from the Franklin County Court of Common Pleas No. 12CR-1884
O'Brien, Prosecuting Attorney, and Michael P. Walton, for
Rodriguez Bell & DiFranco Law Office, LLC, and Brian C.
DiFranco, for appellant.
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
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
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, ¶ 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 ...