State v. Bravo

• Court: Ohio Court of Appeals
• Writing for the Court: CARR, Presiding Judge.
• Citation: State v. Bravo, 2017 Ohio 272, 81 N.E.3d 919 (Ohio App. 2017)
• Decision Date: 25 January 2017
• Docket Number: No. 27881.,27881.
• Parties: STATE of Ohio, Appellee v. Rosa Saltos BRAVO (fka Rosa L. Cardenas), Appellant.

81 N.E.3d 919

2017 Ohio 272

STATE of Ohio, Appellee

v.Rosa Saltos BRAVO (fka Rosa L. Cardenas), Appellant.

No. 27881.

Court of Appeals of Ohio, Ninth District, Summit County.

Jan. 25, 2017.

Farhad Sethna, Attorney at Law, Akron, for appellant.

Sherri Bevan Walsh, Prosecuting Attorney, and Richard S. Kasay, Assistant Prosecuting Attorney, for appellee.

CARR, Presiding Judge.

{¶ 1} Appellant Rosa Bravo (fka Cardenas) appeals her conviction in the Summit County Court of Common Pleas. This Court affirms.

I.

{¶ 2} Bravo is an Ecuadorian national, living in the United States of America. In April 2004, Bravo was indicted on one count of tampering with records, one count of possessing criminal tools, and one count of forgery, all of which implicated the use of a fraudulent social security card to obtain an Ohio driver's license. With the assistance of a Spanish interpreter, she pleaded guilty to the charges of possessing criminal tools and forgery, which were both felonies of the fifth degree. The State dismissed the records tampering charge. The trial court sentenced Bravo, who was again assisted by a Spanish interpreter, to two years of community control, which was to commence on June 29, 2004. The sentencing entry was served on the Immigration and Naturalization Service ("INS"). Upon recommendation of the Adult Probation Department, the trial court terminated Bravo's community control effective April 7, 2006.

{¶ 3} In May 2015, Bravo filed a motion to reopen the proceedings and vacate her conviction. She effectively sought to withdraw her guilty plea on the basis that it was not knowingly, voluntarily, and intelligently entered because, due in part to the ineffective assistance of counsel at the plea hearing, she did not understand the immigration ramifications of her plea. The State opposed the motion. The trial court denied Bravo's motion without analysis. Bravo appealed, raising five assignments of error for review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION TO WITHDRAW HER GUILTY PLEA AND VACATE HER CONVICTION PURSUANT TO OHIO CRIMINAL RULE 32.1 AS THE APPELLANT ESTABLISHED THAT SHE WAS DEPRIVED OF HER RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL[.]

{¶ 4} Bravo argues that the trial court erred by denying her motion to withdraw her guilty plea pursuant to Crim.R. 32.1 on the basis that she was denied the effective assistance of counsel during her change of plea hearing. Bravo argues that trial counsel was ineffective for failing to advise her of the risk of deportation should she plead guilty. This Court disagrees.

{¶ 5} In this assignment of error, Bravo does not challenge the trial court's denial of her motion to withdraw her guilty plea on the basis of R.C. 2943.031(D) which enunciates the standard for withdrawal of a plea based on the trial court's failure to give a noncitizen of the United States the advisement specified by statute prior to accepting a plea of guilty or no contest. Instead, she relies on R.C. 2943.031(F) which does not prevent a trial court from allowing a noncitizen defendant to withdraw her plea pursuant to Crim.R. 32.1, either in lieu of the standard enunciated in R.C. 2943.031(D) or in addition to it. Although Bravo's motion was predominantly premised on the narrow relief offered pursuant to R.C. 2943.031(D), she did reference Crim.R. 32.1 very briefly, arguing that she should be permitted to withdraw her plea because her attorney failed to advise her regarding the immigration consequences of her plea. " ‘Criminal 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 R.C. 2943.031(A)(1) (and that the court was not relieved of that requirement under R.C. 2943.031(B) ) of the potential consequences to their resident status in the United States when they pled guilty to criminal charges (among other related requirements contained in R.C. 2943.031(D) ), or (2) when a court finds, pursuant to Crim.R. 32.1, that it is necessary to correct manifest injustice.’ " State v. Cardenas, 2016-Ohio-5537, 61 N.E.3d 20, ¶ 14, quoting State v. Toyloy, 10th Dist. Franklin No. 14AP–463, 2015-Ohio-1618, 2015 WL 1913431, ¶ 12. To the limited extent that she argued for relief pursuant to Crim.R. 32.1, this Court addresses her argument.

{¶ 6} Crim.R. 32.1 provides that a trial court "after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea" to correct a "manifest injustice." Bravo relies on State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 26, for the proposition that the standard in R.C. 2943.031(D) supplants the requirement that a defendant must demonstrate "manifest injustice" to justify withdrawal of her plea. While Francis clearly recognizes that R.C. 2943.031(D) enunciates a distinct standard to allow a noncitizen defendant to withdraw her plea where a trial court has failed to give the proper statutory advisement, the statute does not prohibit a noncitizen defendant from seeking to withdraw her plea via the more conventional standard enunciated in Crim.R. 32.1. Specifically, R.C. 2943.031(F) provides: "Nothing in this section shall be construed as preventing a court, in the sound exercise of its discretion pursuant to Criminal Rule 32.1, from setting aside the judgment of conviction and permitting a defendant to withdraw his plea." Accordingly, the statute recognizes two distinct opportunities, with their respective standards, for a noncitizen defendant to seek to withdraw her plea.

{¶ 7} The crux of Bravo's argument is that her plea was not constitutionally valid because trial counsel was ineffective for failing to advise her regarding the immigration ramifications of entering a guilty plea. This Court has held that " ‘[a] guilty plea is not voluntary if it is the result of ineffective assistance of counsel.’ " State v. Liu, 9th Dist. Summit No. 24112, 2008-Ohio-6793, 2008 WL 5340195, ¶ 22, quoting State v. Banks, 9th Dist. Lorain No. 01CA007958, 2002-Ohio-4858, 2002 WL 31059911, ¶ 16. "The Sixth Amendment guarantees a criminal defendant the right to the effective assistance of counsel." Liu at ¶ 22, citing Banks at ¶ 16.

{¶ 8} This Court uses a two-step process as set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to determine whether a defendant's right to the effective assistance of counsel has been violated.

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id.

{¶ 9} This Court has stated:

When the Strickland test is applied to guilty pleas, the defendant must first show that counsel's performance was deficient. State v. Xie, 62 Ohio St.3d 521, 524 [584 N.E.2d 715] (1992) ; Strickland, 466 U.S. at 687 [104 S.Ct. 2052]. Next, the defendant must show that there is a reasonable probability that but for counsel's errors, he would not have pleaded guilty. Xie, 62 Ohio St.3d at 524 [584 N.E.2d 715], quoting Hill v. Lockhart, 474 U.S. 52, 59 [106 S.Ct. 366, 88 L.Ed.2d 203] (1985). "[T]he mere fact that, if not for the alleged ineffective assistance, the defendant would not have entered the guilty plea, is not sufficient to establish the necessary connection between the ineffective assistance and the plea; instead, the ineffective assistance will only be found to have affected the validity of the plea when it precluded the defendant from entering the plea knowingly and voluntarily." State v. Doak, 7th Dist. Columbiana Nos. 03CO15 and 03CO31, 2004-Ohio-1548 [2004 WL 614851], ¶ 55, quoting State v. Whiteman, 11th Dist. Portage No. 2001–P–0096, 2003-Ohio-2229 [2003 WL 21000988], ¶ 24.

State v. Gegia, 157 Ohio App.3d 112, 2004-Ohio-2124, 809 N.E.2d 673, ¶ 17 (9th Dist.).

{¶ 10} 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). Specifically,

"[a]lthough we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing in one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result."

Id., quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

{¶ 11} In addressing the first prong of Strickland, the United States Supreme Court held that an attorney's performance is deficient when he has failed, at a minimum, to advise a noncitizen defendant-client that "pending criminal charges may carry a risk of adverse immigration consequences." Padilla v. Kentucky, 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Moreover, an attorney's performance is deficient when his advice regarding deportation issues which are readily determinable is incorrect. Id. Later, the United States Supreme Court considered...