State v. SpivakovState v. Spivakov
Rendered on July 30, 2013
Ron O‘Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.
DiFranco Law Office, LLC, and Brian C. DiFranco, for appellant.
APPEALS from the Franklin County Court of Common Pleas.
SADLER, J.
{¶ 1} Defendant-appellant, Gennadiy A. Spivakov, appeals from the judgment of the Franklin County Court of Common Pleas denying his motion to withdraw his guilty pleas. For the following reasons, we affirm.
I. BACKGROUND
{¶ 2} Appellant‘s appeal pertains to case Nos. 13AP-32 and 13AP-33, which were consolidated by this court. In case No. 13AP-32, appellant was indicted in May 2005 on three counts of forgery, in violation of
I [am not] a citizen of the United States of America. I understand that, if I am not a citizen of the United States, my conviction of the offense(s) to which I am 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.
(Case No. 13AP-32, R. 28-29.)
{¶ 3} The trial court accepted appellant‘s guilty plea and, on August 12, 2005, sentenced him to community control. The trial court issued a judgment entry of conviction and sentence on August 16, 2005, and appellant filed no appeal of that judgment.
{¶ 4} In May 2006, appellant was indicted in case No. 13AP-33 on one count of receiving stolen property, a fourth-degree felony. That same month, appellant pleaded guilty to the charge, and he and his attorney signed a plea form acknowledging that he is not a United States citizen and mentioning the previously noted consequences of his guilty plea. The trial court accepted appellant‘s guilty plea and sentenced him to community control. The trial court issued a judgment entry of conviction and sentence on May 25, 2006, and appellant filed no appeal of that judgment.
{¶ 5} In November 2006, the trial court revoked appellant‘s community control in both cases, due to appellant violating the conditions of those sentences and ordered him to serve 17 months imprisonment. The federal government subsequently initiated deportation proceedings.
{¶ 6} Pursuant to
{¶ 7} Appellant filed a timely notice of appeal and assigns the following as error:
[I.] The Trial Court abused [its] discretion and denied appellant due process under the U.S. and Ohio Constitutions by failing to address or otherwise adjudicate a Federal claim presented in Appellant‘s Motion to Withdraw Guilty Plea specifically pursuant to Padilla v. Kentucky, 559 U.S. ____ (2010) 130 S.Ct. 1382 (March 31, 2010)[.] Appellant was denied effective assistance of counsel. Prior to conviction former Counsel failed to provide Appellant affirmative advice or to assist him upon request whether his guilty plea rendered him Removable from the United States.
[II.] The Appellant/Defendant‘s guilty plea was not made knowingly, intelligently and voluntarily.
[III.] Appellant was denied due process where he presented his ineffective assistance arguments to the trial court in 2010 and the trial court failed to conduct a hearing on the ineffective assistance of counsel arguments and merely ruled on the motions almost three years later.
III. DISCUSSION
{¶ 8} In his first assignment of error, appellant asserts he was denied due process and effective assistance of trial counsel because he was not informed of the possibility of deportation as required by Padilla. In his second assignment of error, appellant asserts that, because of the trial court‘s non-compliance with Padilla, his guilty plea was not knowingly, voluntarily, and intelligently entered. In his final assignment of error, appellant asserts the trial court erred in failing to hold a hearing on his motion to withdraw guilty plea. Because they are interrelated and dependent on the application of Padilla, we will address appellant‘s three assignments of error as one.
{¶ 9} Motions to withdraw guilty pleas are governed by
{¶ 11} A trial court is not automatically required to hold a hearing on a post-sentence motion to withdraw a guilty plea. Id. at ¶ 9. A hearing must only be held if the facts alleged by the defendant, accepted as true, would require that the defendant be allowed to withdraw the plea. Id.
{¶ 12} A trial court‘s decision to deny a post-sentence motion to withdraw a guilty plea and the decision whether to hold a hearing on the motion are subject to review for abuse of discretion. Id. at ¶ 10. An abuse of discretion connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). With that standard in mind, we address the merits of appellant‘s appeal.
{¶ 13} Appellant argues that the trial court abused its discretion by denying his motion without a hearing because, pursuant to Padilla, his defense counsel rendered ineffective assistance by not advising him about the risk of deportation arising out of his guilty pleas. Ineffective assistance of counsel may constitute manifest injustice requiring post-sentence withdrawal of a guilty plea. State v. Tovar, 10th Dist. No. 11AP-1106, 2012-Ohio-6156, ¶ 9. To establish a claim of ineffective assistance of counsel, a defendant must show that his counsel was deficient and that the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to make either showing defeats a claim of ineffective assistance of counsel. Id. at 697.
{¶ 15} In Chaidez v. United States, 133 S.Ct. 1103, 1105 (2013), the court held that Padilla does not apply retroactively to final convictions. A defendant‘s conviction becomes final if he files no appeal from it. State v. Frash, 10th Dist. No. 08AP-870, 2009-Ohio-642, ¶ 14. Because appellant filed no appeal of his convictions occurring in 2005 and 2006, his convictions became final long before Padilla was decided. Therefore, pursuant to Chaidez, Padilla is not applicable to this matter, and we find no merit to appellant‘s claim that his counsel was ineffective for failing to comply with Padilla or that his guilty pleas were not knowing, voluntary, and intelligent based on the trial court‘s and counsel‘s alleged non-compliance with Padilla. Consequently, we conclude that appellant suffered no manifest injustice when he entered his guilty pleas, and the trial court did not abuse its discretion by denying his motion to withdraw guilty pleas without a hearing.
{¶ 16} Lastly, appellant argues that the trial court infringed on his right to due process by taking almost three years to rule on his motion. We find no prejudice to appellant given that he has failed to demonstrate that the trial court‘s ruling on his motion is erroneous and because he could have, but did not, seek a writ of procedendo to compel the trial court to rule on the motion sooner. Travis v. Travis, 2d Dist. No. 2006 CA 39, 2007-Ohio-4077, ¶ 57-58.
{¶ 17} For all of these reasons, we overrule appellant‘s first, second, and third assignments of error.
IV. CONCLUSION
{¶ 18} Having overruled appellant‘s three assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
CONNOR and McCORMAC, JJ., concur.
McCORMAC, J., retired, formerly of the Tenth Appellate District, assigned to active duty under authority of the Ohio Constitution, Article IV, Section 6(C).