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State v. Romero

Court of Appeals of Ohio, Fifth District, Stark

May 22, 2017

STATE OF OHIO Plaintiff-Appellee
v.
CARLOS ROMERO Defendant-Appellant

         Criminal appeal from the Stark County Court of Common Pleas, Case No. 2016CR0331

          For Plaintiff-Appellee JOHN D. FERRERO STARK COUNTY PROSECUTOR BY: RONALD MARK CALDWELL.

          For Defendant-Appellant KIM ALABASI.

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          GWIN, P.J.

         {¶1} Appellant Carlos Romero ["Romero"] appeals the October 21, 2016 decision from the Stark County Court of Common Pleas that denied his post-sentence motion to withdraw his negotiated guilty plea. The appellee is the State of Ohio.

         Facts and Procedural History

         {¶2} Romero is a 50 year-old man born in Honduras. Romero married a United States citizen in 1995 and legally obtained his permanent residence or "green card" status on April 1, 1998.

         {¶3} On March 21, 2016, the Stark County Grand Jury returned an indictment that charged Romero with: 1). possession of marijuana in violation of R.C. 2925.11(A), a felony of the third degree per R. C. 2925.11 (C)(3)(a), 2). trafficking in marijuana in violation of R.C. 2925.03(A)(2), a felony of the third degree per R.C. 2025.03(C)(3)(e), and 3), possession of cocaine in violation of R.C. 2925.11(A)(3), a felony of the fifth degree per R.C. 2925.11(C)(4)(a).

         {¶4} On June 1, 2016, Romero appeared with counsel and entered guilty pleas to the charges set forth in the indictment. Sentencing was deferred until June 29, 2016 pending the completion of a pre-sentence investigation report[1]. Romero was sentenced by Judgment Entry filed July 6, 2016 to community control sanctions (intensive supervised probation) for a period of three years. In addition to this sentence, Romero was ordered to perform 100 hours of community service, and his driver's license was suspended for six months.

         {¶5} Romero filed an Emergency Motion to Withdraw Pleas and Vacate Judgment on October 14, 2016 claiming that his attorney failed to advise him of the immigration consequences that would result from his guilty pleas. The trial court overruled the motion by judgment entry filed October 21, 2016 citing language from the transcript indicating that the appropriate immigration warnings pursuant to R.C. 2943.031 were read to Romero before accepting his pleas. The trial court concluded that because of the compliance with R.C. 2943.031, Romero's pleas were entered knowingly, voluntarily, and intelligently.

         Assignment of Error

         {¶6} "I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW PLEA AND VACATE CONVICTION PURSUANT TO OHIO RULE 32.1."

         Law and Analysis

         {¶7} The entry of a plea of guilty is a grave decision by an accused to dispense with a trial and allow the state to obtain a conviction without following the otherwise difficult process of proving his guilt beyond a reasonable doubt. See Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473(1962). A plea of guilty constitutes a complete admission of guilt. Crim. R. 11(B)(1). "By entering a plea of guilty, the accused is not simply stating that he did the discreet acts described in the indictment; he is admitting guilt of a substantive crime." United v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 762, 102 L.Ed.2d 927(1989).

         Withdraw of Guilty plea Crim.R. 32.1.

         {¶8} Crim.R. 32.1 provides that a trial court may grant a defendant's post sentence motion to withdraw a guilty plea only to correct a manifest injustice. Therefore, "[a] defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the burden of establishing the existence of manifest injustice." State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324(1977), paragraph one of the syllabus. Although no precise definition of "manifest injustice" exists, in general, "'manifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process.'" State v. Wooden, 10th Dist. Franklin No. 03AP-368, 2004-Ohio-588, ¶ 10, quoting State v. Hall, 10th Dist. Franklin No. 03AP-433, 2003-Ohio-6939; see, also, State v. Odoms, 10th Dist. Franklin No. 04AP-708, 2005-Ohio-4926, quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83(1998) ("[a] manifest injustice has been defined as a 'clear or openly unjust act'"). Under this standard, a post-sentence withdrawal motion is allowable only in extraordinary cases. Smith, 49 Ohio St.2d at 264, 361 N.E.2d 1324.

         {¶9} "A motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion of the trial court, and the good faith, credibility and weight of the movant's assertions in support of the motion are matters to be resolved by that court." Smith at paragraph two of the syllabus. Thus, we review a trial court's denial of a motion to withdraw a guilty plea under an abuse-of-discretion standard, and we reverse that denial only if it is unreasonable, arbitrary, or unconscionable. Odoms, 2005-Ohio-4926.

         Withdraw of Guilty plea for non-citizen.

         {¶10} However, "[c]riminal defendants who are not United States citizens are permitted to withdraw a guilty plea in two distinct ways: (1) upon the finding that they were not given the warning required by R.C. 2943.031(A)(1)[2] (and that the court was not relieved of that requirement under R.C. 2943.031(B)) of the potential consequences to their resident status in the United States when they pled guilty to criminal charges (among other related requirements contained in R.C. 2943.031(D)[3]), or (2) when a court finds, pursuant to Crim.R. 32.1, that it is necessary to correct manifest injustice." (Footnotes omitted.) State v. Toyloy, 10th Dist. Franklin No. 14AP-463, 2015-Ohio-1618, 2015 WL 1913431, ¶ 12.

         {¶11} R.C. 2943.031(F) "clarifies that the statute does not prevent a trial court from granting a plea withdrawal under the procedural rule, Crim.R. 32.1." Toyloy, ¶ 12. Thus, R.C. 2943.031 provides "an independent means of withdrawing a guilty plea separate and apart from and in addition to the requirements of Crim.R. 32.1." State v. Weber, 125 Ohio App.3d 120, 129, 707 N.E.2d 1178 (10th Dist. 1997). Accordingly, when a motion to withdraw plea is premised under R.C. 2943.031(D), the usual "manifest injustice" standard applied to Crim.R. 32.1 motions does not apply; rather, the standards in R.C. 2943.031 apply. State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 26.

         Appellate ...


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