State v. Adames ( 2017 )

[Cite as State v. Adames, 2017-Ohio-587.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff - Appellee : Hon. John W . W ise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
HUMBERTO ADAMES : Case No. 16-CA-45
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Court of Common Pleas, Case No.
15 CA 343
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 13, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PAULA M. SAW YERS GEORGE A. KATCHMER
Assistant Prosecuting Attorney 1886 Brock Road NE
20 S. Second Street, 4th Floor Bloomingburg, Ohio 43106
Newark, Ohio 43055
[Cite as State v. Adames, 2017-Ohio-587.]
Baldwin, J.
{¶1} Appellant Humberto Adames appeals a judgment of the Licking County
Common Pleas Court overruling his motion to withdraw his guilty plea to three counts of
illegal use of supplemental nutrition or W IC benefits (R.C. 2913.46(B)) and one count of
receiving stolen property (R.C. 2913.51(A)). Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On June 4, 2015, appellant was indicted with three counts of illegal use of
supplemental nutrition or W IC benefits and one count of receiving stolen property. He
entered guilty pleas to all four counts of the indictment on November 24, 2015. He was
represented by counsel and had the assistance of a Spanish interpreter at the hearing.
The trial court informed appellant that if he was not a citizen of the United States, the
conviction of the offense to which he was pleading guilty may have the consequences of
deportation, exclusion from admission to the United States, or denial of naturalization. In
addition, the written plea form, signed by appellant, included an acknowledgement that
he understood the consequences of a conviction upon him if he was not a U.S. citizen.
Appellant was convicted and sentenced to two years of community control. Appellant did
not file an appeal.
{¶3} Appellant filed a motion to withdraw his guilty plea on April 22, 2016, on the
basis that his trial counsel was ineffective. He specifically argued that counsel failed to
inform him that a plea to a felony requires a mandatory detention and nearly immediate
removal from the United States. In an affidavit attached to the motion, appellant stated
that his attorney told him to “just say ‘yes,yes’” to the judge. He averred that counsel did
[Cite as State v. Adames, 2017-Ohio-587.]
not say anything to him about immigration consequences of the plea, and had his attorney
told him he would face mandatory detention and deportation, he would not have pled
guilty.
{¶4} The trial court overruled the motion, finding that appellant was specifically
advised by the court during the plea colloquy that he could be deported if he was
convicted. He assigns a single error to this Court on appeal:
{¶5} “A PLEA THAT IS INVOLUNTARY, UNKNOW ING AND DUE TO THE
INEFFECTIVENESS OF COUNSEL MUST BE VACATED.”
{¶6} Appellant argues that despite the trial court informing him that he could be
deported upon conviction, his counsel was ineffective for failing to inform him that a plea
to a felony requires mandatory detention and nearly immediate removal from the United
States, and he was simply told by his attorney that he must plead guilty.
{¶7} Crim.R. 32.1 provides, “A motion to withdraw a plea of guilty or no contest
may be made only before sentence is imposed; but to correct manifest injustice the court
after sentence may set aside the judgment of conviction and permit the defendant to
withdraw his or her plea.”
{¶8} Appellate review of a trial court's decision under Crim.R. 32.1 is limited to a
determination of whether the trial court abused its discretion. State v. Caraballo, 17 Ohio
St.3d 66, 477 N.E.2d 627 (1985). In order to find an abuse of that discretion, we must
determine the trial court's decision was unreasonable, arbitrary or unconscionable and not
merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 450
N.E.2d 1140 (1983).
[Cite as State v. Adames, 2017-Ohio-587.]
{¶9} Ineffective assistance of counsel can form the basis for a claim of manifest
injustice to support withdrawal of a guilty plea pursuant to Crim.R. 32.1. State v. Dalton,
153 Ohio App. 3d 286, 292, 2003–Ohio–3813, ¶18. A Crim.R. 32.1 motion is not a
collateral challenge to the validity of a conviction or sentence, and instead only focuses
on the plea. State v. Bush, 96 Ohio St. 3d 235, 773 N.E.2d 522, 2002–Ohio–3993, ¶13.
However, under the “manifest injustice” standard, a post-sentence withdrawal motion is
granted only in extraordinary cases. State v. Aleshire, Licking App.No. 09–CA–132,
2010–Ohio–2566, ¶60.
{¶10} A properly licensed attorney is presumed competent. State v. Hamblin, 37
Ohio St. 3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of
ineffective assistance of counsel, appellant must show counsel's performance fell below
an objective standard of reasonable representation and but for counsel’s error, the result
of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d
373 (1989).
{¶11} W e have previously held that a defendant cannot show prejudice from his
attorney’s failure to inform him of the deportation consequences of a plea if the trial court
informed the defendant of the potential immigration consequences during the plea
colloquy. State v. Gallegos-Martinez, 5th Dist. Delaware No. 10-CAA-06-0043, 2010-
Ohio-6463, ¶39; State v. Amagatcher, 5th Dist. Delaware No. 15 CAC 10 0081, 2016-
Ohio-5198, ¶21.
{¶12} In the instant case, appellant appeared before the court represented by
counsel and with the assistance of an interpreter. The trial court informed appellant:
[Cite as State v. Adames, 2017-Ohio-587.]
I’m required to advise you that if you are not a citizen of the United States
you are hereby advised that the conviction of the offense 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.
{¶13} Judgment, June 7, 2016, Exhibit A.
{¶14} Further, while the trial court appended the page of the transcript in which he
informed appellant of the immigration consequences of the plea, appellant has not
provided this Court with a full transcript of the plea hearing, which may have demonstrated
that counsel did in fact discuss the immigration consequences with appellant prior to his
plea. In the absence of a transcript, we must presume regularity in the proceedings below.
Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197, 199, 400 N.E.2d 384, 385.
{¶15} The assignment of error is overruled. The judgment of the Licking County
Common Pleas Court is affirmed. Costs are assessed to appellant.
By: Baldwin, J.
Delaney, P.J. and
Wise, J. concur.