2021 Ohio 2536
Ohio Ct. App.2021Background
- In May 2018 Poppel was charged with misdemeanor assault (R.C. 2903.13) and misdemeanor domestic violence; he pleaded guilty to assault on Aug. 1, 2018 in exchange for dismissal of the domestic-violence count.
- The court sentenced him to 180 days jail (suspended) and 24 months community control with anger-management as a condition.
- In 2019 Poppel says a NICS/ATF check denied him a raffle firearm and he received notice he was federally disabled from possessing firearms under 18 U.S.C. § 922(g)(9).
- In July 2020 Poppel moved under Crim.R. 32.1 to withdraw his plea, arguing (1) ineffective assistance because counsel failed to advise that a conviction would trigger § 922(g)(9), and (2) the trial court failed to give the warning required by Ohio Rev. Code § 2943.033(C).
- The trial court overruled the motion; on appeal the Second District affirmed, finding no proven ineffective assistance and treating the federal firearms disability as a collateral consequence that did not render the plea involuntary.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Poppel) | Held |
|---|---|---|---|
| Whether counsel was ineffective for not advising that a guilty plea would bar firearm possession under 18 U.S.C. § 922(g)(9) | Motion untimely; collateral consequence not required advice | Counsel was constitutionally deficient under Padilla; Poppel would not have pled if warned | Rejected — Poppel failed to show counsel fell below professional norms or prejudice; no evidence counsel knew of Poppel’s firearms interest |
| Whether the trial court’s failure to give the § 2943.033(C) warning and/or the statute’s bar on vacating a plea is unconstitutional or rendered the plea involuntary | Omission does not permit withdrawal; warning statutory and omission not fatal | Court’s failure to warn denied notice of a fundamental right and statute’s non-vacatur clause is unconstitutional | Rejected — the firearms disability is a collateral consequence; R.C. 2943.033(C)’s non-vacatur clause valid as applied and omission did not violate Crim.R. 11 or constitutional rights |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-pronged standard for ineffective assistance of counsel)
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise re: immigration consequences; guidance on direct vs. collateral consequences)
- Tollett v. Henderson, 411 U.S. 258 (1973) (guilty plea waives claims except those affecting voluntariness)
- McMann v. Richardson, 397 U.S. 759 (1970) (competence standard for counsel during plea)
- U.S. v. Hayes, 555 U.S. 415 (2009) (definition of misdemeanor crime of domestic violence for federal firearms prohibition)
- State v. Cardenas, 61 N.E.3d 20 (Ohio Ct. App.) (application of Strickland in Ohio appellate practice)
- George v. Black, 732 F.2d 108 (8th Cir. 1984) (distinguishing direct vs. collateral consequences of pleas)