State v. Romero
| Decision Date | 22 May 2017 |
| Docket Number | Case No. 2016CA00201 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. CARLOS ROMERO Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J.
110 Central Plaza South, Ste. 510
Canton, OH 44702-1413
For Defendant-Appellant
KIM ALABASI
5368 St. Clair
Cleveland, OH 44103
{¶1} Appellant Carlos Romero ["Romero"] appeals the October 21, 2016 decision from the Stark County Court of Common Pleas that denied his post-sentence motion to withdraw his negotiated guilty plea. The appellee is the State of Ohio.
{¶2} Romero is a 50 year-old man born in Honduras. Romero married a United States citizen in 1995 and legally obtained his permanent residence or "green card" status on April 1, 1998.
{¶3} On March 21, 2016, the Stark County Grand Jury returned an indictment that charged Romero with: 1). possession of marijuana in violation of R.C. 2925.11(A), a felony of the third degree per R.C. 2925.11(C)(3)(a), 2). trafficking in marijuana in violation of R.C. 2925.03(A)(2), a felony of the third degree per R.C. 2025.03(C)(3)(e), and 3), possession of cocaine in violation of R.C. 2925.11(A)(3), a felony of the fifth degree per R.C. 2925.11(C)(4)(a).
{¶4} On June 1, 2016, Romero appeared with counsel and entered guilty pleas to the charges set forth in the indictment. Sentencing was deferred until June 29, 2016 pending the completion of a pre-sentence investigation report1. Romero was sentenced by Judgment Entry filed July 6, 2016 to community control sanctions (intensive supervised probation) for a period of three years. In addition to this sentence, Romero was ordered to perform 100 hours of community service, and his driver's license was suspended for six months.
{¶5} Romero filed an Emergency Motion to Withdraw Pleas and Vacate Judgment on October 14, 2016 claiming that his attorney failed to advise him of the immigration consequences that would result from his guilty pleas. The trial court overruled the motion by judgment entry filed October 21, 2016 citing language from the transcript indicating that the appropriate immigration warnings pursuant to R.C. 2943.031 were read to Romero before accepting his pleas. The trial court concluded that because of the compliance with R.C. 2943.031, Romero's pleas were entered knowingly, voluntarily, and intelligently.
{¶6}
{¶7} The entry of a plea of guilty is a grave decision by an accused to dispense with a trial and allow the state to obtain a conviction without following the otherwise difficult process of proving his guilt beyond a reasonable doubt. See Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473(1962). A plea of guilty constitutes a complete admission of guilt. Crim. R. 11(B)(1). "By entering a plea of guilty, the accused is not simply stating that he did the discreet acts described in the indictment; he is admitting guilt of a substantive crime." United v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 762, 102 L.Ed.2d 927(1989).
Withdraw of Guilty plea Crim.R. 32.1.
{¶8} Crim.R. 32.1 provides that a trial court may grant a defendant's post sentence motion to withdraw a guilty plea only to correct a manifest injustice. Therefore, "[a] defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the burden of establishing the existence of manifest injustice." State v. Smith, 49 Ohio St.2d 261,361 N.E.2d 1324(1977), paragraph one of the syllabus. Although no precise definition of "manifest injustice" exists, in general, "'manifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process.'" State v. Wooden, 10th Dist. Franklin No. 03AP-368, 2004-Ohio-588, ¶ 10, quoting State v. Hall, 10th Dist. Franklin No. 03AP-433, 2003-Ohio-6939; see, also, State v. Odoms, 10th Dist. Franklin No. 04AP-708, 2005-Ohio-4926, quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83(1998) (). Under this standard, a post-sentence withdrawal motion is allowable only in extraordinary cases. Smith, 49 Ohio St.2d at 264, 361 N.E.2d 1324.
{¶9} "A motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion of the trial court, and the good faith, credibility and weight of the movant's assertions in support of the motion are matters to be resolved by that court." Smith at paragraph two of the syllabus. Thus, we review a trial court's denial of a motion to withdraw a guilty plea under an abuse-of-discretion standard, and we reverse that denial only if it is unreasonable, arbitrary, or unconscionable. Odoms, 2005-Ohio-4926.
Withdraw of Guilty plea for non-citizen.
{¶10} However, "[c]riminal 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)2 () 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)3), or (2) when a court finds, pursuant to Crim.R. 32.1, that it is necessary to correct manifest injustice." (Footnotes omitted.) State v. Toyloy, 10th Dist. Franklin No. 14AP-463, 2015-Ohio-1618, 2015 WL 1913431, ¶ 12.
{¶11} R.C. 2943.031(F) "clarifies that the statute does not prevent a trial court from granting a plea withdrawal under the procedural rule, Crim.R. 32.1." Toyloy, ¶ 12. Thus, R.C. 2943.031 provides "an independent means of withdrawing a guilty plea separate and apart from and in addition to the requirements of Crim.R. 32.1." State v. Weber, 125 Ohio App.3d 120, 129, 707 N.E.2d 1178 (10th Dist. 1997). Accordingly, when a motion to withdraw plea is premised under R.C. 2943.031(D), the usual "manifest injustice" standard applied to Crim.R. 32.1 motions does not apply; rather, the standards in R.C. 2943.031 apply. State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 26.
Appellate Review.
{¶12} However, regardless of whether the motion to withdraw the guilty plea is based on R.C. 2943.031 or Crim.R. 32.1, an appellate court reviews a trial court's decision on the motion under an abuse of discretion standard. Francis at ¶ 32. Generally, "[a] trialcourt abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary." State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34, citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). See also, State v. Cardenas, 2nd Dist. Darke No. 2015-CA-16, 2016-Ohio-5537, 61 N.E.3d 20, ¶ 14-¶16.
Ineffective Assistance as a Ground for Withdrawing a Guilty Plea.
{¶13} In his motion, Romero alleged ineffective assistance of counsel as a ground for withdrawing his guilty pleas.
{¶14} A claim of ineffective assistance of counsel requires a two-prong analysis. The first inquiry is whether counsel's performance fell below an objective standard of reasonable representation involving a substantial violation of any of defense counsel's essential duties to appellant. The second prong is whether the appellant was prejudiced by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).
{¶15} In order to warrant a finding that trial counsel was ineffective, the petitioner must meet both the deficient performance and prejudice prongs of Strickland and Bradley. Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251(2009); Accord, Buck v. Davis, ___U.S. ___, 137 S.Ct. 759, 775, ___L.Ed.2d ___ (U.S. Feb. 22, 2017).
Attorney's duty to a non-citizen client.
{¶16} A defense attorney has a duty to advise a noncitizen client that, "pending criminal charges may carry a risk of adverse immigration consequences," and, if it is "truly clear" what those consequences are, counsel must correctly advise the defendant of the consequences. Padilla v. Kentucky, 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). A defense attorney's failure to advise his client accordingly satisfies the first prong of Strickland, as it constitutes deficient performance. Id. However, because "[i]mmigration law can be complex," when the relevant immigration "law is not succinct and straightforward * * *, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Padilla, 559 U.S. 369, 130 S.Ct. 1473. Nevertheless, when the immigration consequences of a guilty plea can be "easily determined from reading the removal statute," and "the deportation consequence is truly clear * * * the duty to give correct advice is equally clear." Id.
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