[Cite as State v. Tapia-Cortes, 2016-Ohio-8101.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :
                                                         CASE NO. CA2016-02-031
        Plaintiff-Appellee,                        :
                                                               OPINION
                                                   :           12/12/2016
    - vs -
                                                   :

MATEO TAPIA-CORTES,                                :

        Defendant-Appellant.                       :



                  CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT
                                Case No. 15CRB03940



Neal D. Schuett, 345 High Street, 2nd Floor, Hamilton, Ohio 45011, for plaintiff-appellee

McKinney & Namei Co., LPA, Paul W. Shonk, 15 East Eighth Street, Cincinnati, Ohio
45202, for defendant-appellant



        M. POWELL, P.J.

        {¶ 1} Defendant-appellant, Mateo Tapia-Cortes, appeals a decision of the Hamilton

Municipal Court denying his post-sentence motion to withdraw his guilty plea and vacate

his conviction.

        {¶ 2} Appellant is a citizen of Mexico but has been a legal resident in the United

States since 2013. The record indicates he was originally admitted in the United States in

2008 as a temporary nonagricultural worker. Appellant is married to an American citizen
                                                                        State v. Tapia-Cortes

with whom he has children.

         {¶ 3} On October 14, 2015, appellant was charged with domestic violence, a first-

degree misdemeanor, as a result of an altercation with his wife. On October 15, 2015,

appellant was brought from jail to the municipal court where he met briefly and for the first

time with his court-appointed attorney ("defense counsel"). A plea hearing was then held

in the municipal court. During the hearing, the municipal judge orally advised appellant, in

compliance with R.C. 2943.031(A), that a guilty plea could have adverse immigration

consequences. The municipal judge then asked appellant if he understood; appellant

replied he did. Appellant was also provided with two printed advisement forms, one in

English and one in Spanish, which stated:

               If you are not a citizen of the United States you are hereby
               advised that conviction of the offense to which you are pleading
               guilty (or no contest, when applicable) 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.

Appellant signed both forms. He then pled guilty to domestic violence, a first-degree

misdemeanor.      Appellant was sentenced to 180 days in jail, with 165 of those days

suspended, placed on community control for two years, and ordered to pay a fine and court

costs.

         {¶ 4} On December 3, 2015, appellant moved to withdraw his guilty plea and vacate

his conviction on the ground defense counsel's failure to advise him of the immigration

consequences of his guilty plea deprived him of his constitutional right to the effective

assistance of counsel.       Appellant asserted that "without inquiring into [appellant's]

immigration history or advising him of the mandatory deportation consequences of a guilty

plea," defense counsel advised appellant to plead guilty and further advised him that if he

pled guilty, he would be released the same day. Appellant was not released following his


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guilty plea but was instead detained by the United States Immigration and Customs

Enforcement and is now subject to deportation proceedings. Appellant asserted that had

he known of the "mandatory" deportation consequences arising from a conviction of

domestic violence, he would never have pled guilty. In support of his motion, appellant

cited Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473 (2010), and the federal deportation

statute, 8 U.S.C. 1227.

       {¶ 5} The municipal court held a hearing on appellant's motion. Appellant and his

former defense counsel both testified. Appellant testified that during his brief meeting with

defense counsel, immigration issues were not discussed, even though appellant told

counsel he "was doing the paperwork with immigrations." Rather, defense counsel told

appellant to plead guilty "and [you] will be out of jail the same day." Defense counsel warned

appellant that if he did not plead guilty, he would remain in jail throughout the proceedings

and ultimately be found guilty. Appellant stated he was never advised that as a result of his

domestic violence conviction, deportation would be mandatory. Had he known, he would

never have entered a guilty plea. Appellant acknowledged receiving and signing the two

forms described above and being orally advised by the municipal judge during the plea

hearing about immigration consequences.

       {¶ 6} Defense counsel testified he always asks his clients if they are United States

citizens, and if they are not, always tells them there is a possibility that being found guilty

may have immigration consequences.           However, defense counsel had no specific

recollection as to what he may have advised appellant about immigration consequences of

a guilty plea. Counsel specifically recalled talking to appellant about the facts of the case

and telling him there was a likelihood he would be found guilty. Consequently, appellant

told defense counsel he felt bad about what he did, did not want to put his wife through a

trial, and wanted to take responsibility for his actions. Defense counsel did not dispute

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appellant's characterization of counsel's legal advice. Defense counsel testified he is not

an immigration specialist, does not know what offenses may result in deportation, and

leaves it to his clients to consult with others regarding those issues.

       {¶ 7} On January 14, 2016, the municipal court denied appellant's motion to

withdraw his guilty plea on the basis of State v. Aguirre, 12th Dist. Preble No. CA2011-03-

001, 2012-Ohio-144. The municipal court found that appellant was unable to establish he

was prejudiced by defense counsel's alleged deficient performance because he was

advised by the municipal court, prior to entering his plea, of the adverse immigration

consequences of his guilty plea.

       {¶ 8} Appellant now appeals, raising one assignment of error:

       {¶ 9} THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING

APPELLANT'S MOTION TO VACATE GUILTY PLEA UNDER PADILLA V. KENTUCKY.

       {¶ 10} Appellant argues the municipal court abused its discretion in denying his

motion to withdraw his guilty plea.     Relying on Padilla and 8 U.S.C. 1227(a)(2)(E)(i),

appellant argues he was denied the effective assistance of counsel because defense

counsel failed to advise him that his guilty plea to domestic violence would result in his

deportation. Appellant further argues the fact he was advised by the municipal court, prior

to entering his plea, of potential adverse immigration consequences of his guilty plea does

not cure defense counsel's deficient representation.

       {¶ 11} Although not specifically delineated as such, we will address appellant's

motion as a Crim.R. 32.1 post-sentence motion to withdraw his plea. State v. Guerrero,

12th Dist. Butler No. CA2010-09-231, 2011-Ohio-6530, ¶ 3. Crim.R. 32.1 allows post-

sentence withdrawal of a guilty plea in limited circumstances "to correct a manifest

injustice." A defendant seeking to withdraw a guilty plea after the imposition of sentence

bears the burden of establishing the existence of a manifest injustice. Aguirre, 2012-Ohio-

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144 at ¶ 7. In general, 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.

Id.

       {¶ 12} A motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion

of the trial court. Id. at ¶ 8. Consequently, an appellate court will not reverse the trial court's

decision absent an abuse of discretion. Id.

       {¶ 13} Ineffective assistance of counsel is a proper basis for seeking a post-sentence

withdrawal of a guilty plea. Guerrero, 2011-Ohio-6530 at ¶ 5. When an alleged error

underlying a motion to withdraw a guilty plea is the 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 pled guilty. Id.;

Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984).

       {¶ 14} "[T]he negotiation of a plea bargain is a critical phase of litigation for purposes

of the Sixth Amendment right to effective assistance of counsel. The severity of deportation

* * * only underscores how critical it is for counsel to inform her noncitizen client that he

faces a risk of deportation." (Citations omitted.) Padilla, 130 S.Ct. at 1486. Consequently,

when negotiating a guilty plea, counsel has a duty to accurately advise his noncitizen client

of the immigration consequences of the plea. State v. Ayesta, 8th Dist. Cuyahoga No.

101383, 2015-Ohio-1695, ¶ 15. Counsel breaches this duty by either providing affirmative

misadvice about immigration consequences or by not providing any advice at all when

advice is warranted. Padilla at 1484, 1486-1487.

       {¶ 15} "When the law is not succinct and straightforward, a criminal defense attorney

need no more than advise a noncitizen client that pending criminal charges may carry a risk

of adverse immigration consequences." Id. at 1483. However, when the immigration

consequences can "easily be determined from reading the removal statute," and "the

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                                                                         State v. Tapia-Cortes

deportation consequence is truly clear, * * * the duty to give correct advice is equally clear."

Id. Counsel's failure to provide a client with available advice regarding deportation "clearly

satisfies the first prong of the Strickland analysis." Id. at 1484.

       {¶ 16} Padilla involved a noncitizen defendant who pled guilty to the transportation

of a large amount of marijuana. Padilla sought postconviction relief, alleging his counsel

did not advise him of the deportation consequences of his plea, and affirmatively misadvised

him he did not have to worry about immigration issues because he had been in the country

so long. Padilla asserted he would have insisted on going to trial if he had not received

incorrect advice from his attorney. Noting that Padilla's crime was a deportable offense

under the federal deportation statute, 8 U.S.C. 1227, the United States Supreme Court

found that counsel's failure to inform Padilla of the adverse immigration consequences of

the plea constituted deficient performance under the first prong of Strickland:

              In the instant case, the terms of the relevant immigration statute
              are succinct, clear, and explicit in defining the removal
              consequence for Padilla's conviction.           See 8 U.S.C. §
              1227(a)(2)(B)(i) ("Any alien who at any time after admission has
              been convicted of a violation of * * * any law or regulation of a
              State, the United States or a foreign country relating to a
              controlled substance ..., other than a single offense involving
              possession for one's own use of 30 grams or less of marijuana,
              is deportable"). Padilla's counsel could have easily determined
              that his plea would make him eligible for deportation simply from
              reading the text of the statute, which addresses not some broad
              classification of crimes but specifically commands removal for
              all controlled substances convictions except for the most trivial
              of marijuana possession offenses. * * * This is not a hard case
              in which to find deficiency: The consequences of Padilla's plea
              could easily be determined from reading the removal statute, his
              deportation was presumptively mandatory, and his counsel's
              advice was incorrect.

Padilla, 130 S.Ct. at 1473, 1486. The Supreme Court did not address the issue of prejudice,

instead remanding the case to the Kentucky courts to determine whether Padilla met the

Strickland prejudice prong. Id. at 1487.


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                                                                         State v. Tapia-Cortes

       {¶ 17} In the case at bar, appellant was convicted of domestic violence. Like in

Padilla, appellant's crime is a deportable offense under 8 U.S.C. 1227. See 8 U.S.C.

1227(a)(2)(E)(i) ("Any alien * * * in and admitted to the United States shall, upon order of

the Attorney General, be removed if the alien is within one or more of the following classes

of deportable aliens: Any alien who at any time after admission is convicted of a crime of

domestic violence * * * is deportable"). We find that the statute is succinct, clear, and

straightforward in defining the deportation consequences resulting from a noncitizen

offender's guilty plea to domestic violence. Here, as was the case in Padilla, defense

counsel could have easily determined that appellant's guilty plea would make him eligible

for deportation by simply reading the text of the federal statute. Because the deportation

consequences of appellant's guilty plea were truly clear, defense counsel was

constitutionally obligated to advise appellant that as a result of his guilty plea, his

deportation would be "presumptively mandatory." Padilla at 1483.

       {¶ 18} Appellant testified defense counsel did not advise him of the immigration

consequences of his guilty plea. Defense counsel did not rebut or challenge appellant's

testimony. We also note that defense counsel's testimony provided little insight as to his

understanding of the factual background of the offense or his awareness of any potential

defenses. It is unknown whether defense counsel ever communicated with appellant's wife

concerning her account of the incident and her willingness to cooperate in the prosecution.

Defense counsel's delegation of his professional responsibility to appellant and "others" to

review 8 U.S.C. 1227(a)(2)(E)(i) and the case law discussing the immigration

consequences of a domestic violence conviction for a noncitizen defendant under the

statute is deficient representation. Accordingly, appellant has satisfied the first prong of the

Strickland test. See State v. Galdamez, 10th Dist. Franklin No. 14AP-527, 2015-Ohio-3681;

State v. Yapp, 8th Dist. Cuyahoga Nos. 101247 and 101248, 2015-Ohio-1654.

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                                                                       State v. Tapia-Cortes

       {¶ 19} We next turn to the prejudice prong of the Strickland test. Generally under

that prong, a defendant must show there is a reasonable probability that, but for counsel's

errors, he would not have pled guilty. Guerrero, 2011-Ohio-6530 at ¶ 5. In the specific

context of a defense counsel's failure to advise a defendant of the immigration

consequences of a guilty plea, the United States Supreme Court has held that a defendant

demonstrates prejudice by "convinc[ing] the court that a decision to reject the plea bargain

would have been rational under the circumstances." Padilla, 130 S.Ct. at 1485.

       {¶ 20} In undergoing the rationality analysis, Ohio courts have identified several

factors: (1) the interval of time between the guilty plea and the motion to withdraw the plea,

(2) whether a conviction of the offense mandates deportation, (3) the likelihood of a

favorable outcome at trial had the defendant not pled guilty, (4) the trial court's compliance

with R.C. 2943.031, (5) the defendant's familial and other connections to the community,

(6) the defendant's length of residence in the United States, and (7) whether the plea was

to a reduced charge or otherwise beneficial to the defendant.

       {¶ 21} In the case at bar, appellant expeditiously moved to withdraw his plea seven

weeks after pleading guilty to domestic violence. As stated above, pursuant to 8 U.S.C.

1227(a)(2)(E)(i), appellant was deportable as a result of his guilty plea. Defense counsel

negotiated a plea of guilty as charged in the complaint, leading appellant to believe his plea

would result in his immediate release that same day. Appellant was sentenced to 180 days

in jail, with 165 of those days suspended, and was placed on community control for two

years. The plea had no apparent benefit to appellant as he was not released from jail as

he was informed prior to entering his plea.

       {¶ 22} The record indicates appellant was originally admitted in the United States in

2008 as a temporary nonagricultural worker.         At the time of the plea, appellant was

employed, was married to a U.S. citizen with whom he has children, and had been a legal

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                                                                         State v. Tapia-Cortes

resident in the United States since 2013. Therefore, appellant is legally integrated into the

community. At the hearing on his motion to withdraw, appellant was asked how far he was

in the immigration process at the time of his plea. Appellant replied he had "received a

letter in the mail * * * advising me that I was waiting for card that would have removed the

conditions." In an affidavit attached to his motion to withdraw, appellant asserted he would

never have pled guilty had he known his deportation was mandatory. He further asserted,

"I relied on the advice of my criminal defense attorney, who led me to believe that I could

plead guilty and still have a chance of remaining in the United States."

       {¶ 23} "In considering the likely outcome of trial, the court 'need not determine to an

absolute certainty that a jury would have acquitted * * * [r]ather, [the court] need only find a

likelihood of a favorable outcome at trial.'" Galdamez, 2015-Ohio-3681 at ¶ 42, quoting

Dando v. Yukins, 461 F.3d 791, 802 (6th Cir.2006).

       {¶ 24} In the case at bar, the complaint alleged that appellant "smacked the victim

across the face and grabbed her by the shirt and shoulders and began shoving her." Apart

from the allegations in the complaint, the record provides little insight into the facts of the

underlying charges or what appellant's defenses to those charges might have been.

Appellant did not provide this court with a transcript of the plea hearing. The extent of

appellant's wife's cooperation in his prosecution, if at all, is unknown. The municipal court's

decision denying appellant's motion to withdraw his plea contains no findings and simply

states the court denied the motion "[f]or the reasons set forth on the record in open court at

9:10 AM on January 14, 2016," at the hearing on appellant's motion to withdraw. A review

of the transcript of that hearing shows that the municipal court denied the motion based on

the court's belief appellant could not establish prejudice because appellant was advised by

the court, prior to entering his plea, of the adverse immigration consequences of his guilty

plea in compliance with R.C. 2943.031. In support of its decision, the municipal court cited

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this court's opinion in Aguirre, 2012-Ohio-144.

      {¶ 25} Pursuant to R.C. 2943.031(A), a trial court is required, before accepting a

guilty plea from a noncitizen defendant, to provide the following advisement:

             If you are not a citizen of the United States, you are hereby
             advised that conviction of the offense to which you are pleading
             guilty (or no contest, when applicable) 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.

      {¶ 26} In cases involving a guilty plea by a noncitizen defendant, this court and other

Ohio courts have generally taken the position that a trial court's R.C. 2943.031(A)

advisement that the defendant may be deported as a result of his plea, is sufficient to

overcome any prejudice caused by defense counsel's failure to properly advise the

defendant. See Aguirre, 2012-Ohio-144; Guerrero, 2011-Ohio-6530; State v. Lababidi, 8th

Dist. Cuyahoga No. 96755, 2012-Ohio-267; and State v. Ikharo, 10th Dist. Franklin No.

10AP-967, 2011-Ohio-2746.

      {¶ 27} However, more recently, Ohio courts and federal courts have begun to back

away from the principle that a trial court's R.C. 2943.031(A) advisement during the plea

hearing cures an attorney's failure to properly advise his client as to the immigration

consequences of a plea. Specifically, the Eighth and Tenth Appellate Districts now hold

that a trial court's proper advisement under R.C. 2943.031(A) may preclude a finding of

prejudice. Ayesta, 2015-Ohio-1695; Galdamez, 2015-Ohio-3681.

      {¶ 28} As stated above, the municipal court denied appellant's motion to withdraw

his plea on the basis of this court's opinion in Aguirre. However, Aguirre is factually

distinguishable and therefore not applicable here. In that case, deportation for the offense

was not expressly provided for by 8 U.S.C. 1227. In addition, based upon defense counsel's

testimony that she discussed the immigration consequences of the defendant's plea "each


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                                                                        State v. Tapia-Cortes

and every time" she met with him, the trial court found, and we upheld the finding, that

defense counsel had properly advised the defendant of the possible immigration

consequences of his guilty plea.      By contrast here, the deportation consequences of

appellant's domestic violence conviction were clear under 8 U.S.C. 1227, and defense

counsel did not advise appellant he was deportable as a consequence of his guilty plea to

the offense of domestic violence.

       {¶ 29} Likewise, we find that this court's opinions in Guerrero and State v. Guzman,

12th Dist. Butler No. CA2015-11-198, 2016-Ohio-1487, cited by the state, are inapplicable

here. In both cases, we upheld the trial court's denial of the defendants' Crim.R. 32.1

motions to withdraw their pleas on the ground that even if we were to assume trial counsel's

representation was deficient, the defendants had failed to prove prejudice under Strickland

as the trial court had advised them in compliance with R.C. 2943.031. In Guerrero, the trial

court did not simply provide the R.C. 2943.031 advisement but went further by strongly

warning the defendant that "immigration people" were going to seek his deportation.

Guerrero, 2011-Ohio-6530 at ¶ 18-20. In Guzman, we summarily upheld the denial of the

Crim.R. 32.1 motion on the basis of Guerrero and without addressing or describing what

happened during the plea hearing.

       {¶ 30} We find that defense counsel's failure to advise appellant of the adverse

immigration consequences of his guilty plea to domestic violence constitutes deficient

performance. We further find that the municipal court's R.C. 2943.031(A) advisement

during the plea hearing did not cure the prejudice resulting from that deficiency. Upon a

consideration and weighing of the various factors detailed above, including the timeliness

of appellant's motion to withdraw his plea, the duration of his residence in the United States,

his integration into the country based upon his employment and familial connections to the

community, and the minimal benefit he obtained from pleading guilty, we find that appellant

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                                                                      State v. Tapia-Cortes

has satisfied the Strickland prejudice prong. Based upon the factual scenario presented in

the record, the municipal court abused its discretion in denying appellant's motion to

withdraw his guilty plea. Appellant's assignment of error is sustained.

      {¶ 31} Judgment reversed and cause remanded to the municipal court for further

proceedings consistent with this opinion.


      HENDRICKSON and PIPER, JJ., concur.




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