State v. Harold Bishop

• Decision Date: 22 January 2014
• Docket Number: No. C–130074.,C–130074.
• Parties: STATE of Ohio, Plaintiff–Appellant, v. Harold BISHOP, Defendant–Appellee.
• Court: Ohio Court of Appeals

7 N.E.3d 605

STATE of Ohio, Plaintiff–Appellant,

v.Harold BISHOP, Defendant–Appellee.

No. C–130074.

Court of Appeals of Ohio,

First District, Hamilton County.

Jan. 22, 2014.

John Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and Heidi Rosales, Senior Assistant City Prosecutor, for plaintiff-appellant.

McKinny & Namei Co., LPA, and Paul W. Shonk, Cincinnati, for defendant-appellee.

PER CURIAM.

{¶ 1} Plaintiff-appellant the state of Ohio appeals from the Hamilton County Municipal Court's judgment granting defendant-appellee Harold Bishop's Crim.R. 32.1 motion to withdraw his no-contest plea. Upon our determination that the court abused its discretion in retroactively applying Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), to permit Bishop to withdraw his plea, we reverse the court's judgment.

{¶ 2} Bishop was convicted in 2006 upon his no-contest plea to domestic violence. He did not appeal his conviction. Instead, in 2011, he unsuccessfully sought to expunge it. And in 2012, he moved under Crim.R. 32.1 to withdraw his no-contest plea on the ground that his plea had been the unintelligent product of his trial counsel's ineffectiveness in advising him concerning the immigration consequences of his conviction. Following a hearing, the common pleas court granted the motion, and this appeal followed.

{¶ 3} On appeal, the state advances a single assignment of error, challenging the granting of Bishop's motion. The challenge is well taken.

{¶ 4} Crim.R. 32.1 authorizes the postconviction withdrawal of a guilty or no-contest plea only “to correct manifest injustice.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. The defendant bears the burden of proving “manifest injustice.” The determination of whether the defendant has sustained that burden is committed to the sound discretion of the trial court and will not be disturbed on appeal unless the court abused its discretion. Id. at paragraph two of the syllabus.

{¶ 5} The due-process protections afforded by Article I, Section 16 of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution require that a guilty or no-contest plea “represent[ ] a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). A defendant who seeks to withdraw his plea on the ground that the plea was the unintelligent product of his counsel's ineffectiveness must demonstrate that counsel's representation was constitutionally deficient, Strickland v. Washington, 466 U.S. 668, 687–688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that “there is a reasonable probability that, but for [this deficiency, the defendant] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see State v. Xie, 62 Ohio St.3d, 521, 524, 584 N.E.2d 715 (1992); State v. Blackwell, 1st Dist. Hamilton No. C–970150, 1998 WL 212753 (May 1, 1998).

{¶ 6} Inaccurate advice concerning immigration consequences. In support of his motion to withdraw his no-contest plea, Bishop contended that his trial counsel's representation had been constitutionally deficient because counsel had advised him that the domestic-violence conviction resulting from his no-contest plea “may” make him deportable, when his conviction mandated deportation. Bishop also insisted that if he had known that his conviction would make him deportable, he would not have entered the plea.

{¶ 7} For purposes of the Sixth Amendment right to the effective assistance of counsel, a plea negotiation is a critical phase of a criminal prosecution. Hill at 57, 106 S.Ct. 366. In Padilla, the United States Supreme Court held that the Sixth Amendment imposes upon counselin a criminal case a duty to accurately advise a noncitizen client concerning the immigration consequences of a guilty plea. Padilla, 559 U.S. at 374, 130 S.Ct. 1473, 176 L.Ed.2d 284. If the consequence of deportation can be “easily determined from reading the removal statute,” counsel must inform his client of that fact. “When 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.” Id. at 368–369, 130 S.Ct. 1473.

{¶ 8} Bishop testified at the hearing that his counsel had advised him that his conviction upon his no-contest plea to domestic violence “may” result in his deportation. But federal immigration law expressly mandates the removal of “[a]ny alien * * * convicted of a crime of domestic violence.” 8 U.S.C. 1227(a)(2)(E)(i). Because counsel did not advise Bishop that deportation was mandatory, counsel's representation was constitutionally deficient.

{¶ 9} Padilla is not retroactive. But in Chaidez v. United States, –––U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), the Supreme Court, applying the principles set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), held that Padilla could not be applied retroactively to convictions that had become final before March 31, 2010, when the case was decided, because the case announced a “new rule” when it answered an open question concerning the reach of the Sixth Amendment in a way that altered the law of most jurisdictions. Chaidez at 1107–1113.

{¶ 10} A conviction becomes final when all appellate remedies have been exhausted. Teague at 295, 109 S.Ct. 1060;Agee v. Russell, 92 Ohio St.3d 540, 751 N.E.2d 1043 (2001). Thus, Bishop's conviction became final in 2006, when the time for perfecting a direct appeal from his conviction had expired. Because Bishop's conviction was final before Padilla was decided, the municipal court could not, consistent with Chaidez, allow Bishop to withdraw his no-contest plea based on a violation of the Sixth Amendment right announced in Padilla.

{¶ 11} We follow Chaidez. Nevertheless, Bishop urges us to follow the lead of the Supreme Judicial Court of Massachusetts in Commonwealth v. Sylvain, 466 Mass. 422, 995 N.E.2d 760 (2013), and hold that he was entitled to relief under Crim.R. 32. 1, because the rule announced in Padilla was not a “new rule” under Ohio law. We decline to do so.

{¶ 12} In Teague, the United States Supreme Court held that a person whose conviction is final before a case is decided may avail himself of that decision in a collateral proceeding if the case applies a settled rule, but not if the case announces a “new rule,” unless that new rule constitutes either a rule placing “conduct beyond the power of the [government] to proscribe” or a “watershed rule[ ] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Teague, 489 U.S. at 311, 109 S.Ct. 1060, 103 L.Ed.2d 334. The court in Teague stated that “a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.” Id. at 301, 109 S.Ct. 1060. And the court later declared that a holding is not dictated by existing precedent unless it would have been “apparent to all reasonable jurists.” Lambrix v. Singletary, 520 U.S. 518, 527–528, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997). The Court in Chaidez applied Teague and Lambrix to hold that Padilla had stated a new rule. See Chaidez, 133 S.Ct. at 1107, 185 L.Ed.2d 149.

{¶ 13} In Danforth v. Minnesota, 552 U.S. 264, 282, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008), the Supreme Court held that Teague does not bar a state from giving a federal constitutional rule deemed “new” under Teague broader retroactive effect in its own state collateral proceedings. In Sylvain, the Supreme Judicial Court of Massachusetts exercised its authority under Danforth to define and determine under state law what constitutes a “new rule” and held that the Padilla rule was not “new” under Massachusetts law. Sylvain at 435, 995 N.E.2d 760. Massachusetts's highest court had long ago adopted the Teague analysis for determining retroactivity. See Commonwealth v. Bray, 407 Mass. 296, 300–301, 553 N.E.2d 538 (1990). But in Sylvain, the court said that the Supreme Court since Teague had “greatly expanded the meaning of what is ‘new’ to include results not apparent to all reasonable jurists at the time.” Sylvain at 433, 995 N.E.2d 760. Distinguishing the post-Teague precedent, the court applied what it called the “original formulation” of the Teague analysis, and it concluded that Padilla had not announced a new rule, because the Supreme Court in Padilla had simply applied the settled law of Strickland to a specific factual situation, and because “Massachusetts precedent at the time Padilla was decided would [not] have dictated an outcome contrary to that in Padilla.” ¹Id. The court also found in the commonwealth's constitution a right, “coextensive” with the Sixth Amendment right, to accurate advice concerning immigration consequences, and the court determined, for the same reasons, that its recognition of that right did not constitute a new rule. Id. at 436, 995 N.E.2d 760.

{¶ 14} But the holding in Padilla—that the Sixth Amendment imposes upon counsel a duty to accurately advise a noncitizen client concerning the immigration consequences of a plea—cannot be said to have been dictated by Ohio precedent when, in 2006, Bishop's conviction became final. See State v. Lei, 10th Dist. Franklin No. 05AP–288, 2006-Ohio-2608, 2006 WL 1431409, ¶ 32 (“Though the court must inform defendants of deportation consequences prior to accepting a plea of guilty or no contest, pursuant to R.C. 2943.031, no statutory or decisional authority requires trial counsel to advise a defendant of the civil, collateral consequence of deportation for purposes of the defendant's decision as to whether to accept a plea agreement or...