appeal from the Stark County Court of Common Pleas, Case No.
Plaintiff-Appellee JOHN D. FERRERO STARK COUNTY PROSECUTOR
BY: RONALD MARK CALDWELL.
Defendant-Appellant KIM ALABASI.
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J.
Hon. Earle E. Wise, Jr., J.
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
and Procedural History
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
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).
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. 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.
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
"I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION TO WITHDRAW PLEA AND VACATE CONVICTION PURSUANT TO
OHIO RULE 32.1."
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
of Guilty plea Crim.R. 32.1.
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.
"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.
of Guilty plea for non-citizen.
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) (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)), 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.
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.