State v. Lopez
2017 Ohio 4048
Ohio Ct. App.2017Background
- Omar C. Lopez, a Mexican national present in the U.S. since 2000 with U.S.-citizen children, pled guilty on Nov. 2, 2015 to attempted possession of cocaine (1st‑degree misdemeanor); sentence of 90 days suspended as time served.
- Lopez was already subject to a final order of removal and removal proceedings initiated (Notice dated Oct. 27, 2015) before his plea.
- Lopez moved post‑sentence under Crim.R. 32.1 to withdraw his guilty plea, alleging ineffective assistance under Padilla because counsel failed to advise correctly about immigration consequences and falsely told him she had consulted an immigration attorney.
- Trial court denied the motion without a hearing on May 24, 2016; Lopez appealed asserting (1) Padilla/ineffective assistance, (2) plea not knowing/voluntary, and (3) entitlement to a hearing.
- On appeal the court found (a) Lopez submitted an unsworn, notarization‑lacking affidavit and no corroborating affidavits from counsel or an immigration attorney, (b) deportation proceedings preexisted the plea and cancellation of removal was discretionary and not plainly available, and (c) Lopez failed to show Strickland prejudice or a meritorious defense he would have pursued at trial.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Lopez) | Held |
|---|---|---|---|
| 1. Whether counsel was ineffective under Padilla for failing to advise about immigration consequences | Counsel was presumed competent; Lopez offered only an unsworn, unnotarized affidavit and no corroboration; deportation proceedings predated the plea; Padilla does not control where consequences were already underway | Counsel failed to advise and gave affirmative misleading reassurance (including claimed consultation with immigration counsel), so plea was induced by ineffective assistance | Court rejected Lopez: no competent evidence of deficient performance and, even if deficient, Lopez failed to show Strickland prejudice or that rejecting the plea would have been rational |
| 2. Whether plea was knowingly, intelligently, and voluntarily entered | Plea form and presumptive plea colloquy advisals support voluntariness; no transcript to rebut; self‑serving unsworn statement insufficient | Plea was not knowing/voluntary because counsel misadvised re: immigration consequences | Court held plea was voluntary; record and signed plea form rebut Lopez's unsupported claim |
| 3. Whether trial court erred by denying a hearing on the post‑sentence motion to withdraw plea | A hearing is required only if the defendant's allegations, taken as true, would entitle him to withdraw; Lopez's unsupported, self‑serving affidavit did not meet that threshold | Trial court should have held a hearing on asserted Padilla claim and ineffective assistance | Court held no hearing required: allegations were insufficient to require withdrawal and thus did not mandate a hearing |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance two‑prong test)
- Padilla v. Kentucky, 559 U.S. 356 (counsel must advise noncitizen when deportation consequence is clear)
- Hill v. Lockhart, 474 U.S. 52 (prejudice standard for plea cases — reasonable probability defendant would have rejected plea)
- State v. Xie, 62 Ohio St.3d 521 (abuse of discretion review for plea‑withdrawal motions)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (abuse of discretion defined)
- State v. Smith, 49 Ohio St.2d 261 (standard of review for Crim.R. 32.1 post‑sentence plea withdrawals)