State v. ContechState v. Contech
Rendered on December 22, 2009
Ron O‘Brien, Prosecuting Attorney, and Kimberly Bond, for appellee.
DiFranco Law Office, LLC, and Brian C. DiFranco, for apрellant.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶1} Defendant-appellant, Amusa Conteh, appeals from a judgment of the Franklin County Court of Common Pleas denying his motion to withdraw guilty plea. For the following reasons, we affirm that judgment.
{¶2} Appellant is a native and citizen of Sierra Leone who entered the United States in 2004 as a refugee. He subsequently became a lawful permanent resident. On October 25, 2007, a Franklin County Grand Jury indiсted appellant with one count of trafficking in marijuana in violation of
{¶3} On April 8, 2008, the United States Immigration and Customs Enforcement initiated proceedings to have appellant removed from the country because of his drug conviction pursuаnt to section 237(a)(2) of the
{¶4} Appellant appeals and assigns the following errors:
I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO SUBSTANTIALLY COMPLY WITH THE CRIM.R. 11 REQUIREMENTS TO ADVISE DEFENDANT OF HIS RIGHTS.
II. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FOUND THAT DEFENDANT WAS NOT PREJUDICED BY HIS FORMER COUNSEL‘S INEFFECTIVE ASSISTANCE.
{¶5} Appellant contends in his first assignment of error that the trial court did not properly advise him of his rights when it accepted his guilty plea, in violation of
{¶6} Res judicata bars a party from raising an issue in a
{¶7} Because appellant could have but did not raise these claims in a direct appeal from his conviction, res judicata bars him from raising them in his
{¶8} Even if we were to consider appellant‘s claims, they still fail on the merits.
{¶9} The trial court did not tеll appellant that a guilty plea is a complete admission of guilt. However, “[a] defendant who has entered a guilty plea without asserting actual innocence is presumed to undеrstand that he has completely admitted his guilt. In such circumstances, a court‘s failure to inform the defendant of the effect of his guilty plea as required by
{¶10} Second, appellant claims that he did not understand the concept of a jury trial, a constitutional right a trial court must explain to comply with
{¶11} We overrule appellant‘s first assignment of error.
{¶12} Appellant claims in his second assignment of error that the trial court erred in denying his motion to withdraw because his guilty plea was the result of ineffective assistance оf counsel. Specifically, he contends that his trial counsel erroneously advised him he would not be removed from the country if he entered a guilty plea.
{¶13}
{¶14} Ineffective assistance of counsel can constitute manifest injustice sufficient to allow the post-sentence withdrawal of a guilty plea. State v. Dalton, 153 Ohio App.3d 286, 2003-Ohio-3813, ¶18 (citing State v. Lake (Mar. 28, 1996), Franklin App. No. 95APA07-847). A defendant seeking to withdraw a guilty plea post-sentence bears the burden of establishing manifest injustice based on specific facts either contained in the record or supplied through affidavits attached to the motion. State v. Orris, 10th Dist. No. 07AP-390, 2007-Ohio-6499, ¶8; State v. Smith (1977), 49 Ohio St.2d 261, paragraph one of the syllabus.
{¶15} The good faith, credibility, and weight to be given to assertions madе by a defendant in support of a motion to withdraw a guilty plea are matters to be resolved by the trial court. Id. at 264; State v. Smith, 10th Dist. No. 07AP-985, 2008-Ohio-2802, ¶10. Generally, a self-serving affidavit made by the moving party is not sufficient to demonstrаte manifest injustice. Id.; State v. Moncrief, 10th Dist. No. 08AP-153, 2008-Ohio-4594, ¶13. In addition, “[a]n undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under
{¶16} A motion made pursuant to
{¶17} Appellant contends his trial counsel advised him that he would not be removed from the country if he pled guilty. The only evidence in support of that claim is appellant‘s own affidavit. In fact, appellant submitted affidavits from family members that contradict his own сlaim. Appellant‘s brother and sister each stated in an affidavit that trial counsel “never spoke with my brother about the affect his guilty plea would have on his immigration status.” In light of appellаnt‘s self-serving affidavit, his family members’ contrary affidavits, and appellant‘s delay between the federal government‘s initiation of deportation proceedings and the filing of his motion to withdraw, аppellant failed to demonstrate manifest injustice.
{¶18} Additionally, appellant acknowledged in his signed “Entry of Guilty Plea” form that his conviction “may have the consequences of deportation, exclusion from admission to the United States, and/or denial of naturalization pursuant to the laws of the United States.” He also acknowledged in that form that “no person has threatеned me, promised me leniency, or in any other way coerced or induced me to plead ‘Guilty.’ ” Further, during his plea hearing, the trial court twice warned appellant of the consеquences his conviction could have on his immigration status before it accepted his guilty plea. (Tr. 3-4.) Appellant stated that he understood the warnings and never expressed any contrary understanding of the effect his plea could have on his immigration status. Further, he specifically told the trial court that he was able to speak and
{¶19} For these reasons, appellant failed to demonstrate a manifest injustice to warrant withdraw of his guilty plea. Accordingly, the trial court did nоt abuse its discretion by denying appellant‘s motion to withdraw his guilty plea. We overrule appellant‘s second assignment of error.
{¶20} Having overruled appellant‘s two assignments of error, wе affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
FRENCH, P.J., and McGRATH, J., concur.