Court of Appeals of Ohio, Twelfth District, Butler
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case
Michael T. Gmoser, Butler County Prosecuting Attorney, John
C. Heinkel, for appellee.
E. Harris, for appellant.
1} Appellant, Alexis Ramirez, appeals the decision
of the Butler County Court of Common Pleas denying his motion
to withdraw his no contest plea to single counts of
aggravated burglary, aggravated robbery, felonious assault,
and tampering with evidence, as well as two counts of
kidnapping, and three counts of rape. For the reasons
outlined below, we affirm the trial court's decision.
and Procedural History
2} On April 28, 2010, the Butler County Grand Jury
returned an indictment charging Ramirez with the nine
above-named offenses. The charges arose after Ramirez knocked
on the door to the 64-year-old victim's home and demanded
she give him money. Ramirez, who at that time was heavily
intoxicated and allegedly high on marijuana, was holding a
black pellet gun with a t-shirt covering his face. When the
victim told Ramirez she did not have any money to give him,
Ramirez forced his way into the victim's home and ordered
the victim to take off her clothes. The victim refused.
Ramirez then struck the victim in the head with the pellet
gun. This blow to the victim's head resulted in the
victim suffering a laceration to her head that required
several staples to close.
3} After striking the victim in the head, Ramirez
again demanded the victim take off her clothes. Unsure of
what Ramirez would do if she refused for a second time, the
victim relented to Ramirez's demands and took off her
clothes. Ramirez then raped the victim in various rooms
throughout the victim's home both orally and vaginally.
These rapes lasted over an hour and caused the victim to
sustain significant injuries to her person. After raping the
victim multiple times, Ramirez then ordered the victim drive
him to a nearby ATM. While en route to the ATM, Ramirez
demanded the victim to let him drive. The victim refused.
Ramirez then swung the car door open, grabbed the
victim's purse, and fled on foot. There is no dispute
that Ramirez was just 14 years old at the time the offenses
occurred. There is also no dispute that Ramirez is not a
United States citizen.
4} On August 20, 2010, the parties appeared before
the trial court for a change of plea hearing. As part of this
hearing, Ramirez notified the trial court he wanted to
withdraw his plea of not guilty by reason of insanity and
enter a plea of no contest to all nine charges. Prior to
accepting Ramirez's plea, there is no dispute that the
trial court adhered to its statutory duty set forth in R.C.
2943.031(A) by notifying Ramirez that by entering a no
contest plea he "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." See State v. Perry, 5th Dist.
Muskingum No. CT2018-0045, 2019-Ohio-2699, ¶ 24
("Revised Code R.C. 2943.031(A) describes the duty of
the trial court to provide the warning therein as a mandatory
obligation by the use of the word 'shall' most often
used to designate a clear requirement").
5} Upon being so advised, the trial court asked
Ramirez if he understood the advisement and the implications
of what may occur if he entered a no contest plea. Ramirez
responded that he understood that he "could get deported
for what [he had] done" and that he "could not be a
citizen and try to come back." Following this exchange,
the trial court engaged Ramirez in the necessary Crim.R. 11
plea colloquy. Once the plea colloquy concluded, the trial
court asked Ramirez how he wished to plea. Ramirez responded
by entering a plea of no contest to each of the nine charges
set forth in the indictment. The trial court accepted
Ramirez's no contest plea upon finding the plea was
knowingly, intelligently, and voluntarily entered. Satisfied
with Ramirez's no contest plea, the trial court then
issued its decision finding Ramirez guilty as charged.
6} On October 8, 2010, the trial court held a
sentencing hearing. As part of this hearing, the trial court
notified Ramirez that it was its "understanding"
that he would be deported following his release from prison.
There is nothing in the record to indicate this came as a
surprise to Ramirez or that Ramirez had not previously been
advised by his trial counsel of the immigration consequences
resulting from his conviction. This includes the fact that
Ramirez would be deported upon his release from prison.
Rather, when asked if he understood that he would be deported
upon his release, as well as if he understood the
consequences of being classified as a Tier III sex offender,
Ramirez responded, "Yes, sir."
7} Following this exchange, the trial court heard
from Ramirez's trial counsel in mitigation. As part of
mitigation, Ramirez's trial counsel argued the trial
court should impose a comparatively lighter sentence on
Ramirez, an undocumented immigrant who would be deported
following his release from prison, when considering the
significant costs to house an inmate within the state
penitentiary system. Specifically, Ramirez's trial
counsel stated that "[w]hen this case all started the
sheriff of this county placed a holder on [Ramirez] and
notified the immigration authorities, and I don't think
there's a question that whatever sentence he gets, at the
very end of this, he is going to be deported to Mexico."
Ramirez's trial counsel also stated that "[Ramirez]
will never legally be allowed back into this country
again." There is again nothing in the record to indicate
this came as a surprise to Ramirez or that Ramirez had not
previously been advised by his trial counsel of the
immigration consequences resulting from his conviction. This,
once again, includes the fact that Ramirez would be deported
upon his release from prison.
8} Ramirez's trial counsel also argued that a
lighter sentence should be imposed due to Ramirez's young
age, immaturity, and below average intelligence. This was in
addition to Ramirez's lack of insight and judgment,
apparent inability to control his impulses, and heavy
intoxication at the time the offenses occurred. Ramirez's
trial counsel also noted that he had recently been appointed
trial counsel in several other cases that carried less
significant sentences than what Ramirez faced in this case.
This included a case where his client was alleged to have
murdered the victim by beating the victim with a baseball
bat. Concluding, Ramirez's trial counsel argued that
Ramirez was not "evil," "that's not who he
is," but that Ramirez was instead just a "little
kid, and that's the way I look at him."
9} Following mitigation, the trial court provided
Ramirez with his right to allocution. As part of allocution,
Ramirez informed the trial court that he knew society looked
at him "as a monster and they have every right to,"
but that he nevertheless wanted the victim and the
victim's family "to sleep at night knowing that I
got what I deserved." Ramirez also informed the trial
court that he knew he "really hurt" the victim,
that he "did something terrible to an innocent
lady," and that he did not blame anybody else for what
he did. Ramirez further admitted that he "did it,"
that he could not live with himself, and that he was
"really stupid" and ashamed of his actions. Ramirez
additionally stated that he was sorry for making such a
terrible mistake, that he hated himself, and that he did not
know how to live anymore. Concluding, Ramirez stated,
"I'm guilty and whatever you give me, I'll do
10} After Ramirez exercised his right to allocution,
the trial court addressed Ramirez personally and notified him
that this case had been very difficult when considering
"victim and the victim's family have been through a
terrible, unspeakable incident." Shortly thereafter, and
upon noting that it had considered the necessary sentencing
statutes, the trial court sentenced Ramirez to a mandatory
28-year prison term. The trial court also notified Ramirez
that he "will be deported" upon his release from
prison. Just as before, there is nothing in the record to
indicate this came as a surprise to Ramirez or that he had
not previously been advised by his trial counsel of the
immigration consequences resulting from his conviction. This,
as noted above, includes the fact that Ramirez would be
deported upon his release from prison.
11} On October 19, 2010, the trial court issued a
sentencing entry setting forth its decision sentencing
Ramirez to a mandatory 28-year prison term. As part of its
sentencing entry, the trial court specifically stated that
"[u]pon completion of sentence defendant is to be
12} On November 8, 2010, Ramirez appealed his
conviction and sentence to this court. On appeal, Ramirez did
not argue that his plea was defective due to his trial
counsel's alleged failure to advise him that he would be
deported if the trial court accepted his no contest plea and
found him guilty. Ramirez instead argued: (1) the juvenile
court erred by finding he was not amenable to rehabilitation
within the juvenile system; (2) the trial court erred by
finding him competent to stand trial; and that (3) the trial
court erred by failing to find a number of charges were
allied offenses of similar import. Finding merit to
Ramirez's claim that the trial court erred by failing to
merge one of the kidnapping charges with one of the rape
offenses, this court reversed and remanded the matter to the
trial court for the limited purpose of resentencing.
State v. Ramirez, 12th Dist. Butler No.
CA2010-11-305, 2011-Ohio-6531, appeal not allowed, 131 Ohio
St.3d 1511, 2012-Ohio-1710. .
13} On July 26, 2013, the trial court held a
resentencing hearing. The record on appeal does not contain a
transcript of this hearing. The record nevertheless
establishes that the trial court resentenced Ramirez to the
same mandatory 28-year prison term. Approximately two weeks
later, on August 12, 2013, the trial court issued a
resentencing entry. This resentencing entry, just as the
trial court's original sentencing entry, also
specifically stated that "[u]pon completion of sentence
defendant is to be deported." Ramirez did not appeal
from the trial court's resentencing decision.
14} On June 23, 2017, six years ten months and three
days after Ramirez entered his no contest plea, Ramirez moved
to withdraw his plea in accordance with Crim.R. 32.1.
Pursuant to that rule, a defendant who seeks to withdraw his
or her plea after the imposition of the sentence has the
burden of establishing the existence of a manifest injustice.
State v. Reeder, 12th Dist. Butler Case Nos.
CA2013-05-075 and CA2013-07-126, 2014-Ohio-2233, ¶ 23.
Manifest injustice relates to a fundamental flaw in the
proceedings that results in a miscarriage of justice or is
inconsistent with the demands of due process. State v.
Hendrix, 12th Dist. Butler No. CA2012-05-109,
2012-Ohio-5610, ¶ 13. "This sets forth an extremely
high standard that is allowable only in extraordinary