State v. Poppel , 2021 Ohio 2536 ( 2021 )

[Cite as State v. Poppel, 2021-Ohio-2536.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-34
:
v. : Trial Court Case No. 2018-CRB-476
:
MARKLEY POPPEL : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 23rd day of July, 2021.
...........
MARK M. FEINSTEIN, Atty. Reg. No. 0065183, Champaign County Municipal
Prosecutor’s Office, 205 South Main Street, Second Floor, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
DEREK A. DEBROSSE, Atty. Reg. No. 0084183, and MICHAEL A. TRUMAN, Atty. Reg.
No. 0092506, 503 South Front Street, Suite 240B, Columbus, Ohio 43215
Attorneys for Defendant-Appellant
.............
TUCKER, P.J.
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{¶ 1} Defendant-appellant, Markley Poppel, appeals from the trial court’s final
order of November 9, 2020, in which the trial court overruled his motion to withdraw his
plea under Crim.R. 32.1. Poppel, who pleaded guilty to one count of assault in violation
of R.C. 2903.13(A), argues in a single assignment of error that the trial court erred by
overruling his motion, because at the time he entered his plea, neither the court nor his
counsel advised him that under 18 U.S.C. 922(g)(9), he would forfeit his right to own a
firearm. We find that the trial court did not err, and its order is therefore affirmed.
I. Facts and Procedural History
{¶ 2} On May 31, 2018, an officer with the City of Urbana Police Division filed a
pair of complaints charging Poppel with assault, a first degree misdemeanor pursuant to
R.C. 2903.13(A) and (C)(1), and domestic violence, a first degree misdemeanor pursuant
to R.C. 2919.25(A) and (D)(2). Poppel reached a plea agreement with the State,
according to which he appeared before the trial court on August 1, 2018, and entered a
plea of guilty to the charge of assault. In exchange, the State dismissed the charge of
domestic violence. The trial court then sentenced Poppel to 180 days in jail and 24
months of community control, with the jail term suspended on the condition that he
complete anger management therapy.
{¶ 3} Poppel claims that in “September 2019, [he] attempted to [collect] a firearm
that he [had] won in a raffle,” but “his * * * background check [through the National Instant
Criminal Background Check System] resulted in a denial,” followed “soon after [by] a letter
from [the Bureau of Alcohol, Tobacco, Firearms and Explosives] that said that [he] was
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under disability to own a firearm.”1 Appellant’s Brief 4. On July 22, 2020, Poppel filed
a motion under Crim.R. 32.1 to withdraw his plea, arguing that his defense attorney had
failed to provide effective representation by failing to warn him about the possible loss of
his right to own a firearm, and that the trial court had likewise failed to meet its obligation
to ensure that his plea was knowing and voluntary. Defendant’s Motion to Withdraw Plea
3-9, July 22, 2020.
{¶ 4} The trial court overruled Poppel’s motion without comment in its final order
of November 9, 2020. Poppel timely filed a notice of appeal on December 9, 2020.
II. Analysis
{¶ 5} For his one assignment of error, Poppel contends that:
THE TRIAL COURT ERRED BY NOT DECLARING THAT A
MANIFEST INJUSTICE OCCURRED JUSTIFYING [sic] APPELLANT TO
WITHDRAW HIS GUILTY PLEA.
{¶ 6} Poppel offers two arguments for reversal of the trial court’s order. First,
Poppel argues that his defense counsel provided deficient representation by failing to
advise him that under 18 U.S.C. 922(g)(9), he would forfeit his right to own a firearm by
1 Poppel has provided almost no evidence to substantiate his claim. He submitted an
affidavit with his motion to withdraw, yet he made no reference at all to the raffle, to the
nature of the firearm he purportedly was not allowed to collect, or to the date of the letter
he purportedly received, of which he did not provide a copy. See Defendant’s Motion to
Withdraw Plea, Ex. A, July 22, 2020; see also Transcript of Hearing on Motion to Withdraw
Plea 8:22-10:20, Nov. 6, 2020. Although he asserts in his brief that he “attempted to
pick-up [sic] a firearm” in “September 2019,” even that assertion is not supported by the
record. Appellant’s Brief 4; Defendant’s Motion to Withdraw Plea, Ex. A; Transcript of
Hearing on Motion to Withdraw Plea 10:8-10:14. The only evidence on record regarding
the raffle and the firearm is Poppel’s own testimony that he “won [a] firearm at a raffle,
* * * went to get the firearm, and * * * was denied.” Transcript of Hearing on Motion to
Withdraw Plea 10:10-10:13.
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pleading guilty. Appellant’s Brief 7-12. Second, positing that R.C. 2943.033(C) is
unconstitutional, Poppel argues that the trial court, which likewise failed to advise him
about the implications of his plea pursuant to 18 U.S.C. 922(g)(9), did not satisfy its
obligation to ensure that he entered his plea knowingly and voluntarily. Id. at 12-14. In
an uncommonly terse response, the State argues only that the trial court’s order should
be affirmed because Poppel did not timely file his motion to withdraw. Appellee’s Brief 1.
{¶ 7} To prevail on a claim of “ineffective assistance of counsel, a defendant must
satisfy the two-pronged test in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984).” State v. Cardenas, 2016-Ohio-5537, 61 N.E.3d 20, ¶ 38
(2d Dist.). The Strickland test requires a showing that: “(1) defense counsel’s
performance was so deficient that [it did not fulfill the right to assistance of counsel]
guaranteed under the Sixth Amendment to the United States Constitution; and (2) * * *
defense counsel’s errors prejudiced the defendant.” Id., citing Strickland at 687.
Judicial “scrutiny of counsel’s performance must be highly deferential,” so “a [reviewing]
court must indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance * * *.” Strickland at 689, citing Michel v. Louisiana,
350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955). To show prejudice, the defendant
bears the burden to demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of [a given] proceeding would have been different.” Id.
at 694; State v. Southern, 2d Dist. Montgomery No. 27932, 2018-Ohio-4886, ¶ 47. A
failure to make either showing defeats the claim. Cardenas at ¶ 38.
{¶ 8} Because a “plea of guilty is a complete admission of guilt,” a defendant who
pleads guilty “waives all appealable errors, including claims of ineffective assistance of
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counsel, except to the extent that [any alleged] errors” prevented the plea from being
made “knowingly, intelligently, and voluntarily.” (Citations omitted.) State v. Leonard,
2d Dist. Montgomery No. 27411, 2017-Ohio-8421, ¶ 13. Thus, to prevail on a claim of
ineffective assistance of counsel after having pleaded guilty, a defendant must show that:
(1) counsel’s advice “was ‘not within the range of competence demanded of attorneys in
criminal cases’ ”; and (2) “but for counsel’s errors,” there was “a reasonable probability”
that the defendant “would not have pleaded guilty but would have insisted on going to
trial.” See Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 36 L.Ed.2d 235(1973), quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d
763 (1970); Leonard at ¶ 13; State v. Huddleson, 2d Dist. Montgomery No. 20653, 2005-
Ohio-4029, ¶ 9. A trial court’s ruling on a motion to withdraw under Civ.R. 32.1 is
reviewed for abuse of discretion. See, e.g., State v. Cressel, 2d Dist. Montgomery Nos.
20337 & 20348, 2005-Ohio-2013, ¶ 10.
{¶ 9} Relying largely on the opinion of the U.S. Supreme Court in Padilla v.
Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), Poppel argues, first,
that his defense counsel rendered constitutionally deficient representation by failing to
advise him that, under 18 U.S.C. 922(g)(9), he would effectively forfeit his right to own a
firearm by pleading guilty to assault. Appellant’s Brief 9-10. He insists that, “[a]s an
avid firearms enthusiast[,] [he] never would have agreed to plead guilty had he known of
[all] of the * * * consequences of the plea.” Id. at 10.
{¶ 10} In Padilla, the Court granted certiorari “to decide whether, as a matter of
federal law, [a defense attorney] ha[s] an obligation to advise” a noncitizen client that, by
pleading guilty to certain crimes, the “result [will be the client’s] removal from this country.”
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See Padilla at 360. The Court decided that in the “numerous situations in which the
[immigration] consequences of a particular plea are unclear or uncertain,” a defense
attorney representing a noncitizen client “need do no more than advise [the] client” that
pleading guilty to the “pending criminal charges may carry a risk” of deportation. See id.
at 369. But in a case in which a conviction is nearly certain to result in the defendant’s
deportation, as was the situation in Padilla, an attorney bears the duty to “understand the
* * * consequences of a guilty plea” and to “give correct advice” on the basis of that
understanding. See id.; State v. Romero, 156 Ohio St.3d 468, 2019-Ohio-1839, 129
N.E.3d 404, ¶ 27.
{¶ 11} Poppel contends that his defense counsel had an affirmative obligation to
advise him that he would lose his right to own a firearm as a result of pleading guilty to
assault, because even “[a] quick glance” at 18 U.S.C. 922(g)(9) would have revealed as
much. Appellant’s Brief 9-10. 18 U.S.C. 922(g)(9) prohibits a person “who has been
convicted in any court of a misdemeanor crime of domestic violence” from possessing,
“ship[ping] or transport[ing] in interstate or foreign commerce” any “firearm or
ammunition,” and from “receiv[ing] any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce,” and as defined by 18 U.S.C.
921(a)(33)(A), the term “misdemeanor crime of domestic violence” includes the crime of
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assault under R.C. 2903.13(A).2 Essentially, Poppel suggests that an attorney bears the
duty to advise a defendant who contemplates the entry of a plea in lieu of a trial of every
possible consequence that is “easily * * * determined” and “presumptively mandatory.”
See id. at 9.
{¶ 12} The “ ‘proper measure of attorney performance,’ ” however, “ ‘remains
simply reasonableness under prevailing professional norms.’ ” Padilla at 366, quoting
Strickland, 466 U.S. at 688, 104 S.Ct. 2052, 80 L.Ed.2d 674. Citing a series of sources,
including the Department of Justice and the American Bar Association, the Court in
Padilla found that the “weight of prevailing professional norms support[ed] the view that
[a defense attorney] must advise [a noncitizen] client regarding the risk of deportation.”
See id. at 367.
{¶ 13} In the instant case, Poppel has presented no evidence to establish the
relevant, prevailing professional norms. See Appellant’s Brief 5-12; Transcript of
Hearing on Motion to Withdraw Plea 8:23-12:14; Defendant’s Motion to Withdraw Plea 2-
7. The trial court thus lacked evidence of record on which it could have based a finding
that Poppel’s defense counsel provided less than reasonably professional representation.
2 18 U.S.C. 921(a)(33)(A) defines “the term ‘misdemeanor crime of violence’ [as] an
offense” that “is a misdemeanor under [f]ederal, [s]tate, or [t]ribal law” and “has, as an
element, the use or attempted use of physical force, * * *, committed by a current or former
spouse, parent, or guardian of the victim, by a person with whom the victim shares a child
in common, by a person who is cohabiting with or has cohabited with the victim as a
spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or
guardian of the victim.” See also U.S. v. Hayes, 555 U.S. 415, 420-421, 129 S.Ct. 1079,
172 L.Ed.2d 816 (2009) (holding that an offense qualifies as a misdemeanor crime of
domestic violence if committed by an offender “against a spouse or other domestic
victim,” regardless of whether “the statute describing the predicate offense include[s], as
a discrete element, the existence of a domestic relationship between [the] offender and
[the] victim”).
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Poppel, for that matter, describes himself as “a lifelong firearms enthusiast,” yet he
provided no evidence to illustrate his “avid” enthusiasm, such as ownership of one or
more firearms in the past, membership in an organization for owners or advocates of
firearms, or even general knowledge of firearms; he fails, for instance, even to specify the
type of firearm that he claims to have won at a raffle. Affidavit of Markley Poppel ¶ 1-9,
May 19, 2020;3 Transcript of Hearing on Motion to Withdraw Plea 8:23-12:14; Appellant’s
Brief 4-12.
{¶ 14} Furthermore, Poppel does not allege that his defense counsel was aware
of his interest in firearms or had any reason otherwise to investigate the possibility that
Poppel might lose his right to own a firearm as a result of pleading guilty. See Transcript
of Motion to Withdraw Plea 9:10-9:22. A noncitizen-defendant’s continued residency in
the United States, by contrast, could be at stake in nearly any criminal proceeding, and
an attorney representing a noncitizen may therefore reasonably be expected to consider
the effect that a conviction would have on the noncitizen’s residency. Accordingly,
Poppel has not demonstrated that his defense counsel failed to provide reasonably
professional representation.
{¶ 15} Poppel’s second argument for reversal of the trial court’s order is that the
court did not satisfy its obligation to ensure that he entered his plea knowingly and
voluntarily, given that the court failed to comply with the requirements of R.C.
2943.033(C). See Appellant’s Brief 12-14. R.C. 2943.033(C) mandates that before a
trial court accepts a defendant’s plea of guilty to “a misdemeanor offense of violence, the
3 Poppel attached the affidavit as Exhibit “A” to his motion to withdraw.
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court shall inform the defendant[,] either [verbally] or in writing[,] that under 18 U.S.C.
922(g)(9) it may be unlawful for [him] to ship, transport, purchase, or possess a firearm
or ammunition as a result of any conviction for an offense of violence,” yet the statute
adds that “[t]he plea may not [thereafter] be vacated based on [the court’s] failure to inform
[the defendant of] the restrictions under 18 U.S.C. 922(g)(9).”
{¶ 16} The transcript of Poppel’s plea colloquy shows that the trial court did not, in
fact, deliver the warning nominally required by R.C. 2943.033(C). See generally
Transcript of Plea Hearing, Aug. 1, 2018. Nevertheless, the final clause of R.C.
2943.033(C) unambiguously indicates that the omission of the warning is not a valid basis
for the withdrawal of a plea.
{¶ 17} Poppel argues that the last clause of R.C. 2943.033(C), which states that a
plea “may not be vacated based on a [trial court’s] failure to [warn a defendant about] the
restrictions under 18 U.S.C. 922(g)(9),” is unconstitutional because it effectively allows a
defendant to forfeit an “individual[,] fundamental” right without notice. See Appellant’s
Brief 13-14. That is, Poppel presupposes that the acceptance of his plea resulted in a
violation of his constitutional rights, without establishing that a warning about 18 U.S.C.
922(g)(9) was constitutionally necessary. Although he cites U.S. v. Rehlander, 666 F.3d
45 (1st Cir.2012), in support of his contention that “due process must apply [sic] in order
to remove a citizen’s firearm rights,” the opinion is inapposite because it concerned the
ex parte deprivation of a person’s right to own a firearm pursuant to 18 U.S.C. 922(g)(4).
Rehlander at 47-49; Appellant’s Brief 14.
{¶ 18} In 2012, we held that a defendant knowingly and voluntarily pleaded no
contest to a charge of domestic violence, even though the trial court had not informed the
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defendant “about the federal restriction [on] possessi[on] [of] a firearm established by 18
U.S.C. 922(g)(9).” State v. Taylor, 2d Dist. Greene No. 2010-CA-46, 2012-Ohio-963,
¶ 1, 3 and 30-31. We determined that a trial court’s omission of the warning under R.C.
2943.033(C) was not grounds for the withdrawal of a plea because “a trial court is not
required to determine, and [to] advise a defendant of, every collateral consequence that
may result from a plea to a misdemeanor.” See id. at ¶ 35; see also King v. Dutton, 17
F.3d 151, 153 (6th Cir.1994) (stating that a “trial court is under no constitutional obligation
to inform [a] defendant of all the possible collateral consequences of [a] plea”); State v.
Taylor, 11th Dist. Geauga No. 2002-G-2441, 2003-Ohio-6963, ¶ 27. A “direct
consequence” of a plea is a “ ‘definite, immediate and largely automatic effect on the
range of [a] defendant’s punishment,’ ” whereas a result that is “not direct [is a] collateral”
consequence, meaning that it has “ ‘no effect * * * upon the length or nature” of the
defendant’s sentence. George v. Black, 732 F.2d 108, 110 (8th Cir.1984), quoting
Cuthrell v. Director, Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir.1973); U.S. v. Jordan,
870 F.2d 1310, 1317 (7th Cir.1989), quoting U.S. v. Long, 852 F.2d 975, 979 (7th
Cir.1988), and citing U.S. v. Suter, 755 F.2d 523, 525 (7th Cir.1985); see also Suter at
525, citing George at 110; State v. Radovanic, 10th Dist. Franklin No. 13AP-193, 2013-
Ohio-4157, ¶ 15, citing Jordan at 1317. Alternatively, the term “collateral consequence”
has been defined as “an adverse legal consequence of a conviction * * * that [continues]
despite the [defendant]’s sentence having been * * * served.” State v. Harris, 8th Dist.
Cuyahoga No. 108677, 2021-Ohio-305, ¶ 22, citing In re S.J.K., 114 Ohio St.3d 23, 2007-
Ohio-2621, 967 N.E.2d 408, ¶ 10.
{¶ 19} In Padilla, the U.S. Supreme Court observed that it had “never applied a
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distinction between direct and collateral consequences to define the scope of
constitutionally ‘reasonable[,] professional assistance’ [of counsel],” and the Court
declined to consider whether the distinction was “appropriate” for purposes of evaluating
a claim of ineffective assistance of counsel “because of the unique nature of deportation,”
which was the consequence at issue in the opinion. Padilla, 559 U.S. at 365, 130 S.Ct.
1473, 176 L.Ed.2d 284. The Court, however, expressly “limited this observation to the
context of the Sixth Amendment right to effective assistance of counsel” and “made no
comment on the distinction as it relates to [a] defendant’s Fifth Amendment right [to enter
a plea] ‘knowingly, voluntarily, and intelligently.’ ” (Emphasis omitted.) U.S. v.
Rodriguez-Gonzales, 543 Fed.Appx. 532, 534 (6th Cir. 2013). As such, the Court’s
“ ‘unwillingness [in Padilla] to apply the direct [versus] collateral distinction in the [context
of] the Sixth Amendment * * * does not [indicate that] the Court” has any “intention to do
away with [the] distinction entirely in the [context of the] Fifth Amendment.’ ” Id., quoting
U.S. v. Youngs, 687 F.3d 56, 62 (2d Cir.2012).
{¶ 20} We hold that Poppel has not met his burden to establish, through argument
and citation to authority, that the trial court’s failure to deliver the warning specified in R.C.
2943.033(C) has resulted either in a violation of his right to own a firearm under the
Second Amendment or in a violation of his right to procedural due process. This court
has previously determined that a trial court has no obligation to advise a defendant about
the collateral consequences of entering a plea of guilty in lieu of a trial. See Taylor, 2d
Dist. Greene No. 2010-CA-46, 2012-Ohio-963, ¶ 34-35. Moreover, Poppel has not
established that R.C. 2943.033(C) is unconstitutional because he has not shown that a
state court has a constitutional obligation to give notice to a defendant regarding the
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potential for a state conviction to have a collateral consequence under federal law.
Poppel’s assignment of error is overruled.
{¶ 21} In addition, we hold that the trial court did not err by entertaining Poppel’s
motion. Poppel’s assertion that he “acted very quickly upon discovering” his federal
firearm disability is questionable, but considering the circumstances of the past year
created by the pandemic, we are disinclined to find that the motion was untimely.
III. Conclusion
{¶ 22} Poppel’s defense counsel was not ineffective for failing to warn him that,
under 18 U.S.C. 922(g)(9), he could lose his right to own a firearm by pleading guilty to a
misdemeanor violation of R.C. 2903.13(A), and the trial court did not fail to meet its
obligations under Crim.R. 11 by omitting such a warning, because Poppel’s loss of his
right to own a firearm, a disability resulting from the application of federal law, was a
collateral consequence of Poppel’s plea, rather than a direct consequence.
Furthermore, Poppel has not shown that R.C 2943.033(C) is unconstitutional, on its face
or as applied to him. Therefore, the trial court’s final order of November 9, 2020, is
affirmed.
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WELBAUM, J., concurs.
DONOVAN, J., concurs in judgment only.
Copies sent to:
Mark M. Feinstein
Derek A. DeBrosse
Michael A. Truman
Hon. Gil S. Weithman