2019 Ohio 2699
Ohio Ct. App.2019Background
- Wenross S. Perry, a lawful permanent resident and Jamaican citizen, pled guilty in Muskingum C.P. to one count of drug trafficking (third-degree felony) on June 19, 2017; other charge was dismissed.
- At the plea hearing the court warned Perry that "you could be deported" and that he could contact his consulate, but did not recite the full statutory advisement required by R.C. 2943.031(A).
- Perry was sentenced to 12 months, credited for time served, and ordered to forfeit cash; about five months later he received a Notice to Appear in immigration court initiating removal proceedings.
- Perry moved to withdraw his guilty plea under R.C. 2943.031(D) and Crim.R. 32.1, alleging the trial court failed to give the full statutory advisement, his plea was therefore not knowing/voluntary, and trial counsel rendered ineffective assistance by failing to advise him of immigration consequences (Padilla theory).
- The trial court denied the motion without a hearing, finding the court had substantially complied with R.C. 2943.031 and that Perry offered no support that counsel failed to advise him. Perry appealed.
- The Fifth District reversed and remanded: it held the court did not substantially comply with R.C. 2943.031(A) because it omitted two statutorily listed consequences (exclusion from admission and denial of naturalization), and it found Perry suffered ineffective assistance of counsel under Strickland/Padilla and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Perry) | Held |
|---|---|---|---|
| Whether the trial court complied with R.C. 2943.031(A) (advisal to noncitizens) | Substantial compliance suffices; court warned of deportation and consular contact so statutory duty met | Court failed to give the verbatim statutory warning and omitted "exclusion from admission" and "denial of naturalization," so advisal was inadequate | Trial court abused discretion; no substantial compliance because two of the three consequences weren’t mentioned; R.C. 2943.031 requires advisal of all three consequences |
| Whether Perry’s plea was knowing, intelligent, and voluntary given the advisal | The warning of possible deportation was sufficient to make plea knowing and voluntary | Plea was not knowing/voluntary because Perry did not subjectively understand the full immigration consequences omitted by the court | Plea was not shown to be knowingly intelligent and voluntary under the totality of circumstances because of the incomplete advisal |
| Whether trial counsel rendered ineffective assistance under Padilla/Strickland by failing to advise about immigration consequences | The State argued uncertainty of immigration outcome and that only DHS can deport after hearing; counsel’s advising beyond stating risk was not required | Counsel gave no immigration advice; failure to advise satisfies Padilla’s first prong, and Perry showed prejudice (would have gone to trial) given near-certain deportation | Trial court abused discretion by failing to hold a hearing; record supports Padilla/Strickland deficient-performance and prejudice; relief warranted and conviction vacated |
Key Cases Cited
- State v. Francis, 820 N.E.2d 355 (Ohio 2004) (trial court must give verbatim R.C. 2943.031(A) warning; substantial compliance review if not verbatim)
- Padilla v. Kentucky, 559 U.S. 356 (U.S. 2010) (counsel must inform noncitizen client if plea carries a risk of deportation; failure to advise can be deficient performance)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
- Xie v. State, 584 N.E.2d 715 (Ohio 1991) (Strickland standard applied to guilty-plea context)
- Hill v. Lockhart, 474 U.S. 52 (U.S. 1985) (prejudice for guilty-plea ineffective-assistance claims requires reasonable probability defendant would have gone to trial)
- State v. Nero, 564 N.E.2d 474 (Ohio 1990) (substantial compliance test: defendant must subjectively understand implications of plea)