect of a conviction on an alien’s deportation status is a significant burden.

This is especially so where a defendant could have but did not seek out the advice from

an immigration attorney at any point.

{¶61} Here, no transcript of the plea hearing was filed. Appellant could have but

did not file the transcript. In effect, appellant failed to provide this court with a record of

the plea proceedings. A transcript is important, if not necessary, in a matter such as this

because it would permit the reviewing court to consider what the trial court heard in

accepting the plea, and perhaps most importantly, the factual bases for the plea.

{¶62} The trial court, in rejecting appellant’s post-sentence motion without a

hearing, had the benefit of knowing the facts and circumstances of the charges both from

the state’s representations of what it intended to prove had the matter gone to trial, as

well as the pre-sentence investigation report. From these sources of information, the trial

court was not only aware of the potential strength of the prosecution’s case, but also knew

that had appellant gone to trial and been convicted, he faced between six- and 12-months

imprisonment on the felony five and up to 36-months imprisonment on the felony three.

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In pleading guilty, appellant received a significantly lighter sentence; to wit, minimal time

in jail and two years of community control.

{¶63} With respect to the prejudice prong of Strickland, a party is generally

required to establish a reasonable probability that, but for counsel’s errors, he would not

have entered the plea. In the specific context of a defense counsel’s failure to properly

advise a defendant of the immigration consequences of a guilty plea, the United States

Supreme Court has concluded 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, supra, at 372; see also Romero, supra, at ¶32. The court in this

matter determined appellant failed to establish that his deportation was determinative of

his decision to plea and that he does not have strong familial or financial ties to the United

States.

{¶64} The trial court knew that had appellant gone to trial and been convicted, he

faced between six- and 12-months imprisonment on the felony five and up to 36 months

imprisonment on the felony three. In pleading guilty, appellant received a significantly

lighter sentence; to wit, minimal time in jail and two years of community control. Also, the

trial court determined appellant did not have significant ties to this country. Appellant

averred he does have a child in this country; and, in his brief, appellant represents he is

a co-parent of the child. This constitutes at least one familial tie to the country. Still, the

trial court, in its discretion, was able to assess whether this single tie was sufficient to

create a reasonable issue as to whether a manifest injustice would result from denying

appellant’s motion.

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 {¶65} Moreover, at the sentencing hearing, appellant was already aware ICE had

placed a hold on him. Had deportation been a bona fide concern, he would have moved

to withdraw his plea at that time. He did not. Instead, appellant waited until after he was

sentenced to file a self-serving affidavit to support his allegation that he relied upon

counsel’s deficient advice. In light of what appellant knew prior to sentencing, he was

capable of seeking withdrawal of his plea at an earlier stage and his motion would have

been subject to a standard requiring the trial court to “freely and liberally” grant the same.

Clearly, this case does not rise to the level of a manifest injustice.

{¶66} The majority cites the United States Supreme Court’s decision in Lee v.

United States, ___ U.S. ___, 137 S.Ct. 1958 (2017) as authority for the proposition that,

when evaluating whether a defendant in a deportation case suffered prejudice from

counsel’s deficient performance, a court must look to the specific perspective of the

defendant in that case. While this may be the thrust of the holding in Lee, it is inapplicable

to these facts. The defendant in Lee was advised specifically he would not be deported.

Counsel and the trial court in this matter actually advised appellant that he may be

deported. Appellant was on some notice that his plea could eventuate in deportation and,

as a result, the trial court was entitled to conclude his decision to enter the plea was

reasonable. As such, the trial court did not err in finding no prejudice.

{¶67} A post-sentence motion to withdraw a guilty plea is reviewed for an abuse

of discretion. State v. Selvaggio, 11th Dist. Lake No. 2017-L-128, 2018-Ohio-3532, ¶12.

I would hold the trial court could have reasonably concluded that it would not have been

rational for appellant to reject the plea agreement. As a result, the trial court did not abuse

its discretion in concluding appellant suffered no prejudice from counsel’s advice.

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 {¶68} I therefore agree with the trial court’s conclusion that appellant, on the

instant record, failed to establish ineffective assistance of counsel, let alone a manifest

injustice. This conclusion supports the trial court’s determination that a hearing on

appellant’s motion was unwarranted.

{¶69} I dissent.

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