State v. Ramirez

[Cite as State v. Ramirez, 2019-Ohio-3050.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2018-12-233
: OPINION
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:
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, Government
Services Center, 315 High Street, 11th Floor, Hamilton, OH 45011, for appellee
Jazmin E. Harris, 15 E. Eighth Street, Cincinnati, OH 45202, for appellant
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.
Butler CA2018-12-233
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
1. Ramirez was born in Mexico and brought to the United States by his family when he was four years old.
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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
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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
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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
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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 cases." State v. Tringelof,
12th Dist. Clermont Nos. CA2017-03-015 and CA2017-03-016, 2017-Ohio-7657, ¶ 10,
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citing State v. Sturgill, 12th Dist. Clermont No. CA2014-09-066, 2015-Ohio-1933, ¶ 9.
{¶ 15} Ramirez supported his motion to withdraw by alleging his trial counsel
provided him with ineffective assistance by failing to advise him of the immigration
consequences he faced by entering a no contest plea. This, as Ramirez alleged, included
the fact that he would be deported upon his release from prison if the trial court accepted
his no contest plea and found him guilty. As part of his motion, Ramirez claimed his
arguments were supported by a memorandum in support and an affidavit executed by his
mother. However, while a memorandum in support was attached, there was no affidavit
executed by Ramirez's mother (or anybody else) attached to the motion. There can be no
dispute that the affidavit executed by Ramirez's mother was never made a part of the record
before the trial court or with this court on appeal.
{¶ 16} Ramirez's arguments advanced in his motion to withdraw were based
primarily on the United States Supreme Court's decision in Padilla v. Kentucky, 559 U.S.
356, 130 S.Ct. 1473 (2010). In Padilla, the Supreme Court held that the Sixth Amendment
imposes upon a defendant's trial counsel, in negotiating a guilty or no contest plea, the duty
to accurately advise a noncitizen client concerning the immigration consequences of the
plea. Id. at 364. "Counsel breaches this duty by either providing affirmative misadvice
about immigration consequences or by not providing any advice at all when advice is
warranted." State v. Tapia-Cortes, 12th Dist. No. CA2016-02-031, 2016-Ohio-8101, ¶ 14,
citing id. at 370-371, 374. Therefore, when the immigration consequences can easily be
determined from reading the removal statute, and the deportation consequence is "truly
clear," the Supreme Court found "the duty to give correct advice is equally clear." Padilla
at 369.
{¶ 17} On November 30, 2018, the trial court issued a decision denying Ramirez's
motion to withdraw his no contest plea. In so holding, the trial court stated:
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The Defendant claims the manifest injustice in this case by a
bald assertion of ineffective assistance of counsel. There is no
affidavit or reference to new evidence or information to support
the argument that defense counsel was ineffective. There is no
evidence to support the argument that the Defendant did not
comprehend the consequences of a conviction on this case on
the [Defendant's] residency status, deportation and exclusion
from the United States at the time of the plea or sentencing.
The trial court concluded by finding Ramirez had failed to meet his burden of proof under
Crim.R. 32.1 that required him to provide "evidence that would support a finding of manifest
injustice."
Appeal
{¶ 18} Ramirez now appeals the trial court's decision, raising two assignments of
error for review. In each of his two assignments of error, Ramirez argues the trial court
erred by denying his motion to withdraw his no contest plea upon finding Ramirez failed to
establish that a manifest injustice had occurred.2 Raising the same general arguments he
advanced before the trial court, Ramirez supports his claim by relying on the United States
Supreme Court's decision in Padilla. After a full and thorough review of the record, we find
no merit to any of Ramirez's claims raised herein.3 That is to say we find the trial court's
decision to deny Ramirez's motion to withdraw was not unreasonable, arbitrary, or
2. When faced with these same basic arguments, the court has addressed the merits of the appellant's claim
rather than overruling the appeal based on the doctrine of res judicata. See State v. Guzman, 12th Dist. Butler
No. CA2015-11-198, 2016-Ohio-1487, ¶ 8 (noting that this court would address the merits of appellant's claim
rather than rely on the doctrine of res judicata where appellant argued the trial court erred by denying his
motion to withdraw his guilty plea by alleging "his defense counsel was ineffective for failing to advise him of
the immigration consequences of his plea" in accordance with the holding set forth in Padilla).
3. The state requested this court to avoid ruling on the merits of Ramirez's two assignments of error due to
this court having already affirmed Ramirez's conviction and sentence on direct appeal. However, being just
15 years old at the time he entered his no contest plea, we believe Ramirez should have his claims addressed
on the merits rather than overruled on other more procedural grounds. We find this to be appropriate despite
this court's prior holding that when a case is remanded to the trial court solely for the limited purpose of
resentencing, and the sentence is not void, the trial court does not have jurisdiction to entertain a motion to
withdraw a plea. State v. Simon, 12th Dist. Butler No. CA2015-05-081, 2015-Ohio-4448, ¶ 19-20;
discretionary appeal not allowed, 144 Ohio St.3d 1507, 2016-Ohio-652, citing State v. Wilson, 129 Ohio St.3d
214, 2011-Ohio-2669, ¶ 15 ("[i]n a remand based only on an allied-offenses sentencing error, the guilty
verdicts underlying a defendant's sentences remain the law of the case and are not subject to review").
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unconscionable so as to constitute an abuse of discretion. The trial court's decision denying
Ramirez's motion to withdraw must therefore be affirmed.
Standard of Review
{¶ 19} The decision to grant or deny a motion to withdraw a guilty or no contest plea
is within the trial court's sound discretion. State v. Carter, 12th Dist. Clinton Nos. CA2010-
07-012 and CA2010-08-016, 2011-Ohio-414, ¶ 16. This court reviews a trial court's
decision to deny a motion to withdraw a plea brought under Crim.R. 32.1 under an abuse
of discretion standard. State v. Ward, 12th Dist. Clermont No. CA2008-09-083, 2009-Ohio-
1169, ¶ 8, citing State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, ¶ 32. An abuse of
discretion is more than an error of law or judgment. State v. Miller, 12th Dist. Butler No.
CA2016-01-007, 2016-Ohio-7360, ¶ 7. Rather, it suggests the "trial court's decision was
unreasonable, arbitrary or unconscionable." State v. Perkins, 12th Dist. Clinton No.
CA2005-01-002, 2005-Ohio-6557, ¶ 8. A decision is unreasonable when it is "unsupported
by a sound reasoning process." State v. Abdullah, 10th Dist. Franklin No. 07AP-427, 2007-
Ohio-7010, ¶ 16, citing AAAA Ents., Inc. v. River Place Community Urban Redevelopment
Corp., 50 Ohio St.3d 157, 161 (1990).
Analysis
{¶ 20} As noted above, relying primarily on the Supreme Court's decision in Padilla,
Ramirez argues his trial counsel provided him with ineffective assistance by not advising
him of the immigration consequences he faced by entering a no contest plea. This, as
stated previously, includes the fact that Ramirez would be deported upon his release from
prison if the trial court accepted his no contest plea and found him guilty. We find no merit
to Ramirez's claims.
{¶ 21} Ineffective assistance of counsel is a proper basis for seeking a post-sentence
withdrawal of a plea. State v. Taveras, 12th Dist. Warren No. CA2016-06-054, 2017-Ohio-
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1496, ¶ 17. When an alleged error underlying a motion to withdraw is ineffective assistance
of counsel, the defendant must show (1) that his counsel's performance was deficient and
(2) that there is a reasonable probability that, but for counsel's errors, he would not have
entered his or her plea. State v. Guerrero, 12th Dist. Butler No. CA2010-09-231, 2011-
Ohio-6530, ¶ 5, citing Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052(1984). "The proponent of an ineffective assistance claim must establish both elements to
warrant relief." State v. Robinson, 12th Dist. Butler No. CA2014-12-256, 2015-Ohio-4649,
¶ 48. Therefore, rather than focusing on whether a defendant entered his plea knowingly,
intelligently, and voluntarily, when "the defendant asserts a claim of ineffective assistance
of counsel, the court must focus on counsel's deficient performance and the prejudice
arising from that deficiency." (Emphasis omitted.) State v. Romero, Slip Opinion No. 2019-
Ohio-1839, ¶ 18. This requires the court to "determine whether the totality of circumstances
supports a finding that counsel's performance was deficient, and if so, whether the deficient
performance was prejudicial to the defendant." Id. at ¶ 34.
{¶ 22} Before addressing Ramirez's claims under Padilla, we note that Ramirez also
argues his trial counsel provided him ineffective assistance since his trial counsel "virtually
did nothing, just pled [him] to the indictment." However, contrary to Ramirez's claim, the
record indicates his trial counsel did much more than just plead him to the indictment.
Ramirez's trial counsel filed a demand for discovery, a request for a bill of particulars, a
motion for an evaluation of Ramirez's competency to stand trial, a written plea of not guilty
by reason of insanity, and a motion for continuance so that his trial counsel could have more
time to review the competency report finding Ramirez competent to stand trial. This hardly
constitutes doing "virtually nothing" as Ramirez suggests.
{¶ 23} The record indicates Ramirez's trial counsel also vigorously defended
Ramirez's interests at the competency hearing, as well as at both the change of plea and
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sentencing hearings. This was in addition to counsel arguing that a number of the charges
should be merged as allied offenses of similar import at sentencing – an argument this court
found meritorious on appeal. See Ramirez, 2011-Ohio-6531 at ¶ 62 ("[i]nsofar as the trial
court failed to merge the offense of kidnapping and the first rape at sentencing, the judgment
of the trial court imposing individual sentences for these offenses is reversed and this matter
is remanded for further proceedings according to law and consistent with this opinion").
{¶ 24} Ramirez himself even acknowledged that he was satisfied with his trial
counsel's performance prior to entering his no contest plea. Specifically, as Ramirez stated
at the change of plea hearing:
THE COURT: Did you go over these plea forms with [your trial
counsel]?
THE DEFENDANT: Yes, sir.
THE COURT: And have you been satisfied with the advice and
counsel [your trial counsel] has given you?
THE DEFENDANT: Yes, sir.
THE COURT: Did you and [your trial counsel] have enough time
to discuss your plea this morning?
THE DEFENDANT: We did.
THE COURT: Did you and [your trial counsel] have enough time
to go over each one of these charges and how much time you
might be facing – how much incarceration and other penalties
you may be facing if you plead no contest?
THE DEFENDANT: Yes, sir.
THE COURT: And [trial counsel] has answered all of your
questions?
THE DEFENDANT: All of them.
Therefore, even with just a modest review of the record, Ramirez's claim that his trial
counsel "virtually did nothing, just pled [him] to the indictment" is incorrect and not supported
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by the record.
{¶ 25} The same is true regarding Ramirez's claim that his trial counsel engaged in
professional misconduct by exhibiting a "lack of empathy and care" for Ramirez as a 15-
year-old child facing a significant 83-year prison sentence. However, based on Rule 1.3 of
the Rules of Professional Conduct, Ramirez's trial counsel had no duty other than "to act
with commitment and dedication" to Ramirez's interests in defending against the serious
nature of the charges levied against him. Yet, even then, the record in this case reveals
Ramirez's trial counsel actually did exhibit both empathy and care for Ramirez. This is clear
when considering Ramirez's trial counsel's statement during mitigation that he believed
Ramirez was not "evil," "that's not who he is," but instead that Ramirez was just a "little kid,
and that's the way I look at him." Therefore, even if we were to find Ramirez's trial counsel
had a duty to exhibit "empathy and care" for Ramirez, which we do not, the record indicates
Ramirez's trial counsel exhibited both empathy and care when defending Ramirez's
interests before the trial court. Ramirez's claims otherwise lack merit.
{¶ 26} Turning now to Ramirez's claims under Padilla, as noted above, Ramirez
argues his trial counsel was ineffective for not advising him that he would be deported if the
trial court accepted his no contest plea and found him guilty, "no ifs or buts." Ramirez
supports this claim by making the bold and bare assertion that the mere fact he pled no
contest "to the charges that he did is irrefutable proof that his attorney failed to research the
immigration law as he was required to do under Padilla v. Kentucky." Therefore, based
solely on the fact that he entered a no contest plea, Ramirez claims that it is "clear" his trial
counsel failed to research and advise him – as his youthful, "profoundly disturbed," non-
citizen client – of the immigration consequences he faced by entering a no contest plea.
We disagree.
{¶ 27} Under the first prong of Strickland, it must first be determined whether
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Ramirez's trial counsel "fulfilled his duty under the Sixth Amendment to inform his client
whether his guilty [or no contest] pleas carry a risk of deportation." Romero, 2019-Ohio-
1839 at ¶ 21. However, while it must be determined whether Ramirez's trial counsel fulfilled
this duty, the simple fact that Ramirez pled no contest is not "irrefutable proof" that his trial
counsel failed in his responsibilities under Padilla. This is because the decision whether to
enter a plea is reserved solely for the defendant. See State v. Doty, 12th Dist. Clermont
No. CA2018-07-055, 2019-Ohio-917, ¶ 15, citing McCoy v. Louisiana, __U.S.__, 138 S.Ct.
1500, 1508 (2018); see also Rule 1.2(a) of the Rules of Professional Conduct ("[i]n a
criminal case, the lawyer shall abide by the client's decision as to a plea to be entered").
Therefore, while Ramirez suggests otherwise, rather than mandating a defendant to accept
or reject a plea agreement, "[t]he attorney is there to give informed advice, to relate worse
case scenarios to his [or her] client, and to make a recommendation regardless of whether
it makes the client upset." State v. Shugart, 7th Dist. Mahoning No. 08 MA 238, 2009-Ohio-
6807, ¶ 37.
{¶ 28} We acknowledge that there may be some question as to whether Ramirez's
trial counsel merely advised Ramirez that he could be deported upon his release from prison
rather than the fact that he would be deported. But, when reviewing the record in its entirety,
we find it more likely that Ramirez's trial counsel properly advised Ramirez of the
immigration consequences he faced should he enter a no contest plea; namely, that he
would be deported upon his release from prison. This includes the exchanges between
Ramirez, Ramirez's trial counsel, and the trial court at both the change of plea and
sentencing hearings. This is most telling when reviewing Ramirez's trial counsel's
statements at sentencing, wherein Ramirez's trial counsel stated during mitigation not only
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
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sentence he gets, at the very end of this, he is going to be deported to Mexico," but also
that "[Ramirez] will never legally be allowed back into this country again." Because there is
nothing in the record to indicate this came as a surprise to Ramirez, we find it fair to assume
that Ramirez had previously been advised by his trial counsel that he would be deported
upon his release from prison if the trial court accepted his no contest plea and found him
guilty. Such a finding would negate any claim that Ramirez's trial counsel was deficient as
to support Ramirez's ineffective assistance of counsel claim raised herein.
{¶ 29} But, rather than relying on speculation and conjecture on our part, we instead
defer back to the burden of proof as set forth by Crim.R. 32.1; specifically, that it was
Ramirez who had the burden of demonstrating that a manifest injustice had occurred. See
State v. Noe, 12th Dist. Warren No. CA98-01-011, 1998 Ohio App. LEXIS 4173, *11 (Sept.
8, 1998) ("[t]o prevail under Crim.R. 32.1 on an ineffective assistance of counsel claim, the
appellant bears the burden of proof"). Therefore, having no clear indication one way or the
other, we agree with the trial court's decision finding Ramirez failed to provide any "evidence
that would support a finding of manifest injustice" as required by Crim.R. 32.1. "The
credibility and weight of the defendant's assertions in support of a motion to withdraw a plea
* * * are matters entrusted to the sound discretion of the trial court." Romero, 2019-Ohio-
1839 at ¶ 34, citing State v. Smith, 49 Ohio St.2d 261, 264 (1977); and State v. Francis,
104 Ohio St.3d 490, 2004-Ohio-6894, ¶ 56. Accordingly, because Ramirez failed to
establish that a manifest injustice had occurred, the trial court did not err by denying
Ramirez's motion to withdraw his no contest plea.
{¶ 30} In so holding, we note that even if Ramirez had provided evidence indicating
his trial counsel was somehow deficient, which he did not, Ramirez failed to establish any
resulting prejudice therefrom. Under the second prong of Strickland, Ramirez must show
prejudice by establishing that "'there [was] a reasonable probability that, but for counsel's
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errors, he would not have pleaded guilty and would have insisted on going to trial.'"
Romero, 2019-Ohio-1839 at ¶ 28, quoting Hill v. Lockart, 474 U.S. 52, 59, 106 S.Ct. 366(1985). This, as noted above, requires the court to consider the totality of the circumstances
in order to asses "whether it would be rational for a defendant to go to trial instead of
pleading guilty [or no contest.]" Id., citing Lee v. United States, __U.S.__ , 137 S.Ct. 1958,
1966 (2017). The court's evaluation of prejudice may include any relevant factors. Id. at ¶
34. This includes, but is not limited to, (1) the consequences of going to trial by focusing
on the defendant's perspective; (2) the importance that the defendant placed on avoiding
deportation; (3) the defendant's connections to the United States; and (4) judicial
advisement of immigration consequences. Id. at ¶ 29-33.
{¶ 31} In this case, the record plainly establishes that the trial court complied with
the statutory requirements 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." While the trial court's advisement under R.C. 2943.031(A) does not cure an
attorney's failure to advise his client of the immigration consequences faced by entering a
no contest plea, "a judicial advisement about the immigration consequences of the
defendant's plea may weigh against a finding of prejudice[.]" Romero, 2019-Ohio-1839 at
¶19, 33. Therefore, although not dispositive of the issue, the fact that the trial court complied
with that statute supports the trial court's decision finding Ramirez failed to establish a
manifest injustice had occurred. This is particularly true here when considering the
extensive, overwhelming, and uncontroverted evidence of Ramirez's guilt. See, e.g., State
v. Scott, 12th Dist. Preble No. CA2018-10-015, 2019-Ohio-1292, ¶ 40 (trial court did not err
by denying appellant's motion to withdraw his guilty plea where the record was "devoid of
any evidence that [appellant] was provided with any other than sound advice in light of the
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overwhelming evidence against him").
{¶ 32} This holding is further supported by the fact Ramirez waited nearly seven
years after he entered his no contest before filing his motion to withdraw. "'An undue delay
between the occurrence of the alleged cause for withdrawal of a guilty [or no contest] plea
and the filing of a motion under Crim.R. 32.1 is a factor adversely affecting the credibility of
the movant and militating against the granting of the motion.'" State v. Worthington, 12th
Dist. Brown No. CA2014-12-022, 2015-Ohio-3173, ¶ 40, quoting State v. Smith, 49 Ohio
St.2d 261 (1977), paragraph three of the syllabus. The fact that Ramirez waited nearly
seven years before filing his motion to withdraw clearly militates against granting Ramirez's
motion. See, e.g., State v. Daniels, 12th Dist. Butler No. CA2018-10-194, 2019-Ohio-2274,
¶ 22 ("appellant waited nearly six years after his conviction to move to withdraw his plea
which weighs against granting the motion"); State v. Robinson, 12th Dist. Butler No.
CA2013-05-085, 2013-Ohio-5672, ¶ 19 (appellant waiting four years after his conviction to
move to withdraw his plea "clearly militates against" granting appellant's motion to
withdraw).
{¶ 33} What this court finds most significant, however, are Ramirez's statements
made to the trial court during allocution. This includes Ramirez's statement 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,
that he was "really stupid," and ashamed of his actions. This was in addition to Ramirez's
statements that he was sorry for making such a terrible mistake, that he hated himself, and
that he did not know how to live anymore, that he was "guilty," and that he would serve
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whatever prison sentence the trial court imposed; "I'm guilty and whatever you give me, I'll
do it."
{¶ 34} When considering these statements, it is clear that Ramirez fell on the mercy
of the trial court knowing that he faced a maximum 83-year prison sentence that would have
almost certainly guaranteed he would spend the rest of his life in prison. Even when
focusing on this issue from Ramirez's perspective, the fact that Ramirez would be deported
following his release from prison had little, if any, impact on his decision to enter a plea of
no contest. This becomes even more apparent when considering the record is devoid of
any evidence to indicate Ramirez was surprised when the trial court specifically informed
him at the sentencing hearing that he would be deported following his release from prison.
Had that been the case, Ramirez could have easily raised the issue with either his trial
counsel or the trial court prior to the trial court issuing its sentencing decision. Ramirez,
however, did neither.
{¶ 35} Rather than raising the issue with the trial court prior to the trial court issuing
its sentencing decision, or with this court on appeal, Ramirez instead waited nearly seven
years after he entered his no contest plea before filing his motion to withdraw. For Ramirez
to now claim he would have not entered a no contest plea appears disingenuous and falls
well short of what could be considered a "manifest injustice" for purposes of satisfying
Crim.R. 32.1. Ramirez must do more than present "post hoc assertions" about how he
would have pled but for his trial counsel's alleged deficiencies. Lee, __U.S.__ , 137 S.Ct.
at 1968. To hold otherwise would render what constitutes a "manifest injustice" virtually
meaningless. This is because "a defendant without any viable defense 'will rarely be able
to show prejudice' from accepting a plea agreement." Romero, 2019-Ohio-1839 at ¶ 30,
quoting id at 1966. Therefore, because Ramirez did not meet his burden of establishing
that a manifest injustice had occurred, Ramirez's claim that he received ineffective
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assistance of counsel must also fail. This is because Ramirez failed to prove both that his
trial counsel was deficient and that he suffered any resulting prejudice therefrom.
Accordingly, finding no error in the trial court's decision, Ramirez's two assignments of error
lack merit and are overruled.
Conclusion
{¶ 36} The trial court did not err by denying Ramirez's motion to withdraw his no
contest plea upon finding he failed to establish a manifest injustice as required by Crim.R.
32.1. A defendant should be permitted to withdraw his or her plea only in extraordinary
cases. State v. Murray, 12th Dist. Brown No. CA2015-12-029, 2016-Ohio-4994, ¶ 15. This
is not one of those cases. Therefore, finding no error in the trial court's decision, Ramirez's
two assignments of error lack merit and are overruled.
{¶ 37} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
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