2012-01

State v. Lababidi , 2012 Ohio 267 ( 2012 )

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[Cite as State v. Lababidi,

2012-Ohio-267

.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96755
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MAJED LABABIDI
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-485191 and CR-495046
BEFORE: Cooney, J., Blackmon, A.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: January 26, 2012
2
ATTORNEY FOR APPELLANT
Richard T. Seman
Richard T. Seman, Jr., Inc.
7784 Reynold Road
Mentor, Ohio 44060
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{¶ 1} Defendant-appellant, Majed Lababidi (“Lababidi”), appeals the trial court’s
denial of his motion to withdraw his plea. Finding no merit to this appeal, we affirm.
{¶ 2} In August 2007, Lababidi pled guilty in two separate cases to attempted
receiving stolen property, drug trafficking, and drug possession. In February 2010, the
United States government began deportation proceedings against him as a direct result of
his 2007 convictions. In March 2010, Lababidi filed a motion to vacate his convictions
pursuant to Civ.R. 32.1, and a full hearing was held in September 2010. In April 2011,
the trial court denied the motion with a detailed opinion.
3
{¶ 3} Lababidi now appeals, raising one assignment of error in which he argues
that the trial court erred in denying his motion to vacate his plea. Lababidi argues that
his counsel was ineffective because his trial attorney failed to advise him that his guilty
plea would subject him to automatic deportation. He argues that had he known that
deportation was a consequence of his plea, he would not have pled guilty and, therefore, a
manifest injustice occurred.
{¶ 4} Crim.R. 32.1 governs the withdrawal of guilty pleas and provides that:
“A motion to withdraw a plea of guilty or no contest may be made only before
sentence is imposed; but to correct manifest injustice the court after sentence may
set aside the judgment of conviction and permit the defendant to withdraw his or
her plea.”
{¶ 5} A defendant moving for a post-sentence withdrawal of a guilty plea has the
burden of establishing the existence of manifest injustice. State v. Smith (1977),

49 Ohio St.2d 261

361 N.E.2d 1324

, paragraph one of the syllabus. This court has stated
that: “[a] manifest injustice is defined as a ‘clear or openly unjust act[;]’ * * * ‘an
extraordinary and fundamental flaw in the plea proceeding.’ * * * ‘[M]anifest injustice’
comprehends a fundamental flaw in the path of justice so extraordinary that the defendant
could not have sought redress from the resulting prejudice through another form of
application reasonably available to him or her.” State v. Sneed, Cuyahoga App. No.
80902,

2002-Ohio-6502

.
{¶ 6} 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
4
assertions in support of the motion are matters to be resolved by that court. Smith,
paragraph two of the syllabus.      Consequently, an appellate court’s review of a trial
court’s denial of a post-sentence motion to withdraw a guilty plea is limited to a
determination of whether the trial court abused its discretion. State v. Blatnik (1984),

17 Ohio App.3d 201

, 202,

478 N.E.2d 1016

; State v. Xie (1992),

62 Ohio St.3d 527

584 N.E.2d 715

.    “The term ‘abuse of discretion’ connotes more than an error of law or
judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore (1983),

5 Ohio St.3d 217

, 219,

450 N.E.2d 1140

, quoting State v. Adams (1980),

62 Ohio St.2d 151

, 157,

404 N.E.2d 144

.
{¶ 7} However, a noncitizen criminal defendant is not required to show “manifest
injustice” when seeking to withdraw a guilty plea. R.C. 2943.032(D); State v. Francis,

104 Ohio St.3d 490

2004-Ohio-6894

820 N.E.2d 355

. R.C. 2943.031(D) provides:
“Upon motion of the defendant, the court shall set aside the judgment and permit
the defendant to withdraw a plea of guilty * * *, if, after the effective date of this
section, the court fails to provide the defendant the advisement described in
division (A) of this section, the advisement is required by that division, and the
defendant shows that he is not a citizen of the United States and that the conviction
of the offense to which he pleaded guilty or no contest may result in his being
subject to deportation, exclusion from admission to the United States, or denial of
naturalization pursuant to the laws of the United States.”
{¶ 8} R.C. 2943.031(A) requires a trial court to give the following advisement to
all defendants entering either a guilty plea or a plea of no contest:
“If you are not a citizen of the United States, you are hereby advised that
conviction of the offense to which you are pleading * * * may have the
5
consequences of deportation, exclusion from admission to the United States, or
denial of naturalization pursuant to the laws of the United States.”
{¶ 9} The only exceptions are if the defendant states orally on the record that he is
a U.S. citizen or signs a written plea form stating he is a citizen.   R.C. 2943.031(B).
{¶ 10} Lababidi asserts that this court, following Padilla v. Kentucky (2010), 559
U.S. __,

130 S.Ct. 1473

176 L.Ed.2d 284

, should reverse the trial court’s denial of his
motion due to his counsel’s ineffectiveness. In Padilla, the United States Supreme
Court reiterated that before deciding whether to plead guilty, a defendant is entitled to
“the effective assistance of competent counsel.”

Id.,

 citing McMann v. Richardson
(1970),

397 U.S. 759

, 771,

90 S.Ct. 1441

25 L.Ed.2d 763

. In order to establish a claim
of ineffective assistance of counsel, a defendant must demonstrate that (1) the
performance of defense counsel was seriously flawed and deficient, and (2) the result of
defendant’s trial or legal proceeding would have been different had defense counsel
provided proper representation. Strickland v. Washington (1984),

466 U.S. 668

104 S.Ct. 2052

80 L.Ed.2d 674

.
{¶ 11} The Padilla court held that “it is critical for counsel to inform her
noncitizen client that he faces a risk of deportation” and that “[t]o satisfy this
responsibility, counsel must inform her client whether his plea carries a risk of
deportation,” so the failure to do so can satisfy the first prong of the Strickland analysis.
If the defendant meets this first prong of the Strickland analysis, he must still demonstrate
prejudice as a result thereof before being entitled to relief.

Id.

6
{¶ 12} This court has previously held that when a trial court properly informs a
defendant regarding the possibility of deportation, pursuant to R.C. 2943.031(A) then any
prejudice caused by the misadvice of counsel is cured.   In State v. Bains, Cuyahoga App.
No. 94330,

2010-Ohio-5143

, at ¶29, appeal not allowed,

128 Ohio St.3d 1413

2011-Ohio-828

, this court rejected a claim similar to Lababidi’s and stated:
“Even if we accept the averments of defendant’s affidavit as true; namely, that his
attorney quietly told him not to worry, the trial court clearly advised defendant on
several occasions that his conviction would subject him to deportation — a fact his
attorney corroborated at least by October 2003. Defendant did not attempt to
withdraw his guilty plea until 2009. For these reasons, defendant cannot establish
the requisite prejudice necessary to entitle him to relief. Accord Flores v. State
[of Florida] (Fla. 4th DCA 2010), [

57 So.3d 218

] (holding ‘the court’s warning
that Flores may be deported based on his plea cured any prejudice that might have
flowed from counsel’s alleged misadvice’).”
See, also, State v. Velazquez, Cuyahoga App. No. 95978,

2011-Ohio-4818

 (no abuse of
discretion in denying defendants motion to withdraw his plea based on misadvice of
counsel, when the trial court properly advised defendant pursuant to R.C. 2943.031(A) of
possible deportation).
{¶ 13} Lababidi does not claim that the trial court failed to properly advise him of
possible deportation; in fact, he admits that he was not paying attention to the trial judge
and instead relied solely on his attorney who assured him that deportation was unlikely.
We note that Lababidi has failed to file a transcript of his plea hearing with his appeal,
and therefore, “[i]n the absence of a complete and adequate record, a reviewing court
must presume the regularity of the trial court proceedings and the presence of sufficient
7
evidence to support the trial court’s decision.” Burrell v. Kassicieh (1998),

128 Ohio App.3d 226

714 N.E.2d 442

. Thus, we must presume regularity in the trial court’s
proceedings and find that the trial court fully advised Lababidi of the potential for
deportation during his plea hearing.
{¶ 14} There is secondary evidence in the record that the court did fully advise
Lababidi pursuant to R.C. 2943.031(A). First, in the trial court’s opinion regarding the
denial of Lababidi’s motion, the trial judge states that “[d]uring the plea colloquy, the
court advised defendant of the deportation consequences verbatim from R.C. 2943.031
and defendant acknowledged he understood these consequences on the record.” Second,
a photocopy of the pertinent sections of the transcript from the plea hearing is included in
the State’s brief in opposition to Lababidi’s motion to withdraw, demonstrating the
court’s compliance with R.C. 2943.031(A).1
{¶ 15} Regardless, we presume regularity and find that the trial court’s advisement
of potential deportation cured the alleged incorrect advice Lababidi received from
counsel. Lababidi was not prejudiced, and therefore, he is not entitled to relief.
Contained in the photocopy of the transcript is the following:
1
“THE COURT: Do you understand, sir, that you are advised that a conviction of the offense to
which you are pleading guilty to may have the consequences of deportation, exclusion from
admission to the United States or denial of naturalization pursuant to the laws of the United
States. Do you understand that?
“THE DEFENDANT: Yes.”
8
{¶ 16} Finally, Lababidi asserts that he is innocent and that his innocence is
supported by his son’s testimony during the hearing. Lababidi’s son, who has been
convicted on numerous drug charges, testified that he was the one who contacted the
confidential informant and sent him to his home on the evening in question. It was
while the informant was at the home that Lababidi attempted to sell the informant drugs.
Lababidi’s son could not speak to whether his father did in fact attempt to sell drugs to
the informant because the son was incarcerated at that time.
{¶ 17} Moreover, Lababidi cannot now claim his innocence, because “[a] plea of
guilty is a complete admission of guilt.” State v. Stumph (1987),

32 Ohio St.3d 95

, 104,

512 N.E.2d 598

; Crim.R. 11(B)(1). See, also, State v. Woodley, Cuyahoga App. No.
83104,

2005-Ohio-4810

, ¶13. “By entering a plea of guilty, the accused is not simply
stating that he did the discrete acts described in the indictment; he is admitting guilt of a
substantive crime.”    State v. Gaston, Cuyahoga App. No. 92242,

2009-Ohio-3080

,
quoting State v. Kitzler, Wyandot App. No. 16-02-06,

2002-Ohio-5253

, ¶12. Therefore,
“‘[a] criminal defendant who pleads guilty is limited on appeal; he may only attack the
voluntary, knowing, and intelligent nature of the plea * * *.’” Gaston, quoting State v.
Spates,

64 Ohio St.3d 269

, 272,

1992-Ohio-130

595 N.E.2d 351

.
{¶ 18} The trial court properly found no prejudice to Lababidi. Thus, the trial
court did not abuse its discretion in denying Lababidi’s motion to withdraw his plea.
{¶ 19} Accordingly, the sole assignment of error is overruled.
9
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
PATRICIA ANN BLACKMON, A.J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY (WITH
SEPARATE OPINION ATTACHED).
10
SEAN C. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY:
{¶ 20} I reluctantly concur in judgment only with the majority. I recognize a line
of cases exists in this district, as outlined in the majority opinion, that makes
R.C. 2943.031(A) a “cleansing” advisement, curing all incomplete or misinformation
regarding deportation. While I acknowledge the holding in Bains as cited by the
majority was correct, the facts here are distinguishable. In Bains, the trial court gave a
clear advisement that went beyond the mandate of R.C. 2943.031(A). Bains, 8th Dist.
No. 94330,