State v. RomeroState v. Romero
Dated: March 9, 2011
WHITMORE, Judge.
{¶1} Defendant-Appellant, Jose Romero, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms.
I
{¶2} Romero was indicted in three separate cases in 2005, 2006, and 2009, respectively. In Case No. 2005-01-0262, Romero was charged with nonsupport of dependents, in violation of
{¶3} The trial court appointed an interpreter for Romero, and he ultimately decided to plead guilty. On April 1, 2010, the trial court held a plea hearing and the parties filed a written plea of guilt. In exchange for Romero pleading guilty to failure to appear and one count of nonsupport in Case No. 2005-01-0262, the State dismissed Case No. 2009-03-0740 and the remaining nonsupport count in Case No. 2006-04-1475. On April 28, 2010, the trial court sentenced Romero to a total of sixty days in jail and a suspended prison sentence.
{¶4} On April 30, 2010, Romero filed a pro se motion to withdraw his guilty pleas. The trial court denied Romero’s motion on May 4, 2010, and Romero appealed from the court’s judgment. This Court appointed Romero appellate counsel upon the motion of the attorney who filed his notice of appeal.
{¶5} On September 29, 2010, Romero’s appointed counsel filed a brief pursuant to Anders v. California (1967), 386 U.S. 738, and requested permission to withdraw as Romero’s counsel. Romero did not respond to his counsel’s Anders Brief or request to withdraw as counsel, and the State did not file a brief on its own behalf.
II
{¶6} Romero’s counsel raises one assignment of error in which he alleges that the trial court erred by not granting Romero’s motion to withdraw his plea on the basis that he was not fully advised of his rights. The assignment of error also alleges that Romero’s trial counsel was ineffective because he failed to fully advise Romero of his rights. Romero’s appellate counsel asserts, however, that the record does not contain a meritorious claim for appeal. Upon a review of the record, we agree with Romero’s counsel that no meritorious claim exists.
“Pursuant to
Crim.R. 32.1 , a motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea. In a post-sentence motion, the burden of establishing the existence of a manifest injustice is upon the individual seeking to withdraw the plea. A manifest injustice has been defined as a clear or openly unjust act. Under the manifest injustice standard, a post-sentence withdrawal motion is allowable only in extraordinary cases.” (Internal citations and quotations omitted.) State v. Brown, 9th Dist. No. 24831, 2010-Ohio-2328, at ¶9.
This Court reviews a trial court’s determination that a defendant failed to demonstrate a manifest injustice for an abuse of discretion. Id. at ¶8.
{¶7} To prove an ineffective assistance claim, a defendant must show that: (1) counsel’s performance was deficient to the extent that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) “the deficient performance prejudiced the defense.” Strickland v. Washington (1984), 466 U.S. 668, 687. To demonstrate prejudice, “defendant must demonstrate that there is a reasonable probability that, but for his counsel’s error, he would not have pleaded guilty and would have insisted on going to trial.” State v. Evans, 9th Dist. No. 09CA0049-M, 2010-Ohio-3545, at ¶4.
{¶8} Romero sought to withdraw his guilty plea on the basis that he did not have an interpreter present at all times, his attorney was more concerned with his “political aspirations” than Romero’s case, and his attorney misled him into believing that there would be no consequences to his pleading guilty because his deportation was imminent. Neither Romero, nor his appellate counsel, cited to any portion of the record in support of the foregoing arguments. We separately address the arguments regarding Romero’s interpreter and his attorney.
{¶9} The record reflects that Romero had an interpreter with him during the entire plea hearing. The trial court gave Romero’s interpreter time to interpret and specifically instructed the interpreter to “[m]ake sure [he] interpret[ed] everything that’s said in the courtroom here
{¶10} The record does not support Romero’s assertion that the court erred by accepting his plea because he did not have an interpreter present at all times. Romero’s interpreter was with him the day before the plea hearing as well as during the plea proceedings, and Romero himself admitted that he had felt comfortable speaking with his attorney in the absence of an interpreter in other pre-hearing meetings. “[T]here is nothing in the record to demonstrate that anything other than a meaningful discussion through the interpreter occurred.” State v. Liu, 9th Dist. No. 24112, 2008-Ohio-6793, at ¶20. Thus, the trial court did not err by refusing to allow Romero to withdraw his plea on the basis that he did not have an interpreter present at all times.
{¶11} The next issue is whether Romero was fully advised of his rights before the trial court accepted his plea. “[I]n order to ensure that each plea received by a trial court is knowingly and intelligently made, a trial court must engage in an oral dialogue with the
“(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
“(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
“(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.”
Crim.R. 11(C)(2)(a) -(c).
“A substantial-compliance standard of scrutiny determines whether the trial court gave the proper advisement regarding immigration consequences pursuant to
{¶12} The record reflects that the trial court advised Romero of his
{¶13} Upon reviewing the record, we conclude that the trial court did not err by denying Romero’s motion to withdraw his plea. Romero had the aid of an interpreter and was fully advised of his rights. See, e.g., Gegia at ¶15-16. Moreover, because the record supports the conclusion that Romero was fully advised of his rights, we also reject counsel’s additional argument that Romero’s trial counsel was ineffective because he failed to fully advise Romero of his rights. The record does not support Romero’s assertions that he was somehow misled into believing that his pleas did not have any consequences and that his attorney was only concerned with his “political aspirations.” The court properly denied Romero’s motion to withdraw his plea.
{¶14} Apart from the assignment of error proposed by Romero’s counsel, this Court has conducted a full, independent examination of the proceedings in accordance with Anders. We conclude that there are no appealable issues in this case. Romero’s appeal is without merit and frivolous under Anders.
III
{¶15} The judgment of the Summit County Court of Common Pleas is affirmed. Appellate counsel’s motion to withdraw as counsel is hereby granted.
Judgment affirmed.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
CARR, J.
BELFANCE, P. J.
CONCUR
APPEARANCES:
BRENDON J. KOHRS, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.