Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Municipal Court TRIAL NO.
T. Deters, Hamilton County Prosecuting Attorney, and Melynda
J. Machol, Assistant Prosecuting Attorney, for
McKinney & Namei Co., LPA, Michael Tudor, Paul W. Shonk
and Firooz T. Namei, for Defendant-Appellant.
Defendant-appellant Ramon Valdez appeals from the Hamilton
County Municipal Court's judgment overruling his
"Emergency Motion to Vacate Guilty Plea under
Padilla v. Kentucky." We affirm the court's
Valdez was convicted in 2010 upon his guilty plea to the
fourth-degree misdemeanor of domestic violence by threat in
violation of R.C. 2919.25(C). He took no direct appeal from
his conviction. Instead, he sought to withdraw his guilty
plea by filing with the municipal court a postconviction
motion citing 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), in support of his claim that
his plea had been the unintelligent product of his trial
counsel's ineffectiveness in advising him concerning the
immigration consequences of his conviction.
In this appeal, Valdez presents a single assignment of error,
contending that the municipal court abused its discretion in
overruling the motion. We overrule the assignment of error,
because the record does not demonstrate an abuse of
Crim.R. 32.1 Motion
Valdez did not specify in his postconviction motion a statute
or rule under which the relief sought might have been
afforded, leaving the municipal court to "recast [the
motion] into whatever category necessary to identify and
establish the criteria by which the motion should be
judged." State v. Schlee, 117 Ohio St.3d 153,
2008-Ohio-545, 882 N.E.2d 431, ¶ 12 and syllabus.
Because Crim.R. 32.1 authorizes the postsentence withdrawal
of a guilty plea based on a Padilla claim,
Valdez's motion was reviewable under the standards
provided by that rule. See State v. Bishop,
2014-Ohio-173, 7 N.E.3d 605, ¶ 2, 4 (1st Dist.);
State v. Kostyuchenko, 2014-Ohio-324, 8 N.E.3d 353,
¶ 4, 17 (1st Dist.). Accord State v. Bravo, 9th
Dist. Summit No. 27881, 2017-Ohio-272, ¶ 5; State v.
Tovar, 10th Dist. Franklin No. 11AP-1106,
2012-Ohio-6156, ¶ 6; State v. Guerrero, 12th
Dist. Butler No. CA2010-09-231, 2011-Ohio-6530, ¶ 3.
Under Crim.R. 32.1, a postsentence motion to withdraw a
guilty plea may be granted only "to correct manifest
injustice." State v. Smith, 49 Ohio St.2d 261,
361 N.E.2d 1324 (1977), paragraph one of the syllabus. The
defendant bears the burden of proving "manifest
injustice." The determination whether the defendant has
sustained that burden is committed to the sound discretion of
the trial court and will not be disturbed on appeal unless
the court abused its discretion. Id. at paragraph
two of the syllabus.
Injustice Not Demonstrated
In October 2010, Valdez was indicted for domestic violence in
violation of R.C. 2919.25(A), which proscribes
"knowingly caus[ing] or attempt[ing] to cause physical
harm to a family or household member." Because he had
been convicted of domestic violence in 2003, the charged
offense was punishable as a fourth-degree felony, and he was
subject to a mandatory minimum term of confinement of six
months. See R.C. 2919.25(D)(3) and (D)(6)(a).
In November 2010, Valdez pled guilty to a reduced charge of
domestic violence in violation of R.C. 2919.25(C), which
provides that "[n]o person, by threat of force, shall
knowingly cause a family or household member to believe that
the offender will cause imminent physical harm to the family
or household member." His violation of R.C. 2919.25(C)
was punishable as a fourth-degree misdemeanor, and his
sentence was not enhanced by his 2003 domestic-violence
conviction. The trial court sentenced him to 30 days in jail
and a year of community control, credited him with 16 days of
jail time, and suspended the remaining days.
Valdez did not challenge his 2010 conviction until 2016, when
in his "Emergency Motion to Vacate Guilty Plea under
Padilla v. Kentucky, " he challenged the
constitutional competence of his trial counsel in advising
him concerning the immigration consequences of that
conviction. On the record before us, we cannot say that the
court abused its discretion in overruling the motion.
The Sixth Amendment right to accurate advice concerning
deportation. The due-process protections afforded by
Article I, Section 16 of the Ohio Constitution and the
Fourteenth Amendment to the United States Constitution
require that a guilty or no-contest plea "represent a
voluntary and intelligent choice among the alternative
courses of action open to the defendant." North
Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27
L.Ed.2d 162 (1970); State v. Engle, 74 Ohio St.3d
525, 527, 660 N.E.2d 450 (1996). A defendant who seeks to
withdraw his plea on the ground that the plea was the
unintelligent product of his counsel's ineffectiveness
must demonstrate that counsel's representation was
constitutionally deficient, Strickland v.
Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), and that "there is a reasonable
probability that, but for [that deficiency, the defendant]
would not have pleaded guilty and would have insisted on
going to trial." Hill v. Lockhart, 474 U.S. 52,
59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see State v.
Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992);
State v. Blackwell, 1st Dist. Hamilton No. C-970150,
1998 WL 212753 (May 1, 1998).
For purposes of the Sixth Amendment right to the effective
assistance of counsel, a plea negotiation is a critical phase
of a criminal prosecution. Hill at 57.
Eight months before Valdez entered his guilty plea, the
United States Supreme Court decided Padilla, 559
U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284. Padilla had been
convicted upon a guilty plea to drug distribution. Facing
deportation for his conviction after being a noncitizen
permanent resident of the United States for over 40 years, he
sought to withdraw his guilty plea on the ground that his
trial counsel had been constitutionally deficient in failing
to advise him of the removal consequence of his conviction
and in misinforming him that he "did not have to worry
about [his] immigration status." Id. at 360.
The Supreme Court held that the Sixth Amendment imposes upon
counsel, in negotiating a guilty or no-contest plea, the duty
to "accurate[ly]" advise a noncitizen client
concerning the removal consequence of his conviction.
Id. at 364 and 374. The contours of that duty, the
Court declared, depend on "the terms of the relevant
immigration statute * * * in defining the removal consequence
for [the] conviction." Id. at 368. Thus,
"[w]hen the law is not succinct and straightforward,
" counsel "need do no more than advise a noncitizen
client that pending criminal charges may carry a risk of
adverse immigration consequences. But when the deportation
consequence is truly clear, * * * the duty to give correct
advice is equally clear." Id. at 369.
The "relevant immigration statute" in
Padilla was 8 U.S.C. 1227. The statute sets forth
"[c]lasses of deportable aliens" and mandates the
removal of any alien who falls within one those classes. 8
U.S.C. 1227(a). Padilla fell into the "Criminal
offenses"-"Controlled substances" class of
deportable aliens under 8 U.S.C. 1227(a)(2)(B), which
provides in relevant part that "[a]ny alien who at any
time after admission has been convicted of a violation of (or
a conspiracy or attempt to violate) any law or regulation of
a State * * * relating to a controlled substance * * *, other
than a single offense involving possession for one's own
use of 30 grams or less of marijuana, is deportable." 8
U.S.C. 1227(a)(2)(B)(i), quoted in Padilla at 368.
For purposes of determining Padilla's counsel's duty,
the Court found the statute's "terms * * * succinct,
clear, and explicit in defining the removal consequence for
[his] conviction, " when "the text of the statute *
* * 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." Padilla at 368-369. The
Court concluded that, because Padilla's removal was
"presumptively mandatory" and Padilla's counsel
"could have easily determined that his plea would make
him eligible for deportation simply from reading the text of
the * * * removal statute, " counsel had performed
deficiently in not so advising Padilla and in
"incorrect[ly]" assuring him that his conviction
would not affect his immigration status. Id. Having
determined that counsel was constitutionally deficient in
advising Padilla concerning the removal consequence of his
conviction, the Court remanded the case to the trial court to
determine whether Padilla had been thereby prejudiced, that
is, whether "a decision to reject the plea bargain would
have been rational under the circumstances."
Id. at 372, 374, citing Roe v.
Flores-Ortega, 528 U.S. 470, 480, 486, 120 S.Ct. 1029,
145 L.Ed.2d 985 (2000).
Valdez's counsel's duty. Valdez was a
noncitizen permanent resident of the United States. He was
convicted upon a guilty plea to domestic violence by threat
in violation of R.C. 2919.25(C). R.C. 2919.25(C) provides
that "[n]o person, by threat of force, shall knowingly
cause a family or household member to believe that the
offender will cause imminent physical harm to the family or
As in Padilla, 8 U.S.C. 1227 is the relevant
immigration statute, mandating the removal of an alien who
falls within a listed class of "Deportable aliens."
8 U.S.C. 1227(a). Valdez falls within the "Criminal
offenses"-"Crimes of domestic violence" class
of deportable aliens under 8 U.S.C. 1227(a)(2)(E), which
provides in relevant part that an alien is deportable if
"at any time after admission [he] is convicted of a
crime of domestic violence." 8 U.S.C. 1227(a)(2)(E)(i).
For purposes of the crimes-of-domestic-violence class of
deportable aliens, a "crime of domestic violence"
is defined as "any crime of violence * * * against a
person committed by a current * * * spouse of the
person." 8 U.S.C. 1227(a)(2)(E)(i). And a "crime of
violence" is, in turn, defined under 18 U.S.C. 16(a) as
"an offense that has as an element the use, attempted
use, or threatened use of physical force against the person *
* * of another."
8 U.S.C. 1227(a)(2)(E)(i) defined counsel's duty to
advise Valdez of the immigration consequence of his
conviction. The text of that statute, like the text of the
statute in Padilla, is "succinct, clear, and
explicit" in classifying as a "deportable
alien" one convicted of an offense of domestic violence
that includes as an element the threatened use of physical
force. See Padilla, 559 U.S. at 368-369, 130 S.Ct.
1473, 176 L.Ed.2d 284. See also United States v.
Castleman, __U.S.__, 134 S.Ct. 1405,
1410-1413, 188 L.Ed.2d 426 (2014) (holding that a state
misdemeanor domestic assault categorically qualified as a
"misdemeanor crime of domestic violence" under the
federal statute making it a felony to possess a firearm after
such a conviction, because the federal statute's
"physical force" requirement, under the
"well-settled meaning of [that] common-law term,
" is satisfied by the degree of force that supported a
common-law battery conviction, namely, an offensive
touching). By simply reading the statute, counsel could
easily have determined that, with Valdez's conviction for
domestic violence in violation of R.C. 2919.25(C), his
removal was presumptively mandatory. Therefore, counsel, in
advising Valdez ...