STATE OF OHIO, Appellee, - vs - ALEXIS RAMIREZ, Appellant.
CASE NO. CA2018-12-233
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
7/29/2019
2019-Ohio-3050
S. POWELL, P.J.; PIPER and M. POWELL, JJ., concur.
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2010-03-0542. Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, for appellee. Jazmin E. Harris, for appellant.
S. POWELL, P.J.
{¶ 1} Appellant, Alexis Ramirez, appeals the decision of the Butler County Court of Common Pleas denying his motion to withdraw his no contest plea to single counts of aggravated burglary, aggravated robbery, felonious assault, and tampering with evidence, as well as two counts of kidnapping, and three counts of rape. For the reasons outlined below, we affirm the trial court‘s decision.
{¶ 2} On April 28, 2010, the Butler County Grand Jury returned an indictment charging Ramirez with the nine above-named offenses. The charges arose after Ramirez knocked on the door to the 64-year-old victim‘s home and demanded she give him money. Ramirez, who at that time was heavily intoxicated and allegedly high on marijuana, was holding a black pellet gun with a t-shirt covering his face. When the victim told Ramirez she did not have any money to give him, Ramirez forced his way into the victim‘s home and ordered the victim to take off her clothes. The victim refused. Ramirez then struck the victim in the head with the pellet gun. This blow to the victim‘s head resulted in the victim suffering a laceration to her head that required several staples to close.
{¶ 3} After striking the victim in the head, Ramirez again demanded the victim take off her clothes. Unsure of what Ramirez would do if she refused for a second time, the victim relented to Ramirez‘s demands and took off her clothes. Ramirez then raped the victim in various rooms throughout the victim‘s home both orally and vaginally. These rapes lasted over an hour and caused the victim to sustain significant injuries to her person. After raping the victim multiple times, Ramirez then ordered the victim drive him to a nearby ATM. While en route to the ATM, Ramirez demanded the victim to let him drive. The victim refused. Ramirez then swung the car door open, grabbed the victim‘s purse, and fled on foot. There is no dispute that Ramirez was just 14 years old at the time the offenses occurred. There is also no dispute that Ramirez is not a United States citizen.1
{¶ 4} On August 20, 2010, the parties appeared before the trial court for a change of plea hearing. As part of this hearing, Ramirez notified the trial court he wanted to withdraw his plea of not guilty by reason of insanity and enter a plea of no contest to all nine
{¶ 5} Upon being so advised, the trial court asked Ramirez if he understood the advisement and the implications of what may occur if he entered a no contest plea. Ramirez responded that he understood that he “could get deported for what [he had] done” and that he “could not be a citizen and try to come back.” Following this exchange, the trial court engaged Ramirez in the necessary
{¶ 6} On October 8, 2010, the trial court held a sentencing hearing. As part of this hearing, the trial court notified Ramirez that it was its “understanding” that he would be deported following his release from prison. There is nothing in the record to indicate this came as a surprise to Ramirez or that Ramirez had not previously been advised by his trial counsel of the immigration consequences resulting from his conviction. This includes the fact that Ramirez would be deported upon his release from prison. Rather, when asked if he understood that he would be deported upon his release, as well as if he understood the
{¶ 7} Following this exchange, the trial court heard from Ramirez‘s trial counsel in mitigation. As part of mitigation, Ramirez‘s trial counsel argued the trial court should impose a comparatively lighter sentence on Ramirez, an undocumented immigrant who would be deported following his release from prison, when considering the significant costs to house an inmate within the state penitentiary system. Specifically, Ramirez‘s trial counsel stated that “[w]hen this case all started the sheriff of this county placed a holder on [Ramirez] and notified the immigration authorities, and I don‘t think there‘s a question that whatever sentence he gets, at the very end of this, he is going to be deported to Mexico.” Ramirez‘s trial counsel also stated that “[Ramirez] will never legally be allowed back into this country again.” There is again nothing in the record to indicate this came as a surprise to Ramirez or that Ramirez had not previously been advised by his trial counsel of the immigration consequences resulting from his conviction. This, once again, includes the fact that Ramirez would be deported upon his release from prison.
{¶ 8} Ramirez‘s trial counsel also argued that a lighter sentence should be imposed due to Ramirez‘s young age, immaturity, and below average intelligence. This was in addition to Ramirez‘s lack of insight and judgment, apparent inability to control his impulses, and heavy intoxication at the time the offenses occurred. Ramirez‘s trial counsel also noted that he had recently been appointed trial counsel in several other cases that carried less significant sentences than what Ramirez faced in this case. This included a case where his client was alleged to have murdered the victim by beating the victim with a baseball bat. Concluding, Ramirez‘s trial counsel argued that Ramirez was not “evil,” “that‘s not who he is,” but that Ramirez was instead just a “little kid, and that‘s the way I look at him.”
{¶ 9} Following mitigation, the trial court provided Ramirez with his right to allocution. As part of allocution, Ramirez informed the trial court that he knew society looked
{¶ 10} After Ramirez exercised his right to allocution, the trial court addressed Ramirez personally and notified him that this case had been very difficult when considering “victim and the victim‘s family have been through a terrible, unspeakable incident.” Shortly thereafter, and upon noting that it had considered the necessary sentencing statutes, the trial court sentenced Ramirez to a mandatory 28-year prison term. The trial court also notified Ramirez that he “will be deported” upon his release from prison. Just as before, there is nothing in the record to indicate this came as a surprise to Ramirez or that he had not previously been advised by his trial counsel of the immigration consequences resulting from his conviction. This, as noted above, includes the fact that Ramirez would be deported upon his release from prison.
{¶ 11} On October 19, 2010, the trial court issued a sentencing entry setting forth its decision sentencing Ramirez to a mandatory 28-year prison term. As part of its sentencing entry, the trial court specifically stated that “[u]pon completion of sentence defendant is to be deported.”
{¶ 12} On November 8, 2010, Ramirez appealed his conviction and sentence to this court. On appeal, Ramirez did not argue that his plea was defective due to his trial counsel‘s alleged failure to advise him that he would be deported if the trial court accepted his no
{¶ 13} On July 26, 2013, the trial court held a resentencing hearing. The record on appeal does not contain a transcript of this hearing. The record nevertheless establishes that the trial court resentenced Ramirez to the same mandatory 28-year prison term. Approximately two weeks later, on August 12, 2013, the trial court issued a resentencing entry. This resentencing entry, just as the trial court‘s original sentencing entry, also specifically stated that “[u]pon completion of sentence defendant is to be deported.” Ramirez did not appeal from the trial court‘s resentencing decision.
{¶ 14} On June 23, 2017, six years ten months and three days after Ramirez entered his no contest plea, Ramirez moved to withdraw his plea in accordance with
{¶ 15} Ramirez supported his motion to withdraw by alleging his trial counsel provided him with ineffective assistance by failing to advise him of the immigration consequences he faced by entering a no contest plea. This, as Ramirez alleged, included the fact that he would be deported upon his release from prison if the trial court accepted his no contest plea and found him guilty. As part of his motion, Ramirez claimed his arguments were supported by a memorandum in support and an affidavit executed by his mother. However, while a memorandum in support was attached, there was no affidavit executed by Ramirez‘s mother (or anybody else) attached to the motion. There can be no dispute that the affidavit executed by Ramirez‘s mother was never made a part of the record before the trial court or with this court on appeal.
{¶ 16} Ramirez‘s arguments advanced in his motion to withdraw were based primarily on the United States Supreme Court‘s decision in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473 (2010). In Padilla, the Supreme Court held that the Sixth Amendment imposes upon a defendant‘s trial counsel, in negotiating a guilty or no contest plea, the duty to accurately advise a noncitizen client concerning the immigration consequences of the plea. Id. at 364. “Counsel breaches this duty by either providing affirmative misadvice about immigration consequences or by not providing any advice at all when advice is warranted.” State v. Tapia-Cortes, 12th Dist. No. CA2016-02-031, 2016-Ohio-8101, ¶ 14, citing id. at 370-371, 374. Therefore, when the immigration consequences can easily be determined from reading the removal statute, and the deportation consequence is “truly clear,” the Supreme Court found “the duty to give correct advice is equally clear.” Padilla at 369.
{¶ 17} On November 30, 2018, the trial court issued a decision denying Ramirez‘s motion to withdraw his no contest plea. In so holding, the trial court stated:
The Defendant claims the manifest injustice in this case by a bald assertion of ineffective assistance of counsel. There is no affidavit or reference to new evidence or information to support the argument that defense counsel was ineffective. There is no evidence to support the argument that the Defendant did not comprehend the consequences of a conviction on this case on the [Defendant‘s] residency status, deportation and exclusion from the United States at the time of the plea or sentencing.
The trial court concluded by finding Ramirez had failed to meet his burden of proof under
Appeal
{¶ 18} Ramirez now appeals the trial court‘s decision, raising two assignments of error for review. In each of his two assignments of error, Ramirez argues the trial court erred by denying his motion to withdraw his no contest plea upon finding Ramirez failed to establish that a manifest injustice had occurred.2 Raising the same general arguments he advanced before the trial court, Ramirez supports his claim by relying on the United States Supreme Court‘s decision in Padilla. After a full and thorough review of the record, we find no merit to any of Ramirez‘s claims raised herein.3 That is to say we find the trial court‘s decision to deny Ramirez‘s motion to withdraw was not unreasonable, arbitrary, or
Standard of Review
{¶ 19} The decision to grant or deny a motion to withdraw a guilty or no contest plea is within the trial court‘s sound discretion. State v. Carter, 12th Dist. Clinton Nos. CA2010-07-012 and CA2010-08-016, 2011-Ohio-414, ¶ 16. This court reviews a trial court‘s decision to deny a motion to withdraw a plea brought under
Analysis
{¶ 20} As noted above, relying primarily on the Supreme Court‘s decision in Padilla, Ramirez argues his trial counsel provided him with ineffective assistance by not advising him of the immigration consequences he faced by entering a no contest plea. This, as stated previously, includes the fact that Ramirez would be deported upon his release from prison if the trial court accepted his no contest plea and found him guilty. We find no merit to Ramirez‘s claims.
{¶ 21} Ineffective assistance of counsel is a proper basis for seeking a post-sentence withdrawal of a plea. State v. Taveras, 12th Dist. Warren No. CA2016-06-054, 2017-Ohio-1496, ¶ 17. When an alleged error underlying a motion to withdraw is ineffective assistance of counsel, the defendant must show (1) that his counsel‘s performance was deficient and (2) that there is a reasonable probability that, but for counsel‘s errors, he would not have entered his or her plea. State v. Guerrero, 12th Dist. Butler No. CA2010-09-231, 2011-Ohio-6530, ¶ 5, citing Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). “The proponent of an ineffective assistance claim must establish both elements to warrant relief.” State v. Robinson, 12th Dist. Butler No. CA2014-12-256, 2015-Ohio-4649, ¶ 48. Therefore, rather than focusing on whether a defendant entered his plea knowingly, intelligently, and voluntarily, when “the defendant asserts a claim of ineffective assistance of counsel, the court must focus on counsel‘s deficient performance and the prejudice arising from that deficiency.” (Emphasis omitted.) State v. Romero, Slip Opinion No. 2019-Ohio-1839, ¶ 18. This requires the court to “determine whether the totality of circumstances supports a finding that counsel‘s performance was deficient, and if so, whether the deficient performance was prejudicial to the defendant.” Id. at ¶ 34.
{¶ 22} Before addressing Ramirez‘s claims under Padilla, we note that Ramirez also argues his trial counsel provided him ineffective assistance since his trial counsel “virtually did nothing, just pled [him] to the indictment.” However, contrary to Ramirez‘s claim, the record indicates his trial counsel did much more than just plead him to the indictment. Ramirez‘s trial counsel filed a demand for discovery, a request for a bill of particulars, a motion for an evaluation of Ramirez‘s competency to stand trial, a written plea of not guilty by reason of insanity, and a motion for continuance so that his trial counsel could have more time to review the competency report finding Ramirez competent to stand trial. This hardly constitutes doing “virtually nothing” as Ramirez suggests.
{¶ 23} The record indicates Ramirez‘s trial counsel also vigorously defended Ramirez‘s interests at the competency hearing, as well as at both the change of plea and
{¶ 24} Ramirez himself even acknowledged that he was satisfied with his trial counsel‘s performance prior to entering his no contest plea. Specifically, as Ramirez stated at the change of plea hearing:
THE COURT: Did you go over these plea forms with [your trial counsel]?
THE DEFENDANT: Yes, sir.
THE COURT: And have you been satisfied with the advice and counsel [your trial counsel] has given you?
THE DEFENDANT: Yes, sir.
THE COURT: Did you and [your trial counsel] have enough time to discuss your plea this morning?
THE DEFENDANT: We did.
THE COURT: Did you and [your trial counsel] have enough time to go over each one of these charges and how much time you might be facing – how much incarceration and other penalties you may be facing if you plead no contest?
THE DEFENDANT: Yes, sir.
THE COURT: And [trial counsel] has answered all of your questions?
THE DEFENDANT: All of them.
Therefore, even with just a modest review of the record, Ramirez‘s claim that his trial counsel “virtually did nothing, just pled [him] to the indictment” is incorrect and not supported
{¶ 25} The same is true regarding Ramirez‘s claim that his trial counsel engaged in professional misconduct by exhibiting a “lack of empathy and care” for Ramirez as a 15-year-old child facing a significant 83-year prison sentence. However, based on Rule 1.3 of the
{¶ 26} Turning now to Ramirez‘s claims under Padilla, as noted above, Ramirez argues his trial counsel was ineffective for not advising him that he would be deported if the trial court accepted his no contest plea and found him guilty, “no ifs or buts.” Ramirez supports this claim by making the bold and bare assertion that the mere fact he pled no contest “to the charges that he did is irrefutable proof that his attorney failed to research the immigration law as he was required to do under Padilla v. Kentucky.” Therefore, based solely on the fact that he entered a no contest plea, Ramirez claims that it is “clear” his trial counsel failed to research and advise him – as his youthful, “profoundly disturbed,” non-citizen client – of the immigration consequences he faced by entering a no contest plea. We disagree.
{¶ 27} Under the first prong of Strickland, it must first be determined whether
{¶ 28} We acknowledge that there may be some question as to whether Ramirez‘s trial counsel merely advised Ramirez that he could be deported upon his release from prison rather than the fact that he would be deported. But, when reviewing the record in its entirety, we find it more likely that Ramirez‘s trial counsel properly advised Ramirez of the immigration consequences he faced should he enter a no contest plea; namely, that he would be deported upon his release from prison. This includes the exchanges between Ramirez, Ramirez‘s trial counsel, and the trial court at both the change of plea and sentencing hearings. This is most telling when reviewing Ramirez‘s trial counsel‘s statements at sentencing, wherein Ramirez‘s trial counsel stated during mitigation not only that “[w]hen this case all started the sheriff of this county placed a holder on [Ramirez] and notified the immigration authorities, and I don‘t think there‘s a question that whatever
{¶ 29} But, rather than relying on speculation and conjecture on our part, we instead defer back to the burden of proof as set forth by
{¶ 30} In so holding, we note that even if Ramirez had provided evidence indicating his trial counsel was somehow deficient, which he did not, Ramirez failed to establish any resulting prejudice therefrom. Under the second prong of Strickland, Ramirez must show prejudice by establishing that “‘there [was] a reasonable probability that, but for counsel‘s
{¶ 31} In this case, the record plainly establishes that the trial court complied with the statutory requirements set forth in
{¶ 32} This holding is further supported by the fact Ramirez waited nearly seven years after he entered his no contest before filing his motion to withdraw. “‘An undue delay between the occurrence of the alleged cause for withdrawal of a guilty [or no contest] plea and the filing of a motion under
{¶ 33} What this court finds most significant, however, are Ramirez‘s statements made to the trial court during allocution. This includes Ramirez‘s statement that he knew society looked at him “as a monster and they have every right to,” but that he nevertheless wanted the victim and the victim‘s family “to sleep at night knowing that I got what I deserved.” Ramirez also informed the trial court that he knew he “really hurt” the victim, that he “did something terrible to an innocent lady,” and that he did not blame anybody else for what he did. Ramirez further admitted that he “did it,” that he could not live with himself, that he was “really stupid,” and ashamed of his actions. This was in addition to Ramirez‘s statements that he was sorry for making such a terrible mistake, that he hated himself, and that he did not know how to live anymore, that he was “guilty,” and that he would serve
{¶ 34} When considering these statements, it is clear that Ramirez fell on the mercy of the trial court knowing that he faced a maximum 83-year prison sentence that would have almost certainly guaranteed he would spend the rest of his life in prison. Even when focusing on this issue from Ramirez‘s perspective, the fact that Ramirez would be deported following his release from prison had little, if any, impact on his decision to enter a plea of no contest. This becomes even more apparent when considering the record is devoid of any evidence to indicate Ramirez was surprised when the trial court specifically informed him at the sentencing hearing that he would be deported following his release from prison. Had that been the case, Ramirez could have easily raised the issue with either his trial counsel or the trial court prior to the trial court issuing its sentencing decision. Ramirez, however, did neither.
{¶ 35} Rather than raising the issue with the trial court prior to the trial court issuing its sentencing decision, or with this court on appeal, Ramirez instead waited nearly seven years after he entered his no contest plea before filing his motion to withdraw. For Ramirez to now claim he would have not entered a no contest plea appears disingenuous and falls well short of what could be considered a “manifest injustice” for purposes of satisfying
Conclusion
{¶ 36} The trial court did not err by denying Ramirez‘s motion to withdraw his no contest plea upon finding he failed to establish a manifest injustice as required by
{¶ 37} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.