State v. Romero (Slip Opinion) , 156 Ohio St. 3d 468 ( 2019 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Romero, Slip Opinion No. 2019-Ohio-1839.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2019-OHIO-1839THE STATE OF OHIO, APPELLANT, v. ROMERO, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Romero, Slip Opinion No. 2019-Ohio-1839.]
Criminal law—Motion to withdraw a guilty plea—Ineffective assistance of counsel
arising from counsel’s alleged failure to advise a noncitizen client of
immigration consequences of entering a guilty plea—Trial court’s
advisement under R.C. 2943.031(A) that a guilty plea may have the
consequence of deportation does not replace counsel’s duty to advise a
client of the consequences of the plea.
(No. 2017-0915—Submitted January 29, 2019—Decided May 15, 2019.)
APPEAL from the Court of Appeals for Stark County, No. 2016CA00201,
2017-Ohio-2950.
_____________________
FRENCH, J.
{¶ 1} In this appeal, we address the standard for ruling on a criminal
defendant’s motion to withdraw a guilty plea when the motion is based on a claim
SUPREME COURT OF OHIO
of ineffective assistance of counsel arising from an attorney’s alleged failure to
advise his noncitizen client of the immigration consequences of entering the plea.
{¶ 2} Appellee, Carlos Romero, a lawful permanent resident of the United
States, has been ordered to appear for deportation proceedings as a result of entering
guilty pleas to charges of drug trafficking and possession. Romero seeks to
withdraw his guilty pleas based on a claim of ineffective assistance of counsel. The
trial court denied Romero’s motion, but the Fifth District Court of Appeals
reversed. Appellant, the State of Ohio, appeals.
{¶ 3} We affirm the judgment of the court of appeals, with a caveat. We
agree with the Fifth District that the trial court erred in denying Romero’s motion
without considering the two-prong test for ineffective assistance of counsel
established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), and applied in the immigration context in Padilla v. Kentucky, 559 U.S.
356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). We conclude, however, that the Fifth
District’s remand order to the trial court for a full evidentiary hearing is premature.
We instead remand the matter to the trial court to evaluate Romero’s motion and
supporting materials in accordance with the legal framework that we set out in this
opinion. We therefore affirm the judgment of the court of appeals and remand the
matter to the trial court for application of the proper standard.
FACTS AND PROCEDURAL BACKGROUND
{¶ 4} Carlos Romero, a native of Honduras, has been a lawful permanent
resident of the United States since 1998. He has five children who were born in the
United States and whose ages ranged from one year old to 18 years old at the time
of the relevant trial court proceedings.
{¶ 5} In March 2016, the Stark County Grand Jury indicted Romero on
felony charges of possession of marijuana, trafficking in marijuana, and possession
of cocaine.
2
January Term, 2019
{¶ 6} In June 2016, Romero appeared with counsel to enter his pleas to the
charges. At the plea hearing, the trial court asked Romero whether he was a United
States citizen, and Romero answered no. The court then advised Romero, as R.C.
2943.031(A) requires, of the possible immigration consequences of entering a
guilty plea:
THE COURT: If you are not a citizen of the United States, you
are going to be advised and you are hereby advised that a conviction
of the offense to which you are pleading guilty may have the
consequence 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, sir?
DEFENDANT ROMERO: Yes, ma’am.
THE COURT: And with that in mind, are you still prepared to
proceed?
DEFENDANT ROMERO: Yes, ma’am.
{¶ 7} The court confirmed that Romero had had a chance to meet with his
counsel to discuss his Crim.R. 11 plea form before signing it and that he had no
unanswered questions about the form. Romero stated that he was satisfied with the
quality of legal services that counsel had provided. Near the conclusion of the
Crim.R. 11 plea colloquy, the court again asked Romero if he had any questions
before entering his pleas. Romero had a question about his ability to work, but he
did not bring up any immigration-related questions. After conferring off the record
with his counsel, Romero pleaded guilty to all three counts.
3
SUPREME COURT OF OHIO
{¶ 8} The court sentenced Romero to three years of community-control
sanctions and 100 hours of community service and suspended his driver’s license
for six months.
{¶ 9} According to Romero, in July 2016, United States Immigration and
Customs Enforcement detained him and served him with a notice to appear in
federal immigration court for removal proceedings; his hearing was scheduled for
October 2016. The notice informed Romero that he was subject to deportation from
the United States under sections 237(a)(2)(A)(iii) and 237(a)(2)(B)(i) of the
Immigration and Nationality Act, as amended, codified in 8 U.S.C.
1227(a)(2)(A)(iii) and 8 U.S.C. 1227(a)(2)(B)(i). Romero’s convictions were for
an aggravated felony and a violation of law related to a controlled substance, which
made him subject to deportation. See id. (noncitizen “shall, upon order of the
Attorney General, be removed” if convicted of an “aggravated felony” or violation
of law “relating to a controlled substance”).
{¶ 10} Four days before his scheduled removal hearing, Romero filed an
emergency motion to withdraw his guilty pleas and to vacate the judgment of
conviction in the trial court, claiming ineffective assistance of counsel because his
attorney had failed to advise him of the immigration consequences of his pleas. The
court denied the motion. The judge referred to the plea-hearing transcript, noted
that she had read to Romero the advisement in R.C. 2943.031(A), and concluded
that Romero understood the consequences of deportation and still chose to proceed
with the guilty pleas. Accordingly, the trial court found that Romero had entered
his pleas knowingly, voluntarily, and intelligently, and it denied his motion.
{¶ 11} The Fifth District Court of Appeals unanimously reversed the trial
court’s judgment. The court of appeals noted that Romero’s ineffective-assistance
claim required a two-prong analysis: whether counsel’s performance was deficient
and whether counsel’s ineffectiveness was prejudicial to Romero. The court
concluded that the trial court erred by denying Romero’s motion without deciding
4
January Term, 2019
whether counsel properly advised Romero and by relying on its compliance with
R.C. 2943.031(A) to dispose of the motion. The court reversed and remanded the
matter to the trial court to conduct a hearing.
{¶ 12} We accepted the state’s discretionary appeal, 151 Ohio St.3d 1502,
2018-Ohio-365, 90 N.E.3d 945, which presents the following proposition of law:
A trial court does not abuse its discretion in overruling a
motion to withdraw guilty plea pursuant to Crim.R. 32.1 when the
trial court has fully complied with the colloquy requirements of
Crim.R. 11 and with the advisement requirements of R.C. 2943.031
regarding the consequences of a guilty plea on a defendant’s
immigration status.
ANALYSIS
{¶ 13} Romero asks to withdraw his guilty pleas pursuant to Crim.R. 32.1,
which provides that a trial court may grant a defendant’s postsentence motion to
withdraw a guilty plea only to correct a manifest injustice. A defendant bears 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. An appellate
court reviews a trial court’s decision on a motion to withdraw a plea under an abuse-
of-discretion standard. Id. at paragraph two of the syllabus; State v. Francis, 104
Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 32.
Ineffective-assistance claims under Strickland and Padilla
{¶ 14} The Sixth Amendment to the United States Constitution guarantees
a defendant the effective assistance of counsel at “ ‘critical stages of a criminal
proceeding,’ including when he enters a guilty plea.” Lee v. United States, __ U.S.
__, 137 S.Ct. 1958, 1964, 198 L.Ed.2d 476 (2017), quoting Lafler v. Cooper, 566
U.S. 156, 165, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012); Hill v. Lockhart, 474 U.S.
5SUPREME COURT OF OHIO
52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). When a defendant alleges ineffective
assistance of counsel arising from the plea process, the defendant must meet the
two-prong test set out in Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.
See Hill at 58 (applying Strickland to guilty pleas); State v. Xie, 62 Ohio St.3d 521,
524, 584 N.E.2d 715 (1992) (same).
{¶ 15} First, the defendant must show that counsel’s performance was
deficient. Strickland at 687; Xie at 524. When an attorney’s noncitizen client is
considering a plea, the United States Supreme Court has held that “counsel must
inform her client whether his plea carries a risk of deportation.” Padilla, 559 U.S.
at 374, 130 S.Ct. 1473, 176 L.Ed.2d 284. Given the grave consequences of
deportation, an ineffective-assistance claim is not limited to affirmative misadvice
or false information. Id. at 369-371. The failure to give any advice at all about
possible deportation consequences satisfies the first prong of Strickland. Id. “The
severity of deportation * * * only underscores how critical it is for counsel to inform
her noncitizen client that he faces a risk of deportation.” Id. at 373-374.
{¶ 16} Second, the defendant must demonstrate prejudice resulting from
counsel’s deficient performance. Strickland at 687. The defendant can show
prejudice by demonstrating a “reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on going to trial.” Hill
at 59; Xie at 524.
The trial court applied the wrong legal analysis
{¶ 17} In this case, the trial court did not examine Romero’s ineffective-
assistance claim under either prong of Strickland. Rather, the judge noted that she
had advised Romero, in accordance with R.C. 2943.031(A), of the possible
immigration consequences of his pleas, that she had engaged in a lengthy discussion
with Romero about his Crim.R. 11 plea form, and that Romero had not expressed
any dissatisfaction about his attorney. The court then concluded that Romero had
entered his pleas knowingly, voluntarily, and intelligently. We conclude that the
6
January Term, 2019
trial court applied the wrong legal analysis to evaluate Romero’s ineffective-
assistance claim.
{¶ 18} As the United States Supreme Court has explained, an inquiry into
whether a defendant entered his plea knowingly and voluntarily “is not the correct
means by which to address a claim of ineffective assistance of counsel.” Lafler,
566 U.S. at 173, 132 S.Ct. 1376, 182 L.Ed.2d 398. A court’s duty to ensure that
pleas are entered knowingly and voluntarily arises from the constitutional guarantee
of due process. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22
L.Ed.2d 418 (1969); United States v. Akinsade, 686 F.3d 248, 255 (4th Cir.2012).
By contrast, counsel’s duty to provide competent advice during plea proceedings
arises from a separate constitutional guarantee—the Sixth Amendment right to
counsel. Missouri v. Frye, 566 U.S. 134, 141, 132 S.Ct. 1399, 182 L.Ed.2d 379(2012). A knowing and voluntary plea therefore does not supersede defense
counsel’s errors. Id. “It is counsel’s duty, not the court’s, to warn of certain
immigration consequences, and counsel’s failure cannot be saved by a plea
colloquy.” United States v. Urias-Marrufo, 744 F.3d 361, 369 (5th Cir.2014).
When, as here, the defendant asserts a claim of ineffective assistance of counsel,
the court must focus on counsel’s deficient performance and the prejudice arising
from that deficiency.
{¶ 19} The trial court’s advisement under R.C. 2943.031(A) also does not
cure an attorney’s failure to advise his client of the immigration consequences of a
guilty plea. R.C. 2943.031(A) requires the trial court to provide the following
advisement prior to accepting a defendant’s guilty or no-contest plea to a felony or
misdemeanor other than a minor misdemeanor:
“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
7
SUPREME COURT OF OHIO
of deportation, exclusion from admission to the United States, or
denial of naturalization pursuant to the laws of the United States.”
{¶ 20} The advisement in R.C. 2943.031(A) warns defendants that
“pleading guilty may have the consequence[ ] of deportation.” (Emphasis added.)
But that generalized warning does not replace counsel’s duty to advise his client of
the consequences of his guilty plea, as Padilla instructs. “Warnings from a judge
during a plea colloquy are not a substitute for effective assistance of counsel, and
therefore have no bearing on the first Strickland prong.” United States v. Kayode,
777 F.3d 719, 728 (5th Cir.2014); see also State v. Sow, 10th Dist. Franklin No.
17AP-772, 2018-Ohio-4186, ¶ 14 (“the attorney’s breach of duty is not cured by
the trial court’s compliance with R.C. 2943.031”).
{¶ 21} As we explain further below, judicial advisements may be relevant
to a determination of prejudice under the second prong of Strickland. The trial
court must first examine, however, whether Romero’s counsel fulfilled his duty
under the Sixth Amendment to inform his client whether his guilty pleas carry a
risk of deportation. Padilla, 559 U.S. at 374, 130 S.Ct. 1473, 176 L.Ed.2d 284.
Because the trial court failed to make this inquiry and instead relied on its
compliance with R.C. 2943.031(A) and Crim.R. 11 to deny Romero’s motion to
withdraw his pleas, we conclude that the trial court abused its discretion.
{¶ 22} We therefore remand this matter to the trial court to evaluate
Romero’s ineffective-assistance claim under the two-prong test set out in
Strickland. We turn, then, to the factors the trial court should consider on remand.
The deficient-performance prong
{¶ 23} Under the first prong of Strickland, the trial court must consider
whether Romero’s counsel satisfied his duty to advise his client regarding the risk
of deportation. See Padilla at 367. “[W]hen the deportation consequence is truly
clear, * * * the duty to give correct advice is equally clear.” Id. at 369.
8
January Term, 2019
{¶ 24} In Padilla, for example, the Supreme Court found that the terms of
the relevant statute were “succinct, clear, and explicit in defining the removal
consequence for Padilla’s conviction.” Id. at 368. To meet his advice obligation,
Padilla’s counsel could have determined that Padilla’s plea would make him
eligible for deportation simply by reading the statute, “which addresses not some
broad classification of crimes but specifically commands removal for all controlled
substances convictions except for the most trivial of marijuana possession
offenses.” Id.{¶ 25} Instead of providing straightforward advice, however, Padilla’s
counsel gave him false assurances that a conviction would not lead to deportation.
Id. These circumstances led the court to conclude that “[t]his is not a hard case in
which to find deficiency: The consequences of Padilla’s plea could easily be
determined from reading the removal statute, his deportation was presumptively
mandatory, and his counsel’s advice was incorrect.” Id. at 368-369.
{¶ 26} To be sure, immigration law can be complex, and the deportation
consequences of a particular plea will not always be so clear. In those
circumstances, counsel “need do no more than advise a noncitizen client that
pending criminal charges may carry a risk of adverse immigration consequences.”
Id. at 369.
{¶ 27} We recognize that the Padilla—and now, Romero—standard
requires defense counsel to understand the immigration consequences of a guilty
plea. But this duty is no different from the duty that defense counsel must adhere
to in other areas of criminal law. The Strickland standard remains one of
reasonableness: “[t]he proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.” 466 U.S. at 688, 104 S.Ct.
2052, 80 L.Ed.2d 674.
9
SUPREME COURT OF OHIO
The prejudice prong
{¶ 28} Under the second prong of Strickland, Romero must show that “there
is a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct.
366, 88 L.Ed.2d 203. Romero must do more than present “post hoc assertions
* * * about how he would have pleaded but for his attorney’s deficiencies.” Lee,
__ U.S. at __, 137 S.Ct. at 1967, 198 L.Ed.2d 476. The trial court should look to
contemporaneous evidence that substantiates Romero’s statements. Id.{¶ 29} 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 circumstances.
Id. at ___, 137 S.Ct. at 1966. The United States Supreme Court recently addressed
some of the factors relevant to the reasonableness of the defendant’s
decisionmaking. Id. at ___, 137 S.Ct. at 1966-1969. See also State v. Khoshknabi,
2018-Ohio-1752, 111 N.E.3d 813 (8th Dist.) (applying Lee to evaluate prejudice);
State v. Cardenas, 2016-Ohio-5537, 61 N.E.3d 20, ¶ 51 (2d Dist.) (evaluating
prejudice before Lee). As set out in Lee, the court’s evaluation of prejudice can
include, but is not limited to, the following factors.
{¶ 30} The consequences of going to trial. To prevail under the prejudice
prong, a defendant need not show that he would have been better off going to trial.
Lee at ___, 137 S.Ct. at 1965. While a defendant without any viable defense “will
rarely be able to show prejudice” from accepting a plea agreement, the United
States Supreme Court declined to adopt a “per se rule” that a defendant with no
viable defense at trial cannot show prejudice. Id. at ___, 137 S.Ct. at 1966. The
reasonableness inquiry focuses on the defendant’s perspective. Id. To a defendant
facing the dire consequence of likely deportation, “even the smallest chance of
success at trial may look attractive.” Id.
{¶ 31} The importance that the defendant placed on avoiding deportation.
In Lee, the court noted that the defendant repeatedly asked his attorney about the
10
January Term, 2019
risk of deportation, showing that deportation was the determinative issue in the
defendant’s decision whether to accept a plea deal. See Lee, ___ U.S. at ___, 137
S.Ct. at 1967-1968, 198 L.Ed.2d 476. These factors, among others, demonstrated
a reasonable probability that the defendant would have rejected the plea had he
known that it would lead to mandatory deportation. Id. at ___, 137 S.Ct. at 1967.
See also Khoshknabi at ¶ 41-42 (record showed that defendant and counsel
discussed immigration issues before the plea hearing and that deportation was a
serious concern for defendant).
{¶ 32} The defendant’s connections to the United States. A defendant with
strong connections and significant familial ties to the United States would
reasonably risk going to trial instead of pleading guilty and facing certain
deportation. See Lee at ___, 137 S.Ct. at 1968; Akinsade, 686 F.3d at 255-256.
{¶ 33} Judicial advisement of immigration consequences. As we explained
earlier, a court’s advisement under R.C. 2943.031(A) does not cure counsel’s
deficient performance under the first Strickland prong. But a judicial advisement
about the immigration consequences of the defendant’s plea may weigh against a
finding of prejudice. See State v. Galdamez, 2015-Ohio-3681, 41 N.E.3d 467, ¶ 29
(10th Dist.) (collecting cases in which courts found no prejudice because a trial
court went beyond the R.C. 2943.031(A) advisement to warn a defendant of
deportation consequences); Kayode, 777 F.3d at 729 (record weighed against
finding of prejudice when judge asked defendant three times if he understood that
deportation could result from pleading guilty). Contrast Lee at ___, 137 S.Ct. at
1968, fn. 4 (judge’s warnings during plea colloquy did not cure the prejudice
resulting from counsel’s erroneous advice); Akinsade at 254 (court’s “general and
equivocal admonishment is insufficient to correct counsel’s affirmative misadvice”
about deportation).
{¶ 34} From these and other factors present in a given case, the trial court
will determine whether the totality of circumstances supports a finding that
11
SUPREME COURT OF OHIO
counsel’s performance was deficient, and if so, whether the deficient performance
was prejudicial to the defendant. The credibility and weight of the defendant’s
assertions in support of a motion to withdraw a plea and the decision as to whether
to hold a hearing are matters entrusted to the sound discretion of the trial court.
Smith, 49 Ohio St.2d at 264, 361 N.E.2d 1324; Francis, 104 Ohio St.3d 490, 2004-
Ohio-6894, 820 N.E.2d 355, at ¶ 56.
CONCLUSION
{¶ 35} We conclude that the trial court abused its discretion by denying
Romero’s motion to withdraw his guilty pleas without considering the two-prong
test for ineffective assistance of counsel established in Strickland, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674. We affirm the judgment of the court of appeals,
and we remand the matter to the trial court for application of the proper standard.
Judgment affirmed
and cause remanded.
O’CONNOR, C.J., and FISCHER, J., concur.
DONNELLY, J., concurs in judgment only, with an opinion.
STEWART, J., concurs in judgment only, with an opinion.
DEWINE, J., dissents, with an opinion joined by KENNEDY, J.
_________________
DONNELLY, J., concurring in judgment only.
{¶ 36} In State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), paragraph
one of the syllabus, this court held that “[a] trial court must conduct a hearing to
determine whether there is a reasonable and legitimate basis for the withdrawal of
the plea.” Xie involved a motion to withdraw a guilty plea prior to sentencing, but
in a case in which the motion to withdraw a guilty plea was filed years after
sentencing, State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355,
¶ 51, this court stated that “Xie stands for the proposition that, unless it is clear that
denial of the motion is warranted, a trial court should hold a hearing.”
12
January Term, 2019
{¶ 37} In this case, the issue is whether the trial court abused its discretion
when it refused to allow appellee, Carlos Romero, to withdraw his plea. I believe
that a full evidentiary hearing is necessary and appropriate because of the
importance of developing a record that can “be examined by a reviewing court to
determine whether [the] trial court properly exercised its discretion in ruling on a
motion to withdraw a plea.” Id.{¶ 38} Accordingly, I concur in judgment only. I would affirm the
judgment of the court of appeals without adding a caveat.
_________________
STEWART, J., concurring in judgment only.
{¶ 39} Appellee Carlos Romero’s claim that his trial counsel failed to
advise him about the deportation consequences of his plea is supported by the facts
surrounding his plea and his own affidavit; therefore, I believe that this case
warrants an evidentiary hearing to determine whether proper immigration advice
from counsel was ever given, and if not, whether Romero was prejudiced by
counsel’s failure to advise.
{¶ 40} In postconviction proceedings, including those involving motions to
withdraw guilty pleas, it is generally understood that trial courts should hold
evidentiary hearings when the evidence and operative facts support the substantive
claims behind the motion. See, e.g., State v. Lopez, 10th Dist. Franklin No. 16AP-
478, 2017-Ohio-4048, ¶ 25-26; State v. Zimmerman, 11th Dist. Geauga No. 2013-
G-3146, 2014-Ohio-1152, ¶ 14. The facts of this case support Romero’s
ineffective-assistance-of-counsel claim. Just seven weeks after his arraignment,
Romero pleaded guilty to all three felony charges in the indictment without the
benefit of any plea bargaining or negotiations with the state. Thereafter, Romero
was sentenced to a nonresidential term of community control, not to a prison
sentence, a penalty that the court could have imposed.
13
SUPREME COURT OF OHIO
{¶ 41} The fact that Romero pleaded guilty to the indictment, when he
would have faced the same penalties if he had exercised his right to raise defenses
and cross-examine witnesses at trial, tends to support Romero’s contention that he
was not advised by counsel that he would be deported if convicted. Quite simply,
there was no benefit to Romero in pleading guilty instead of going to trial.
{¶ 42} Similarly, Romero’s sentence to community control, rather than
prison, shows that with the primary concern underlining Crim.R. 32.1’s “manifest
injustice” standard for granting a postsentence motion to withdraw a plea is not
present. Romero did not plead guilty to test the potential punishment and then ask
to withdraw his pleas because the sentence was too harsh.1 See State v. Smith, 49
Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977) (the manifest-injustice standard
“seeks to avoid the possibility of a defendant pleading guilty to test the weight of
potential punishment”); State v. Caraballo, 17 Ohio St.3d 66, 67, 477 N.E.2d 627(1985). Here, Romero received a relatively lenient sentence that he is willing to
forgo in order to withdraw his plea. This case is therefore different from a case in
which a defendant receives a severe sentence and then asks to withdraw his plea.
{¶ 43} Further, the transcript of the plea proceeding shows that Romero’s
original counsel was not present when he entered his pleas but that a different
attorney was standing in for his counsel. It is unclear whether Romero had any
chance before the proceeding to discuss his plea and have his questions answered
by either his original counsel or stand-in counsel. In fact, the transcript of the plea
1
Although not raised in this appeal, a question might arise whether the manifest-injustice standard
should apply at all when a postsentence motion to withdraw alleges that the standards set forth in
Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), were violated. Padilla
allows a defendant to move to withdraw a plea based on counsel’s failure to advise the defendant of
the immigration consequences associated with a conviction. The question raised by the failure to
advise of immigration consequences has very little, if anything, to do with the ultimate sentence
imposed. Notably, the Ohio General Assembly, in R.C. 2943.031, does not require that the
manifest-injustice standard be met when a postsentence motion alleges a trial court failed to advise
a defendant of immigration consequences, because of the “serious consequences of a criminal
conviction on a noncitizen’s status in this country.” State v. Francis, 104 Ohio St.3d 490, 2004-
Ohio-6894, 820 N.E.2d 355, ¶ 26.
14
January Term, 2019
proceeding shows that Romero’s primary concern during the sentencing hearing
was whether he would be able to continue working after his conviction. It is
unlikely that this would be his primary concern had he been advised that entering a
guilty plea to the types of offenses he was charged with would result in mandatory
deportation from the United States—especially in light of the fact that he had lived
as a lawful permanent resident of the United States for 20 years and had four minor
children who also lived here. Because the facts of this case support the claims
asserted in Romero’s affidavit, I would uphold the judgment of the Fifth District
Court of Appeals and remand for an evidentiary hearing on the motion.
_________________
DEWINE, J., dissenting.
{¶ 44} Boiled down to its essence, this case presents a simple question: did
Carlos Romero’s affidavit entitle him to an evidentiary hearing on his motion to
withdraw his pleas? The trial court said no; the court of appeals said yes. We
accepted the case, presumably to answer the question.
{¶ 45} But instead of answering the question, the plurality provides an
attenuated discussion of the law, then punts the case back to the trial court. What
the plurality says is interesting and might even prove marginally useful to the trial
court. It would be a lot more useful, though, if the court would simply decide the
case in front of it.
{¶ 46} What the trial court really needs to know is whether Romero’s
submission requires an evidentiary hearing. And what other trial courts in the state
need to know is what type of showing is sufficient to require an evidentiary hearing.
The best way to assist the trial court and other courts confronted with these kinds
of questions is to tell them whether what Romero has submitted is enough—that is,
answer the question whether Romero has made a sufficient showing of prejudice to
require an evidentiary hearing.
15
SUPREME COURT OF OHIO
{¶ 47} The plurality resists answering this question, saying that “[t]he
credibility and weight of [a] defendant’s assertions in support of a motion to
withdraw a plea and the decision as to whether to hold a hearing are matters
entrusted to the sound discretion of the trial court.” Plurality opinion at ¶ 34. But
in doing so, it overlooks the threshold requirement that before an evidentiary
hearing is required on a motion to withdraw a guilty plea, a defendant must
“ ‘submit evidentiary documents containing sufficient operative facts to
demonstrate’ ” an entitlement to relief. State v. Kapper, 5 Ohio St.3d 36, 38, 448
N.E.2d 823 (1983), quoting State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819(1980), syllabus; see also State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905(1999), paragraph two of the syllabus. In my view, the trial court did not err in
denying the motion to withdraw the guilty pleas without a hearing, because even if
one were to accept everything that Romero said in his affidavit as true, it does not
establish his entitlement to withdraw his pleas.
{¶ 48} Here’s what Romero’s affidavit says:
 That he is not a United States citizen;
 That he has five children, ages 18, 9, 8, 3, and 1;
 That “when he was arrested, he was not knowledgeable about the criminal
justice system or the ramifications of a guilty plea on his immigration
status”;
 That his attorney never advised him of the immigration consequences of his
pleas, “most importantly, that he would be immediately deported”;
 That “there was insufficient evidence to convict him of the charges against
him, however his attorney at the time advised him that pleading guilty under
the circumstances was in his best interest”;
 That based on his attorney’s advice, he entered guilty pleas;
16
January Term, 2019
 That “had he known his guilty pleas would lead to his automatic
deportation, he would have been able to provide a defense to the charges
brought against him at a trial of the matter”;
 That he “did not understand the consequences of his plea until he was
detained by ICE and place[d] in removal proceedings.”
{¶ 49} To be entitled to an evidentiary hearing, Romero needed to set forth
operative facts meeting the two-part Strickland test: that his counsel’s performance
fell below an objective standard of reasonable representation and that this
deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-688, 692,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the United States Supreme Court’s
decision in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284(2010), it seems fairly clear that the affidavit Romero submitted sufficiently alleged
that his counsel’s representation was deficient to satisfy the first prong of the
Strickland test. The more difficult hurdle is the second prong—prejudice.
{¶ 50} To satisfy the prejudice prong, Romero needed to show that but for
his counsel’s errors, there was a reasonable probability that he would not have
pleaded guilty and instead would have insisted on going to trial. Hill v. Lockhart,
474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); State v. Xie, 62 Ohio
St.3d 521, 525, 584 N.E.2d 715 (1992).
{¶ 51} As an initial matter, nowhere does Romero assert in his affidavit that
but for his counsel’s purported errors, “he would not have pleaded guilty and would
have insisted on going to trial.” Hill at 59. Rather, he says only that he “would
have been able to provide a defense * * * at a trial of the matter.” But even if we
overlook this defect—concluding, as the plurality seems to, that what Romero said
is close enough and that implicit in his affidavit is a suggestion that he would have
taken the case to trial had he known more about immigration law—Romero still
fails to set forth operative facts meeting the prejudice prong.
17
SUPREME COURT OF OHIO
{¶ 52} At the change-of-plea hearing, the trial court warned Romero that
pleading guilty “may have the consequence of deportation, exclusion from
admission to the United States, or denial of naturalization pursuant to the laws of
the United States.” When asked if he understood, Romero replied, “Yes, ma’am.”
The court continued, “And with that in mind, are you still prepared to proceed?”
Again, Romero answered, “Yes, ma’am.” Shortly after hearing the warning,
Romero stepped outside with his attorney to ask a question unrelated to his
immigration status. Then, having expressed his understanding of the risk of
deportation, and having taken an opportunity to confer with his attorney, he pleaded
guilty.
{¶ 53} I assume that Romero meant what he said at the plea hearing—that
he understood that he could be deported as a result of the plea. In light of the court’s
advisement and Mr. Romero’s affirmative representation that he understood that he
could be deported, Romero cannot demonstrate that he was prejudiced.
{¶ 54} It would likely be a different story if Romero’s affidavit indicated
that his attorney gave him advice that undermined, or contradicted, the trial court’s
clear warning. This is not a case like Lee v. United States, ___ U.S. ___, 137 S. Ct.
1958, 1968, 198 L.Ed.2d 476 (2017), fn. 4, in which the attorney provided
affirmative misadvice “specifically undermining the judge’s warnings themselves,
which the defendant contemporaneously stated on the record he did not
understand.”
{¶ 55} Indeed, in Lee, the United States Supreme Court cautioned that
“[c]ourts should not upset a plea solely because of post hoc assertions from a
defendant about how he would have pleaded but for his attorney's deficiencies.
Judges should instead look to contemporaneous evidence to substantiate a
defendant’s expressed preferences.” Id. at ___, 137 S.Ct. at 1967.
{¶ 56} Here, the contemporaneous evidence is that Romero was told that he
could be deported and said that he understood. An analogous case, decided after
18
January Term, 2019
Lee, is United States v. Varatha-Rajan, 6th Cir. No. 17-2225, 2018 U.S. App.
LEXIS 16924 (June 21, 2018). There, the Sixth Circuit Court of Appeals held that
even though counsel may have acted unreasonably in failing to inform the
defendant of the consequences of the plea, the defendant could not show prejudice
when the court had informed the defendant that his conviction could result in
deportation. Similarly, in another post-Lee case, Superville v. United States, 284
F.Supp.3d 364, 366 (E.D.N.Y.2018), aff’d, 2d Cir. No. 18-680-pr, 2019 U.S.App.
LEXIS 14074 (May 9, 2019), the court concluded that a defendant could not
establish prejudice when a magistrate and district court judge had informed the
defendant that “he could face deportation if he pleaded guilty.” The court explained
that if the advisement on immigration consequences “is to have meaning, courts
must be able to rely on the fact that defendants take this warning seriously, and
speak truthfully under oath when they acknowledge that they understand the
immigration consequences of their plea.” Id. at 375.
{¶ 57} Simply put, Romero’s bald assertion that his attorney never advised
him about the immigration consequences of pleading guilty does not amount to
prejudice, because he plainly expressed that he understood he could be deported.
Romero has failed to set forth sufficient operative facts that entitle him to an
evidentiary hearing. Because the court holds otherwise, I respectfully dissent.
KENNEDY, J., concurs in the foregoing opinion.
_________________
John D. Ferrero Jr., Stark County Prosecuting Attorney, and Ronald Mark
Caldwell and Jessica L. Logothetides, Assistant Prosecuting Attorneys, for
appellant.
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant
Public Defender, for appellee.
Ryan Muennich, urging affirmance for amicus curiae Immigrant Defense
Project.
19
SUPREME COURT OF OHIO
Pinales, Stachler, Young, Burrell & Crouse Co., L.P.A., and Candace C.
Crouse, urging affirmance for amicus curiae National Association of Criminal
Defense Lawyers.
_________________
20