STATE OF OHIO v. NESTOR AYESTA
No. 101383
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 1, 2015
[Cite as State v. Ayesta, 2015-Ohio-1695.]
[Vacated opinion. Please see 2015-Ohio-600.]
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-10-533381-A
BEFORE: Stewart, J., S. Gallagher, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: May 1, 2015
John P. Parker 988 East 185th Street Cleveland, OH 44119
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor Brett Hammond Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} Defendant-appellant Nestor Ayesta appeals from the denial of his motion to withdraw his guilty plea to domestic violence, a first-degree misdemeanor. For the following reasons, we reverse the judgment and remand to the trial court for a hearing on the motion.
{¶2} On February 10, 2010, the Cuyahoga County Grand Jury issued a three-count indictment against Ayesta on charges that arose from a physical altercation between him and his sister. Counts 1 and 2 alleged that Ayesta committed a felonious assault, in violation of
{¶3} As a result of plea negotiations, on April 7, 2010, Ayesta pleaded guilty to Count 1, amended to assault, and Count 3, domestic violence, in exchange for the dismissal of Count 2. At the time of his guilty plea, Ayesta was living as a legal resident of the United States, but lacked citizenship status. Prior to his plea, the trial court advised Ayesta that there may be immigration consequences as a result of his plea. After accepting his plea, the court sentenced Ayesta to concurrent and suspended, six-month prison terms on both the assault and domestic violence charges. Ayesta was ordered to
{¶4} In November 2013, the federal government initiated immigration removal proceedings against Ayesta because of his domestic violence conviction. On March 3, 2014, Ayesta filed a motion to withdraw his guilty plea to the domestic violence charge only. The trial court denied the motion without a hearing.
{¶5} In his sole assignment of error, Ayesta asserts that the trial court incorrectly denied his motion to withdraw his guilty plea and failed to address whether his trial counsel was constitutionally ineffective under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), for allegedly failing to advise him of what he describes as “the mandatory” deportation consequences that arise from a conviction of domestic violence. See
{¶6} The linchpin of Ayesta’s argument is that a conviction of domestic violence results in mandatory deportation and that had he known of the mandatory consequences, he would not have pled guilty to the charge but would have asked his attorney to attempt to negotiate a plea arrangement that did not involve his pleading guilty to a mandatory deportable offense, or that he would have taken his chances at trial.
{¶7} However, before getting to the substance of Ayesta’s argument, we think it prudent to briefly discuss the federal deportation statute,
{¶8}
{¶9} In a
{¶10} A hearing on a
{¶11} In denying Ayesta’s motion to withdraw, the court stated:
Defendant’s motion to withdraw guilty plea to count 3 * * * is denied for the following reasons: (1) defendant’s motion is untimely as it was filed nearly 4 years after defendant was sentenced, (2) defendant was properly advised of all of his rights prior to entering his guilty plea,2 and (3) pursuant to
R.C. 2943.031 , the court specifically advised defendant verbatim that his guilty plea may have immigration consequences. See State v. Bains, 8th Dist No. 94330, 2010-Ohio-5143, and State v. Lababidi, 8th Dist. No. 96755, 2012-Ohio-267.
I. Timeliness
{¶12} The timeliness of a motion to withdraw is a factor courts consider when exercising their discretion under
{¶13} Regarding the timeliness of Ayesta’s motion, one of the reasons the trial court stated for denying the motion was that it was filed almost four years after Ayesta was sentenced. However, Ayesta states that he was first made aware of the deportation consequences of his plea in November 2013 when he received notification of deportation proceedings. He filed his motion to withdraw six months later. We find that the six-month period of time is the more appropriate measure in this case, and conclude that timeliness is not a factor weighing against Ayesta.
II. Padilla Violation
{¶14} Defendants have a Sixth Amendment right to the effective assistance of counsel when deciding whether to enter a guilty plea. Id. at 364, citing McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on a challenge to a guilty plea based on ineffective assistance of counsel, the defendant must satisfy the two-part test set forth in Strickland v. Washington. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Under Strickland, the defendant must first show constitutional ineffectiveness — that is, that his counsel’s performance fell below an objective standard of reasonableness. Padilla, 559 U.S. at 367, citing Strickland, 466 U.S. at 694. Second, the defendant must show that he was prejudiced by his counsel’s deficient performance. Id. Proving prejudice requires a showing that there is a reasonable probability that were it not for counsel’s errors, the result of the proceeding would have been different. Hill v. Lockhart, 474 U.S. at 57; Strickland, 466 U.S. at 694. In the context of constitutional
{¶15} Trial counsel has a duty to accurately advise his client of the advantages and disadvantages of a plea agreement. Padilla at 370. This includes advising noncitizen defendants of the deportation consequences associated with a plea. Id. Counsel breaches this duty by either providing affirmative misadvice about immigration consequences, or by not providing any advice at all when advice is warranted. Id. at 370–371 (stating, “there is no relevant difference between an act of commission and an act of omission in this context” (internal quotations omitted)). Thus, failing to advise a noncitizen defendant of potential deportation consequences associated with a plea satisfies the first prong of the Strickland test by establishing that counsel’s performance fell below an objective standard of reasonableness. See id. at 373–374.
{¶16} Here, Ayesta alleged in his brief in support of his motion to withdraw and in his accompanying affidavit that his counsel failed to advise him of the deportation
{¶17} As evidence in support of his motion, Ayesta presented his own affidavit averring that he was never advised by counsel of the mandatory immigration consequences.4 Additionally, Ayesta’s brief in support of his motion explains that his family lives in the United States and that he would not have agreed to plead guilty to a charge of domestic violence if he knew that he would be deported as a result. Ayesta’s affidavit, together with the brief in support of the motion was sufficient to warrant a hearing on the motion. The affidavit asserted facts, that if taken as true, would require that the guilty plea be withdrawn, as it made out a prima facie case for ineffective assistance of counsel. Additionally, the fact that his immediate family lives in the United States supports his contention that he would not have pleaded guilty to the charge if he knew that he would be deported.
{¶18} While 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
{¶19} Although the record shows that at the plea hearing Ayesta was properly advised that pleading guilty may subject him to deportation, and that Ayesta stated that he understood those consequences, it cannot be said that the record, on its face, conclusively and irrefutably contradicts the allegations in support of withdrawal. In our original opinion, we stated that the record did belie Ayesta’s affidavit because during the plea colloquy, Ayesta told the court that he was aware of the consequences of pleading guilty — thus reasoning that the admission served as evidence that his trial counsel had discussed immigration consequences with him. Upon further examination of the transcript, our interpretation of the exchange between the court and Ayesta does not clearly indicate that Ayesta had been made aware of the immigration consequences prior to the court’s advisement. A more accurate reading of the exchange demonstrates that Ayesta manifested an understanding of the court’s advisement of immigration consequences. Thus, we cannot say that the record truly belies Ayesta’s affidavit in such a way that a hearing on the motion was unnecessary. Moreover, it has always been Ayesta’s contention that if he had known of the “mandatory” deportation consequences, he would not have accepted the plea bargain.
{¶20} Further, the record does not otherwise indicate that Ayesta is not entitled to relief. We are aware of case law from this district that states that proper advisement under
{¶21} We reverse and remand to the trial court for further proceedings consistent with this opinion.
It is ordered that appellant recover of said appellee 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.
______________________________________________
MELODY J. STEWART, JUDGE
SEAN C. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR