State v. Passafiume
109 N.E.3d 642
Ohio Ct. App.2018Background
- In 2009 Salvatore Passafiume, an Italian-born lawful permanent resident, pleaded guilty to aggravated theft in one case and attempted tampering with evidence and drug possession in a second case; the trial court conducted a Crim.R. 11 plea colloquy and advised him of possible deportation consequences.
- He was sentenced to five years of community control; he did not appeal and community control was terminated early in 2012.
- In December 2016 (about seven years after the plea) Passafiume filed Crim.R. 32.1 motions to withdraw his guilty pleas, alleging ineffective assistance of counsel because trial counsel failed to advise him that the pleas could lead to deportation and claiming counsel pressured him to plead without adequate investigation.
- At a hearing Passafiume testified he was not advised by counsel about deportation, would not have pled if he had known, and had prior immigration encounters (including 2004 proceedings with a later waiver).
- The trial court granted the motion, applying Padilla v. Kentucky retroactively and invoking equity; the state appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Padilla applies retroactively to convictions final before Padilla | State: Padilla does not apply retroactively under Teague/Chaidez; conviction final in 2009 so Padilla cannot be used to show counsel deficiency | Passafiume: Padilla should apply retroactively and establishes counsel’s duty to advise re: immigration consequences | Court: Padilla is a new rule; under Chaidez/Teague it does not apply retroactively to convictions final before March 31, 2010; Padilla not available to show deficiency here |
| Whether counsel was ineffective for failing to advise about deportation (manifest injustice) | State: Counsel not deficient because no duty pre-Padilla; trial court had already advised of immigration consequences; record shows plea was knowing and voluntary | Passafiume: Counsel never advised him and pressured him to plead; would have gone to trial if informed | Court: No deficient performance shown; trial court advised of deportation and Passafiume acknowledged understanding; self-serving statements insufficient; no manifest injustice |
| Whether counsel was ineffective for failing to investigate/pressuring client to plead | State: Record (plea hearing, sentencing statements) contradicts coercion/poor investigation; defendant’s affidavit insufficient | Passafiume: Counsel failed to investigate defenses and coerced plea | Court: Rejected defendant’s claims as self-serving; plea colloquy and record show voluntary plea; no deficiency established |
| Whether the trial court misapplied legal standard in granting withdrawal | State: Trial court applied Padilla retroactively and used equitable reasons rather than manifest injustice standard | Passafiume: Relief appropriate under equity given harsh immigration consequences | Held: Trial court erred — applied wrong standard by relying on retroactive Padilla/equity; manifest injustice not shown |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (attorney must advise noncitizen client when deportation risk is clear; failure can be Strickland deficiency)
- Chaidez v. United States, 568 U.S. 342 (2013) (held Padilla announced a new rule and does not apply retroactively to convictions final before Padilla)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
- Teague v. Lane, 489 U.S. 288 (1989) (retroactivity framework for new rules of criminal procedure)