STATE OF OHIO, Plaintiff-Appellee, vs. RAMON VALDEZ, Defendant-Appellant.
APPEAL NO. C-160437 TRIAL NO. C-10CRB-33213
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
June 14, 2017
2017-Ohio-4260
MOCK, Presiding Judge.
Criminal Appeal From: Hamilton County Municipal Court. Judgment Appealed From Is: Affirmed.
McKinney & Namei Co., LPA, Michael Tudor, Paul W. Shonk and Firooz T. Namei, for Defendant-Appellant.
{¶1} Defendant-appellant Ramon Valdez appeals from the Hamilton County Municipal Court’s judgment overruling his “Emergency Motion to Vacate Guilty Plea under Padilla v. Kentucky.” We affirm the court’s judgment.
{¶2} Valdez was convicted in 2010 upon his guilty plea to the fourth-degree misdemeanor of domestic violence by threat in violation of
{¶3} In this appeal, Valdez presents a single assignment of error, contending that the municipal court abused its discretion in overruling the motion. We overrule the assignment of error, because the record does not demonstrate an abuse of discretion.
A Crim.R. 32.1 Motion
{¶4} Valdez did not specify in his postconviction motion a statute or rule under which the relief sought might have been afforded, leaving the municipal court to “recast [the motion] into whatever category necessary to identify and establish the criteria by which the motion should be judged.” State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12 and syllabus. Because
{¶5} Under
Manifest Injustice Not Demonstrated
{¶6} In October 2010, Valdez was indicted for domestic violence in violation of
{¶7} In November 2010, Valdez pled guilty to a reduced charge of domestic violence in violation of
{¶8} Valdez did not challenge his 2010 conviction until 2016, when in his “Emergency Motion to Vacate Guilty Plea under Padilla v. Kentucky,” he challenged the constitutional competence of his trial counsel in advising him concerning the immigration consequences of that conviction. On the record before us, we cannot say that the court abused its discretion in overruling the motion.
The Sixth Amendment right to accurate advice concerning deportation.
The due-process protections afforded by
{¶11} The Supreme Court held that the Sixth Amendment imposes upon counsel, in negotiating a guilty or no-contest plea, the duty to “accurate[ly]” advise a noncitizen client concerning the removal consequence of his conviction. Id. at 364 and 374. The contours of that duty, the Court declared, depend on “the terms of the relevant immigration statute * * * in defining the removal consequence for [the] conviction.” Id. at 368. Thus, “[w]hen the law is not succinct and straightforward,” counsel “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.
{¶12} The “relevant immigration statute” in Padilla was
{¶13} Valdez’s counsel’s duty. Valdez was a noncitizen permanent resident of the United States. He was convicted upon a guilty plea to domestic violence by threat in violation of
{¶14} As in Padilla,
{¶15}
{¶16} Valdez’s motion to withdraw his guilty plea. In his motion to withdraw his guilty plea, Valdez asserted that his domestic-violence-by-threat conviction cast him into
{¶17} The municipal court conducted a hearing on Valdez’s motion to withdraw his 2010 guilty plea and on his separate motion to withdraw his 2003 plea. Because neither the trial court nor counsel had advised Valdez concerning the removal consequence of his 2003 conviction, the court granted withdrawal of that plea. With respect to the 2010 conviction, the court took no evidence, but entertained arguments, and based on those arguments, overruled Valdez’s motion to withdraw his 2010 plea. On the record before us, we cannot say that the court, in overruling the motion, abused its discretion.
{¶18} No transcript of the plea hearing. On his motion, Valdez bore the burden of demonstrating that his counsel had been constitutionally deficient in advising him concerning the removal consequence of his conviction, and that this deficiency in counsel’s performance had prejudiced him, that is, that “a decision to reject the plea bargain would have been rational under the circumstances.” Padilla, 559 U.S. at 374, 130 S.Ct. 1473, 176 L.Ed.2d 284. The prejudice prong of the Padilla analysis thus required an inquiry into the “circumstances” surrounding Valdez’s decision to plead. Those circumstances necessarily included the matters that had transpired at the hearing where his plea was entered and accepted.
{¶19} But the municipal court, in deciding Valdez’s motion to withdraw his plea, did not have a complete record of the “circumstances” surrounding his decision
{¶20} 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 [before the court below].” Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13. And the “appellant bears the burden of showing error by reference to matters on the record.” Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). Valdez’s challenge in his
We Affirm
{¶21} The municipal court’s decision overruling Valdez’s
{¶22} Accordingly, we overrule the assignment of error and affirm the court’s judgment.
CUNNINGHAM, J., concurs.
ZAYAS, J., dissents.
STATE OF OHIO, Plaintiff-Appellee, vs. RAMON VALDEZ, Defendant-Appellant.
APPEAL NO. C-160437 TRIAL NO. C-10CRB-33213
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
June 14, 2017
2017-Ohio-4260
{¶23} I concur with the majority’s analysis that Valdez’s counsel had a duty to accurately advise Valdez that, as a noncitizen, permanent resident, he would be subject to removal or deportation after being convicted of domestic violence. I respectfully dissent from the majority’s conclusion that the trial court’s determination cannot be considered an abuse of discretion without a transcript from the plea hearing.
Test to Establish Ineffective Assistance of Counsel
{¶24} To establish a claim of ineffective assistance of counsel, defendant must satisfy a two-prong test. Strickland, 466 U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. Defendant must show that (1) that defense counsel’s performance was so deficient that he was not functioning as the counsel guaranteed under the
Valdez’s Motion to Withdraw his Guilty Plea
{¶25} Valdez filed an “Emergency Motion to Vacate Guilty Plea” on March 3, 2016. The state did not file a response. The trial court held a hearing on defendant’s
{¶26} The trial court denied the motion. In doing so, the trial court determined that both trial counsel and the trial court had advised Valdez that he “may” be deported due to his domestic-violence conviction. The court determined that such advisement was sufficient, rationalizing that trial counsel need not advise the defendant over and above the trial court’s admonishments regarding immigration consequences pursuant to
Deportation Versus Removal
{¶27} Before beginning the Padilla analysis, it is necessary to clarify the meaning of the terms deportation and removal. As Ohio case law has developed in applying Padilla, these terms have been used interchangeably. See, e.g., State v. Preciado, 8th Dist. Cuyahoga No. 101257, 2015-Ohio-19, ¶ 24 (referring to a “deportation-removal hearing“).
{¶28} A commonly accepted meaning of “deportation” is “‘the removal from a country of an alien whose presence in the country is unlawful or is held to be prejudicial to the public welfare.’” State v. Encarnacion, 12th Dist. Butler No. CA2003-09-225, 2004-Ohio-7043, ¶ 24, citing Webster’s Third New International Dictionary (1981). Under current federal law, an “alien” is defined as “any person not a citizen or national of the United States.”
{¶29} In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA“). See U.S. v. Pantin, 155 F.3d 91, 92 (2d Cir.1998). Prior to IIRIRA’s passage, federal law used two proceedings to expel an alien from the United States: “exclusion” and “deportation” proceedings. Id. Generally speaking, “exclusion proceedings” determined whether an alien seeking entry would be allowed to enter or should be expelled, while “deportation proceedings” were concerned with aliens who had already entered the United States and could be expelled. Mejia-Ruiz v. INS, 51 F.3d 358, 360 (2d Cir.1995), fn. 1 (citing
{¶30}
{¶31} Notwithstanding the fact that there are no “deportation proceedings” post IIRIRA, the terms deportation and removal continue to be used interchangeably. See Pantin at 92-93 (concluding the terms “deportation” and “removal” have the same meaning under the IIRIRA). See also U.S. v. Pena-Renovato, 168 F.3d 163, 164 (5th Cir.1999) (finding no distinction between
{¶32} Accordingly, I will use the term “removal” as synonymous with the term “deportation” within this dissent.
Valdez’s Counsel’s Duty
{¶33} The core of Valdez’s argument is that, having received inaccurate advice regarding the immigration consequences of his plea, he could not make an informed decision about whether to accept a plea offer or proceed to trial.
{¶34} Pursuant to Padilla, the analysis of whether trial counsel was deficient hinges on whether the deportation consequence of defendant’s guilty plea was truly clear.
{¶35} Valdez sought to withdraw his plea because his trial counsel, by merely stating that he “may be deported,” did not accurately inform him of the immigration consequences of his conviction. Valdez admitted that the trial court properly advised him as required by
{¶36} The state argued that defense counsel had no obligation to provide any additional advice because the law was not succinct and straightforward at the time of
{¶37} Ultimately, the trial court found that Valdez’s counsel had no obligation to provide any additional warning above and beyond the court’s statutory admonition. The court explained that any additional advice “above what the Court said of the potential deportation upon that conviction is duplicative.” Thus, the trial court concluded Valdez’s counsel was not ineffective because he had no duty to advise Valdez that deportation was mandatory.
{¶38} Consequently, the issue presented to this court is whether Padilla required counsel to specifically advise Valdez that a domestic-violence conviction subjected him to removal or deportation instead of the general advisement that the conviction “may” result in removal or deportation.
{¶39} As the majority correctly concluded, counsel had a duty under Padilla to ascertain the immigration consequences from the statute, and accurately advise him. Defense counsel was constitutionally obligated to advise Valdez that his guilty plea would result in him being subject to deportation or removal because as a noncitizen, permanent resident, the immigration consequence of his guilty plea to domestic violence was truly clear. See Bishop, 2014-Ohio-173, 7 N.E.3d 605, at ¶ 8 (explaining that under federal immigration law anyone convicted of domestic violence is subject to removal).
Manifest Injustice Can Be Established on Facts Supplied through Affidavits Attached to the Motion
{¶41} Manifest injustice can be established on the specific facts on the record or facts supplied through affidavits attached to the motion. State v. Garcia, 10th Dist. Franklin No. 08AP-224, 2008-Ohio-6421, ¶ 11, citing State v. Gegia, 157 Ohio App.3d 112, 2004-Ohio-2124, 809 N.E.2d 673 (9th Dist.). A hearing on the motion must only be held if the facts alleged by the defendant, and accepted as true by the trial court, “would support a finding of manifest injustice.” Garcia at ¶ 11.
{¶42} A trial court has discretion to determine the credibility of an affidavit and whether to accept the factual statements as true. See Smith, 49 Ohio St.2d at 264, 361 N.E.2d 1324. See also State v. Ayesta, 8th Dist. Cuyahoga No. 101383, 2015-Ohio-1695, ¶ 10, citing State v. Knowles, 8th Dist. Cuyahoga No. 95239, 2011-Ohio-1685, ¶ 22, citing State v. Mays, 174 Ohio App.3d 681, 2008-Ohio-128, 884 N.E.2d 607, ¶ 14 (8th Dist.). By definition, an affidavit is a sworn statement that the affiant makes under penalty of perjury and “should not lightly be deemed false.” State v. Calhoun, 86 Ohio St.3d 279, 284, 714 N.E.2d 905 (1999).
{¶43} Here, the trial court did not raise any concerns regarding the truth of Valdez’s averments and relied on the averments in reaching its decision. The court found that the trial court complied with
{¶44} Additionally, both parties had the transcript of the plea hearing. Valdez cited to the transcript in his motion, and the state confirmed that the court
{¶45} Because the court and the state accepted the affidavit as true and the court relied on those facts in denying the motion, I disagree that the transcript of the plea hearing is necessary to determine whether the court abused its discretion.
Was Prejudice Established?
{¶46} The next question is whether Valdez established that he was prejudiced by his counsel’s deficient performance. To prove prejudice, Valdez must “convince 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, 176 L.Ed.2d 284. The court must “focus[] on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Hill, 474 U.S. at 59, 106 S.Ct. 366, 88 L.Ed.2d 203. In other words, the inquiry is whether a decision to reject the plea would have been rational had the defendant been correctly informed that the plea would render him deportable.
{¶47} However, the Ohio Supreme Court has recognized that a court need not analyze both prongs of the Strickland test, where the issue may be disposed upon consideration of one of the factors. State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989), citing Strickland, 466 U.S. at 697, 104 S.Ct. 2052, 80 L.Ed.2d 674. If the defendant makes an insufficient showing on one prong, the other prong need not be addressed. Id.
{¶48} The trial court’s decision denying the motion simply stated that:
[T]he [
R.C. 2943.031 ] admonishment is clear that if you’re facing a jailable offense, and are not a citizen of the United States, that the consequence of being found guilty of that charge, you may be deported or your ability to become a naturalized citizen may be otherwise hampered or obstructed. The defense argument that the lawyer failed to further advise the defendant above what the Court said of the potential deportation upon that conviction is duplicative. And the Court disagrees with the defense position that it would have had any—that it was necessary. The defendant was advised of the consequences of the plea. He entered the plea knowing the potential consequences * * *.
{¶49} The court denied the motion because it found that Valdez was informed of the plea’s consequences. The trial court did not specifically address the prejudice prong after determining Valdez’s trial counsel was not deficient.
{¶50} The majority concludes that “implicit in the court’s decision overruling Valdez’s motion was its determination that he had failed to sustain that burden.” However, the court was not required to make a prejudice determination once it found Valdez failed to show his counsel was ineffective. Id. And the record does not support a conclusion that the court determined that Valdez failed to prove prejudice.
{¶51} Valdez averred that he would not have entered a guilty plea if counsel had correctly advised him of the consequences of the plea, and that his wife had told the prosecutor she did not want to proceed with prosecution. However, during the hearing, neither party discussed whether it would be rational for Valdez to reject the
{¶52} When the trial court makes no factual findings regarding prejudice, and instead denies the motion solely on the basis that the
Conclusion
{¶53} Accordingly, I would find that the trial court abused its discretion in denying the motion because Valdez’s counsel affirmatively misadvised him of the immigration consequence of his plea. Additionally, I would remand the case to the trial court to conduct a hearing to determine whether Valdez was prejudiced by his counsel’s deficient performance.
Please note:
The court has recorded its own entry on the date of the release of this opinion.