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State v. Diol

Court of Appeals of Ohio, First District, Hamilton

June 5, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
MOHAMED DIOL, Defendant-Appellant.

          Hamilton County Court of Common Pleas Trial No. B-1700978.

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

          Sarah C. Larcade, for Defendant-Appellant.

          OPINION

          CROUSE, JUDGE.

         Introduction

         {¶1} 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 question).

         {¶2} 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.

         Facts and Procedural Background

         {¶3} 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.

         {¶4} 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 was dismissed.

         {¶5} 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."

         {¶6} 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.

         {¶7} 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 return?"

         {¶8} 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, "Yes."

         {¶9} 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 it's applicable.

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?

         {¶10} 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 ...

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