STATE OF OHIO, Plaintiff-Appellee -vs- CARLOS ROMERO, Defendant-Appellant
Case No. 2016CA00201
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
May 22, 2017
2017-Ohio-2950
Hon. W. Scott Gwin, P.J.; Hon. Craig R. Baldwin, J.; Hon. Earle E. Wise, Jr., J.
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2016CR0331. JUDGMENT: Reversed and Remanded.
For Plaintiff-Appellee
JOHN D. FERRERO STARK COUNTY PROSECUTOR BY: RONALD MARK CALDWELL 110 Central Plaza South, Ste. 510 Canton, OH 44702-1413
For Defendant-Appellant
KIM ALABASI 5368 St. Clair Cleveland, OH 44103
O P I N I O N
{¶1} Appellant Carlos Romero [“Romero“] appeals the October 21, 2016 decision from the Stark County Court of Common Pleas that denied his post-sentence motion to withdraw his negotiated guilty plea. The appellee is the State of Ohio.
Facts and Procedural History
{¶2} Romero is a 50 year-old man born in Honduras. Romero married a United States citizen in 1995 and legally obtained his permanent residence or “green card” status on April 1, 1998.
{¶3} On March 21, 2016, the Stark County Grand Jury returned an indictment that charged Romero with: 1). possession of marijuana in violation of
{¶4} On June 1, 2016, Romero appeared with counsel and entered guilty pleas to the charges set forth in the indictment. Sentencing was deferred until June 29, 2016 pending the completion of a pre-sentence investigation report1. Romero was sentenced by Judgment Entry filed July 6, 2016 to community control sanctions (intensive supervised probation) for a period of three years. In addition to this sentence, Romero was ordered to perform 100 hours of community service, and his driver‘s license was suspended for six months.
Assignment of Error
{¶6} “I. THE TRIAL COURT ERRED IN DENYING DEFENDANT‘S MOTION TO WITHDRAW PLEA AND VACATE CONVICTION PURSUANT TO OHIO RULE 32.1.”
Law and Analysis
{¶7} The entry of a plea of guilty is a grave decision by an accused to dispense with a trial and allow the state to obtain a conviction without following the otherwise difficult process of proving his guilt beyond a reasonable doubt. See Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473(1962). A plea of guilty constitutes a complete admission of guilt.
Withdraw of Guilty plea Crim.R. 32.1.
{¶8}
{¶9} “A motion made pursuant to
Withdraw of Guilty plea for non-citizen.
{¶10} However, “[c]riminal defendants who are not United States citizens are permitted to withdraw a guilty plea in two distinct ways: (1) upon the finding that they were not given the warning required by
{¶11}
Appellate Review.
{¶12} However, regardless of whether the motion to withdraw the guilty plea is based on
Ineffective Assistance as a Ground for Withdrawing a Guilty Plea.
{¶13} In his motion, Romero alleged ineffective assistance of counsel as a ground for withdrawing his guilty pleas.
{¶14} A claim of ineffective assistance of counsel requires a two-prong analysis. The first inquiry is whether counsel‘s performance fell below an objective standard of reasonable representation involving a substantial violation of any of defense counsel‘s essential duties to appellant. The second prong is whether the appellant was prejudiced by counsel‘s ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).
{¶15} In order to warrant a finding that trial counsel was ineffective, the petitioner must meet both the deficient performance and prejudice prongs of Strickland and Bradley. Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251(2009); Accord, Buck v. Davis, 137 S.Ct. 759, 775 (U.S. Feb. 22, 2017).
Attorney‘s duty to a non-citizen client.
{¶16} A defense attorney has a duty to advise a noncitizen client that, “pending criminal charges may carry a risk of adverse immigration consequences,” and, if it is “truly
{¶17} In Padilla the Court explained the importance of a defendant understanding his or her potential for deportation,
Finally, informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties. As in this case, a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction. Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of
deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does.
559 U.S. at 373, 130 S.Ct. 1473, 176 L.Ed.2d 284.
{¶18} Further, in Padilla, the Supreme Court rejected the government‘s proposition that Strickland should apply only “to the extent that [Padilla] ha[d] alleged affirmative misadvice.” Id. at 369, 130 S.Ct. 1473. The court agreed with Padilla that “there is no relevant difference ‘between an act of commission and an act of omission’ in this context.” Id. at 370, 130 S.Ct. 1473, quoting brief of respondent, 30. See also Strickland at 690, 104 S.Ct. 2052; State v. Ayesta, 8th Dist. No. 101383, 2015-Ohio-1695, 2015 WL 2091679, ¶ 15 (noting that counsel breaches its duty under Padilla “by either providing affirmative misadvice about immigration consequences, or by not providing any advice at all when advice is warranted“). The Padilla court observed that “[a] holding limited to affirmative misadvice would invite” the following two absurd results: (1) “it would give counsel an incentive to remain silent on matters of great importance, even when answers are readily available,” and (2) “it would deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available.” Id. at 370–71, 130 S.Ct. 1473
{¶19} Indeed, “[w]hen attorneys know that their clients face possible exile from this country and separation from their families, they should not be encouraged to say nothing at all.” Id. at 370, 130 S.Ct. 1473. The court further noted that “‘“[p]reserving the
{¶20} Padilla concerned a noncitizen defendant who pled guilty to the charge of drug distribution, a deportable offense under
{¶21} In Padilla, the Court gave a brief history of immigration law. The Court noted,
[F]rom 1917 forward, there was no such creature as an automatically deportable offense. Even as the class of deportable offenses expanded,
judges retained discretion to ameliorate unjust results on case-by-case bases.
559 U.S. at 362, 130 S.Ct. 1473. However, this procedure known as a judicial recommendation against deportation, or JRAD is no longer part of our law. The Court explained,
Congress first circumscribed the JRAD provision in the 1952 Immigration and Nationality Act (INA), and in 1990 Congress entirely eliminated it, 104 Stat. 5050. In 1996, Congress also eliminated the Attorney General‘s authority to grant discretionary relief from deportation, 110 Stat. 3009–596, an authority that had been exercised to prevent the deportation of over 10,000 noncitizens during the 5-year period prior to 1996, INS v. St. Cyr, 533 U.S. 289, 296, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Under contemporary law, if a noncitizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses. See
8 U.S.C. § 1229b . Subject to limited exceptions, this discretionary relief is not available for an offense related to trafficking in a controlled substance. See§ 1101(a)(43)(B) ;§ 1228 .
559 U.S. at 363-364, 130 S.Ct. 1473 (footnotes omitted)(emphasis added).
{¶22} In the case at bar, the record indicates that the DHS notified Romero that he was subject to deportation under sections
{¶23} Likewise, Section
{¶24} In State v. Cardenas, the Second District Court of Appeals observed,
While the use of the word “deportable” in the aforementioned code provisions indicates that deportation is not a certainty or immediate, in analyzing the same term in a similar provision of the United States Code, the Eighth District Court of Appeals explained that:
While the word “deportable,” in its most literal interpretation, means “able to be deported,” as the United States Supreme Court has recognized, the practical result of such a conviction is that the alien almost always will be deported. See Padilla at 360–364 [130 S.Ct. 1473] (explaining how federal law has changed since the 1990s and stating that “[u]nder contemporary law, if a noncitizen has committed a removable offense * * * his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses. See
8 U.S.C. 1229b .” Courts have been describing the level of certainty of deportation for deportable offenses as “virtually automatic” and “unavoidable,” United States v. Couto, 311 F.3d 179, 184 (2d Cir. 2002), “certain,” INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347, 325 (2001), and “presumptively mandatory,” Hernandez v. State, 124 So.3d 757, 763 (Fla.2012).
Ayesta, 8th Dist. Cuyahoga No. 101383, 2015-Ohio-1695, 2015 WL 2091679 at ¶ 7.
2016-Ohio-5537, 61 N.E.3d 20, ¶46. Indeed, in Padilla the United States Supreme Court found,
In the instant case, the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla‘s conviction. See
8 U.S.C. § 1227(a)(2)(B)(i) (“Any alien who at any time after admission has been convicted of a violation of (or a conspiracy orattempt to violate) any law or regulation of a State, the United States or a foreign country 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“). Padilla‘s counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses.
559 U.S. at 368-369, 130 S.Ct. 147.
{¶25} In the case at bar, the trial court never made a finding concerning whether Romero‘s attorney properly advised him, or did not properly advise him, that his guilty pleas would result in Romero‘s deportation. The trial court instead relied upon the fact that the court had advised Romero in accordance with
R.C. 2943.031 warning.
{¶26} In Ohio,
{¶27} The trial court gave Romero the following admonishment,
THE COURT: If you are not a citizen of the United States, you are going to be advised and you are hereby advised that a conviction of the offense to which you are pleading guilty may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.
Transcript of Plea & PSI, June 1, 2016 at 5. (Emphasis added). Accordingly, the plea hearing transcript reveals the trial court complied with
{¶28} In his affidavit, Romero does not allege that his attorney gave him inaccurate or incomplete advice concerning the immigration consequences of his pleas,
4. Further, Affiant says that his attorney…never advised him of the immigration consequences of his guilty pleas to drug possession and trafficking, most importantly, that he would be immediately deported.
Affidavit of Carlos Humberto Romero, attached as “Exhibit C,” Emergency Motion to Withdraw Pleas and Vacate Judgment, filed Oct. 14, 2016.
{¶29} Romero provides no explanation as to his failure to inquire in open court in response to the trial court‘s warnings under
{¶30} While Ohio courts, including this one, have previously held that a trial court‘s proper advisement under
{¶31} Thus, under the current view, compliance with
Prejudice under Strickland.
{¶32} Generally under the second prong of Strickland, a defendant must show there is a reasonable probability that, but for counsel‘s errors, he would not have pled guilty. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 303(1985). In the specific context of a defense counsel‘s failure to advise a defendant of the immigration consequences of a guilty plea, the United States Supreme Court has held that a defendant demonstrates prejudice by “convinc[ing] the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla, 559 U.S. at 372, 130 S.Ct. 1473; State v. Galdamez, 10th Dist. Franklin No. 14AP-527, 2015-Ohio-3681, ¶37.
Conclusion.
{¶33} Accordingly, because the trial court denied the motion solely on the basis of the
There is no specific requirement to hold a hearing in this situation. However, it sometimes is difficult for an appellate court to review a trial court‘s ruling on a motion to withdraw a plea to determine whether an abuse of discretion occurred when no hearing was held.
In State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715, at paragraph one of the syllabus, this court acknowledged the importance of a hearing to aid in developing a record that could be examined by a reviewing court to determine whether a trial court properly exercised its discretion in ruling on a motion to withdraw a plea. Xie stands for the proposition that, unless it is clear that denial of the motion is warranted, a trial court should hold a hearing. See, also, Garmendia, supra, Montgomery App. No. 2002-CA-18, 2003-Ohio-3769, 2003 WL 21658528, at ¶ 12, which mentions the importance of a trial-court hearing on an
R.C. 2943.031(D) motion to establish whether the defendant has met the statutory factors, including that the defendant has shown that he or she is not a citizen of the United States and that there may be immigration-related consequences from the conviction resulting from the plea. In some situations when a hearing should have been held, a trial court‘s failure to have held a hearing amounts to an abuse of discretion. We find this case to be one in which a hearing should have been held.
{¶34} Accordingly, we find the trial court abused its discretion in denying Romero‘s motion without a hearing to determine whether Romero‘s decision to reject the plea bargain would have been rational under the circumstances.
{¶35} We reverse the judgment of the Stark County Court of Common Pleas and remand the case for proceedings consistent with this decision.
By Gwin, P.J.,
Baldwin, J., and
Wise, Earle, J., concur