State v. Diol
| Decision Date | 10 September 2021 |
| Docket Number | C-200285 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. MOHAMED DIOL, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Hamilton County Court of Common Pleas Trial No. B-1700978
Judgment Appealed From Is: Reversed and Cause Remanded
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
McKinney & Namei Co., LPA, Sarah C. Larcade and Firooz T Namei, for Defendant-Appellant.
{¶1} Defendant-appellant Mohamed Diol appeals the Hamilton County Common Pleas Court's judgment denying his "Emergency Motion to Vacate Guilty Plea under Padilla v. Kentucky and Lee v. United States." We reverse the court's judgment.
{¶2} Diol was indicted in February 2017 for marijuana trafficking and possession and possessing criminal tools. In June, pursuant to a plea agreement, he withdrew his motion to suppress, withdrew his not-guilty pleas, and entered guilty pleas to marijuana trafficking and possession, in exchange for dismissal of the criminal-tools charge. In July 2017, following a hearing, the trial court accepted the pleas, found Diol guilty, and imposed for each offense one day of confinement, three years of intensive-supervision community control, a six-months driver's-license suspension, and 100 hours of community service. Diol did not appeal those convictions.
{¶3} Six months later, Diol filed with the common pleas court his "Emergency Motion to Vacate Guilty Plea under Padilla v. Kentucky and Lee v. United States." In that motion, Diol sought relief from his convictions on the ground that his guilty pleas had been the involuntary, unknowing, and unintelligent product of his trial counsel's ineffectiveness in failing to advise him that his convictions upon his guilty pleas to those drug offenses subjected him to mandatory deportation and exclusion from the United States. Diol supported the motion with his own affidavit. He averred that he was a citizen of Mauritania, that trial counsel had advised him that his convictions "would not result in automatic deportation [but] that at most it possibly could make it discretionary," and that if he had known that his pleas would "lead to automatic deportation," he would not have pled guilty.
{¶4} The common pleas court denied the motion. This court reversed that judgment and remanded for an evidentiary hearing on the motion. State v. Diol, 1st Dist. Hamilton No. C-180249, 2019-Ohio-2197.
{¶5} At the hearing on the motion, Diol and his trial counsel testified. Counsel stated that deportation had been discussed on a number of occasions during the plea process, including the completion of the plea form. On that form, counsel had indicated that Diol was not a United States citizen by placing an X on the line provided. When Diol then, with his initials, indicated on the form that he was a citizen, counsel scratched out the X. Asked whether deportation was the determinative issue for Diol in deciding to plead guilty, counsel responded that he did not remember, but that Diol had insisted that he was a United States citizen and could not be deported.
{¶6} Diol testified that he was a citizen of Mauritania, not the United States. He had come to the United States at the age of 16 to be with his father, who was a "political refugee," and his current status was "refugee asylum * * * indefinite." He stated that because his father had been a citizen when Diol came to the United States, he had read the term "indefinite" to mean that his status would not expire. And when he traveled to and from the United States, he used a travel document issued by the immigration service that, to him, looked like a United States passport. Consequently, throughout the plea process, he believed, and represented to the court, that he was a United States citizen and thus could not be deported. Diol further testified that he had shown his documentation to trial counsel, who neither disabused him of the notion that he was a United States citizen, nor discussed with him the immigration consequences of his guilty pleas if he was not. And Diol stated that if he had understood that his convictions mandated his removal, he would not have pled guilty and would have insisted on a trial.
{¶7} Following the hearing, the common pleas court again denied the motion. In this appeal, Diol presents a single assignment of error, challenging the denial of the motion. The challenge is well taken.
{¶8} Diol's "Emergency Motion to Vacate Guilty Plea under Padilla v. Kentucky and Lee v. United States" was reviewable by the common pleas court under the standards provided by Crim.R. 32.1. See Diol, 1st Dist. Hamilton No. C-180249, 2019-Ohio-2197 at ¶ 17. That rule confers upon a court the discretion to permit withdrawal of a guilty or no-contest plea after sentencing "to correct manifest injustice." See State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraphs one and two of the syllabus; State v. Brown, 1st Dist. Hamilton No. C-010755, 2002-Ohio-5813.
{¶9} In State v. Romero, 156 Ohio St.3d 468, 2019-Ohio-1839, 129 N.E.3d 404, the Supreme Court of Ohio held that when a noncitizen criminal defendant alleges ineffective assistance of counsel arising from the plea process, the defendant must meet the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and applied in the immigration context in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Romero at ¶ 1, 3, and 14. The defendant must show that counsel's performance was deficient, that is, that counsel did not accurately inform the defendant of the immigration consequences of his guilty plea. Id. at ¶ 15; Padilla at 374. And the defendant must demonstrate prejudice resulting from counsel's deficient performance, that is, that there is "a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Romero at ¶ 16, quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
{¶10} Thus, on his Crim.R. 32.1 motion, Diol bore the burden of demonstrating a prejudicial deficiency in his trial counsel's advice concerning the removal consequence of his guilty pleas. And the common pleas court's determination that Diol had failed to sustain that burden may be disturbed on appeal only if the court abused its discretion. Smith, 49 Ohio St 2d 261, 361 N.E.2d 1324, at paragraph two of the syllabus. The phrase "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude was arbitrary or unconscionable, or that the court's decision was the product of an unsound reasoning process. See State v. Hill, 12 Ohio St.2d 88, 232 N.E.2d 394 (1967), paragraph two of the syllabus; State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14.
{¶11} Counsel's advice was deficient. In our 2019 decision, we remanded for an evidentiary hearing to "clarify whether Diol is a United States citizen and whether but for his attorney's misadvice, he would have pleaded not guilty and insisted on going to trial." Diol, 1st Dist. Hamilton No. C-180249, 2019-Ohio-2197, at ¶ 41. We declared that counsel had had a duty to determine whether Diol was a United States citizen and, if he was not, to advise him of the immigration consequences of his guilty pleas. The law was clear that the consequence of Diol's drug convictions was his removal from the United States. And we found it "clear" from the record that counsel had given Diol "incorrect advice" during the plea hearing, when counsel stated, We also found that counsel's deficient performance was not "cured" by the statutory advisement provided by the trial court. Nor was that deficiency cured when, during the trial court's colloquy with Diol beyond that advisement, Diol responded affirmatively to the trial court's question whether he wanted to plead guilty "even if it means automatic removal from the United States and you're never able to return?" We concluded that, in the absence of an unequivocal statement by the trial court that Diol would be deported, the trial court's admonition did not provide the degree of accuracy concerning immigration consequences that Padilla demands.
{¶12} In the wake of our 2019 decision, the determination whether Diol's trial counsel's advice concerning the immigration consequences of his guilty pleas had been constitutionally deficient turned solely upon the question whether Diol was a United States citizen. Because the evidence adduced at the hearing on remand showed conclusively that he was not, our 2019 decision compels the conclusions...
To continue reading
Request your trial