State v. Muhire , 2022 Ohio 3078 ( 2022 )

[Cite as State v. Muhire, 2022-Ohio-3078.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29164
:
v. : Trial Court Case No. 2018-CRB-827
:
JEAN BOSCO MUHIRE : (Criminal Appeal from Municipal Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 2nd day of September, 2022.
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STEPHANIE L. COOK, Atty. Reg. No. 0067101 and ANDREW D. SEXTON, Atty. Reg.
No. 0070892 , Assistant Prosecuting Attorneys, City of Dayton Prosecutor’s Office, 335
West Third Street, Room 390, Dayton, Ohio 45402
Attorneys for Plaintiff-Appellee
MOHAMED Al-HAMDANI, Atty. Reg. No. 0091667, 120 West Second Street, Suite 1650,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
WELBAUM, J.
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{¶ 1} Defendant-appellant, Jean Bosco Muhire, appeals from a judgment of the
Dayton Municipal Court denying his post-sentence motion to withdraw his guilty plea. In
support of his appeal, Muhire contends that the trial court should have granted his motion
because he had a limited understanding of the English language, which prevented him
from entering a knowing, intelligent, and voluntary guilty plea. Muhire also claims that
the trial court abused its discretion by failing to appoint an interpreter at his plea hearing.
In addition, Muhire contends that his trial counsel provided ineffective assistance by failing
to advise him of the potential immigration consequences of his guilty plea. For the
reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} Muhire is a refugee who came to the United States from Rwanda in May
2017; his native language is Kinyarwanda. On February 15, 2018, Muhire was charged
by complaint with one first-degree-misdemeanor count of domestic violence, one fourth-
degree-misdemeanor count of domestic violence, and single first-degree-misdemeanor
counts of assault, aggravated menacing, and menacing. Muhire initially pled not guilty
to all of the charges at his arraignment, but he later accepted a plea offer requiring him to
plead guilty to one count of assault. In exchange for Muhire’s guilty plea, the State
agreed to amend the first-degree-misdemeanor count of domestic violence to assault and
to dismiss all the remaining charges.
{¶ 3} Although Muhire spoke Kinyarwanda, the trial court stamped the arraignment
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entry with the phrase: “Order Interpreter – Swahili.” Arraignment (Feb. 15, 2018). For
unknown reasons, no interpreter, Swahili or otherwise, ever appeared at Muhire’s March
8, 2018 plea hearing. During the plea hearing, Muhire did not request an interpreter’s
assistance nor did he express a lack of understanding as to what the trial court was saying
during the hearing. Instead, Muhire entered his guilty plea to assault pursuant to the
plea agreement. In doing so, Muhire signed a plea form that contained the following
advisement regarding the immigration consequences of his guilty plea:
The Court advised me of the following: “If you are not a citizen of the
United States you are hereby advised that conviction of the offense to which
you are pleading guilty or no contest 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.”
Plea of Guilty or No Contest and Waiver of Rights (Mar. 8, 2018).
{¶ 4} The trial court discussed the foregoing immigration language with Muhire and
asked if Muhire understood it. In response, Muhire indicated that he understood what
the trial court had said. The trial court thereafter accepted Muhire’s guilty plea and
proceeded to sentencing.
{¶ 5} At sentencing, the trial court ordered Muhire to serve 180 days in jail with 157
days suspended and 23 days of jail-time credit. The trial court also ordered Muhire to
complete one year of supervised probation, drug and alcohol counseling, and a batterer’s
intervention program known as the August Project. On April 12, 2018, the trial court
modified Muhire’s sentence to require him to complete the Stop the Violence program as
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opposed the August Project.
{¶ 6} On December 18, 2018, Muhire was discharged from supervised probation.
Almost two years later, on August 18, 2020, Muhire hired counsel and filed a motion to
withdraw his guilty plea to assault. In that motion, Muhire argued that his guilty plea had
not been knowingly, intelligently, and voluntarily entered because he had a limited
understanding of the English language and had required the assistance of an interpreter
at the plea hearing. Muhire also argued that his trial counsel had provided ineffective
assistance by failing to advise him of the immigration consequences of his guilty plea and
by not using an interpreter to speak with him.
{¶ 7} On October 21, 2020, the trial court held an evidentiary hearing on Muhire’s
motion to withdraw his guilty plea. At the hearing, Muhire testified in support of his
motion and used a Kinyarwanda interpreter 1 to translate for him during the entire
proceeding. Thereafter, the State presented testimony from the appointed attorney who
represented Muhire during his plea, Melissa Pfahler. The State also presented
testimony from Muhire’s probation officer, Stephanie Jackson. The following is a
summary of the testimony that was presented at the hearing.
Jean Bosco Muhire
{¶ 8} Muhire testified that he was born in Congo and came to the United States as
1 After the Kinyarwanda interpreter was sworn in, Muhire’s counsel briefly questioned the
interpreter, and the interpreter testified that he might not understand some legal terms.
See Hearing Tr. (Oct. 21, 2020), p. 5. Although there were a few instances where the
interpreter had difficulty translating, the interpreter was nevertheless able to assist Muhire
throughout the plea hearing.
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a refugee from Rwanda in May 2017. Muhire claimed that he spoke very little English
when he arrived in the United States and that Kinyarwanda was his first language.
Muhire testified that, despite taking some English grammar classes, he did not
understand everything that was being said when he conversed in English. Muhire
claimed that he conversed in English by extending the meaning of the English words he
knew in order to understand the topic of conversation.
{¶ 9} With regard to his criminal case, Muhire testified that he was appointed
counsel after he was charged with domestic violence, assault, aggravated menacing, and
menacing in February 2018. Muhire testified that his counsel had not used an interpreter
to speak with him during their meetings and that he had not understood everything his
counsel told him. Muhire also testified that he had told his counsel about the incident
that led to the aforementioned charges, but that he had not been sure how much of the
information his counsel understood.
{¶ 10} Concerning his charges, Muhire testified that his counsel had advised him
that assault and domestic violence were similar charges, but that assault was “better”
because he could be deported if he was convicted of domestic violence. Hearing Tr.,
(Oct. 21, 2020), p. 13. Muhire testified that he did not remember his counsel ever
advising him of the immigration consequences of entering a guilty plea to assault.
Muhire also testified that he signed a bunch of papers with the understanding that doing
so would allow him to get out of jail. Muhire claimed that he could not read English and
did not know what the papers said. Muhire further testified that, at the time of his plea,
he did not know the meaning of the term “plea deal.” Hearing Tr., p. 57.
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{¶ 11} Continuing, Muhire testified that he had recently applied for a green card
with the assistance of an attorney. According to Muhire, his application prompted an
interview with immigration services. Muhire testified that the interview had worried the
attorney who was helping him and that the attorney believed the interview had been
conducted due to his assault conviction. As a result, the attorney referred Muhire to his
current counsel, who helped him withdraw his application for a green card. Muhire
testified that his immigration status is now in limbo.
{¶ 12} On cross-examination, Muhire clarified that, despite using an interpreter, he
understood some of what was being said at the plea withdraw hearing. Muhire then
testified about a “long” conversation he had with his trial counsel while in jail and
confirmed that he had never asked his counsel for an interpreter. Hearing Tr., p. 27-33.
Muhire also confirmed that he had testified without the assistance of an interpreter on
December 13, 2018, at his wife’s trial in Dayton Municipal Court Case No. 2018-CRB-
5700. The State played an audio-recorded portion of Muhire’s trial testimony in that
case, and Muhire confirmed that the voice testifying on the recording was his own.
{¶ 13} Concerning his guilty plea to assault, Muhire testified that he remembered
the trial court judge reading him a form at the plea hearing before he entered his plea, but
had not understood what the judge was saying. Muhire testified that his counsel told him
that the text of the form was read to every immigrant and that it was of “no consequence.”
Hearing Tr., p. 51. The State then played an audio recording of the trial court judge’s
reading Muhire the portion of the plea form advising him of the immigration consequences
of his guilty plea at the plea hearing. After listening to the audio recording, Muhire
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testified that it would have been “possible” for him to have told the judge that he did not
understand what the judge was saying. Hearing Tr., p. 53-54, 61. Muhire, however,
indicated that he did not express his lack of understanding at the plea hearing because
his counsel told him to accept what the judge said.
Melissa Pfahler
{¶ 14} Muhire’s appointed counsel, Melissa Pfahler, testified that based on
Muhire’s being a Rwandan refugee and having been in the United States for a short period
of time, it was her first impression that Muhire would need an interpreter. However,
Pfahler’s testimony indicates that this impression changed after Pfahler met Muhire in
person. Pfahler testified that she met with Muhire four times between February 21, 2018,
and March 8, 2018. Although Pfahler did not have an independent recollection of her
meetings with Muhire, she testified that her case notes established that she had no issue
communicating with Muhire in English. Pfahler testified that her case notes were “pretty
clear” that Muhire spoke English to her and that she understood what he said. Hearing
Tr., p. 72. Pfahler also testified that, prior to meeting Muhire, her office intake specialist
interviewed Muhire and completed intake forms for his case. According to Pfahler, none
of the intake forms associated with Muhire’s case noted that Muhire needed an interpreter
to communicate with the intake specialist.
{¶ 15} Pfahler also testified that her case notes reflected that she and Muhire
discussed Muhire’s charges, possible penalties, the State’s plea offer, and the
immigration consequences listed in the plea form. Pfahler explained that there was
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nothing about her conversations with Muhire that led her to believe that Muhire did not
understand what she was talking about. Pfahler also testified that Muhire never asked
for an interpreter during any of their meetings. Pfahler further testified that if Muhire had
not understood her, she would have ended their meeting and called the court to request
the appointment of an interpreter.
{¶ 16} In addition, Pfahler testified that her case notes established that she spoke
to an immigration attorney regarding Muhire’s case. Pfahler testified that she determined
a guilty plea to assault provided Muhire with the best possible outcome because all of
Muhire’s other charges were either deportable offenses or not expungeable. On cross-
examination, Pfahler could not recall whether she specifically researched what effect an
assault conviction would have on Muhire’s immigration status. However, Pfahler testified
that her case notes indicated that she looked into the issue of moral turpitude. Pfahler
testified that she “probably reviewed * * * what is a crime of moral turpitude” and may
have discussed with Muhire whether assault fell under that category. Hearing Tr., p. 88-
90.
{¶ 17} Pfahler testified that, under the circumstances of this case, she would have
told Muhire that she could not make any promises about what effect a guilty plea to
assault would have on his immigration status. Pfahler also confirmed that she would
have read Muhire the immigration consequences listed in the plea form. Pfahler further
testified that Muhire never told her that he did not understand the information in the plea
form or that he did not understand what she was saying during the plea hearing.
Pfahler also did not recall Muhire ever asking for an interpreter at the plea hearing.
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Pfahler testified that if Muhire had told her that he did not understand what was being said
at the plea hearing, she would have asked the trial court to continue the hearing and
would have requested an interpreter.
Stephanie Jackson
{¶ 18} Muhire’s probation officer, Stephanie Jackson, testified that she first met
with Muhire on April 23, 2018, just six weeks after he entered his guilty plea to assault.
Jackson testified that she and Muhire discussed various topics during that meeting,
including the rules of probation and the situation/reasons why he was on probation.
Jackson testified that she had no difficulty communicating with Muhire and that Muhire
never asked for an interpreter or stated that he did not understand what she was saying.
According to Jackson, Muhire was able to appropriately respond to a 30-question
assessment that she conducted verbally. Jackson testified that Muhire never indicated
a lack of understanding or the need for an interpreter during any of the 30 questions.
{¶ 19} Jackson further testified that she met with Muhire once a month for the Stop
the Violence program and that she had no difficulty understanding Muhire during that
time. Jackson testified that Muhire was able to converse in a manner that corresponded
to the program topic being discussed. Jackson testified that the Stop the Violence
program was conducted in basic English and that Muhire successfully completed the
program. To complete the program, Jackson testified that Muhire had to attend 24 one-
hour classes during which Muhire would write out answers to daily questions, keep a
written journal, participate in group discussions, and verbally check in to class. Although
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Jackson testified that Muhire likely received some help with his written assignments, she
testified that Muhire specifically told her that he could speak and write in English.
Post-Hearing Decision
{¶ 20} After hearing the foregoing testimony, the trial court took Muhire’s motion to
withdraw his guilty plea under advisement and then issued a written decision denying the
motion. In denying the motion, the trial court found that the hearing testimony
established that Muhire had understood English and thus knowingly entered his guilty
plea to assault. Relying on Pfahler’s testimony, the trial court also rejected Muhire’s
ineffective assistance claim on grounds that Pfahler’s representation was not deficient.
{¶ 21} Muhire now appeals from the trial court’s decision denying his post-
sentence motion to withdraw his guilty plea, raising two assignments of error for review.
Standard of Review
{¶ 22} “We review a trial court’s decision on a post-sentence motion to withdraw
guilty plea * * * for an abuse of discretion.” State v. Ogletree, 2d Dist. Clark No. 2014-
CA-16, 2014-Ohio-3431, ¶ 11. “ ‘Absent an abuse of discretion on the part of the trial
court in making the ruling, its decision must be affirmed.’ ” Id., quoting State v. Xie, 62
Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). “A trial court abuses its discretion when it
makes a decision that is unreasonable, unconscionable, or arbitrary.” (Citation omitted.)
State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. Most
instances of abuse of discretion occur when a trial court makes a decision that is
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unreasonable. AAAA Ents., Inc. v. River Place Community Urban Redevelopment
Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “A decision is unreasonable if
there is no sound reasoning process that would support that decision.” Id.First Assignment of Error
{¶ 23} Under his first assignment of error, Muhire contends that the trial court
should have granted his post-sentence motion to withdraw his guilty plea because his
limited understanding of the English language prevented him from entering a knowing,
intelligent, and voluntary guilty plea to assault. Muhire claims that the alleged language
barrier prevented him from understanding his plea and that the trial court’s failure to
appoint an interpreter at his plea hearing was an abuse of discretion. We disagree.
{¶ 24} “Under Crim.R. 32.1, a trial court may permit a defendant to withdraw a plea
after imposition of sentence only to correct a manifest injustice.” (Citations omitted.)
State v. Ray, 2d Dist. Champaign No. 2019-CA-31, 2020-Ohio-4769, ¶ 11. The burden
to prove the existence of a manifest injustice in a post-sentence motion to withdraw a plea
rests upon the defendant. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977),
paragraph one of the syllabus; State v. Turner, 171 Ohio App.3d 82, 2007-Ohio-1346,
869 N.E.2d 708, ¶ 20 (2d Dist.). A defendant may establish a manifest injustice “ ‘by
showing that he did not enter the guilty plea in a knowing, intelligent, or voluntary
manner.’ ” State v. Leifheit, 2d Dist. Clark No. 2019-CA-78, 2020-Ohio-5106, ¶ 16,
quoting State v. Riley, 4th Dist. Washington No. 16CA29, 2017-Ohio-5819, ¶ 18. (Other
citations omitted.) A determination of whether a plea is knowing, intelligent and voluntary
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is based upon a review of the record. State v. Spates, 64 Ohio St.3d 269, 272, 595
N.E.2d 351 (1992).
{¶ 25} In this case, the transcript of Muhire’s plea hearing was not made a part of
the record on appeal. The only transcripts provided to this court were that of the hearing
on Muhire’s motion to withdraw his guilty plea and a partial transcript of Muhire’s trial
testimony in Case No. 2018-CRB-5700. Although there is no transcript of Muhire’s plea
hearing, the testimony given at the plea withdrawal hearing established that the following
facts were undisputed: (1) Muhire did not request to have an interpreter assist him at the
plea hearing; (2) an interpreter was never appointed by the trial court at the plea hearing;
(3) the trial court read the portion of the plea form advising Muhire of the immigration
consequences of his guilty plea at the plea hearing and asked if Muhire understood the
consequences; and (4) Muhire indicated an understanding of the immigration
consequences read by the trial court and never told the trial court that he did not
understand what the trial court was saying at the plea hearing. It is also undisputed that
Muhire is not a United States citizen but a refugee from Rwanda whose first language is
Kinyarwanda.
{¶ 26} “This court has previously recognized that ‘in a criminal case, the defendant
is entitled to hear the proceedings in a language that he can understand.’ ” State v.
Castro, 2d Dist. Montgomery No. 14398, 1995 WL 558782, *4 (Sept. 20, 1995), quoting
State v. Pina, 49 Ohio App.2d 394, 399, 361 N.E.2d 262 (2d Dist.1975). “Moreover, R.C.
2311.14(A) requires that a trial court appoint an interpreter for legal proceedings
whenever a participant in the proceeding ‘cannot readily understand or communicate’ as
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a result of an impediment.” Id. Similarly, Sup.R. 88(A) mandates the appointment of a
foreign language interpreter, in the absence of a request, only if “the court concludes the
party or witness is limited English proficient or non-English speaking and determines the
services of the interpreter are necessary for the meaningful participation of the party or
witness.”
{¶ 27} “The trial court has broad discretion in determining whether a criminal
defendant requires the assistance of an interpreter.” Castro at *4, citing State v. Saah,
67 Ohio App.3d 86, 95, 585 N.E.2d 999 (8th Dist.1990); State v. Flores, 10th Dist. Franklin
No. 19AP-405, 2020-Ohio-593, ¶ 11. “The decision regarding whether a defendant is
entitled to a court appointed language interpreter is initially based on the trial court’s
assessment of the defendant’s apparent ability to comprehend the English language and
communicate therein.” (Citations omitted.) Castro at *4. “[A]n imperfect grasp of the
English language may be sufficient as long as the defendant has the ability to understand
and communicate in English.” (Citations omitted.) Id.{¶ 28} Here, without a record of the plea hearing, we must presume the regularity
of that proceeding as it relates to the issue of whether an interpreter should have been
appointed by the trial court. See State v. Miller, 2d Dist. Montgomery No. 25893, 2014-
Ohio-4508, ¶ 26, quoting State v. Kreuzer, 2d Dist. Greene No. 1998-CA-100, 1999 WL
959206, *5 (Aug. 6, 1999) (“ ‘absent a transcript of the proceedings, this Court must
presume regularity in the proceedings before the trial court’ ”). Since the available record
establishes that Muhire did not request an interpreter at the plea hearing, we presume
that the trial court assessed Muhire’s ability to comprehend and communicate in English
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at the plea hearing and, after doing so, appropriately determined that the appointment of
an interpreter was unnecessary for Muhire to enter a knowing, intelligent, and voluntary
guilty plea. Therefore, based on the limited record before this court, we find no abuse of
discretion with regard to the trial court’s decision not to appoint a foreign language
interpreter for Muhire’s plea hearing.
{¶ 29} Our decision on this matter is supported by the testimony presented at
Muhire’s plea withdrawal hearing. For example, the testimony of Muhire’s former
counsel, Pfahler, and his probation officer, Jackson, established that Muhire was able to
understand and communicate in English at or near the time he entered his guilty plea.
The written transcript and audio-recording of the testimony Muhire gave at his wife’s trial
in Case No. 2018-CRB-5700 also established that Muhire could effectively understand
and communicate in English without an interpreter. On the audio-recording, Muhire can
be heard conversing with the trial court and counsel with relative ease while being
questioned. Although Muhire had difficulty with a few words during his testimony, he
was able to seek clarification and then supply appropriate responses to the questions
asked of him.
{¶ 30} It should also be noted that Muhire testified at his wife’s trial ten months
before he testified at his plea withdrawal hearing. This is significant because Muhire
declined the assistance of an interpreter at his wife’s trial but sought the assistance of an
interpreter at the subsequent plea withdrawal hearing. Muhire’s demonstrated ability to
understand and communicate in English during his wife’s trial leads this court to believe
that his alleged need for an interpreter at the plea withdrawal hearing was disingenuous.
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Therefore, we do not place much weight on the fact that Muhire used an interpreter at the
plea withdrawal hearing.
{¶ 31} Taking all of this into consideration, we also find no abuse of discretion with
regard to the trial court’s rejecting the language-barrier claim in Muhire’s motion to
withdraw his guilty plea. In this court’s view, the trial court reasonably determined from
the testimony presented at the plea withdrawal hearing that Muhire had a sufficient grasp
of the English language and that no language barrier prevented him from knowingly,
intelligently, and voluntarily entering his guilty plea to assault. In other words, it was
reasonable for the trial court to find no manifest injustice in the form of a language barrier.
Accordingly, the trial court’s denial of Muhire’s post-sentence motion to withdraw his guilty
plea was not an abuse of discretion in that regard.
{¶ 32} Muhire’s first assignment of error is overruled.
Second Assignment of Error
{¶ 33} Under his second assignment of error, Muhire contends that the trial court
should have granted his post-sentence motion to withdraw his guilty plea based on
ineffective assistance of counsel, and that the trial court’s failure to find his counsel
ineffective was against the manifest weight of the evidence. Specifically, Muhire
contends that his counsel was ineffective because she failed to advise him about the
potential immigration consequences of his guilty plea in a language that he could
understand. Muhire claims that if his counsel had appropriately warned him of the
immigration consequences of his guilty plea, he would not have pled guilty to assault but
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would have gone to trial.
{¶ 34} Given that we have already established that Muhire’s language-barrier
claim lacks merit, we will only focus on Muhire’s claim that his trial counsel provided
ineffective assistance by failing to advise him of the immigration consequences of his
guilty plea. Because abuse of discretion is the appropriate standard for reviewing a trial
court’s judgment on a post-sentence motion to withdraw guilty plea, Muhire’s manifest
weight claim is not well taken. Instead, we will determine whether the trial court’s
decision rejecting the ineffective assistance claim in Muhire’s motion was an abuse of
discretion.
{¶ 35} It is well established that “ ‘[i]neffective assistance of counsel can constitute
manifest injustice sufficient to allow the post-sentence withdrawal of a guilty plea.’ ”
State v. Banks, 2d Dist. Montgomery No. 25188, 2013-Ohio-2116, ¶ 9, quoting State v.
Dalton, 153 Ohio App.3d 286, 2003-Ohio-3813, 793 N.E.2d 509, ¶ 18 (10th Dist.). To
establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-
pronged test in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). Specifically, the defendant must establish: (1) his trial counsel’s
performance was deficient; and (2) the deficient performance prejudiced him. Strickland
at paragraph two of the syllabus; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989), paragraph two of the syllabus. To establish deficient performance, a defendant
must show that his trial counsel’s performance fell below an objective standard of
reasonable representation. Strickland at 688; Bradley at 142. When evaluating
counsel’s performance, a reviewing court “must indulge in a strong presumption that
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counsel’s conduct falls within the wide range of reasonable professional assistance.”
Strickland at 689. To establish prejudice, a defendant must show that there is “a
reasonable probability that, but for counsel’s errors, the proceeding’s result would have
been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864,
¶ 204, citing Strickland at 687-688 and Bradley at paragraph two of the syllabus. The
failure to make a showing of either deficient performance or prejudice defeats a claim of
ineffective assistance of counsel. Strickland at 697.
{¶ 36} As relevant to this case, “[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.” State v. Galdamez, 2015-Ohio-
3681, 41 N.E.3d 467, ¶ 16 (10th Dist.), quoting Padilla v. Kentucky, 559 U.S. 356, 369,
130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Accord State v. Cardenas, 2016-Ohio-5537,
61 N.E.3d 20, ¶ 39 (2d Dist.). “ ‘A defense attorney’s failure to advise [his or her] client
accordingly satisfies the first prong of Strickland, as it constitutes deficient performance.’ ”
Cardenas at ¶ 39, quoting Galdamez at ¶ 16. Accord State v. Ayesta, 8th Dist.
Cuyahoga No. 101383, 2015-Ohio-1695, ¶ 15, citing Padilla at 373-374 (providing
misadvice about immigration consequences or failing to advise at all of potential
deportation consequences associated with a plea satisfies the first prong of Strickland).
{¶ 37} The Supreme Court of Ohio, however, has “acknowledged that immigration
law can be complex and that the deportation consequences of a particular plea will not
always be clear.” (Citations omitted.) State v. Bozso, 162 Ohio St.3d 68, 2020-Ohio-
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3779, 164 N.E.3d 344, ¶ 17. “In cases in which the law ‘is not succinct and
straightforward,’ an attorney ‘need do no more than advise a noncitizen client that pending
criminal charges may carry a risk of adverse immigration consequences.’ ” Id., quoting
Padilla at 369. Accord State v. Poppel, 2d Dist. Champaign No. 2020-CA-34, 2021-
Ohio-2536, ¶ 10. “ ‘But when the deportation consequence is truly clear, * * * the duty to
give correct advice is equally clear.’ ” Bozso at ¶ 17, quoting Padilla at 369.
{¶ 38} After reviewing the relevant portion of the Immigration and Nationality Act,
i.e., 8 U.S.C. 1227, we find that the deportation consequence of Muhire’s guilty plea to
one count of first-degree-misdemeanor assault is not straightforward or clear. This is
because assault is not specifically listed as a deportable offense under 8
U.S.C. 1227(a)(2). That statute does, however, provide that crimes “involving moral
turpitude” are deportable. 8 U.S.C. 1227(a)(2)(A)(i). Specifically, the statue states that:
“Any alien who * * * is convicted of a crime involving moral turpitude committed within five
years * * * after the date of admission, and * * * is convicted of a crime for which a sentence
of one year or longer may be imposed, is deportable.” 8 U.S.C. 1227(a)(2)(A)(i).
{¶ 39} “[C]rimes involving moral turpitude” is “a general category that covers a wide
variety of crimes.” Barton v. Barr, __ U.S. __, 140 S.Ct. 1442, 1448, 206 L.Ed.2d 682(2020). The United States Court of Appeals for the Sixth Circuit has explained that:
“The term ‘crime involving moral turpitude’ is not defined in the
[Immigration and Nationality Act] or by agency regulations.” [Reyes v.
Lynch, 835 F.3d 556, 560 (6th Cir. 2016)] (quoting Yeremin v. Holder, 738
F.3d 708, 714 (6th Cir. 2013)). But the [Board of Immigration Appeals
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(“BIA”)] has held that “a criminal offense involves ‘moral turpitude’ if the
relevant statute defines the offense in such a manner that it necessarily
entails conduct on the part of the offender that is inherently base, vile, or
depraved, and contrary to accepted rules of morality and the duties owed
between persons or to society in general.” In re Kochlani, 24 I. & N. Dec.
128, 129 (BIA 2007). The BIA has also held that “an offense must have
two essential elements to constitute a crime involving moral turpitude: a
culpable mental state and reprehensible conduct.” Matter of Medina, 26 I.
& N. Dec. 79, 82 (BIA 2013). Moreover, “[c]rimes committed intentionally
or knowingly have historically been found to involve moral turpitude.” In re
Solon, 24 I. & N. Dec. 239, 240 (BIA 2007).
With regard to statutes prohibiting assault and battery, the BIA
has observed that assault “may or may not involve moral turpitude,”
In re Fualaau, 21 I. & N. Dec. 475, 477 (BIA 1996), and that the inquiry must
focus on “an assessment of both the state of mind and the level of harm
required to complete the offense,” Solon, 24 I. & N. Dec. at 242. Simple
assault and battery—which typically has elements of general intent and a
mere touching—is usually not considered a crime involving moral turpitude.
Id. at 241-42. On the other hand, assault-and-battery offenses “that
necessarily involve[ ] the intentional infliction of serious bodily injury ... have
been held to involve moral turpitude because such intentionally injurious
conduct reflects a level of immorality that is greater than that associated
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with a simple offensive touching.” In re Sanudo, 23 I. & N. Dec. 968, 971
(BIA 2006) * * *.
(Emphasis added.) Lovano v. Lynch, 846 F.3d 815, 817 (6th Cir.2017).
{¶ 40} Because assault “may or may not involve moral turpitude,” it was unclear
whether Muhire’s guilty plea to assault would result in deportation under 8
U.S.C. 1227(a)(2)(A)(i). Such a determination would require an immigration court to
assess whether the injurious conduct at issue reflected a sufficient level of immorality so
as to qualify as a crime involving moral turpitude. Because of this lack of clarity on the
matter, Muhire’s counsel, Pfahler, was only required to advise Muhire that pleading guilty
to assault might carry the risk of adverse immigration consequences.
{¶ 41} At the plea withdrawal hearing, Muhire testified that Pfahler told him that if
he was convicted of domestic violence he would be deported, but that a conviction for
assault would not be “as difficult or problematic.” Hearing Tr. (Oct. 21, 2020), p. 53.
Muhire, however, claimed that Pfahler did not otherwise advise him of the adverse
immigration consequences of pleading guilty to assault.
{¶ 42} Pfahler, on the other hand, testified that her case notes reflected that she
and Muhire discussed Muhire’s charges, possible penalties, the State’s plea offer, and
the immigration consequences listed in the plea form prior to Muhire entering his guilty
plea. Pfahler also testified that she would have read the immigration consequences in
the plea form to Muhire. As previously discussed, the plea form stated the following:
If you are not a citizen of the United States you are hereby advised
that conviction of the offense to which you are pleading guilty or no contest
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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.
Plea of Guilty or No Contest and Waiver of Rights (Mar. 8, 2018).
{¶ 43} Pfahler’s testimony, if believed, established that Pfahler satisfied her duty
to advise Muhire that pleading guilty to assault could carry the risk of adverse immigration
consequences. The trial court chose to rely on Pfahler’s testimony as opposed to
Muhire’s and thus rejected Muhire’s ineffective assistance claim on grounds that Pfahler’s
legal representation was not deficient with regard to the immigration-consequences
advisement. This decision was within the trial court’s discretion, as “[d]ecisions
regarding the credibility of witnesses are primarily for the trial court to make, given that
the trial judge, as the finder of fact at the hearing on the motion to withdraw the plea, saw
and heard the witnesses’ testimony.” (Citations omitted.) State v. Hess, 2d Dist.
Montgomery No. 24453, 2012-Ohio-961, ¶ 22.
{¶ 44} Based on Pfahler’s testimony, which the trial court found credible, we find
that the trial court’s decision to reject the ineffective assistance claim in Muhire’s post-
sentence motion to withdraw his guilty plea was reasonable. Because the trial court
reasonably determined that Muhire had failed to establish a manifest injustice in the form
of ineffective assistance of counsel, the trial court’s decision denying Muhire’s post-
sentence motion to withdraw his guilty plea was not an abuse of discretion.
{¶ 45} Muhire’s second assignment of error is overruled.
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Conclusion
{¶ 46} Having overruled both of Muhire’s assignments of error, the judgment of the
trial court denying Muhire’s post-sentence motion to withdraw his guilty plea is affirmed.
.............
TUCKER, P.J. and EPLEY, J., concur.
Copies sent to:
Stephanie L. Cook
Andrew D. Sexton
Mohamed Al-Hamdani
Hon. Daniel G. Gehres