STATE OF OHIO, Plaintiff-Appellee, v. AMIR ABDI AHMED, Defendant-Appellant.
No. 108548
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
April 2, 2020
2020-Ohio-1279
ANITA LASTER MAYS, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-560103-C
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 2, 2020
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Gregory J. Ochocki, Assistant Prosecuting Attorney, for appellee.
Amato Law Office, L.P.A., and Joseph N. Phillips, for appellant.
ANITA LASTER MAYS, J.:
{¶ 1} Defendant-appellant Amir Abdi Ahmed (“Ahmed”) appeals the trial court’s denial of Ahmed’s motion to withdraw his postsentence guilty plea, and asks this court to vacate the plea. We affirm the trial court’s decision.
I. Facts and Procedural History
{¶ 3} On December 11, 2012, at Ahmed’s plea and sentencing hearing, Ahmed pleaded guilty to attempted drug possession. The trial court asked Ahmed if he was satisfied with his trial counsel’s representation, to which Ahmed replied that he was very much satisfied. (Tr. 8.) Trial counsel also indicated to the court that Ahmed was aware of his constitutional rights even though the trial court would later explain his rights. (Tr. 7.) The trial court stated,
your attorney has already noted that you are not a U.S. citizen. I am required to advise you that since you are not a citizen of the United States, the offense — conviction of the offense to which you are pleading guilty may have the consequences of deportation from the United States, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. You understand that?
(Tr. 10.) Ahmed responded that he understood. Id.
{¶ 4} The trial court then stated, “[o]kay. By the way, I have no control over what happens with that, that’s for the federal authorities to decide. * * * .” Id. Ahmed entered a plea of guilty, and the trial court imposed a fine after Ahmed’s counsel asked for a minimum sentence in order to look more favorable in his federal immigration case. (Tr. 13-14.)
{¶ 5} On December 4, 2018, six years after Ahmed was sentenced, Ahmed was served with a “Notice to Appear” in immigration court. Ahmed was informed
I. The trial court abused its discretion by denying Appellant’s motion to withdraw his previously entered guilty plea.
II. Postsentence Guilty Plea Withdrawal
A. Standard of review
{¶ 6}
{¶ 7} In Ahmed’s sole assignment of error, he contends that the trial court erred when it denied his motion to withdraw his guilty plea, in accordance with
{¶ 8} Ahmed argues that the manifest injustice occurred as a result of his trial counsel’s representation. Ahmad contends that his trial counsel misadvised him as to the state of law and how it could affect his future in the United States. As a result, Ahmad pleaded guilty to the offense based on the belief that it would not affect his immigration status. Ahmed reasons that he would not have pleaded guilty in this matter had he known that he was facing mandatory deportation. “‘A claim of
{¶ 9} Ahmed “can prevail only by demonstrating that there is a reasonable probability that, but for counsel’s deficient performance, he would not have pleaded guilty and would have insisted on going to trial.” State v. Williams, 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11, citing State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992); Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In addition, “[t]he requisite showing of manifest injustice must be based on specific facts in the record or supplied through affidavits submitted with the motion.” (Citation omitted.) State v. Norris, 8th Dist. Cuyahoga No. 107894, 2019-Ohio-3768, ¶ 24.
{¶ 10} Ahmed cites the 2010 United States Supreme Court case Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which held that an attorney’s performance is deficient when he or she has failed, at a minimum, to advise a noncitizen defendant-client that “pending criminal charges may carry a risk of adverse immigration consequences.” An attorney’s performance is also deficient when his or her advice regarding deportation issues, which are “easily determined from reading the removal statute,” is incorrect. Id. However, “[p]rior to Padilla, Ohio courts have held that the duty to notify a defendant of immigration
{¶ 11} Although Ahmed claims that his trial counsel did not inform him of the immigration consequences of his plea, his “self-serving affidavit is generally insufficient to demonstrate manifest injustice.” Id. at ¶ 26, citing State v. Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699, ¶ 10. The record demonstrating compliance with
{¶ 12} Ahmed has not demonstrated that his plea was less than knowing, intelligent, and voluntary. The trial court informed Ahmed of the effects of his guilty plea regarding his immigration status. The trial court explained to Ahmed that his immigration status may be affected by his guilty plea because he was not a citizen of the United States, to which Ahmed replied that he understood. To ensure that a plea to a misdemeanor charge is knowingly, intelligently, and voluntarily entered into, a trial court must follow the dictates of
{¶ 13} Ahmed bears the burden of demonstrating that a manifest injustice occurred in the plea proceeding. State v. Sneed, 8th Dist. Cuyahoga No. 80902, 2002-Ohio-6502, ¶ 13 (a manifest injustice is “an extraordinary and fundamental flaw in the plea proceeding”). In this case, Ahmed claims his trial counsel was ineffective at the time he entered his plea, so he bears the burden of showing that counsel’s performance led to a manifest injustice. State v. Bankston, 8th Dist. Cuyahoga No. 92777, 2010-Ohio-1576, ¶ 53. We determined that trial counsel made the trial court aware of Ahmed’s citizenship status. We also can determine that the trial court fully complied with
{¶ 14} Therefore, Ahmed’s sole assignment of error is overruled.
{¶ 15} Judgment affirmed.
It is ordered that the appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
ANITA LASTER MAYS, JUDGE
EILEEN T. GALLAGHER, A.J., and
MARY EILEEN KILBANE, J., CONCUR