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State v. Lopez

Court of Appeals of Ohio, Tenth District

May 30, 2017

State of Ohio, Plaintiff-Appellee,
v.
Omar C. Lopez, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas No. 12CR-1884

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.

         On brief:

          Rodriguez Bell & DiFranco Law Office, LLC, and Brian C. DiFranco, for appellant.

          DECISION

          BROWN, J.

         {¶ 1} Defendant-appellant, Omar C. Lopez, appeals the judgment of the Franklin County Court of Common Pleas in which the court denied his motion to withdraw his guilty plea. For the following reasons, we affirm.

         {¶ 2} Appellant is a native of Mexico and entered the United States in February 2000. He has three children who are United States citizens. On November 2, 2015, appellant pled guilty to attempted possession of cocaine, a misdemeanor of the first degree. The trial court issued an entry the same day, finding appellant guilty and sentencing him to 90 days at the Franklin County Correction Center, but suspended as time served.

         {¶ 3} Appellant is subject to a final order of removal from the United States Immigration Court which determined that he was statutorily barred from seeking relief from removal pursuant to 8 U.S.C. 1229b(b). In addition, appellant is subject to 8 U.S.C. 1226(c), which mandates custody for any conviction for an offense involving a controlled substance (other than a single offense involving possession for one's own use of 30 grams or less of marijuana). 8 U.S.C. 1227(a)(2)(B)(i).

         {¶ 4} On February 29, 2016, appellant filed a motion to withdraw his guilty plea pursuant to Crim.R. 32.1. In his motion, appellant claimed his trial counsel was ineffective when she failed to advise him of the consequences that pleading guilty to a controlled substance charge would have on his immigration status. Appellant claimed his attorney told him she had spoken to another attorney regarding the immigration issues and there would be no consequences. Appellant did not believe the conversation occurred.

         {¶ 5} The trial court did not hold a hearing on appellant's motion to withdraw his guilty plea and denied the motion on May 24, 2016. Appellant appeals the judgment, asserting the following three assignments of error:

[I.] The Trial Court abused its' [sic] discretion and denied appellant due process under the U.S. and Ohio Constitutions by failing to address or otherwise adjudicate a Federal claim presented in Appellant's Motion to Withdraw Guilty Plea specifically pursuant to Padilla v. Kentucky, 599 U.S. 356 (2010)[, ] 130 S.Ct. 1382 (March 31, 2010)[.] Appellant was denied effective assistance of counsel. Prior to conviction former Counsel failed to provide Appellant affirmative or correct advice or to assist him upon request whether his guilty plea rendered him Removable from the United States.
[II.] The Appellant/Defendant's guilty plea was not made knowingly, intelligently and voluntarily.
[III.] Appellant was denied due process where he presented his ineffective assistance arguments to the trial court in 2016 and the trial court failed to conduct a hearing on the ineffective assistance of counsel arguments and merely ruled on the motion.

         {¶ 6} Appellant argues in his first assignment of error the trial court erred when it failed to find he was denied effective assistance of counsel based on counsel's failure to provide him correct advice regarding his immigration status before his guilty plea.

         {¶ 7} A motion to withdraw a guilty plea is governed by Crim.R. 32.1, which provides that "[a] motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." Since appellant filed his motion to withdraw his guilty plea after sentencing, the trial court was required to determine whether granting the motion would correct a manifest injustice. "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. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶ 5. Manifest injustice " 'is an extremely high standard, which permits a defendant to withdraw his guilty plea only in extraordinary cases.' " State v. Tabor, 10th Dist. No. 08AP-1066, 2009-Ohio-2657, ¶ 6, quoting State v. Price, 4th Dist. No. 07CA47, 2008-Ohio-3583, ΒΆ 11. A defendant seeking to withdraw a guilty plea following the imposition of sentence has the burden of establishing manifest injustice based on specific facts contained in the record or supplied through affidavits ...


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