State v. ArrunateguiState v. Arrunategui
HENSAL, Judge.
{¶1} Plaintiff-Appellant, State of Ohio, appeals from the trial court‘s decision that granted Defendant-Appellee, Jimmy A. Arrunategui‘s, motion to withdraw his guilty plea. For the reasons set forth below, this Court reverses.
I.
{¶2} On September 8, 2010, Arrunategui pled guilty to one count of possession of cocaine. Prior to sentencing, he stated on the record that he was a permanent resident of the United States. The court advised Arrunategui pursuant to
{¶4} The State now appeals the decision of the trial court to allow Arrunategui to withdraw his plea, and raises one assignment of error for review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN GRANTING THE MOTION TO WITHDRAW THE PLEA.
{¶5} In its sole assignment of error, the State argues that the trial court erred in granting Appellee‘s motion to withdraw his guilty plea as Arrunategui was not prejudiced by his counsel‘s failure to advise him of the likelihood of deportation since he was notified of the possibility by the court pursuant to
{¶6} It is within the trial court‘s sound discretion whether to grant a motion to withdraw a plea. State v. Smith, 49 Ohio St.2d 261, 264 (1977). “An appellate court reviews a trial court‘s decision on a motion to withdraw a plea under an abuse-of-discretion standard.” State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, ¶ 32. An abuse of discretion “implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). An appellate court may not substitute its judgment for that of the trial court when reviewing a matter pursuant to this standard. Berk v. Matthews, 53 Ohio St.3d 161, 169 (1990).
{¶7}
{¶8} In the motion to withdraw his guilty plea, Arrunategui argued that the failure of his former attorney to inform him of the likelihood of deportation constituted ineffective assistance of counsel. He does not dispute that the trial court correctly gave the advisement required by
{¶9} The Sixth Amendment right to the effective assistance of counsel is applicable to plea negotiations. Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 1384 (2012). In order to prove a claim of ineffective assistance of counsel, Arrunategui must demonstrate that counsel‘s performance fell below an “objective standard of reasonableness” and he was prejudiced by the performance. State v. Chapman, 9th Dist. No. 26175, 2013-Ohio-357, ¶ 43, quoting State v. Reynolds, 80 Ohio St.3d 670, 674 (1998).
{¶10} Arrunategui submitted an affidavit from his former counsel who stated she did not advise him of the deportation consequences of his conviction. The trial court relied upon the United States Supreme Court case of Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473 (2010) to find that Arrunategui‘s counsel was required to advise him of the likelihood of deportation and that failure to do so violated his right to the effective assistance of counsel. While the State distinguishes Padilla from the case sub judice by arguing that the U.S. Supreme Court remanded the matter to decide whether the defendant was prejudiced by counsel‘s actions, the
{¶11} The State further argues that any defendant notified of the risk of deportation by virtue of the advisement provided in
{¶12} The transcript from the plea/sentencing hearing and the affidavit of former counsel were the only items submitted with Arrunategui‘s motion to withdraw his plea. He did not submit his own affidavit in support of the motion. Counsel‘s affidavit stated that:
It is my understanding that Mr. Arrunategui did not know that pleading guilty to the drug charge would trigger deportation consequences.
It is also my understanding that Mr. Arrunategui would not have plead (sic) to the charge had he known his immigration consequences.
This Court finds that the statements contained therein, which are based on assumptions of what Arrunategui would have done rather than personal knowledge, are insufficient to conclusively establish that he would not have pled guilty and would have insisted on going to trial. While the trial court found that Arrunategui was prejudiced, it did not elaborate on how it reached that conclusion other than to reason that compliance with Section 2934.031 cannot cure counsel‘s deficient performance.
{¶14} While former counsel‘s affidavit does not prove that Arrunategui was prejudiced by the deficient performance, the affidavit and eventual consequence suffered by Arrunategui sufficiently allege that manifest injustice may have occurred so as to warrant a hearing on the motion to enable the necessary finding of prejudice. “There is no specific requirement to hold a hearing in this situation. However, it sometimes is difficult for an appellate court to review a trial court‘s ruling on a motion to withdraw a plea to determine whether an abuse of discretion occurred when no hearing was held.” Francis 2004-Ohio-6894 at ¶ 50. “In some situations when a hearing should have been held, a trial court‘s failure to have held a hearing amounts to an abuse of discretion.” Id. at ¶ 51.
{¶15} While the State argues that compliance with
III.
{¶16} The State‘s only assignment of error is sustained. The judgment of the Summit County Court of Common Pleas granting Appellee‘s motion to withdraw his plea is reversed and the matter is remanded to the trial court for a hearing on Arrunategui‘s motion to withdraw his guilty plea.
Judgment reversed and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
JENNIFER HENSAL
FOR THE COURT
BELFANCE, P. J.
CONCURRING.
{¶17} Based upon the unique circumstances of this case, I agree that it is appropriate to remand this matter to the trial court to conduct a hearing on Mr. Arrunategui‘s motion. The affidavit submitted by Mr. Arrunategui‘s counsel is somewhat problematic. The affidavit states that
[i]t is my understanding that Mr. Arrunategui did not know that pleading guilty to the drug charge would trigger deportation consequences.
[]It is also my understanding that Mr. Arrunategui would not have plead to the charge had he known his immigration consequences.
As noted by the main opinion, trial counsel‘s affidavit could be read to mean that trial counsel is assuming that Mr. Arrunategui did not know the deportation consequences of his plea and would not have pled had he known the consequences. However, the language could also be read to indicate that Mr. Arrunategui would not have pled and would instead have chosen to go to trial if he was aware of the immigration consequences, that he informed trial counsel of the same, and, thus, such was her understanding. There is nothing in the record to contradict that. Thus, Mr. Arrunategui‘s averments are sufficient to warrant a hearing on his motion, and, given the problematic nature of the affidavit, I agree that it is appropriate to remand the matter to the trial court to conduct a hearing.
CONCURRING IN PART, AND DISSENTING IN PART.
{¶19} Although I agree that the case must be reversed, I would not remand the matter for a hearing. Instead, I would conclude that the trial court erred by granting Arrunategui‘s motion to withdraw his plea because the record demonstrates that he failed to satisfy the manifest injustice standard. Therefore, I would sustain the State‘s sole assignment of error and order Arrunategui‘s conviction reinstated. As such, I concur in part and dissent in part.
{¶20} “Under the manifest injustice standard, a post-sentence ‘withdrawal motion is allowable only in extraordinary cases.‘” State v. Brown, 9th Dist. No. 24831, 2010-Ohio-2328, ¶ 9, quoting State v. Smith, 49 Ohio St.2d 261, 264 (1977). To withdraw his plea based on the ineffective assistance of his trial counsel, Arrunategui was required to demonstrate both that (1) his counsel‘s performance was deficient, and (2) a reasonable probability existed that “but for his counsel‘s error, he would not have pleaded guilty and would have insisted on going to trial.” State v. Evans, 9th Dist. No. 09CA0049-M, 2010-Ohio-3545, ¶ 4. I agree that Arrunategui proved his counsel‘s performance was deficient. I would conclude, however, that he failed to prove that he was prejudiced as a result of the deficiency.
{¶21} Arrunategui conceded in his motion to withdraw that the trial court complied with
{¶23} Because the trial court notified Arrunategui of the possibility of deportation at his plea hearing and Arrunategui indicated that he understood the court‘s notification, I would conclude that Arrunategui was not prejudiced by his counsel‘s failure to advise him of the possibility of deportation. See Ikharo at ¶ 19-20; Gallegos-Martinez at ¶ 35-36. See also State v. Gegia, 157 Ohio App.3d 112, 2004-Ohio-2124, ¶ 28-29 (9th Dist.) (“[E]ven assuming that trial counsel failed to personally advise appellant of possible deportation[,] * * * appellant was properly advised by the trial court that he could possibly be deported to the Republic of Georgia if he pleaded guilty, * * * and therefore trial counsel was not ineffective on this ground.“). The court‘s notification put him on notice that deportation was a possibility. Nevertheless, Arrunategui proceeded to enter his plea and serve his entire sentence before seeking to withdraw it. See State v. Gordon, 9th Dist. No. 25911, 2012-Ohio-902, ¶ 9, quoting Smith, 49 Ohio St.2d at paragraph three of the syllabus (“Undue delay in a defendant‘s
{¶24} Because the trial court erred by granting Arrunategui‘s motion to withdraw, I would sustain the State‘s sole assignment of error and order Arrunategui‘s conviction reinstated. Thus, I concur insofar as I agree that this Court must reverse the trial court‘s judgment, but dissent as to the remainder of the opinion.