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State v. Passafiume

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 22, 2018

STATE OF OHIO PLAINTIFF-APPELLANT
v.
SALVATORE PASSAFIUME DEFENDANT-APPELLEE

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-09-525815-A and CR-09-529125-A

          ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga County Prosecutor Frank Romeo Zeleznikar Assistant County Prosecutor Justice

          ATTORNEY FOR APPELLEE Margaret W. Wong Margaret Wong & Associates

          BEFORE: McCormack, P.J., Stewart, J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          TIM McCORMACK, PRESIDING JUDGE

         {¶1} In this consolidated appeal, appellant, the state of Ohio, appeals from the order of the trial court granting appellee, Salvatore Passafiume's motions to withdraw his guilty pleas. Upon thorough review of the record and applicable law, we reverse the trial court.

         Procedural and Factual Background

         {¶2} In June 2009, Passafiume was charged with aggravated theft and theft in Cuyahoga C.P. No. CR-09-525815 and tampering with evidence, drug possession, and possessing criminal tools in Cuyahoga C.P. No. CR-09-529125. On November 17, 2009, he pleaded guilty to aggravated theft as charged in the indictment in Case No. CR-09-525815 and attempted tampering with evidence and drug possession in Case No. CR-09-529125.

          {¶3} Prior to entering his guilty pleas, the court engaged in a full colloquy with Passafiume and advised him of the constitutional rights he was waiving. The court also advised Passafiume, as a noncitizen of the United States, "[Y]ou're hereby advised that conviction of the offenses to which you're pleading guilty may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." When asked if he understood, Passafiume replied, "Yes, your Honor." The court then found Passafiume's pleas to be knowingly, voluntarily, and intelligently entered, and it found him guilty accordingly. The court sentenced Passafiume to five years of community control sanctions. The court also suspended Passafiume's driving privileges for five years and ordered Passafiume to pay court costs in both cases and restitution of $595 in Case No. CR-09-525815. Thereafter, in August 2012, upon the probation officer's request, Passafiume's community control sanctions were terminated early. He did not appeal from his sentence or convictions.

         {¶4} On December 20, 2016, approximately seven years after entering his guilty pleas, Passafiume filed a Crim.R. 32.1 motion to withdraw guilty plea (in both lower court cases), claiming that he was denied the effective assistance of counsel prior to entering his November 2009 guilty pleas. In support, he argued that his attorney failed to advise him that his pleas would result in deportation. While acknowledging in an affidavit attached to his motions that the trial court "mentioned] something about [immigration consequences], " he contended he was "nervous * * * and did not think I would get deported as a result of the conviction since my attorney never mentioned anything about it." Passafiume stated that he was placed in removal proceedings in October 2016, he is subject to mandatory detention, and he had been in deportation proceedings previously but had received a waiver that allowed him to remain in the United States. He also contends that trial counsel failed to properly investigate his defenses and pressured him into pleading.

         {¶5} The state opposed Passafiume's motions, stating that Passafiume has failed to demonstrate a manifest injustice. In support, the state provided that Passafiume cannot establish ineffective assistance of counsel because (1) counsel was not deficient - counsel was not required by the law at the time of Passafiume's conviction to advise him of deportation consequences, and there is no evidence, other than a self-serving affidavit, that defense counsel's performance otherwise fell below the standard of care; and (2) Passafiume cannot demonstrate prejudice.

         {¶6} On February 3, 2017, the trial court held a hearing on Passafiume's motions. During the hearing, Passafiume provided that he is a citizen of Italy and he came to the United States with his family in 1959 as an infant, and he has been a permanent resident of the United States. When he was a child, he and his family moved from New York City to Cleveland, and he has lived in Cleveland ever since. He stated that he could have become a United States citizen, but he "never thought about it."

         {¶7} Passafiume testified concerning the underlying offenses. He stated that he was an innocent bystander who was unaware that an acquaintance of his whom he had driven to Walmart, the codefendant in Case No. CR-09-525815, had stolen a computer from the store. Passafiume also stated that he was an innocent bystander in Case No. CR-09-529125, where the police discovered drugs in the car he was driving. He contends that the drugs were discovered on the passenger seat where his friend, the codefendant in that case, had been seated prior to the police removing the friend from the vehicle. Passafiume testified that he explained all the above to his trial counsel, yet counsel advised him to plead no contest.

          {¶8} Passafiume testified that his prior attorney never advised him of any deportation consequences should he be convicted. He stated that he would not have pleaded guilty had he known he would be placed in mandatory detention and immigration proceedings, explaining that his entire family is in the United States and he has "no life" in Italy. Passafiume also explained that during the plea hearing, he did not fully understand when the court advised him about deportation consequences because he was "taking a lot of pain meds and stuff like that." He conceded that he "should have thought about the situation a little more, knowing that I was innocent."

         {¶9} Passafiume also testified that in October 2016, he went to Cleveland Municipal Court to pay a fine on an OVI case for which he had served six months community control sanctions, and he was detained by immigration officials. He stated on cross-examination that he had been in deportation proceedings previously but received a waiver that allowed him to stay in the United States. He explained that, while he was ill, immigration officials had come to his home in 2004 for a petty theft charge. The supervisor "let him be, " however, because he was ill.

         {¶10} After the hearing, the trial court issued one written ruling on Passafiume's motions to withdraw his guilty pleas. The court determined that Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), applied retroactively, and applying its "equity powers, " it granted the motions.

         {¶11} The state now appeals the court's decision, assigning the following errors for our review:

         I. The trial court erred in holding that the holding set forth in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) applies retroactively.

          II. Assuming, arguendo, that Padilla is retroactive, the trial court abused its discretion when it applied the wrong legal standard in granting ...


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