State v. AguirreState v. Aguirre
George A. Katchmer, 1886 Brock Road, N.E., Bloomingburg, Ohio 43601, for defendant-appellant
O P I N I O N
HENDRICKSON, P.J.
{¶1} Defendant-appellant, Eduardo Aguirre, appeals from a judgment of the Preble County Court of Common Pleas denying his motion to withdraw a guilty plea and vacate his conviction. For the reasons discussed below, we affirm the trial court‘s decision.
{¶2} Aguirre is a citizen of Mexico but has been a legal permanent resident of the United States since 2008. In October 2010, Aguirre was indicted on one count of criminal
{¶3} On January 3, 2011, Aguirre filed a motion to withdraw his guilty plea. In his motion, Aguirre asserted that he is subject to deportation proceedings by the United States Immigration and Customs Enforcement. Aguirre claimed that prior to entering his guilty plea, his trial counsel told him that she would make sure that his plea would not impact his immigration status. Aguirre further claimed that if he had been warned by his trial counsel of the possible severe immigration sanctions, including removal from the United States, he would not have pleaded guilty to the underlying charge.
{¶4} After holding a hearing, the trial court denied Aguirre‘s motion to withdraw. The trial court found that there was no manifest injustice to correct, and that Aguirre had been advised of the possible consequences of his guilty plea. The trial court further found that there was no credible evidence to demonstrate that his trial counsel was ineffective. Aguirre timely appeals the trial court‘s decision, alleging a sole assignment of error.
{¶5} Assignment of Error No. 1:
{¶6} “THE COURT ABUSED ITS DISCRETION IN OVERRULING APPELLANT‘S MOTION TO WITHDRAW [HIS] PLEA.”
{¶7}
{¶8} A motion made pursuant to
{¶9} Aguirre maintains that he should be permitted to withdraw his guilty plea because his trial counsel provided ineffective assistance by failing to properly advise him of the deportation consequences of his guilty plea and subsequent conviction. “When an alleged error underlying a motion to withdraw a guilty plea is the ineffective assistance of counsel, the defendant must show (1) that his counsel‘s performance was deficient and (2) that there is a reasonable probability that, but for counsel‘s errors, he would not have pled guilty.” State v. Guerrero, 12th Dist. No. CA2010-09-231, 2011-Ohio-6530, ¶5, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).
{¶10} In Padilla v. Kentucky, __ U.S. __, 130 S.Ct. 1473, 1483 (2010), the United States Supreme Court held that when the deportation consequences of pending criminal charges are “truly clear,” a criminal defense attorney has an equally clear duty to give correct advice regarding those charges. However, recognizing that immigration law is often “complex” and creates “numerous situations in which the deportation consequences of a particular plea are unclear or uncertain,” the Supreme Court held that where the law is not
{¶11} In Padilla, the defendant had pleaded guilty to the transportation of a large amount of marijuana. As the Supreme Court noted in its decision, “Padilla‘s crime, like virtually every drug offense except for only the most insignificant marijuana offenses, is a deportable offense [expressly provided for] under
{¶12} In the case sub judice, Aguirre was convicted on one count of criminal simulation, a fourth-degree felony. Deportation for a conviction of criminal simulation is not expressly provided for by
{¶13} At a hearing on Aguirre‘s motion to withdraw his guilty plea, the trial court heard
{¶14} Aguirre‘s trial counsel testified that she is fluent in Spanish and that she has previously worked as a federal court interpreter. She further testified that she had no issues communicating with Aguirre and that they were able to understand one another. Aguirre‘s trial counsel testified that at each and every visit she had with Aguirre, she discussed the possibility that he could be deported or be denied U.S. citizenship as a result of pleading guilty to the criminal simulation charge. When asked if she discussed the term “crime of moral turpitude” with her client, Aguirre‘s trial counsel testified as follows:
{¶15} “[AGUIRRE‘S TRIAL COUNSEL]: Yes. There‘s two types of criminal categories, if you want to call it [that]. Aggravated felonies that may cause a lawful permanent to be deported or crimes of moral turpitude. And I always go over both of them just in case, even if it doesn‘t qualify as an aggravated felony, to explain as to why. And then also to a moral turpitude, how this type of penalty for this type of criminal offense that becomes a conviction can be seen as a crime of moral turpitude and may cause a lawful permanent resident to be deported.
{¶16} “[PROSECUTOR]: And is it your testimony today that this Defendant was made aware of that and understood that at the time you represented him?
{¶17} “[AGUIRRE‘S TRIAL COUNSEL]: Absolutely.
{¶18} “[PROSECUTOR]: All right. Before he entered his guilty plea to the crime of Criminal Simulation, did you inform him of all the possible consequences of that guilty plea, including deportation or inability to become a U.S. citizen?
{¶19} “[AGUIRRE‘S TRIAL COUNSEL]: Absolutely.
{¶20} “[PROSECUTOR:] Did he appear to understand that his plea could result in either one of those things?
{¶21} “[AGUIRRE‘S TRIAL COUNSEL]: Yes. Especially with the questions that he asked and that I responded to. There was no misunderstanding in terms of language.
{¶22} “[PROSECUTOR]: Did you have any doubt that he understood the effect of his guilty plea in that regard?
{¶23} “[AGUIRRE‘S TRIAL COUNSEL]: No, I don‘t. * * *”
{¶24} After hearing the competing testimony, the trial court entered its decision denying Aguirre‘s motion, holding that there was no credible evidence that Aguirre‘s trial counsel was ineffective. Rather, the trial court specifically concluded that Aguirre‘s trial counsel properly advised him of the possible immigration consequences he faced by pleading guilty.
{¶25} We find that the trial court did not abuse its discretion by denying Aguirre‘s motion to withdraw his guilty plea since the record demonstrates he was represented by competent counsel during the plea proceedings. Aguirre‘s trial counsel testified that she discussed the removal implications of Aguirre‘s plea “each and every time” she met with him. Aguirre‘s trial counsel was adamant that Aguirre understood the consequences of his guilty plea. Given that the trial court was in a better position to evaluate the credibility of Aguirre‘s testimony and the testimony of his trial counsel, we decline to second guess the trial court‘s findings on this question. “We defer to the judgment of the trial court, because ‘the good faith, credibility and weight of the movant‘s assertions in support of the motion are matters to
{¶26} Further, even if we were to assume that Aguirre‘s trial counsel was deficient, Aguirre is unable to establish that he was prejudiced by his attorney‘s alleged deficiency as he was advised by the trial court, prior to entering his plea, of the adverse immigration consequences of his guilty plea. As the trial court noted in its decision, it had provided Aguirre with the statutory warnings under
{¶27} Aguirre‘s assignment of error is therefore overruled.
{¶28} Judgment affirmed.
PIPER and DINKELACKER, JJ., concur.
Dinkelacker, J., of the First Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 5 (A)(3), Article IV of the Ohio Constitution.