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State v. Valdez

Court of Appeals of Ohio, First District, Hamilton

June 14, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
RAMON VALDEZ, Defendant-Appellant.

         Criminal Appeal From: Hamilton County Municipal Court TRIAL NO. C-10CRB-33213

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol, Assistant Prosecuting Attorney, for Plaintiff-Appellee

          McKinney & Namei Co., LPA, Michael Tudor, Paul W. Shonk and Firooz T. Namei, for Defendant-Appellant.

          OPINION

          Mock, Presiding Judge.

         {¶1} 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 judgment.

         {¶2} 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.

         {¶3} 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 discretion.

         A Crim.R. 32.1 Motion

         {¶4} 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.

         {¶5} 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.

         Manifest Injustice Not Demonstrated

         {¶6} 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).

         {¶7} 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.

         {¶8} 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.

         {¶9} 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).

         {¶10} 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.

         {¶11} 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.

         {¶12} 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).

         {¶13} 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 household member."

         {¶14} 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."

         {¶15} 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 ...


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