STATE OF OHIO, Plaintiff-Appellee, v. AMIR ABDI AHMED, Defendant-Appellant.
No. 108548
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 13, 2020
2020-Ohio-4057
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: August 13, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-12-560103-C
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; Russell S. Bensing, for appellant.
ANITA LASTER MAYS, J.:
{¶ 1} Pursuant to defendant-appellant‘s Amir Abdi Ahmed (“Ahmed“),
{¶ 2} 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 reverse the judgment and remand to the trial court for a hearing on the motion to determine if Ahmed‘s trial counsel misadvised him on the consequences of a guilty plea and how it would affect his immigration status.
{¶ 3} Ahmed pleaded guilty to attempted drug possession, a first-degree misdemeanor, in violation of
I. Facts and Procedural History
{¶ 4} 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
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.
{¶ 5} 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.)
{¶ 6} On December 4, 2018, six years after Ahmed was sentenced, Ahmed was served with a notice to appear in immigration court. Ahmed was informed that removal proceedings had been initiated against him as a result of his misdemeanor conviction and he was detained. Ahmed filed a motion to withdraw and vacate plea with the trial court. The trial court denied Ahmed‘s motion without a hearing. Ahmed has remained in federal immigration custody since 2018, and filed this appeal assigning one error for our review:
- The trial court abused its discretion by denying Appellant‘s motion to withdraw his previously entered guilty plea.
A. Standard of review
{¶ 7}
B. Whether the Trial Court Abused its Discretion by Denying Appellant‘s Crim.R. 32.1 Motion
{¶ 8} 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
{¶ 9} 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 ineffective assistance of counsel is waived by a guilty plea, except to the extent that the ineffective assistance of counsel caused the defendant‘s plea to be less than knowing, intelligent, and voluntary.” State v. Barnes, 8th Dist. Cuyahoga No. 104910, 2018-Ohio-86, ¶ 12, quoting State v. Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 30.
{¶ 10} 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
{¶ 11} Ahmed cites the 2010 United States Supreme Court case Padilla v. Kentucky, 559 U.S. at 369, 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.
{¶ 12} Generally, the trial court‘s abidance to
{¶ 13} Ahmed contends that our decisions in State v. Ayesta, 8th Dist. Cuyahoga No. 101383, 2015-Ohio-1695, and State v. Bozso, 8th Dist. Cuyahoga No. 106149, 2018- Ohio-1750, 111 N.E.3d 786, are relevant here because the record in those cases
{¶ 14} Although the record demonstrates that Ahmed‘s counsel was aware of his immigration status, we agree that the record does not demonstrate that Ahmed‘s attorney counseled him about the effects of Ahmed‘s guilty plea regarding his immigration status as it relates to deportation. Counsel stated at the plea hearing,
[h]e has a federal case that‘s pending, and I would ask the Court for sentencing purposes to give him a very minimum sentence if you could. I‘m asking that because, one, of the green card situation that the Court indicated, and two, because of the point system that they have in Federal Court. If the Court would give him under 60 days, he would end up with one point or less. We would be very appreciative. We would appreciate that and place him on probation. I‘m sure you won‘t have a problem with him again. Thank you, your Honor.
(Tr. 12-13.)
{¶ 15} Upon receiving a notice to appear from the federal government and learning that deportation proceeding had begun, Ahmed requested a hearing
[w]hile we recognize that the trial court has discretion to determine the credibility of the affidavit, we note that the court did not voice any concerns regarding the truth of Ayesta‘s contentions when it denied the motion without a hearing. Therefore, we conclude that the court denied the motion for other reasons: namely that Ayesta was advised by the trial court, in accordance with
R.C. 2943.031 , that he may be deported as a result of taking the plea.
Id. at ¶ 18.
{¶ 16} As in Ayesta, the record shows that at the plea hearing the trial court properly advised Ahmed that pleading guilty may subject him to deportation, and that Ahmed stated that he understood those consequences. However, it cannot be said that the record, on its face, demonstrates that his trial counsel advised him of the immigration consequence. Id. at ¶ 19. And in this case the consequences were mandatory. Id.
{¶ 17} Ahmed has not necessarily demonstrated that his trial counsel‘s performance was deficient or that trial counsel failed, at a minimum, to advise Ahmed that his pending criminal charges may carry a risk of adverse immigration consequences. As previously stated, ““[a] claim of ineffective assistance of counsel is waived by a guilty plea, except to the extent that the ineffective assistance of counsel caused the defendant‘s plea to be less than knowing, intelligent, and voluntary.” State v. Barnes, 8th Dist. Cuyahoga No. 104910, 2018-Ohio-86, ¶ 12, quoting State v. Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 30. “As Padilla
{¶ 18} 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
{¶ 19} 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
{¶ 20} Consistent with our decisions in Ayesta, we acknowledge that the record does not otherwise indicate that Ahmed is not entitled to relief. Ayesta at ¶ 20. Thus, as the trial court‘s advisement did not necessarily foreclose the possibility of finding prejudice, we cannot conclude that the court‘s properly giving the advisement, alone, is a valid reason for denying a hearing on the motion when Ahmed presented prima facie evidence of ineffective assistance, and we remand to the trial court for a hearing on the motion to determine if Ahmed‘s trial counsel misadvised him as to how Ahmed‘s guilty plea would affect his immigration status and assess the prejudice prong.
{¶ 21} Judgment reversed and remanded.
It is ordered that the appellant recover from appellee costs herein taxed.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
ANITA LASTER MAYS, JUDGE
EILEEN T. GALLAGHER, A.J., and
MARY EILEEN KILBANE, J., CONCUR