State v. CardonaState v. Cardona
Rendered on December 5, 2024
On brief: Dave Yost, Attorney General, and Adriana Bures Rodriguez, for appellee.
On brief: The Tyack Law Firm, Co., L.P.A., James P. Tyack, and Kelsey A. Kornblut, for appellant. Argued: Kelsey A. Kornblut.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{1} Defendant-appellant, Angel D. Cardona, appeals from a judgment entry of the Franklin County Court of Common Pleas denying Cardona‘s motion to withdraw his guilty plea. For the following reasons, we affirm.
I. Facts and Procedural History
{2} By indictment filed March 19, 2015, plaintiff-appellee, State of Ohio, charged Cardona with one count of workers’ compensation fraud in violation of
{3} Subsequently, on Septеmber 22, 2015, the trial court conducted a plea hearing, and Cardona entered a guilty plea to the stipulated lesser-included offense of workers’
{4} More than eight years later, Cardona filed a motion to withdraw his guilty plea on January 10, 2024. In his motion, Cardona argued he received the ineffective assistance of counsel when he entered his plea, resulting in a manifest injustice. The state opposed Cardona‘s motion in a January 26, 2024 memorandum contra.
{5} On April 8, 2024, the trial court issued a judgment entry denying Cardona‘s motion to withdraw his guilty plea without holding a hearing. The trial court determined Cardona failed to establish either that his counsel during the plea proceedings was ineffective or another basis demonstrating the existence of a manifest injusticе. Cardona timely appeals.
II. Assignments of Error
{6} Cardona assigns the following three assignments of error for our review:
- The lower court abused its discretion by determining that Defendant-Appellant Cardona failed to establish the existence of a manifest injustice relative to the September 22, 2015 plea, conviction, and sentence.
- The lower court abused its discretion by determining that Defendant-Appellant Cardona failed to establish that his defense counsel was ineffective as it relates to the September 22, 2015 plea, conviction, and sentence.
- The lower court abused its discretion by not holding a hearing on the January 10th Motion Pursuant to Rule 32.1 of the Ohio Rules of Criminal Procedure.
{7} Cardona‘s first two assignmеnts of error are interrelated, and we address them jointly. In his first assignment of error, Cardona argues the trial court abused its discretion in determining he failed to demonstrate a manifest injustice related to his September 22, 2015 guilty plea. In his second assignment of error, Cardona argues the trial court abused its discretion in determining Cardona did not demonstrate his counsel was ineffective during the September 22, 2015 guilty plea hearing. Taken together, these assignments of error assert the trial court abused its discretion in denying Cardona‘s motion to withdraw his guilty plea.
{8} Pursuant to
{9} The decision to grant or deny a motion to withdraw a guilty plea made under
{10} Cardona first argues the trial court abused its discretion when it determined he did not demonstrate the existence of a manifest injustice from his guilty plea. Cardona asserts a manifest injustice exists because his criminal conviction resulting from the plea may lead to his imminent removal from the United States.
{11} A trial court accepting a guilty plea from a noncitizen must give the statutory advisement contained in
{12} The record indicates Cardona signed the guilty plea form indicating he was a noncitizen, and, as noted above, the guilty plea form contained language that his plea could have adverse consequences to his immigration status, including deportation, exclusion from аdmission to the country, and denial of naturalization. Additionally, during the plea hearing, the trial court engaged in the following exchange with Cardona:
THE COURT: And are you a citizen of the United States?
THE DEFENDANT: No.
THE COURT: As you‘re not a citizen of the United States, you‘re hereby advised that conviction of the offense to which you‘re pleading guilty may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.
Do you understand that?
THE DEFENDANT: Yes.
(Sept. 22, 2015 Tr. at 4.) Thus, the trial court provided the advisement contained in
{13} Despite the language in the plea form and the trial court‘s advisement during the plea hearing, Cardona nonetheless argues on appeal he demonstrated a manifest injustice sufficient to withdraw his guilty plea. Cardona asserts a manifest injustice exists because he did not know or understand the specific mechanisms, codified in the United States Code, through which his guilty plea could have future adverse consequences on his immigration status. To the extent Cardona argues the trial court should have provided him more specific information, prior to accepting his plea, of the various ways a guilty plea to his specific offense could result in adverse immigration consequences in the future, he points to no authority indicating the trial court bears such responsibility before accepting the plea. Instead,
{14} Cardona next argues that even if the immigration consequences, themselves, did not create a manifest injustice, the trial court nonetheless abused its discretion in denying his
{15} Cardona asserts he received the ineffective assistance of counsel during the plea proceedings because his counsel failed to fully advise him of all potential immigration consequences of a guilty plea. In Romero, the Supreme Court of Ohio held that a noncitizen defendant can show defiсient performance from counsel‘s failure to properly advise him of the risk of deportation as a result of the plea. Romero at ¶ 15, 26-27 (“[w]e recognize that the Padilla-and now, Romero-standard requires defense counsel to understand the immigration consequences of a guilty plea“), citing Padilla v. Kentucky, 559 U.S. 356, 374 (2010). In his affidavit supporting his motion to withdraw his guilty plea, Cardona averred his counsel during the plea proceedings “never advised [him] as to the specific consequences a ‘guilty plea’ might have upon [his] immigration status.” (Cardona Aff. at ¶ 4.) Though the trial court provided Cardona the advisement in
{16} The state suggests Cardona‘s affidavit is insufficient to demonstrate deficient performance because of its self-serving nature. See, e.g., State v. Johnson, 2d Dist. No. 2018-CA-27, 2019-Ohio-1259, ¶ 10 (“[w]here nothing in the record supports a defendant‘s claim that his plea was not knowingly and voluntarily made other than his own self-serving affidavit or statement, the record is insufficient to overcome the presumption that thе plea was voluntary“) (further quotations and citations omitted). We note, however, that while a “self-serving” affidavit is subject to a credibility determination by the trial court, it must still be given due consideration as evidentiary material in support of the
{17} The state additionally argues the affidavit lacks credibility because Cardona stated at the plea hearing he understood the charges against him and was satisfied with his counsel‘s representation. Howevеr, we need not definitively determine whether Cardona‘s affidavit establishes his counsel was deficient because we find the trial court did not abuse its discretion in concluding Cardona did not demonstrate the requisite prejudice.
{18} To establish prejudice under Romero, Cardona must show ” ‘a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have
{19} Becаuse Cardona did not demonstrate that but for counsel‘s alleged deficiencies he would not have entered a guilty plea, the trial court did not abuse its discretion in denying Cardona‘s
IV. Third Assignment of Error – Denial of Motion Without a Hearing
{20} In his third and final assignment of error, Cardona argues the trial court erred in denying his motion to withdraw his plea without holding a hearing.
{22} Here, Cardona failed to allege facts in support of his motion sufficient to demonstrate the requisite prejudice under Romero and Strickland to substantiate his claim of ineffective assistance of counsel during the plea proceedings. Though Cardonа asks this court to remand the matter for a hearing so he can provide testimony to demonstrate such prejudice, a defendant cannot wait until the hearing to demonstrate the basis for the motion; instead, to be entitled to a hearing, the motion and supporting affidavit first must allege sufficient facts that, if true, would require the defendant be allowed to withdraw the plea. State v. Mobley, 10th Dist. No. 18AP-23, 2018-Ohio-3880, ¶ 31. Beсause Cardona did not allege facts demonstrating that, but for his counsel‘s errors he would not have entered the guilty plea, the trial court did not abuse its discretion in denying Cardona‘s motion to withdraw his guilty plea without first holding a hearing.
{23} We overrule Cardona‘s third and final assignment of error.
V. Disposition
{24} Based on the foregoing reasons, the trial court did not abuse its discretion in denying Cardona‘s post-sentence motion to withdraw his guilty plea without a hearing. Having overruled Cardona‘s three assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
MENTEL, P.J., concurs.
EDELSTEIN, J., concurring separately.
EDELSTEIN, J., concurring.
{25} I concur with the majority‘s disposition of Cardona‘s assignments of error but write separately to address an argument raised by the state concerning the deficient performance prong of Cardona‘s ineffective assistance of counsel claim.
{27} While Cardona may have had the assistance of an interpreter during his plea and sentencing proceedings, understood the charges against him, was satisfied with his counsel‘s representation at the time he entered his guilty plea, and was aware of the possibility of immigration consequences, I don‘t believe any of that is relevant to determining whether the statements in his affidavit made years later—presumably after he learned of the certain immigration consequences he would face—are sufficient to establish his counsel‘s deficient performance.
{28} During his plea and sentencing hearing, Cardona heard the statutorily mandatеd warning that pleading guilty ”may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” (Emphasis added.) (Sept. 22, 2015 Hearing Tr. at 4.) See
{29} But Cardоna is not arguing his counsel was deficient for failing to mention the possibility of immigration consequences, nor is he claiming his plea was not knowing and intelligent on that basis. Instead, he is arguing his counsel‘s performance was deficient because the immigration consequences from his plea were clear and therefore his attorney was required to provide accurate and specific information to him. (See, e.g., Reply Brief at 14.)
{30} Pursuant to Padilla and its progeny, such an allegation, if true, would establish deficient performance. See Padilla at 368 (“[W]hen the deportation consequence is truly
{31} Again, although we are not required to consider this question at all due to the above-described insufficiency of Cardona‘s affidavit, I think it is necessary to call attention to an argument that appears to be inconsistent with Padilla, Romero, and their progeny.