State v. Sales , 2022 Ohio 4326 ( 2022 )

[Cite as State v. Sales, 2022-Ohio-4326.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2022-05-056
: OPINION
- vs - 12/5/2022
:
HALLAN IVERZON JERONIMO SALES, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2021-03-0312
Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant
Prosecuting Attorney, for appellee.
George A. Katchmer, for appellant.
S. POWELL, P.J.
{¶ 1} Appellant, Hallan Iverzon Jeronimo Sales, appeals from the decision of the
Butler County Court of Common Pleas denying his presentence motion to withdraw his
guilty plea to single counts of fourth-degree felony vehicular assault and first-degree
misdemeanor operating a vehicle while under the influence of alcohol. For the reasons
outlined below, we affirm the trial court's decision.
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{¶ 2} On March 31, 2021, the Butler County Grand Jury returned an indictment
charging Sales with third-degree felony aggravated vehicular assault in violation of R.C.
2903.08(A)(1)(a) and first-degree misdemeanor operating a vehicle while under the
influence of alcohol ("OVI") in violation of R.C. 4511.19(A)(1)(a). A superseding indictment
was thereafter returned that included an additional charge of first-degree misdemeanor OVI
in violation of R.C. 4511.19(A)(1)(e).
{¶ 3} The charges arose after the then unlicensed and intoxicated Sales caused an
automobile accident between himself and a parked police cruiser during the early morning
hours of February 25, 2021, while traveling westbound on E. Cresentville Road in West
Chester Township, Butler County, Ohio. The crash between Sales' vehicle and the parked
police cruiser caused the victim seated in the police cruiser's backseat to be hospitalized
for several weeks with a subdermal hematoma that required the victim to undergo
emergency neurosurgery. Sales, a non-citizen who immigrated to the United States from
his home country of Guatemala, and whose native language is Mam, was 18 years old at
the time of the accident.1
{¶ 4} On April 14, 2021, Sales appeared at his arraignment hearing and a not guilty
plea was entered on Sales' behalf. The matter then proceeded to discovery and Sales' trial
was scheduled for November 15, 2021. Approximately seven months later, on November
3, 2021, Sales moved the trial court for a continuance of his trial date so that his then
attorney, Attorney Louis E. Valencia, II, would have time to review certain medical records
that the state had yet to receive from the victim.2 The trial court granted Sales' motion to
continue and rescheduled Sales' trial to take place on January 10, 2022.
1. Mam is a Mayan language spoken primarily in Guatemala.
2. There is no dispute that Attorney Valencia is bilingual and speaks fluently in both English and Spanish.
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{¶ 5} On December 9, 2021, the trial court met with counsel for both parties in
chambers to discuss Sales' upcoming trial. During this meeting, counsel spoke at length
regarding a potential resolution of the case. The record indicates that a sizable portion of
this discussion came from Sales' then attorney, Attorney Valencia, and was centered
around Sales' immigration status and the potential impact on Sales' immigration status, if
Sales were to enter into a plea agreement with the state. This meeting ultimately concluded
without any resolution to the case.
{¶ 6} On January 5, 2022, Sales entered into a negotiated plea agreement with the
state. After entering into this plea agreement, Sales appeared before the trial court with a
Spanish interpreter and his attorney, Attorney Valencia. Once the interpreter was sworn in,
Sales' attorney advised the trial court that Sales had agreed to plead guilty to a reduced
charge of fourth-degree felony vehicular assault in violation of R.C. 2903.08(A)(2)(b), as
well as the first-degree misdemeanor OVI set forth in the original indictment, in exchange
for the state dismissing the additional first-degree misdemeanor OVI charged in the
superseding indictment.3 Sales' attorney also advised the trial court that Sales had agreed
to pay restitution upwards of $450,000 to cover the victim's medical bills.4 When asked by
the trial court if this was his understanding of the plea agreement he had entered into with
the state, Sales immediately responded to the trial court, in English, and stated, "Yes."
{¶ 7} Following the necessary Crim.R. 11(C) plea colloquy, the trial court accepted
3. Sales pled guilty to fourth-degree felony vehicular assault in violation of R.C. 2903.08(A)(2)(b). Pursuant
to that statute, no person, while operating or participating in the operation of a motor vehicle, shall recklessly
cause serious physical harm to another person or another's unborn. See State v. McQuistan, 9th Dist. Medina
No. 17CA0007-M, 2018-Ohio-539, ¶ 18 (a violation of R.C. 2903.08[A][2][b] occurs "if an individual recklessly
causes serious physical harm to another while driving a motor vehicle"). "A person acts recklessly when, with
heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the
person's conduct is likely to cause a certain result or is likely to be of a certain nature." R.C. 2901.22(C).
4. The record indicates the victim's medical bills had yet to be reviewed by the victim's insurer, if any. It was
therefore Sales' attorney's understanding that the amount of restitution Sales would ultimately owe to the
victim would be significantly less than the agreed upon $450,000.
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Sales' guilty plea upon finding the plea was knowingly, intelligently, and voluntarily entered.
This plea colloquy included the trial court confirming with Sales that Sales understood that
by entering a guilty plea he would waive his right to a jury trial. This also included Sales
advising the trial court that he understood fully what was taking place prior to him entering
his guilty plea, and Sales admitting to the trial court that the state's recitation of facts were
true.
{¶ 8} During the plea colloquy, Sales further noted for the trial court that nobody
had forced, threatened, or coerced him in any way to plead guilty. This is in addition to
Sales notifying the trial court that he was satisfied with the legal advice and representation
that he had received from his then attorney, Attorney Valencia, and that there was nothing
that his attorney could have done, or should have done, that he had not done prior to him
entering his guilty plea. The record indicates that this included Sales reviewing the change
of plea form with Attorney Valencia and having his attorney explain the change of plea for
to him in Spanish prior to Sales signing his name to that form.
{¶ 9} On January 12, 2022, Sales filed notice of substitution of counsel informing
the trial court that he had retained new counsel and would no longer be represented by
Attorney Valencia. Five days later, on January 17, 2022, Sales' new counsel filed a motion
to withdraw Sales' guilty plea. To support this motion, Sales attached two affidavits: one
that Sales himself had signed and one that was signed by Sales' mother.5 In his affidavit,
Sales averred, among other things, the following:
It was not until the judge told me that I would not have the rights
to a jury and to call witnesses that I heard of these things and
that I must pay $450,000.00 for the [victim]. I was confused and
afraid and I looked to Mr. Valencia who told me to say "guilty"
which I did because he said so[.]
5. We note that there were two copies of each affidavit attached to Sales' motion to withdraw his guilty plea,
one that was written in Spanish and one that was written in English. Sales' and Sales' mother's signatures
appear on both the Spanish and English versions of their respective affidavits.
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{¶ 10} Sales also averred:
I was afraid and confused at the time Mr. Valencia told me to
plead because I had no choice, I did not understand that I would
be giving up all my rights, I did so because Mr. Valencia said I
had no choice five minutes before he wanted me to plead, I said
guilty because Mr. Valencia told me to when we were in court[.]
{¶ 11} Somewhat similar to Sales' averments, Sales' mother averred in her affidavit
that, "Mr. Valencia had told us that [the victim] was very seriously injured and couldn't walk
and was eating through a straw," which was not true because she "saw this man walking
around working and not injured and recorded this on my phone[.]" Sales' mother also
claimed that she "attempted to show this [video] to Mr. Valencia more than one time but he
was not interested[.]" Sales' mother further claimed that it was only after Sales entered his
guilty plea that she "again spoke to Mr. Valencia about this video and he said, 'Oh, Ok, give
it to my secretary[.]"' Sales' mother additionally averred within her affidavit, the following:
Mr. Valencia called me on December 23, 2021 at 9:30 PM and
told me that I had two options: if my son would plead guilty, he
would want $1,000.00[.] He said he could sue the police officer
because the officer did not do his job but he would want another
$10,000.00 to sue the officer[.]
{¶ 12} On April 26, 2022, the trial court held a hearing on Sales' motion to withdraw
his guilty plea. During this hearing, the trial court heard testimony from just one witness,
Sales. Sales, who testified in English with the assistance of a Mam interpreter, claimed that
he only met with his prior attorney, Attorney Valencia, one time. Sales testified that during
this meeting his attorney never spoke with him about his plea or any defense strategy.
Sales testified that his attorney also did not show him any discovery documents. Sales
instead testified that his attorney merely told him, "If you want to pay me $10,000, then we'll
go to trial. If you want to pay me $1,000, then you go into a plea." Sales testified that his
attorney also told him to plead guilty and that, even though he was pleading guilty,
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"witnesses will come to testify in court" and that, "if you plead guilty, you won't have no
problem with immigration." Sales additionally testified that he did not want to plead guilty,
but that he did so because he was "afraid" and "really [did not] know what was happening."
{¶ 13} On May 24, 2022, the trial court issued a lengthy, detailed decision setting
forth its reasoning for denying Sales' motion. In so doing, the trial court noted that it had
found certain portions of Sales' testimony "puzzling" given that Sales' testimony
"contradicts" with other evidence in the record. This included, for instance, the claims Sales'
mother made within her affidavit. The trial court also noted that it had found it "clear" that
Sales had discussed his immigration status with his attorney, Attorney Valencia, prior to
him entering into a negotiated plea agreement with the state. The trial court made this
finding based, at least in part, on the fact that Sales' "immigration status and deportation
consumed much of the discussion the court had in chambers with [Sales' attorney] and [the
state]" during their meeting held on December 9, 2021.
{¶ 14} After setting forth these findings, the trial court then noted its conclusion
regarding the allegations set forth within Sales' and Sales' mother's affidavits. In so doing,
the trial court stated:
The main thrust of what the court takes from [Sales'] affidavit
and his mother's affidavit relate to the injuries suffered by the
victim in this case and that they do not believe that he was
injured as badly as they had been told. While [Sales'] mother
may have a video of the victim walking around working and not
injured, that doesn't mean that he was not seriously injured on
the night [Sales] ran his vehicle into the back of the police
cruiser the victim was in. Based on [the photographs of the
victim in the hospital], the victim did indeed suffer serious
physical harm, regardless of whether he has now made a
recovery to the extent that he is able to walk and go back to
work.
{¶ 15} The trial court then noted its findings in regard to Sales' claim that he needed
a specific Mam interpreter in order to enter a guilty plea that was knowing and intelligent;
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specifically, the court found that Sales' claim was not believable and thus lacked credibility.
In so holding, the trial court stated:
During the hearing [Sales] was asked about his conversations
with his mother that were recorded while he was incarcerated at
the Butler County Jail. While only one of these telephone calls
was played, [Sales] admitted that during those conversations he
was speaking Spanish. Upon further questioning by his
counsel, [Sales] admitted that he and his mother were speaking
Spanish, but he said that it was "everyday" Spanish. The court
has no idea what constitutes "everyday" Spanish and nothing
has been offered to the court as to what "everyday" Spanish is
and how that differs from that used by the interpreter at the time
[Sales] entered his guilty plea on January 5, 2022. In short,
[Sales] has offered nothing to show that he needed the
assistance of a specific Mam interpreter for him to have entered
his plea knowingly, intelligently, and voluntarily.
{¶ 16} In reaching this decision, the trial court also noted:
Prior to issuing this decision, the court took the opportunity to
go back and listen to the recording of the hearing on the date
[Sales] entered his guilty plea. The court asked [Sales] if he
understood English and he said no. He was then asked if with
the assistance of the [Spanish] interpreter and his counsel, he
was able to understand fully what was going on and he said yes,
without any hesitation. The entirety of the plea colloquy was
translated from English into Spanish by the interpreter and there
was no pause in [Sales'] responses to the court's questions –
he said yes immediately every time he was asked if he
understood something.
{¶ 17} After setting forth these findings, the trial court then noted its disagreement
with Sales' assertion that a conviction of fourth-degree felony vehicular assault in violation
of R.C. 2903.08(A)(2)(b) required his deportation from the United States back to his home
country of Guatemala under federal law. In so doing, the trial court stated:
[Sales] argues that the offense to which [he] pled guilty, for
immigration purposes, is an aggravated felony under 8 USC §
1101(a)(43)(F) [and] a crime of violence (as defined in section
16 of title 18…) for which the term of imprisonment [is] at least
one year. 18 USC § 16 defines a crime of violence as (a) an
offense that has the element the use, attempted use, or
threatened use of physical force against the person or property
of another, or (b) any other offense that is a felony that, by its
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nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense.
The Court does not agree with [Sales'] assessment that the
charge to which [he] pled guilty is a crime of violence. [Sales]
pled guilty to Vehicular Assault under R.C. 2903.08(A)(2)(b) –
No person while operating or participating in the operation of a
motor vehicle, … shall recklessly cause serious physical harm
to another person (emphasis added). By doing so, [Sales]
admitted to causing serious physical harm, not physical force.
In the court's opinion, physical harm and physical force are two
completely different things. In addition, [Sales'] action[s] were
done recklessly.
(Emphasis sic.)
{¶ 18} The trial court then concluded its decision by stating, in pertinent part, the
following:
In reviewing the factors the court is required to review, it is the
court's opinion that the defendant was represented by highly
competent counsel, that he was afforded a complete Crim.R. 11
hearing before entering his plea, that this court conducted a full
and impartial hearing on the motion to withdraw the plea, that
this court has given full and fair consideration to the motion, that
the motion to withdraw plea was made within a reasonable time,
that the motion set out specific reasons for the withdrawal
(which were supplemented at the hearing held), that the
defendant understood the nature of the charges and the
possible penalties, that the defendant does not have a defense
to the charges for which he was indicted and that he would be
found guilty of much more serious charges if this matter had
gone to trial. The court does not find that the state would be
prejudiced by the withdrawal.
The trial court also concluded by noting its finding Sales was "only moving to withdraw his
plea due to a change of heart" and not because the assistance he received from his original
attorney, Attorney Valencia, "was deficient to the point that any plea was not entered
knowingly, intelligently, and voluntarily."
{¶ 19} On May 25, 2022, the trial court held a sentencing hearing and sentenced
Sales to a five-year community control term for the charge of vehicular assault and to 180-
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days in jail for the charge of operating a vehicle while under the influence of alcohol, with
177 of those days suspended. The trial court also ordered Sales to pay a $375 fine and
restitution to the victim for medical bills in the amount of $452,356.68. When fashioning its
sentence, the trial court noted that although "Mr. Sales and his family believe [the victim]
has made a full recovery, I am sure [he] continues to suffer the residual effects of the injuries
he suffered that night." The trial court made this determination after hearing the victim's
impact statement, which included the victim personally appearing before the trial court and
stating on the record, "The only thing I'm asking for is justice because, in reality, I'm not
okay. Every night I'm affected by a pain in my head, and you know, my personality and
myself, I don't feel fine."
{¶ 20} On May 26, 2022, Sales filed a notice of appeal. Oral argument was held
before this court on November 7, 2022. This case now properly before this court for
decision, Sales has raised two assignments of error for review.
{¶ 21} Assignment of Error No. 1:
{¶ 22} A PRE-SENTENCE MOTION TO WITHDRAW A GUILTY PLEA SHOULD BE
FREELY AND LIBERALLY GRANTED.
{¶ 23} In his first assignment of error, Sales argues the trial court erred by denying
his presentence motion to withdraw his guilty plea because such motions are to be freely
and liberally granted. We find no merit to Sales' claim.
{¶ 24} Pursuant to Crim.R. 32.1, a defendant may file a presentence motion to
withdraw a guilty plea. State v. Schwartz, 12th Dist. Clermont Nos. CA2019-04-029, CA29
thru CA2019-04-031, 2019-Ohio-4912, ¶ 12. A defendant's presentence motion to withdraw
a guilty plea "should be freely and liberally granted." State v. Gabbard, 12th Dist. Clermont
No. CA2006-03-025, 2007-Ohio-461, ¶ 7, citing State v. Xie, 62 Ohio St.3d 521, 527 (1992).
However, although freely and liberally granted, that does not mean a defendant possess an
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absolute right to withdraw a guilty plea prior to sentencing. State v. Manis, 12th Dist. Butler
No. CA2011-03-059, 2012-Ohio-3753, ¶ 24. "Rather, the trial court must conduct a hearing
to determine whether there is a reasonable and legitimate basis for the withdrawal of the
plea." State v. Newton, 12th Dist. Preble No. CA2014-10-011, 2015-Ohio-2319, ¶ 10, citing
State v. Witherspoon, 12th Dist. Butler No. CA2010-01-025, 2010-Ohio-4569, ¶ 8. "In
determining whether to grant a presentence motion to withdraw a guilty plea, the trial court
should consider the circumstances surrounding the defendant's plea." State v. Harris, 12th
Dist. Butler No. CA2018-04-076, 2019-Ohio-1700, ¶ 11, citing State v. Metcalf, 12th Dist.
Butler No. CA2002-12-299, 2003-Ohio-6782, ¶ 11.
{¶ 25} There are several factors that should be considered when evaluating the
circumstances surrounding a defendant's plea. State v. Owens, 12th Dist. Preble No.
CA2021-07-007, 2022-Ohio-160, ¶ 30. Those factors include, but are not limited to (1)
whether the defendant was represented by highly competent counsel; (2) whether the
defendant was afforded a complete Crim.R. 11 hearing before entering the plea; (3) whether
the trial court conducted a full and impartial hearing on the defendant's motion to withdraw
the plea; (4) whether the trial court gave full and fair consideration to the motion; (5) whether
the motion was made within a reasonable time; (6) whether the motion set out specific
reasons for the withdrawal; (7) whether the defendant understood the nature of the charges
and the possible penalties; (8) whether the defendant was possibly not guilty of the charges
or had a complete defense to the charges; and (9) whether the state would have been
prejudiced by the withdrawal. Id., citing State v. Snider, 12th Dist. Clermont No. CA2012-
10-075, 2013-Ohio-4641, ¶ 9.
{¶ 26} "No one factor is conclusive in the determination of whether a plea should be
allowed to be withdrawn." State v. Rivera, 12th Dist. Butler No. CA2013-05-072, 2014-
Ohio-3378, ¶ 17, citing State v. Fish, 104 Ohio App.3d 236, 240 (1st Dist.1995). Rather,
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"[t]he decision to grant or deny a presentence motion to withdraw a guilty plea rests within
the sound discretion of the trial court." State v. Medina, 12th Dist. Butler No. CA2021-08-
100, 2022-Ohio-1799, ¶ 13. This court will not reverse a trial court's decision denying such
a motion absent an abuse of that discretion. State v. Taylor, 12th Dist. Butler No. CA2013-
10-186, 2014-Ohio-3080, ¶ 7. "An abuse of discretion connotes more than an error of law
or judgment; it implies that the trial court's attitude was arbitrary, unreasonable, or
unconscionable." State v. Robinson, 12th Dist. Butler No. CA2013-05-085, 2013-Ohio-
5672, ¶ 14; State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130. "A decision is
unreasonable where a sound reasoning process does not support it." State v. Miller, 12th
Dist. Butler No. CA2016-01-007, 2016-Ohio-7360, ¶ 7, citing AAAA Ents., Inc. v. River Place
Community Urban Redev. Corp., 50 Ohio St.3d 157, 161 (1990).
{¶ 27} Sales initially argues the trial court erred by denying his presentence motion
to withdraw his guilty plea because he presented evidence that the discussion he had with
his then attorney, Attorney Valencia, prior to entering his guilty plea left him "confused" and
expecting "that he would still be able to go before a jury and call witnesses." Sales also
argues the trial court erred by denying his motion to withdraw his guilty plea because, after
the trial court engaged him in the necessary Crim.R. 11(C) plea colloquy, the evidence
indicates "he looked to his attorney in confusion who signaled him to say guilty," something
which he only did out of "fear." Sales further argues the trial court erred by denying his
motion to withdraw because he provided evidence that he "did not understand what was
occurring" at the plea hearing given his inability to understand "the more complicated legal
language" being spoken to him in English and in Spanish rather than in his native language
of Mam. Therefore, according to Sales, although it is "rare" that a trial court "flubs" a Crim.R.
11(C) plea colloquy, it is "not unusual" for a defendant like him "to follow the cues of his
attorney without fully understanding what he is doing and giving up. That is the case
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herein."
{¶ 28} While Sales presents his argument in several different iterations based on his
interpretation of the record, the underlying theme remains the same: that is, a challenge to
the trial court's decision finding Sales' testimony and averments alleging a language barrier
prevented him from fully understanding the proceedings taking place at the change of plea
hearing. Given this challenge, Sales is, in essence, requesting this court override the trial
court's credibility determination and instead issue our own decision finding Sales' claims
that he was confused, afraid, and did not fully understand the proceedings were credible.
It is well-established, however, that "[o]ur role as a reviewing court on appeal does not
permit us to substitute our judgment for that of the trial court in assessing the weight and
credibility of matters in the record." State v. Milhoan, 10th Dist. Franklin No. 13AP-74, 2014-
Ohio-310, ¶ 33. That is to say, "[a] reviewing court does not determine weight and
credibility." State v. Pittman, 2d Dist. Montgomery No. 4509, 1974 Ohio App. LEXIS 3520,
*5 (Nov. 19, 1974).
{¶ 29} It is equally well-established that it is the trial court, and not this court on
appeal, that "assesses a defendant's credibility in considering the defendant's asserted
reasons for wanting to withdraw his plea." State v. Purnell, 10th Dist. Franklin No. 17AP-
298, 2018-Ohio-1036, ¶ 28; State v. Vassalle, 3d Dist. Seneca No. 13-14-03, 2014-Ohio-
4426, ¶ 13 ("Because the trial court is in the best position to resolve the issues of credibility
and the weight of the defendant's assertions, we will not substitute our judgment for that of
the trial court."). We will not second guess the trial court in this regard. This makes sense
when considering it is the trial court that has the opportunity to observe, engage, and
interact with the defendant. See, e.g., State v. Cook, 10th Dist. Franklin No. 20AP-519,
2021-Ohio-2416, ¶ 22 ("As the trial court had the opportunity to observe and interact with
Cook before assessing whether he truly was confused about the nature of his plea, we will
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not second-guess the trial court in this regard."). Sales' first argument lacks merit.
{¶ 30} Sales next argues the trial court erred by denying his motion to withdraw
because his attorney provided him with "patently false," "erroneous advice" that there would
be "no problem" and "everything would be fine" with his immigration status if he accepted
the state's plea offer and pled guilty to vehicular assault in violation of R.C.
2903.08(A)(2)(b). Although couched in different terms, Sales argument is essentially a
challenge to the trial court's decision finding his conviction for vehicular assault in violation
of R.C. 2903.08(A)(2)(b) was not a crime that could lead to his deportation from the United
States and back to his home country of Guatemala. However, after thoroughly researching
the issue, we agree with the trial court's finding that a crime that requires the mental state
of just recklessness is not the type of crime that could result in a noncitizen's deportation
from the United States.6 The trial court, therefore, did not err by finding Sales' conviction
for vehicular assault in violation of R.C. 2903.08(A)(2)(b) was not a crime that could lead to
deportation from the United States back to his home country of Guatemala.7 Sales' second
argument also lacks merit.
{¶ 31} In reaching this decision, we note that the trial court properly advised Sales,
6. Pursuant to 8 U.S.C. 1227(a)(2)(A)(iii), "[a]ny alien who is convicted of an aggravated felony at any time
after admission is deportable." The term "aggravated felony" means "a crime of violence * * * for which the
term of imprisonment [is] at least one year." 8 U.S.C. 1101(a)(43)(F). The phrase "crime of violence" means
either "an offense that has as an element the use, attempted use, or threatened use of physical force against
the person or property of another" or "any other offense that is a felony that, by its nature, involves a substantial
risk that physical force against the person or property of another may be used in the course of committing the
offense." 18 U.S.C. 16(a) and 16(b). Following the recent release of the United States Supreme Court's
decision in Borden v. United States, __ U.S. __, 141 S.Ct. 1817 (2021), the consensus is that if an offense
can be committed recklessly then such offense does not qualify as a crime of violence. See United States v.
Quinnones, 16 F.4th 414, 420 (3rd Cir.2021) ("The Supreme Court has held that if an offense can be
committed with recklessness * * * it is not a crime of violence."); United States v. Rice, 36 F.4th 578, 580 (4th
Cir.2022) ("A predicate offense must require proof of a mens rea more culpable than recklessness * * * to
qualify as a crime of violence."); United States v. Lopez-Castillo, 24 F.4th 1216, 1219. fn. 2 (8th Cir.2022)
("After Borden v. United States, a crime of violence * * * requires a mens rea greater than recklessness—e.g.,
knowledge or intent."); See also United State v. Portela, 469 F.3d 496, 499 (6th Cir.2006) (appellant's
conviction for "reckless vehicular assault" under Tennessee law did not constitute a crime of violence).
7. The mental state required to commit vehicular assault in violation of R.C. 2903.08(A)(2)(b) is "recklessly."
State v. Johnson, 12th Dist. Madison No. CA2018-06-020, 2020-Ohio-2676, ¶ 36.
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as a non-citizen, in accordance with its statutory duty set forth in R.C. 2943.031(A). 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."). Specifically, as the trial court advised Sales:
And you understand by entering the plea of guilty to this charge
that if you are not a citizen of the United States, conviction of
this offenses or offenses to which you are 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?
To this, Sales responded in English and stated, "Yes." The record therefore plainly
establishes that the trial court complied with the statutory requirements set forth in R.C.
2943.031(A). Any suggestion that Sales makes otherwise is incorrect.
{¶ 32} For these reasons, and finding no merit to any of the arguments raised by
Sales herein in support of his first assignment of error, Sales' first assignment of error lacks
merit and is overruled. In so holding, we note the trial court found only three of the nine
factors a trial court should consider when determining whether to grant a presentence
motion to withdraw a guilty plea weigh in Sales' favor, whereas the other six factors did not.
This includes the trial court's finding both that Sales did not have a defense to the charges
set forth within the original and supplemental indictments, and Sales would have been found
guilty of much more serious charges if this matter had ultimately gone to trial. Given the
thorough explanation of its findings within its decision, and when considering the trial court's
findings are supported by the record, we find no error with the trial court's decision. See
Owens, 2022-Ohio-160 at ¶ 34 (finding the weight the trial court gave to those nine factors
was not error where the trial court gave a thorough explanation of its findings, all of which
were supported by the record).
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{¶ 33} We also find no error with the trial court's decision finding Sales was "only
moving to withdraw his plea due to a change of heart * * *." This is significant because, as
this court has repeatedly recognized, "[a] mere change of heart regarding a decision to
enter a plea, without some additional justification, is not a sufficient basis for the withdrawal
of a guilty plea." State v. Medina, 12th Dist. Butler No. CA2021-08-100, 2022-Ohio-1799,
¶ 14, citing State v. Ward, 12th Dist. Clermont No. CA2008-09-083, 2009-Ohio-1169, ¶ 7;
see also State v. Harris, 12th Dist. Butler No. CA2018-04-076, 2019-Ohio-1700, ¶ 15; State
v. Wofford, 12th Dist. Butler No. CA2014-10-210, 2015-Ohio-3708, ¶ 11; and Metcalf, 2003-
Ohio-6782 at ¶ 19. Therefore, when considering all of the foregoing, the trial court did not
abuse its discretion in denying Sales' presentence motion to withdraw his guilty plea. This
is because, as the record indicates, there exists a lack of any reasonable or legitimate basis
for the withdrawal of Sales' plea. See State v. Harris, 12th Dist. Butler No. CA2018-04-076,
2019-Ohio-1700, ¶ 12-16. To the extent Sales argues otherwise, Sales is mistaken and
any such argument lacks merit. Sales' first assignment of error is therefore overruled.
{¶ 34} Assignment of Error No. 2:
{¶ 35} A PLEA THAT IS INVOLUNTARY [AND] UNKNOWING DUE TO THE
INEFFECTIVENESS OF COUNSEL MUST BE VACATED.
{¶ 36} In his second assignment of error, Sales argues his guilty plea was neither
voluntarily nor knowingly entered because his original attorney, Attorney Valencia, provided
him with ineffective assistance of counsel. We disagree.
{¶ 37} A criminal defendant has the right, under both the United States and Ohio
Constitutions, to the effective assistance of counsel. State v. Villani, 12th Dist. Butler No.
CA2018-04-080, 2019-Ohio-1831, ¶ 9. "A plea of guilty waives the right to claim that one
was prejudiced by ineffective assistance of counsel, except to the extent that such
ineffective assistance made the plea less than knowing, intelligent, and voluntary." State v.
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McMahon, 12th Dist. Fayette No. CA2009-06-008, 2010-Ohio-2055, ¶ 33. "To prevail on
an ineffective assistance of counsel claim in the context of a guilty plea, the defendant must
show that (1) his [or her] counsel's performance was deficient and (2) there is a reasonable
probability that, but for counsel's errors, the defendant would not have pled guilty." State v.
Arledge, 12th Dist. Clinton No. CA2018-12-024, 2019-Ohio-3147, ¶ 8, citing State v. Bird,
81 Ohio St.3d 582, 585 (1998). Deficient performance is defined as performance that fell
below an objective standard of reasonableness. State v. Jackson, 149 Ohio St.3d 55, 2016-
Ohio-5488, ¶ 97. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. State v. Morici, 3d Dist. Allen No. 1-21-12, 2021-Ohio-3406, ¶
30. A defendant's failure to make an adequate showing on either prong is fatal to the
defendant's ineffective assistance of counsel claim. State v. Zielinski, 12th Dist. Warren
No. CA2010-12-121, 2011-Ohio-6535, ¶ 50.
{¶ 38} Sales argues he received ineffective assistance of counsel because his
attorney, Attorney Valencia, "never" discussed trial strategy with him or "showed him his
discovery." Sales argues he also received ineffective assistance because his attorney
stated that the victim "was very seriously injured and couldn't walk and was eating through
a straw" even though his mother had taken a video recording of the victim "walking and
working and not injured." Sales argues his attorney's ineffective assistance was then further
exacerbated by his attorney appearing "uninterested" in the video recording his mother had
purportedly taken of the victim and by his attorney telling his mother to leave the video
recording "with his secretary" after he entered his guilty plea. Sales additionally argues he
received ineffective assistance because he was "simply told by counsel that he must plead
guilty," which he would not have done if he had known that pleading guilty even to a reduced
charge of fourth-degree felony vehicular assault in violation of R.C. 2903.08(A)(2)(b)
subjected him to "mandatory detention without bond and immediate removal" from the
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United States and back to his home country of Guatemala. Therefore, according to Sales,
it is clear that he "did not comprehend the proceedings" at the change of plea hearing or,
at the very least, did not understand the impact of accepting the terms of the state's plea
deal and entering a guilty plea, all of which demonstrates "a history of ineffective
representation in this matter."
{¶ 39} Sales' ineffective assistance of counsel claims are based on the allegations
he made at the hearing on his motion to withdraw and/or as part of the averments that were
made within his and his mother's affidavits. The trial court, however, clearly found both
Sales' and Sales' mother's allegations levied against Sales' attorney lacked credibility, were
unsupported by the record, and/or were incorrect as a matter of law. This includes Sales'
claim that he received ineffective assistance when his attorney advised him that a conviction
for fourth-degree felony vehicular assault in violation of R.C. 2903.08(A)(2)(b) was not the
type of crime that would result in his deportation from the United States. This also includes
Sales' claim that he received ineffective assistance when his attorney told him the accident
seriously injured the victim when his mother had a video recording of the victim seemingly
uninjured, a claim the trial court soundly rebuffed by correctly noting that "doesn't mean [the
victim] was not seriously injured on the night [Sales] ran his vehicle into the back of the
police cruiser the victim was in. Based on [the photographs of the victim in the hospital],
the victim did indeed suffer serious physical harm, regardless of whether he has now made
a recovery to the extent that he is able to walk and go back to work."
{¶ 40} Given our review of the record, and as discussed more fully above, we find
no error in the trial court's decision finding Sales' and Sales' mother's claims lacked
credibility, were unsupported by the record, and/or were incorrect as a matter of law. Sales,
therefore, has failed to demonstrate his original attorney's performance was deficient.
Alternatively, even if we were to find Attorney Valencia's performance was deficient, which
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we do not, Sales also failed to demonstrate that there was a reasonable probability that, but
for counsel's errors, he would not have pled guilty. Just as the trial court found, this is
because Sales did not have a defense to the charges set forth within the original and
supplemental indictments, and Sales would have been found guilty of much more serious
charges if this matter had ultimately gone to trial. For example, rather than fourth-degree
felony vehicular assault in violation of R.C. 2903.08(A)(2)(b) for which Sales was sentenced
to a two-year community control term, Sales would have instead been found guilty of third-
degree felony aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), an offense
that carries with it a mandatory, definite prison term of 12, 18, 24, 30, 36, 42, 48, 54, or 60
months. See R.C. 2903.08(D)(1) and 2929.14(A)(3)(a). Therefore, when considering all of
the foregoing, Sales also failed to demonstrate that there was a reasonable probability that,
but for counsel's errors, he would not have pled guilty. Sales' claims otherwise lack merit.
{¶ 41} Accordingly, finding no merit to any of the arguments raised by Sales' herein
in support of his second assignment of error, Sales' second assignment of error also lacks
merit and is overruled.
{¶ 42} Judgment affirmed.
HENDRICKSON and BYRNE, JJ., concur.
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