Court of Appeals of Ohio, First District, Hamilton
Hamilton County Court of Common Pleas Trial No. B-1700978.
T. Deters, Hamilton County Prosecuting Attorney, and Melynda
J. Machol, Assistant Prosecuting Attorney, for
C. Larcade, for Defendant-Appellant.
In this case, an alleged non-United States citizen defendant,
who pleaded guilty to felony drug trafficking and possession,
was advised by defense counsel on the record at the plea
hearing that deportation was "at worst"
"possibly" discretionary when, in fact, it is
presumptively mandatory (and the record reflects much
confusion between lawyer and client on the citizenship
In two assignments of error, Mohamed Diol argues that the
trial court erred by denying his "Emergency Motion to
Vacate Guilty Plea Under Padilla v. Kentucky and
Lee v. United States," and that the trial court
erred by failing to hold an evidentiary hearing on his motion
to vacate despite his clear and unequivocal request. We
combine his assignments of error, and hold that the trial
court did err, and that this cause must be remanded for the
court to hold an evidentiary hearing.
and Procedural Background
Diol was indicted for one count of trafficking in marijuana
in violation of R.C. 2925.03(A)(2), a felony of the fifth
degree, one count of possession of marijuana in violation of
R.C. 2925.11(A), a misdemeanor of the fourth degree, and one
count of possessing criminal tools in violation of R.C.
2923.24(A), a felony of the fifth degree. The charges in this
case arose from a search of Diol's vehicle conducted
after a traffic stop.
Diol pleaded guilty to the marijuana-trafficking and the
marijuana-possession counts of the indictment. Pursuant to
the plea agreement, the possession-of-criminal-tools charge
During the Crim.R. 11 plea colloquy, the trial court asked
Diol if he was a United States citizen. Diol replied that he
was. The court asked Diol if his attorney explained
everything to him and answered all of his questions. Diol
replied, "No." At that point, Diol's attorney
stated, "Judge, if I may, as far as the U.S. citizen
part, I believe we need to elaborate on that a bit more on
the record just to make sure I cover everything as required
under Padilla versus Kentucky."
The court responded that in an "overabundance of
caution" it advised Diol if he was not a citizen of the
United States, then
conviction of the offense 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. A broad range of
crimes are deportable offenses under federal law. Deportation
and other immigration consequences are the subject of a
separate proceeding. No one, including defense counsel or
this Court, can predict to a certainty the effect of this
conviction on your immigration status.
With this advisement, the court asked Diol, "Do you wish
to go forward with your guilty plea, regardless of any
immigration consequences, even if it means automatic removal
from the United States and you're never able to
Before Diol could answer this question, his attorney stated,
Just to be clear, I don't believe this would lead to
automatic deportation. I believe at worst it possibly could
make it discretionary. He tells me he's a U.S. citizen.
He did show me his card, which tells me he was here for
asylum purposes. Diol's attorney then turned to Diol and
asked, "Is that correct?" Diol replied,
The court then addressed Diol for a second time, So I'm
not giving you legal advice. My question is, I've now
advised you that if for some reason you're not a U.S.
citizen - if you are a U.S. citizen I wouldn't think
If you're not, my question still remains that if you
aren't a U.S. citizen everything I've advised you of
applies; and my question to you, again, is do you wish to go
forward with your guilty plea regardless of any immigration
consequences even if it means automatic removal from the
United States and you are never able to return?
After this question, the following exchange occurred:
Diol: I mean, when I go overseas I have to have my passport.
They give me a passport so I can go overseas. I guess I'm
a U.S. citizen.
The Court: Guessing aside, I just want to make sure -
Diol: I'm a U.S. citizen when I get out of the country -
The Court: My question is, if for some reason you are not a
U.S. citizen, you could suffer these consequences that
I've just advised you of. If you're a U.S. citizen it
doesn't matter. If you happen to not be a U.S. citizen,
then all of this stuff that I just told you about applies;
and my question is, I want to make sure that before you go
forward with your guilty plea, you understand that if
you're not a U.S. citizen you could be excluded from the
U.S. My question is do you wish to go forward with your
guilty plea ...