[Cite as State v. Amegatcher, 2016-Ohio-5198.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                       JUDGES:
                                                    Hon. Sheila G. Farmer, P. J.
        Plaintiff-Appellee                          Hon. John W. Wise, J.
                                                    Hon. Patricia A. Delaney, J.
-vs-
                                                    Case No. 15 CAC 10 0081
FREDERIQUE AMEGATCHER

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                         Criminal Appeal from the Municipal Court,
                                                 Case No. 13 CRB 00523


JUDGMENT:                                        Affirmed



DATE OF JUDGMENT ENTRY:                          August 2, 2016



APPEARANCES:

For Plaintiff-Appellee                           For Defendant-Appellant

ELIZABETH MATUNE                                 TODD A. WORKMAN
PROSECUTING ATTORNEY                             WORKMAN LAW FIRM
70 North Union                                   35 North Sandusky Street
Delaware, Ohio 43015                             Delaware, Ohio 43015
Delaware County, Case No. 15 CAC 10 0081                                                2

Wise, J.

       {¶1}   Appellant Frederique Amegatcher appeals the decision of the Delaware

County Municipal Court, which denied her postsentence motion to vacate a prior plea of

guilty to the offense of domestic violence. Appellee is the State of Ohio. The relevant

procedural facts leading to this appeal are as follows:

       {¶2}   On or about March 18, 2013, Appellant Amegatcher, a United States

resident and a citizen of France, was arrested and charged with two counts of domestic

violence, two counts of assault, two counts of child endangering, and two counts of

persistent disorderly conduct. All were charged as misdemeanors. Appellant then

appeared in the Delaware County Municipal Court for the purpose of arraignment. At that

time, she entered pleas of not guilty to all eight charges.

       {¶3}   On April 10, 2013, appellant appeared in court with counsel for a pretrial

and change of plea hearing. At that time, appellant entered a plea of guilty to a single

misdemeanor count of domestic violence, R.C. 2919.25(A). All other charges were

dismissed. Appellant was sentenced to twenty-seven days in jail, with twenty-seven days

of jail credit for time already served. She was also placed on probation/community control

for eighteen months.

       {¶4}   In October 2014, appellant's period of community control was complete and

she was released from further obligations to the trial court.

       {¶5}   On January 21, 2015, appellant filed an application to have her conviction

sealed. However, because she was determined not to be an eligible offender, her motion

to seal was denied by the trial court on February 25, 2015.
Delaware County, Case No. 15 CAC 10 0081                                                   3


       {¶6}   On May 20, 2015, appellant was detained and placed into removal status

by the United States Immigration and Customs Enforcement Agency. She was eventually

released pending a final hearing on her immigration status.

       {¶7}   On July 6, 2015, in the Delaware County Municipal Court, appellant filed an

“Emergency Motion to Vacate Guilty Plea.” The basis of her motion was that her trial

counsel had failed to inform her of the potential immigration consequences of her guilty

plea. The trial court conducted a hearing on said motion on August 14, 2015. Subsequent

to this hearing, at the direction of the trial court, the State filed a memorandum contra and

appellant filed a memorandum in support. No further hearings were held on the matter.

       {¶8}   On September 17, 2015 the trial court issued a judgment entry denying

appellant's motion to vacate her guilty plea.

       {¶9}   Appellant filed a notice of appeal on October 15, 2015. She herein raises

the following sole Assignment of Error:

       {¶10} “I. APPELLANT'S RIGHTS TO THE EFFECTIVE ASSISTANCE OF

COUNSEL GUARANTEED UNDER SECTION 10, ARTICLE I OF THE OHIO

CONSTITUTION, AND SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION WERE VIOLATED.”

                                                I.

       {¶11} In her sole Assignment of Error, appellant contends the trial court erred in

denying her motion to withdraw her prior guilty plea to domestic violence, maintaining that

she was deprived of the effective assistance of trial counsel during the 2013 plea

proceedings. We disagree.
Delaware County, Case No. 15 CAC 10 0081                                                       4


       {¶12} Crim.R. 32.1 states as follows: “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.”

       {¶13} 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 (1985),

17 Ohio St.3d 66, 477 N.E.2d 627. 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 (1983), 5 Ohio St.3d

217, 450 N.E.2d 1140. 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. See

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. See 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 allowable only in extraordinary cases. See State v. Aleshire, Licking App.No.

09–CA–132, 2010–Ohio–2566, ¶ 60.

       {¶14} A defendant in a criminal case has a Sixth Amendment right to the effective

assistance of counsel when deciding whether to enter a guilty plea. See State v.

Galdamez, 10th Dist. Franklin No. 14AP-527, 41 N.E.3d 467, 473, 2015-Ohio-3681, ¶ 15,

citing McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)

(additional citations omitted). Moreover, the United States Supreme Court has recognized

that “[t]he severity of deportation *** only underscores how critical it is for counsel to inform
Delaware County, Case No. 15 CAC 10 0081                                                   5

her noncitizen client that he faces a risk of deportation.” Padilla v. Kentucky (2010), 559

U.S. 356, 373-374, 130 S.Ct. 1473, 176 L.Ed.2d 284.

          {¶15} In the case sub judice, appellant’s defense attorney handling her plea in

2013 averred in a sworn affidavit that he was aware at the time that appellant “was from

France,” and that she had legally entered the United States. See Exh. 1, ¶ 8. But said

defense counsel admitted that he had not ascertained her immigration status and had not

reviewed the applicable immigration statute, 8 U.S.C. 1227 (a)(2)(E)(i). Id.1 He also

admitted that “I do not recall if I advised Ms. Amegatcher about the immigration

consequences or (sic) her plea, but if I did so, it was to advise her that I am not an expert

in immigration law and that she should consult an expert if she had any concerns." Exh.

1, ¶ 7.

          {¶16} Furthermore, appellant herself averred that had she known at the time in

question that entering her guilty plea made her deportable under federal law, and that she

“had an affirmative defense,” she never would have agreed to enter her guilty plea. See

Exh. 2, ¶ 11.

          {¶17} However, appellant herein does not dispute that at the 2013 plea hearing,

prior to accepting her plea, the trial court asked appellant: "Do [you] understand that a

criminal conviction could lead to your deportation, your exclusion from readmission to the

United States, or the denial of your naturalization under U.S. laws. Do you understand?"




1 The federal statute mentioned states that any alien convicted of domestic violence after
admission into the United States is “deportable.”
Delaware County, Case No. 15 CAC 10 0081                                                   6


Appellant answered in the affirmative. The trial court then inquired: "And you still wish to

enter a guilty plea to this charge today?" Appellant again answered in the affirmative.2

       {¶18} The trial court’s questioning of appellant regarding the possible deportation

consequences of her plea was based on R.C. 2943.031(A), which states in pertinent part:

               Except as provided in division (B) of this section, prior to accepting a

       plea of guilty or a plea of no contest to an indictment, information, or

       complaint charging a felony or a misdemeanor other than a minor

       misdemeanor if the defendant previously has not been convicted of or

       pleaded guilty to a minor misdemeanor, the court shall address the

       defendant personally, provide the following advisement to the defendant

       that shall be entered in the record of the court, and determine that the

       defendant understands the 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.’

       ***.”

       {¶19} The Ohio Supreme Court has held that “substantial compliance” is the

proper standard when reviewing whether a trial court complied with the notification




2  The record before us does not include a transcribed copy of the 2013 plea hearing.
We note R.C. 2943.031(E) provides that “[i]n the absence of a record that the court
provided the advisement described in division (A) of this section and if the advisement is
required by that division, the defendant shall be presumed not to have received the
advisement.” However, based on the State’s unrefuted assertion and quotations set forth
as page 3 of its response brief, we find grounds to overcome the aforesaid presumption.
Delaware County, Case No. 15 CAC 10 0081                                                  7

requirements contained in R.C. 2943.031(A). See State v. Francis, 104 Ohio St.3d 490,

820 N.E.2d 355, 2004–Ohio–6894, ¶¶ 45–46, ¶ 78.

       {¶20} The trial court’s compliance at the plea hearing with the requirement of R.C.

2943.031 thus distances the instant case from the concerns of the United States Supreme

Court in Padilla, supra. As we emphasized in State v. Gallegos-Martinez, 5th Dist.

Delaware No. 10-CAA-06-0043, 2010-Ohio-6463, the Kentucky court in Padilla did not

advise the defendant at all of the possible immigration consequences of his plea and

conviction, and defense counsel in that case had allegedly misadvised him that he “did

not have to worry about immigration status since he had been in the country for so long.”

Id. at ¶ 22, citing Padilla, 130 S.Ct. 1473 at 1477. Furthermore, the Padilla Court focused

on the “deficient performance” portion of the two-pronged standard for ineffective

assistance claims as set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674. Ultimately, the United States Supreme Court remanded the matter

for further review of whether Mr. Padilla could establish prejudice under the second prong

of Strickland. Interestingly, just before the end of the majority opinion, the Court further

noted that “many States require trial courts to advise defendants of possible immigration

consequences,” and included R.C. 2943.031, supra, in its list of examples. Padilla at f.n.

15.

       {¶21} In the case sub judice, in regard to the “prejudice” prong of Strickland, we

find it unconvincing for appellant to maintain that if she had only been warned about the

potential immigration consequences of her plea, would not have pled guilty, when she

was in fact duly informed of such consequences by the trial court itself under R.C.

2943.031, and her guilty plea was entered subsequent to such notification.
Delaware County, Case No. 15 CAC 10 0081                                                 8

       {¶22} Accordingly, under the circumstances of the case sub judice, we are

unpersuaded the trial court abused its discretion in declining to find a manifest injustice

warranting the extraordinary step of negating appellant's prior plea to domestic violence.

       {¶23} Appellant’s sole Assignment of Error is therefore overruled.

       {¶24} For the reasons stated in the foregoing opinion, the decision of the

Municipal Court of Delaware County, Ohio, is hereby affirmed.



By: Wise, J.

Farmer, P. J., and

Delaney, J., concur.




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