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State v. Ramirez

Court of Appeals of Ohio, Twelfth District, Butler

July 29, 2019

STATE OF OHIO, Appellee,
v.
ALEXIS RAMIREZ, Appellant.

          CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2010-03-0542

          Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, for appellee.

          Jazmin E. Harris, for appellant.

          OPINION

          S. POWELL, P.J.

         {¶ 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.

         Facts 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.[1]

         {¶ 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 it."

         {¶ 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 deported."

         {¶ 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, ΒΆ 13. "This sets forth an extremely high standard that is allowable only in extraordinary ...


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