STATE OF OHIO, Plаintiff-Appellee, vs. MOHAMED DIOL, Defendant-Appellant.
APPEAL NO. C-180249
TRIAL NO. B-1700978
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
June 5, 2019
[Cite as State v. Diol, 2019-Ohio-2197.]
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 5, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Sarah C. Larcade, for Defendant-Appellant.
Introduction
{¶1} In this case, an alleged non-United States citizen defendant, who pleaded guilty to felony drug trafficking and possession, was advised by defense counsel on the record at the plea hearing that deportation was “at worst” “possibly” discretionary when, in fact, it is presumptively mandatory (and the record reflects much confusion between lawyer and client on the citizenship question).
{¶2} In two assignments of error, Mohamed Diol argues that the trial court erred by denying his “Emergency Motion to Vacate Guilty Plea Under Padilla v. Kentucky and Lee v. United States,” аnd that the trial court erred by failing to hold an evidentiary hearing on his motion to vacate despite his clear and unequivocal request. We combine his assignments of error, and hold that the trial court did err, and that this cause must be remanded for the court to hold an evidentiary hearing.
Facts and Procedural Background
{¶3} Diol was indicted for one count of trafficking in marijuana in violation of
{¶4} Diol pleaded guilty to the marijuana-trafficking and the marijuana-possession counts of the indictment. Pursuant to the plea agreement, the possession-of-criminal-tools charge was dismissed.
{¶6} The court responded that in an “overabundance of caution” it advised Diol if he was not a citizen of the United States, then
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. A broad range of crimes are deportable offenses under federal law. Deportation and other immigration consequences are the subject of a separate proceeding. No one, including defense counsel or this Court, can predict to a certainty the effect of this conviction on your immigration status.
{¶7} With this advisement, the court asked Diol, “Do you wish to go forward with your guilty plea, regardless of any immigration consequences, even if it means automatic removal from the United States and you‘re never able to return?”
{¶8} Before Diol could answer this question, his attorney stated,
Just to be clear, I don‘t believe this would lead to automatic deportation. I believe at worst it possibly could make it discretionary. He tells me he‘s a U.S. citizen. He did show me his card, which tells me he was here for asylum purposes.
{¶9} The court then addressed Diol for a second time,
So I‘m not giving you legal advice. My question is, I‘ve now advised you that if for some reason you‘re not a U.S. citizen – if you are a U.S. citizen I wouldn‘t think it‘s applicable.
If you‘re not, my question still remains that if you aren‘t a U.S. citizen everything I‘ve advisеd you of applies; and my question to you, again, is do you wish to go forward with your guilty plea regardless of any immigration consequences even if it means automatic removal from the United States and you are never able to return?
{¶10} After this question, the following exchange occurred:
Diol: I mean, when I go overseas I have to have my passport. They give me a passport so I can go overseas. I guess I‘m a U.S. citizen.
The Court: Guessing aside, I just want to make sure –
Diol: I‘m a U.S. citizen when I get out of the country --
The Court: My question is, if for some reason you are not a U.S. citizen, you could suffer these consequences that I‘ve just advised you of. If you‘re a U.S. citizen it doesn‘t matter. If you happen tо not be a U.S. citizen, then all of this stuff that I just told you about applies; and my question is, I want to make sure that before you go forward with your guilty plea, you understand that if you‘re not a U.S. citizen you could be excluded from the U.S. My question is do you wish to go forward with your guilty plea regardless of any immigration
Diol: Yes.
{¶11} The court continued with the
{¶12} Approximately six months after he was sentenced, Diol, through new counsel, filed an “Emergency Motion to Vacate Guilty Plea under Padilla v. Kentucky and Lee v. United States,” which requested an evidentiary hearing. In the motion, Diol argued that he should be permitted to withdraw his guilty pleas because his attorney rendered ineffective assistance of counsel when he erroneously advised him that his pleas to marijuana trafficking and possession would not result in mandatory deportation, but rather that deportation was discretionary. Diol claimed that his pleаs to drug trafficking and possession result in mandatory deportation under the law. He attached his affidavit as an exhibit to the motion. In his affidavit, Diol stated that he was a citizen of Mauritania, his attorney advised him that deportation would not be mandatory, and that had he been correctly advised, he would not have pleaded guilty. Diol also attached the plea-hearing transcript as an exhibit to the motion. The state did not file a response.
{¶13} The trial court denied Diol‘s motion without explanation. Three days later, Diol filed a “Motion for Findings of Fact аnd Conclusions of Law.” Approximately one and a half months after Diol filed a timely notice of appeal, the trial court issued an “Entry Denying Motion to Vacate Guilty Plea and Findings of Fact and Conclusions of Law,” and attached a copy of the plea-hearing transcript to
The Plea-Hearing Transcript
{¶14} As an initial matter, the dissent believes we should overrule the assignments of error because Diol‘s plea-hearing transcript was not before the trial court when it ruled on Diol‘s motion.
{¶15} However, while Diol did not file a certified copy of the plea-hearing transcript with the trial court at the time his motion was pending, he filed an uncertified copy of the transcript because it was attached as an exhibit to his motiоn. Subsequently, he filed a certified version of the transcript (which exactly matches the uncertified version), and we know the trial court reviewed and relied on the transcript because it cited to the transcript in its findings of fact and conclusions of law and attached a copy of the (certified) transcript to its findings of fact and conclusions of law. Neither the trial court, nor the state ever raised any concern about the accuracy of the uncertified transcript or any of this process. Accordingly, we find that it is appropriate fоr us to consider the plea-hearing transcript in this
Ineffective Assistance of Counsel
{¶16} Diol argues that the trial court erred by denying his emergency motion to vacate his guilty pleas without holding an evidentiary hearing. Specifically, Diol contends that the trial court‘s advisement that he may be deported did not cure the prejudice from the incorrect advice given by his attorney. Diol further argues that his statement during the plea colloquy that he was a United States citizen does not defeat his claim of ineffective assistance of counsel because the record shows that he was extremely confused about his immigration status. Diol contends that his attorney must have known he was not a citizen because he requested the trial court to advise Diol that he may be deported as the result of his pleas.
{¶17} Diol‘s motion is titled, “Emergency Motion to Vacate Guilty Plea Under Padilla v. Kentucky and Lee v. United States,” and does not cite any rule of criminal procedure under which he is seeking relief. Nevertheless, like the trial court, we will treat his motion to vacate as a motion to withdraw his guilty pleas pursuant to
{¶18}
{¶19} It is well-established that the negotiation and entry of a guilty plea is a “critical stage” of the criminal proceedings and a defendant is entitled to effective assistance of counsel during this critical time. See, e.g., Lee v. United States, __ U.S. __, 137 S.Ct. 1958, 1964, 198 L.Ed.2d 476 (2017); Missouri v. Frye, 566 U.S. 134, 140, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Padilla v. Kentucky, 559 U.S. 356, 373, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). It is further well-established that deportation is a “particularly severe penalty” which may be of greater concern to a non-United States citizen facing criminal charges than “any potential jail sentence.” Session v. Dimaya, __U.S. __, 138 S.Ct. 1204, 1213, 200 L.Ed.2d 549 (2018), citing Jae Lee v. United States, __ U.S. __, 137 S.Ct. 1958, 1968, 198 L.Ed.2d 476 (2017); see Padilla at 366.
{¶20} The due-process protections afforded by
{¶21} In Padilla, the United States Supreme Court held that defense counsel‘s representation is constitutionally deficient under Strickland when it can be easily determined from reading the removal statute that deportation is presumptively mandatory for the offense to which his client pleaded guilty and counsel provided incorrect advice in this regard. Padilla at 368-369. The Court said,
[w]hen the law is not succinct and straightforward * * *, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear * * * the duty to give correct advice is equally clear.
Id. at 369. The Court did not determine whether Padilla was prejudiced, but rather left it to the lower courts to decide whether Padilla‘s “decision to reject the plea bargain would have been rational under the circumstances.” Id. at 372, citing Roe v. Flores-Ortega, 528 U.S. 470, 480 and 486, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).
{¶22} Lee, __ U.S. __, 137 S.Ct. 1958, 198 L.Ed.2d 476, dealt with the prejudice analysis after a court determines that defense counsel has rendered deficient performance under Padilla. At an evidentiary hearing on Lee‘s motion to
{¶23} In Lee, the government argued that it would have been irrational for Lee to have rejected the plea offer and proceed to trial because he had no viable defense. Id. at 1966 and 1968. The government asserted that going to trial would only result in a longer sentence before the inevitable consequence of deportation. Id. at 1968. The United States Supreme Court disagreed, and held that “[n]ot everyone in Lee‘s position wоuld make the choice to reject the plea. But we cannot say it would be irrational to do so.” Id. at 1969. The Court stated that because deportation is always a particularly severe penalty, preserving the client‘s right to remain in the United States may be more important to the client than any potential jail sentence. Id. at 1968, quoting Padilla at 368. Lee claimed that if he had been properly advised that deportation was mandatory, he would have rejected the plea offer “in favor of throwing a ‘Hail Mary’ at trial.” Lee at 1967. The Court found that “[i]n the unusual circumstancеs of this case, we conclude that Lee has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation.” Id. at 1967.
{¶24} Diol claims that the law is clear that deportation is mandatory in his case. He points to
[a]ny alien who * * * has been convicted of a violation of * * * any law * * * relating to a controlled substance * * * other than a single offense involving possession for one‘s own use of 30 grams or less of marijuana, is deportable.
{¶25} The state takes issue with Diol‘s assertion that deportation is mandatory and argues that the Attorney General has the authority to “cancel” Diol‘s removal pursuant to
{¶26} In Padilla, the United States Supreme Court held that
{¶27} It is also clear from the record that Diol‘s attorney gave him incorrect advice when he advised him during the plea hearing, “I don‘t believe this would lead to automatic deportation. I believe at worst it possibly could make it discretionary.”
{¶28} The state contends that because Diol represented to the trial court during the plea colloquy that he was a United States citizen, he cannot show that his attorney had any duty to advise him of the immigration consequences of his guilty plea. However, the record is clear that his attorney had some doubt if Diol was a
{¶29} The state contends that even if Diol‘s attorney had a duty to advise him of the immigration consequences of his guilty pleas, the trial court‘s advisement pursuant to
If you are not a citizen of the United States, you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) 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.
{¶30} Because the statutory advisement states only that the defendant may be deported, this advisement does not cure any dеficient performance by counsel, as recently confirmed by the Ohio Supreme Court. See State v. Romero, Slip Opinion No. 2019-Ohio-1839, ¶ 20 (“The advisement in
{¶32} In Diol‘s case, the trial court did not state unequivocally that Diol would be deported. Asking Diol if he still wished to plead guilty ”even if” it meant automatic deportation did not correct the misadvice given by Diol‘s counsel that deportation was discretionary. The trial court‘s admonishment “did not provide the degree of accuracy concerning immigration consequences that Padilla demands when, as here, federal immigration law plainly mandates deportation.” Kostyuchenko, 2014-Ohio-324, 8 N.E.3d 353, at ¶ 15, citing Padilla, 559 U.S. at 364, 130 S.Ct. 1473, 176 L.Ed.2d 284.
Evidentiary Hearing
{¶33} The state contends that Diol is not entitled to an evidentiary hearing because he did not make a prima facie showing of merit.
{¶34} The state claims that although Diol stated in his affidavit that he was a citizen of Mauritania, he failed to state that he is not a United States citizen. The state also claims that becаuse Diol did not include an affidavit from trial counsel,
{¶35} A trial court is not automatically required to hold an evidentiary hearing regarding a defendant‘s motion to withdraw a guilty plea, and a trial court‘s decision not to hold an evidentiary hearing will be reversed only upon a finding of an abuse of discretion. State v. Williams, 10th Dist. Franklin No. 03AP-1214, 2004-Ohio-6123, ¶ 6. An abuse of discretion requires more than an error of law or judgment, but that the court acted unreasonably, arbitrarily, or unconscionably. Id. But, a hearing is required “if the facts as alleged by the defendant and accepted as true would require the court to permit the guilty plea to be withdrawn.” Id.
{¶36} It is indisputable that deportation is presumptively mandatory in this case if Diol is not a United States citizen. Although the record indicates that both Diol and his defense counsel were confused as to the status of Diol‘s citizenship during the plea hearing, Diol‘s affidavit, which was attached to his motion to withdraw his pleas, clearly states that he is a citizen of Mauritania. At oral argument, the state contended that because Diol did not state in his affidavit that he was not a United States citizen, he might be a dual citizen of both the United States and Mauritania. While Diol‘s affidavit could be clearer, it can certainly be read to allege that he is not a United States citizen.
{¶37} In his affidavit, Diol asserted that his defense counsel failed to inform him of the immigration consequences for pleading guilty on the drug charges, and that if he had known that deportation was a mandatory consequence of such pleas, he would not have pleaded guilty. The state claims that this affidavit is “self-
{¶38} But, Diol‘s affidavit does not stand alone. The transcript of the plea hearing not only indicates that defense counsel was uncertain of Diol‘s immigration status and the immigration consequences flowing from the guilty pleas, but he also misadvised Diol about the immigration consequences for guilty pleas to the drug-trafficking and possession charges.
{¶39} Defense counsel attempted to cure the deficiency with the statutory warning by the court. Nevertheless, as we have held, the trial court‘s statutory warning did not correct the misadvice given by Diol‘s counsel that deportation was discretionary.
{¶40} In sum, Diol has alleged facts, which if accepted as true, would require the court to permit the guilty pleas to be withdrawn. The trial court thus abused its discretion in failing to hold an evidentiary hearing in this case.
{¶41} The fact that trial counsel misadvised Diol about the deportation consequences of convictions to marijuana trafficking and possession is clear from the record, and satisfies the first prong of Strickland. Howеver, the evidentiary hearing can clarify whether Diol is a United States citizen and whether but for his attorney‘s misadvice, he would have pleaded not guilty and insisted on going to trial.
{¶42} The recent Ohio Supreme Court case, Romero, Slip Opinion No. 2019-Ohio-1839, holds that “In assessing whether it would be rational for a defendant to go to trial instead of pleading guilty, the court should consider the totality of the circumstances.” The Romero case lays out certain factors that trial courts should consider in evaluating prejudice such as the consequences of going to trial, the
Conclusion
{¶43} For the foregoing reasons, Diol‘s assignments of error are sustained, and the judgment of the trial court denying his motion to withdraw his pleas is reversed. The cause is remanded to the trial court to conduct an evidentiary hearing on Diol‘s motion to withdraw his guilty pleas consistent with this opinion.
Judgment reversed and cause remanded.
BERGERON, P.J., concurs.
WINKLER, J., dissents.
STATE OF OHIO, Plaintiff-Appellee, vs. MOHAMED DIOL, Defendant-Appellant.
APPEAL NO. C-180249
OHIO FIRST DISTRICT COURT OF APPEALS
{¶44} I respectfully dissent. I would overrule the assignments of error and affirm the common pleas court‘s decision overruling Diol‘s
{¶45} On that motion, Diol bore the burden of demonstrating that counsel had been сonstitutionally deficient in advising him concerning the removal consequences of his convictions upon his pleas, and that this deficiency in counsel‘s
{¶46} A photocopy of the plea-hearing transcript was attached to the motion. That attachment, lacking proper certification, was not self-authenticating for purposes of the common pleas court‘s decision on the motion. See
{¶47} On March 26, 2018, the common pleas court entered judgment overruling the motion. From that entry, Diol filed this appeal, and on April 27, 2018, he caused to be filed with this court an
{¶48} On June 11, 2018, the common pleas court issued a second “Entry Denying Motion to Vacate Guilty Plea * * *,” and this time the court, although not required to do so, included findings of fact and conclusions of law. But the March 2018 entry overruling the motion was, without findings of fact and conclusions of law, a final appealable order. And the March 2018 entry, along with this appeal from that entry, divested the common pleas court of jurisdiction to decide the motion and vested jurisdiction in this court to review the common pleas court‘s decision. Thus, the June
{¶49} The
{¶50} But the Ohio Supreme Court has declared, as “a bedrock principle of appellate practice in Ohio,” that an appeals court is limited to the record of the proceedings resulting in the judgment appealed. Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13; see Valdez, 1st Dist. Hamilton No. C-160437, 2017-Ohio-4260, at ¶ 20. And upon that principle, the court has long held that “[a] reviewing court cannot add matter to the record before it, which [matter] was not a part of the trial court‘s proceedings, and then decide the appeal on the
{¶51} The
Please note:
The court has recorded its own entry on the date of the release of this opinion.