State v. Diol , 2019 Ohio 2197 ( 2019 )

[Cite as State v. Diol, 2019-Ohio-2197.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180249
TRIAL NO. B-1700978
Plaintiff-Appellee,
: O P I N I O N.
vs.
:
MOHAMED DIOL,
:
Defendant-Appellant.
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 5, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Sarah C. Larcade, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
Introduction
{¶1} In this case, an alleged non-United States citizen defendant, who
pleaded guilty to felony drug trafficking and possession, was advised by defense
counsel on the record at the plea hearing that deportation was “at worst” “possibly”
discretionary when, in fact, it is presumptively mandatory (and the record reflects
much confusion between lawyer and client on the citizenship question).
{¶2} In two assignments of error, Mohamed Diol argues that the trial court
erred by denying his “Emergency Motion to Vacate Guilty Plea Under Padilla v.
Kentucky and Lee v. United States,” and that the trial court erred by failing to hold
an evidentiary hearing on his motion to vacate despite his clear and unequivocal
request. We combine his assignments of error, and hold that the trial court did err,
and that this cause must be remanded for the court to hold an evidentiary hearing.
Facts and Procedural Background
{¶3} Diol was indicted for one count of trafficking in marijuana in violation
of R.C. 2925.03(A)(2), a felony of the fifth degree, one count of possession of
marijuana in violation of R.C. 2925.11(A), a misdemeanor of the fourth degree, and
one count of possessing criminal tools in violation of R.C. 2923.24(A), a felony of the
fifth degree. The charges in this case arose from a search of Diol’s vehicle conducted
after a traffic stop.
{¶4} Diol pleaded guilty to the marijuana-trafficking and the marijuana-
possession counts of the indictment. Pursuant to the plea agreement, the
possession-of-criminal-tools charge was dismissed.
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{¶5} During the Crim.R. 11 plea colloquy, the trial court asked Diol if he was
a United States citizen. Diol replied that he was. The court asked Diol if his attorney
explained everything to him and answered all of his questions. Diol replied, “No.” At
that point, Diol’s attorney stated, “Judge, if I may, as far as the U.S. citizen part, I
believe we need to elaborate on that a bit more on the record just to make sure I
cover everything as required under Padilla versus Kentucky.”
{¶6} The court responded that in an “overabundance of caution” it advised
Diol if he was not a citizen of the United States, then
conviction of the offense to which you’re pleading guilty 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. A broad range of crimes are deportable offenses under federal
law. Deportation and other immigration consequences are the subject
of a separate proceeding. No one, including defense counsel or this
Court, can predict to a certainty the effect of this conviction on your
immigration status.
{¶7} With this advisement, the court asked Diol, “Do you wish to go forward
with your guilty plea, regardless of any immigration consequences, even if it means
automatic removal from the United States and you’re never able to return?”
{¶8} Before Diol could answer this question, his attorney stated,
Just to be clear, I don’t believe this would lead to automatic
deportation. I believe at worst it possibly could make it discretionary.
He tells me he’s a U.S. citizen. He did show me his card, which tells
me he was here for asylum purposes.
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OHIO FIRST DISTRICT COURT OF APPEALS
Diol’s attorney then turned to Diol and asked, “Is that correct?” Diol replied, “Yes.”
{¶9} The court then addressed Diol for a second time,
So I’m not giving you legal advice. My question is, I’ve now advised
you that if for some reason you’re not a U.S. citizen – if you are a U.S.
citizen I wouldn’t think it’s applicable.
If you’re not, my question still remains that if you aren’t a U.S. citizen
everything I’ve advised you of applies; and my question to you, again,
is do you wish to go forward with your guilty plea regardless of any
immigration consequences even if it means automatic removal from
the United States and you are never able to return?
{¶10} After this question, the following exchange occurred:
Diol: I mean, when I go overseas I have to have my passport.
They give me a passport so I can go overseas. I guess I’m a U.S.
citizen.
The Court: Guessing aside, I just want to make sure –
Diol: I’m a U.S. citizen when I get out of the country --
The Court: My question is, if for some reason you are not a U.S.
citizen, you could suffer these consequences that I’ve just advised you
of. If you’re a U.S. citizen it doesn’t matter. If you happen to not be a
U.S. citizen, then all of this stuff that I just told you about applies; and
my question is, I want to make sure that before you go forward with
your guilty plea, you understand that if you’re not a U.S. citizen you
could be excluded from the U.S. My question is do you wish to go
forward with your guilty plea regardless of any immigration
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OHIO FIRST DISTRICT COURT OF APPEALS
consequence even it if means automatic removal from the United
States and you’re never able to return?
Diol: Yes.
{¶11} The court continued with the Crim.R. 11 colloquy, accepted Diol’s
guilty pleas, and found Diol guilty of the marijuana trafficking and possession
offenses. Diol was sentenced to three years of community control on each count.
{¶12} Approximately six months after he was sentenced, Diol, through new
counsel, filed an “Emergency Motion to Vacate Guilty Plea under Padilla v. Kentucky
and Lee v. United States,” which requested an evidentiary hearing. In the motion,
Diol argued that he should be permitted to withdraw his guilty pleas because his
attorney rendered ineffective assistance of counsel when he erroneously advised him
that his pleas to marijuana trafficking and possession would not result in mandatory
deportation, but rather that deportation was discretionary. Diol claimed that his
pleas to drug trafficking and possession result in mandatory deportation under the
law. He attached his affidavit as an exhibit to the motion. In his affidavit, Diol stated
that he was a citizen of Mauritania, his attorney advised him that deportation would
not be mandatory, and that had he been correctly advised, he would not have
pleaded guilty. Diol also attached the plea-hearing transcript as an exhibit to the
motion. The state did not file a response.
{¶13} The trial court denied Diol’s motion without explanation. Three days
later, Diol filed a “Motion for Findings of Fact and Conclusions of Law.”
Approximately one and a half months after Diol filed a timely notice of appeal, the
trial court issued an “Entry Denying Motion to Vacate Guilty Plea and Findings of
Fact and Conclusions of Law,” and attached a copy of the plea-hearing transcript to
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it.1 Citing the transcript, the trial court concluded, “Defendant’s claim of ineffective
assistance of counsel for counsel’s alleged failure to advise him of his deportation
risk fails because Defendant maintained he was a United States citizen.” The trial
court further found that Diol did not establish grounds for relief because the court
reviewed the potential immigration consequences with him repeatedly.
The Plea-Hearing Transcript
{¶14} As an initial matter, the dissent believes we should overrule the
assignments of error because Diol’s plea-hearing transcript was not before the trial
court when it ruled on Diol’s motion.
{¶15} However, while Diol did not file a certified copy of the plea-hearing
transcript with the trial court at the time his motion was pending, he filed an
uncertified copy of the transcript because it was attached as an exhibit to his motion.
Subsequently, he filed a certified version of the transcript (which exactly matches the
uncertified version), and we know the trial court reviewed and relied on the
transcript because it cited to the transcript in its findings of fact and conclusions of
law and attached a copy of the (certified) transcript to its findings of fact and
conclusions of law. Neither the trial court, nor the state ever raised any concern
about the accuracy of the uncertified transcript or any of this process. Accordingly,
we find that it is appropriate for us to consider the plea-hearing transcript in this
1 We note that Crim.R. 32.1 does not require a court to issue findings of fact and conclusions of
law when ruling on a motion to withdraw a guilty plea. See State ex rel. Chavis v. Griffin, 91 Ohio
St.3d 50, 50, 741 N.E.2d 130 (2001). Although the findings of fact and conclusions of law were
issued after the notice of appeal was filed, we can still consider them. See Langsam v. Tindera,
64 Ohio App. 3d 228, 229, 580 N.E.2d 1157 (8th Dist.1990) (the trial court retained jurisdiction to
make findings of fact and conclusions of law mandated by Civ.R. 52 even though the appeal had
already been filed); see also State v. Greer, 9th Dist. Summit No. 15217, 1992 WL 316350, *2 (Oct.
28, 1992) (“A court's findings and conclusions, unlike a motion for a new trial, Civ.R. 59, or a
motion to vacate, Civ.R. 60(B), does not disrupt the judgment of the court, but explains it.”).
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OHIO FIRST DISTRICT COURT OF APPEALS
case because it was part of the trial court proceedings, all of which is consistent with
State v. Ishmail, 54 Ohio St. 2d 402, 377 N.E.2d 500 (1978), and its progeny.
Ineffective Assistance of Counsel
{¶16} Diol argues that the trial court erred by denying his emergency motion
to vacate his guilty pleas without holding an evidentiary hearing. Specifically, Diol
contends that the trial court’s advisement that he may be deported did not cure the
prejudice from the incorrect advice given by his attorney. Diol further argues that
his statement during the plea colloquy that he was a United States citizen does not
defeat his claim of ineffective assistance of counsel because the record shows that he
was extremely confused about his immigration status. Diol contends that his
attorney must have known he was not a citizen because he requested the trial court
to advise Diol that he may be deported as the result of his pleas.
{¶17} Diol’s motion is titled, “Emergency Motion to Vacate Guilty Plea
Under Padilla v. Kentucky and Lee v. United States,” and does not cite any rule of
criminal procedure under which he is seeking relief. Nevertheless, like the trial
court, we will treat his motion to vacate as a motion to withdraw his guilty pleas
pursuant to Crim.R. 32.1. See State v. Schlee, 117 Ohio St. 3d 153, 2008-Ohio-545,
882 N.E.2d 431, ¶ 12 (“Courts may recast irregular motions into whatever category
necessary to identify and establish the criteria by which the motion should be
judged.”); see also State v. Valdez, 1st Dist. Hamilton No. C-160437, 2017-Ohio-
4260, ¶ 4 (citing Schlee and recasting Valdez’s motion as a motion to withdraw his
guilty plea pursuant to Crim.R. 32.1).
{¶18} Crim.R. 32.1 authorizes the postconviction withdrawal of a guilty plea
only “to correct manifest injustice.” State v. Smith, 49 Ohio St. 2d 261, 361 N.E.2d
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 OHIO FIRST DISTRICT COURT OF APPEALS
1324 (1977), paragraph one of the syllabus. The defendant bears the burden of
proving “manifest injustice.” Id. 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; see State v. Kostyuchenko, 2014-Ohio-324, 8 N.E.3d 353, ¶ 4
(1st Dist.).
{¶19} It is well-established that the negotiation and entry of a guilty plea is a
“critical stage” of the criminal proceedings and a defendant is entitled to effective
assistance of counsel during this critical time. See, e.g., Lee v. United States, __ U.S.
__, 137 S. Ct. 1958, 1964, 198 L. Ed. 2d 476 (2017); Missouri v. Frye, 566 U.S. 134,
140, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012); Padilla v. Kentucky, 559 U.S. 356, 373,
130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). It is further well-established that
deportation is a “particularly severe penalty” which may be of greater concern to a
non-United States citizen facing criminal charges than “any potential jail sentence.”
Session v. Dimaya, __U.S. __, 138 S. Ct. 1204, 1213, 200 L. Ed. 2d 549 (2018), citing
Jae Lee v. United States, __ U.S. __, 137 S. Ct. 1958, 1968, 198 L. Ed. 2d 476 (2017);
see Padilla at 366.
{¶20} 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
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OHIO FIRST DISTRICT COURT OF APPEALS
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 [that 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);
see also Kostyuchenko at ¶ 5.
{¶21} In Padilla, the United States Supreme Court held that defense
counsel’s representation is constitutionally deficient under Strickland when it can be
easily determined from reading the removal statute that deportation is
presumptively mandatory for the offense to which his client pleaded guilty and
counsel provided incorrect advice in this regard. Padilla at 368-369. The Court said,
[w]hen the 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. But when the deportation consequence is truly clear * *
* the duty to give correct advice is equally clear.
Id. at 369. The Court did not determine whether Padilla was prejudiced, but rather
left it to the lower courts to decide whether Padilla’s “decision to reject the plea
bargain would have been rational under the circumstances.” Id. at 372, citing Roe v.
Flores-Ortega, 528 U.S. 470, 480 and 486, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000).
{¶22} Lee, __ U.S. __, 137 S. Ct. 1958, 198 L. Ed. 2d 476, dealt with the
prejudice analysis after a court determines that defense counsel has rendered
deficient performance under Padilla. At an evidentiary hearing on Lee’s motion to
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OHIO FIRST DISTRICT COURT OF APPEALS
vacate his conviction, both Lee and his counsel testified that “deportation was the
determinative issue in Lee’s decision whether to accept the plea.” Lee at 1963. Lee’s
attorney acknowledged that if he had known that Lee was facing mandatory
deportation, he would have advised him to go to trial. Id.
{¶23} In Lee, the government argued that it would have been irrational for
Lee to have rejected the plea offer and proceed to trial because he had no viable
defense. Id. at 1966 and 1968. The government asserted that going to trial would
only result in a longer sentence before the inevitable consequence of deportation. Id.
at 1968. The United States Supreme Court disagreed, and held that “[n]ot everyone
in Lee’s position would make the choice to reject the plea. But we cannot say it would
be irrational to do so.” Id. at 1969. The Court stated that because deportation is
always a particularly severe penalty, preserving the client’s right to remain in the
United States may be more important to the client than any potential jail sentence.
Id. at 1968, quoting Padilla at 368. Lee claimed that if he had been properly advised
that deportation was mandatory, he would have rejected the plea offer “in favor of
throwing a ‘Hail Mary’ at trial.” Lee at 1967. The Court found that “[i]n the unusual
circumstances of this case, we conclude that Lee has adequately demonstrated a
reasonable probability that he would have rejected the plea had he known that it
would lead to mandatory deportation.” Id. at 1967.
{¶24} Diol claims that the law is clear that deportation is mandatory in his
case. He points to Section 237(a) of the Immigration and Nationality Act, which
states that certain classes of aliens “shall, upon the order of the Attorney General, be
removed * * *.” 8 U.S.C. 1227(a). The statute states that
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OHIO FIRST DISTRICT COURT OF APPEALS
[a]ny alien who * * * has been convicted of a violation of * * * any law *
* * relating to a controlled substance * * * other than a single offense
involving possession for one’s own use of 30 grams or less of
marijuana, is deportable.
8 U.S.C. 1227(a)(2)(B).
{¶25} The state takes issue with Diol’s assertion that deportation is
mandatory and argues that the Attorney General has the authority to “cancel” Diol’s
removal pursuant to 8 U.S.C. 1229(b). However, at oral argument, the state
admitted it was not sure if deportation was mandatory, or whether Diol even
qualified for cancelation of removal.
{¶26} In Padilla, the United States Supreme Court held that 8 U.S.C.
1227(a)(2)(B) “specifically commands removal for all controlled substances
convictions except for the most trivial of marijuana possession offenses.” Padilla,
559 U.S. at 368, 130 S. Ct. 1473, 176 L. Ed. 2d 284. The Court found that “Padilla’s
counsel could have easily determined that his plea would make him eligible for
deportation simply from reading the text of the statute * * *.” Id. Thus, we hold that
there is no question that deportation is presumptively mandatory in Diol’s case.
{¶27} It is also clear from the record that Diol’s attorney gave him incorrect
advice when he advised him during the plea hearing, “I don’t believe this would lead
to automatic deportation. I believe at worst it possibly could make it discretionary.”
{¶28} The state contends that because Diol represented to the trial court
during the plea colloquy that he was a United States citizen, he cannot show that his
attorney had any duty to advise him of the immigration consequences of his guilty
plea. However, the record is clear that his attorney had some doubt if Diol was a
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OHIO FIRST DISTRICT COURT OF APPEALS
United States citizen, because he asked the trial court to give him the statutory
warning required by R.C. 2943.031, which requires courts to advise defendants on
the possibility of deportation, exclusion, or denial of naturalization prior to accepting
pleas. The record is also clear that Diol was confused about whether he was a United
States citizen. Accordingly, we find that Diol’s attorney had a duty to determine
whether he was or was not a United States citizen, and if he was not, advise him of
the immigration consequences of his guilty pleas.
{¶29} The state contends that even if Diol’s attorney had a duty to advise him
of the immigration consequences of his guilty pleas, the trial court’s advisement
pursuant to R.C. 2943.031 cured any possible prejudice that may have resulted from
trial counsel’s deficiency. R.C. 2943.031(A) requires a trial court, prior to accepting a
guilty plea from a noncitizen defendant, to provide the following advisement:
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, when applicable) 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.
{¶30} Because the statutory advisement states only that the defendant may
be deported, this advisement does not cure any deficient performance by counsel, as
recently confirmed by the Ohi0 Supreme Court. See State v. Romero, Slip Opinion
No. 2019-Ohio-1839, ¶ 20 (“The advisement in R.C. 2943.031(A) warns defendants
that ‘pleading guilty may have the consequence[] of deportation.’ But that
generalized warning does not replace counsel’s duty to advise his client of the
consequences of his guilty plea, as Padilla instructs.” (Emphasis added.)).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶31} The state argues that because the trial court went beyond the statutory
advisement and asked Diol if he wished to plead guilty “even if it meant automatic
removal from the United States and you’re never able to return,” the court effectively
warned Diol that deportation was mandatory in this case. But, the issue we must
determine is whether the trial court’s admonishment in this case corrected the
deficient performance of counsel. See United States v. Akinsade, 686 F.3d 248, 255
(2012). In Akinsade, the United States Court of Appeals for the Fourth Circuit held
that “in order for a [trial court’s] admonishment to be curative, it should address the
particular issue underlying the affirmative misadvice.” Id.
{¶32} In Diol’s case, the trial court did not state unequivocally that Diol
would be deported. Asking Diol if he still wished to plead guilty “even if” it meant
automatic deportation did not correct the misadvice given by Diol’s counsel that
deportation was discretionary. The trial court’s admonishment “did not provide the
degree of accuracy concerning immigration consequences that Padilla demands
when, as here, federal immigration law plainly mandates deportation.”
Kostyuchenko, 2014-Ohio-324, 8 N.E.3d 353, at ¶ 15, citing Padilla, 559 U.S. at 364,
130 S. Ct. 1473, 176 L. Ed. 2d 284.
Evidentiary Hearing
{¶33} The state contends that Diol is not entitled to an evidentiary hearing
because he did not make a prima facie showing of merit.
{¶34} The state claims that although Diol stated in his affidavit that he was a
citizen of Mauritania, he failed to state that he is not a United States citizen. The
state also claims that because Diol did not include an affidavit from trial counsel,
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OHIO FIRST DISTRICT COURT OF APPEALS
there are many unanswered questions regarding counsel’s knowledge of Diol’s
immigration status, and discussions Diol and his counsel may have had regarding the
immigration consequences of his guilty pleas.
{¶35} A trial court is not automatically required to hold an evidentiary
hearing regarding a defendant’s motion to withdraw a guilty plea, and a trial court’s
decision not to hold an evidentiary hearing will be reversed only upon a finding of an
abuse of discretion. State v. Williams, 10th Dist. Franklin No. 03AP-1214, 2004-
Ohio-6123, ¶ 6. An abuse of discretion requires more than an error of law or
judgment, but that the court acted unreasonably, arbitrarily, or unconscionably. Id.
But, a hearing is required “if the facts as alleged by the defendant and accepted as
true would require the court to permit the guilty plea to be withdrawn.” Id.
{¶36} It is indisputable that deportation is presumptively mandatory in this
case if Diol is not a United States citizen. Although the record indicates that both
Diol and his defense counsel were confused as to the status of Diol’s citizenship
during the plea hearing, Diol’s affidavit, which was attached to his motion to
withdraw his pleas, clearly states that he is a citizen of Mauritania. At oral argument,
the state contended that because Diol did not state in his affidavit that he was not a
United States citizen, he might be a dual citizen of both the United States and
Mauritania. While Diol’s affidavit could be clearer, it can certainly be read to allege
that he is not a United States citizen.
{¶37} In his affidavit, Diol asserted that his defense counsel failed to inform
him of the immigration consequences for pleading guilty on the drug charges, and
that if he had known that deportation was a mandatory consequence of such pleas,
he would not have pleaded guilty. The state claims that this affidavit is “self-
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OHIO FIRST DISTRICT COURT OF APPEALS
serving,” and, standing alone, is insufficient evidence to trigger an evidentiary
hearing.
{¶38} But, Diol’s affidavit does not stand alone. The transcript of the plea
hearing not only indicates that defense counsel was uncertain of Diol’s immigration
status and the immigration consequences flowing from the guilty pleas, but he also
misadvised Diol about the immigration consequences for guilty pleas to the drug-
trafficking and possession charges.
{¶39} Defense counsel attempted to cure the deficiency with the statutory
warning by the court. Nevertheless, as we have held, the trial court’s statutory
warning did not correct the misadvice given by Diol’s counsel that deportation was
discretionary.
{¶40} In sum, Diol has alleged facts, which if accepted as true, would require
the court to permit the guilty pleas to be withdrawn. The trial court thus abused its
discretion in failing to hold an evidentiary hearing in this case.
{¶41} The fact that trial counsel misadvised Diol about the deportation
consequences of convictions to marijuana trafficking and possession is clear from the
record, and satisfies the first prong of Strickland. However, the evidentiary hearing
can 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.
{¶42} The recent Ohio Supreme Court case, Romero, Slip Opinion No. 2019-
Ohio-1839, holds that “In assessing whether it would be rational for a defendant to
go to trial instead of pleading guilty, the court should consider the totality of the
circumstances.” The Romero case lays out certain factors that trial courts should
consider in evaluating prejudice such as the consequences of going to trial, the
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OHIO FIRST DISTRICT COURT OF APPEALS
importance that the defendant placed on avoiding deportation, the defendant’s
connections to the United States, and the judicial advisement of immigration
consequences. Id. at ¶ 30-32. As the court stated in Romero, “From these and other
factors in a given case, the trial court will determine whether the totality of
circumstances supports a finding that counsel’s performance was deficient, and if so,
whether the deficient performance was prejudicial to the defendant.” Id. at ¶ 34.
Given that neither the trial court nor counsel had the benefit of Romero at the time
the motion was pending, these considerations are also worthy of exploration at the
evidentiary hearing.
Conclusion
{¶43} For the foregoing reasons, Diol’s assignments of error are sustained,
and the judgment of the trial court denying his motion to withdraw his pleas is
reversed. The cause is remanded to the trial court to conduct an evidentiary hearing
on Diol’s motion to withdraw his guilty pleas consistent with this opinion.
Judgment reversed and cause remanded.
BERGERON, P.J., concurs.
WINKLER, J., dissents.
WINKLER, J., dissenting.
{¶44} I respectfully dissent. I would overrule the assignments of error and
affirm the common pleas court’s decision overruling Diol’s Crim.R. 32.1 motion to
withdraw his guilty pleas.
{¶45} On that motion, Diol bore the burden of demonstrating that counsel
had been constitutionally deficient in advising him concerning the removal
consequences of his convictions upon his pleas, and that this deficiency in counsel’s
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OHIO FIRST DISTRICT COURT OF APPEALS
performance had prejudiced him, that is, that “a decision to reject the plea bargain
would have been rational under the circumstances.” See Padilla v. Kentucky, 559
U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). The prejudice prong of that
analysis thus required an inquiry into the circumstances surrounding Diol’s decision
to plead. Those circumstances necessarily included matters that transpired at the
hearing where his pleas had been entered and accepted. See State v. Valdez, 1st Dist.
Hamilton No. C-160437, 2017-Ohio-4260, ¶ 18.
{¶46} A photocopy of the plea-hearing transcript was attached to the motion.
That attachment, lacking proper certification, was not self-authenticating for
purposes of the common pleas court’s decision on the motion. See Evid.R. 902(4).
Nor was the attachment, as App.R. 9(B) requires for this court’s decision in the
appeal, bound, certified as correct with an original signature of the transcriber, and
filed with the common pleas court clerk under App.R. 10(A).
{¶47} On March 26, 2018, the common pleas court entered judgment
overruling the motion. From that entry, Diol filed this appeal, and on April 27, 2018, he
caused to be filed with this court an App.R. 9(B)-compliant transcript of the plea
hearing.
{¶48} On June 11, 2018, the common pleas court issued a second “Entry
Denying Motion to Vacate Guilty Plea * * *,” and this time the court, although not
required to do so, included findings of fact and conclusions of law. But the March 2018
entry overruling the motion was, without findings of fact and conclusions of law, a final
appealable order. And the March 2018 entry, along with this appeal from that entry,
divested the common pleas court of jurisdiction to decide the motion and vested
jurisdiction in this court to review the common pleas court’s decision. Thus, the June
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2018 entry, issued by the common pleas court after it had lost jurisdiction over the
motion, constituted a legal nullity. See, e.g., Farris v. State, 1 Ohio St. 188, 189 (1853)
(applying the fundamental principle that a judgment of a court acting without
jurisdiction is a “nullity”); Lambda Research v. Jacobs, 170 Ohio App. 3d 750, 2007-
Ohio-309, 869 N.E.2d 39, 45 (1st Dist. 2007) (holding that an entry concerning
issues directly related to the subject of an appeal, entered after that appeal had
divested the trial court of jurisdiction, constituted a “legal nullity”); Perez Bar & Grill
v. Schneider, 9th Dist. Lorain No. 09CA009573, 2010-Ohio-1352, ¶ 9 (holding that
supplemental findings of fact and conclusions of law filed after the notice of appeal
from a final appealable order constituted a nullity, because the notice of appeal
deprived the trial court of jurisdiction to act on the motion for findings).
{¶49} The App.R. 9(B)-compliant plea-hearing transcript filed in this appeal
was not before the common pleas court during the proceedings resulting in the March
2018 entry overruling Diol’s Crim.R. 32.1 motion. Nevertheless, the majority asserts
that this court, in deciding this appeal from the March 2018 entry, may “consider” that
transcript, because the June 2018 entry was demonstrably the product of the common
pleas court’s “review[] [of] and reli[ance] on [that] transcript.”
{¶50} But the Ohio Supreme Court has declared, as “a bedrock principle of
appellate practice in Ohio,” that an appeals court is limited to the record of the
proceedings resulting in the judgment appealed. Morgan v. Eads, 104 Ohio St. 3d
142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13; see Valdez, 1st Dist. Hamilton No. C-
160437, 2017-Ohio-4260, at ¶ 20. And upon that principle, the court has long held
that “[a] reviewing court cannot add matter to the record before it, which [matter]
was not a part of the trial court’s proceedings, and then decide the appeal on the
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OHIO FIRST DISTRICT COURT OF APPEALS
basis of the new matter.” State v. Ishmail, 54 Ohio St. 2d 402, 377 N.E.2d 500
(1978), paragraph one of the syllabus. See, e.g., Valdez at ¶ 20 (following Ishmail in
declining to consider a plea-hearing transcript filed with the court of appeals after
appellant had appealed the judgment overruling his motion to vacate his plea); State
v. Tekulve, 188 Ohio App. 3d 792, 2010-Ohio-3604, 936 N.E.2d 1030 (1st Dist.2010)
(following Ishmail in declining to consider a plea-hearing transcript attached to
appellant's brief that was not before the municipal court in deciding appellant’s
Crim.R. 32.1 motion); Metzcar v. Metzcar, 1st Dist. Hamilton No. C-850801, 1986
WL 12741, *1 (Nov. 12, 1986) (following Ishmail in declining to consider a transcript
of proceedings before a domestic-relations magistrate that had been filed with the
court of appeals, but had not yet been prepared when the domestic-relations court
overruled objections and adopted the magistrate’s report).
{¶51} The App.R. 9(B)-compliant plea-hearing transcript filed in this appeal
was not before the common pleas court during the proceedings resulting in the March
2018 entry from which the appeal was taken. Under the rule of Ishmail, along with
our long line of decisions following Ishmail, this court may not consider that
transcript in deciding this appeal. In the absence of that transcript, the common
pleas court cannot be said to have abused its discretion in overruling Diol’s Crim.R.
32.1 motion to withdraw his guilty pleas. Accordingly, I would overrule the
assignments of error and affirm the court’s decision.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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