      [Cite as State v. Diol, 2019-Ohio-2197.]

                        IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO




STATE OF OHIO,                                   :   APPEAL NO. C-180249
                                                     TRIAL NO. B-1700978
        Plaintiff-Appellee,
                                                 :      O P I N I O N.
      vs.
                                                 :
MOHAMED DIOL,
                                                 :
      Defendant-Appellant.



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 5, 2019




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Sarah C. Larcade, for Defendant-Appellant.
                        OHIO FIRST DISTRICT COURT OF APPEALS



CROUSE, Judge.

                                        Introduction

        {¶1}    In this case, an alleged non-United States citizen defendant, who

pleaded guilty to felony drug trafficking and possession, was advised by defense

counsel on the record at the plea hearing that deportation was “at worst” “possibly”

discretionary when, in fact, it is presumptively mandatory (and the record reflects

much confusion between lawyer and client on the citizenship question).

        {¶2}    In two assignments of error, Mohamed Diol argues that the trial court

erred by denying his “Emergency Motion to Vacate Guilty Plea Under Padilla v.

Kentucky and Lee v. United States,” and that the trial court erred by failing to hold

an evidentiary hearing on his motion to vacate despite his clear and unequivocal

request. We combine his assignments of error, and hold that the trial court did err,

and that this cause must be remanded for the court to hold an evidentiary hearing.

                            Facts and Procedural Background

        {¶3}    Diol was indicted for one count of trafficking in marijuana in violation

of R.C. 2925.03(A)(2), a felony of the fifth degree, one count of possession of

marijuana in violation of R.C. 2925.11(A), a misdemeanor of the fourth degree, and

one count of possessing criminal tools in violation of R.C. 2923.24(A), a felony of the

fifth degree. The charges in this case arose from a search of Diol’s vehicle conducted

after a traffic stop.

        {¶4}    Diol pleaded guilty to the marijuana-trafficking and the marijuana-

possession counts of the indictment.          Pursuant to the plea agreement, the

possession-of-criminal-tools charge was dismissed.




                                               2
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}   During the Crim.R. 11 plea colloquy, the trial court asked Diol if he was

a United States citizen. Diol replied that he was. The court asked Diol if his attorney

explained everything to him and answered all of his questions. Diol replied, “No.” At

that point, Diol’s attorney stated, “Judge, if I may, as far as the U.S. citizen part, I

believe we need to elaborate on that a bit more on the record just to make sure I

cover everything as required under Padilla versus Kentucky.”

       {¶6}   The court responded that in an “overabundance of caution” it advised

Diol if he was not a citizen of the United States, then

       conviction of the offense to which you’re 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. A broad range of crimes are deportable offenses under federal

       law. Deportation and other immigration consequences are the subject

       of a separate proceeding. No one, including defense counsel or this

       Court, can predict to a certainty the effect of this conviction on your

       immigration status.

       {¶7}   With this advisement, the court asked Diol, “Do you wish to go forward

with your guilty plea, regardless of any immigration consequences, even if it means

automatic removal from the United States and you’re never able to return?”

       {¶8}   Before Diol could answer this question, his attorney stated,

        Just to be clear, I don’t believe this would lead to automatic

       deportation. I believe at worst it possibly could make it discretionary.

       He tells me he’s a U.S. citizen. He did show me his card, which tells

       me he was here for asylum purposes.




                                               3
                      OHIO FIRST DISTRICT COURT OF APPEALS



Diol’s attorney then turned to Diol and asked, “Is that correct?” Diol replied, “Yes.”

       {¶9}    The court then addressed Diol for a second time,

       So I’m not giving you legal advice. My question is, I’ve now advised

       you that if for some reason you’re not a U.S. citizen – if you are a U.S.

       citizen I wouldn’t think it’s applicable.

       If you’re not, my question still remains that if you aren’t a U.S. citizen

       everything I’ve advised you of applies; and my question to you, again,

       is do you wish to go forward with your guilty plea regardless of any

       immigration consequences even if it means automatic removal from

       the United States and you are never able to return?

       {¶10} After this question, the following exchange occurred:

       Diol:          I mean, when I go overseas I have to have my passport.

       They give me a passport so I can go overseas. I guess I’m a U.S.

       citizen.

       The Court:     Guessing aside, I just want to make sure –

       Diol:          I’m a U.S. citizen when I get out of the country --

       The Court:     My question is, if for some reason you are not a U.S.

       citizen, you could suffer these consequences that I’ve just advised you

       of. If you’re a U.S. citizen it doesn’t matter. If you happen to not be a

       U.S. citizen, then all of this stuff that I just told you about applies; and

       my question is, I want to make sure that before you go forward with

       your guilty plea, you understand that if you’re not a U.S. citizen you

       could be excluded from the U.S. My question is do you wish to go

       forward with your guilty plea regardless of any immigration




                                                   4
                      OHIO FIRST DISTRICT COURT OF APPEALS



       consequence even it if means automatic removal from the United

       States and you’re never able to return?

       Diol:          Yes.

       {¶11} The court continued with the Crim.R. 11 colloquy, accepted Diol’s

guilty pleas, and found Diol guilty of the marijuana trafficking and possession

offenses. Diol was sentenced to three years of community control on each count.

       {¶12} Approximately six months after he was sentenced, Diol, through new

counsel, filed an “Emergency Motion to Vacate Guilty Plea under Padilla v. Kentucky

and Lee v. United States,” which requested an evidentiary hearing. In the motion,

Diol argued that he should be permitted to withdraw his guilty pleas because his

attorney rendered ineffective assistance of counsel when he erroneously advised him

that his pleas to marijuana trafficking and possession would not result in mandatory

deportation, but rather that deportation was discretionary. Diol claimed that his

pleas to drug trafficking and possession result in mandatory deportation under the

law. He attached his affidavit as an exhibit to the motion. In his affidavit, Diol stated

that he was a citizen of Mauritania, his attorney advised him that deportation would

not be mandatory, and that had he been correctly advised, he would not have

pleaded guilty. Diol also attached the plea-hearing transcript as an exhibit to the

motion. The state did not file a response.

       {¶13} The trial court denied Diol’s motion without explanation. Three days

later, Diol filed a “Motion for Findings of Fact and Conclusions of Law.”

Approximately one and a half months after Diol filed a timely notice of appeal, the

trial court issued an “Entry Denying Motion to Vacate Guilty Plea and Findings of

Fact and Conclusions of Law,” and attached a copy of the plea-hearing transcript to




                                               5
                        OHIO FIRST DISTRICT COURT OF APPEALS



it.1 Citing the transcript, the trial court concluded, “Defendant’s claim of ineffective

assistance of counsel for counsel’s alleged failure to advise him of his deportation

risk fails because Defendant maintained he was a United States citizen.” The trial

court further found that Diol did not establish grounds for relief because the court

reviewed the potential immigration consequences with him repeatedly.

                              The Plea-Hearing Transcript

        {¶14} As an initial matter, the dissent believes we should overrule the

assignments of error because Diol’s plea-hearing transcript was not before the trial

court when it ruled on Diol’s motion.

        {¶15} However, while Diol did not file a certified copy of the plea-hearing

transcript with the trial court at the time his motion was pending, he filed an

uncertified copy of the transcript because it was attached as an exhibit to his motion.

Subsequently, he filed a certified version of the transcript (which exactly matches the

uncertified version), and we know the trial court reviewed and relied on the

transcript because it cited to the transcript in its findings of fact and conclusions of

law and attached a copy of the (certified) transcript to its findings of fact and

conclusions of law. Neither the trial court, nor the state ever raised any concern

about the accuracy of the uncertified transcript or any of this process. Accordingly,

we find that it is appropriate for us to consider the plea-hearing transcript in this




1 We note that Crim.R. 32.1 does not require a court to issue findings of fact and conclusions of
law when ruling on a motion to withdraw a guilty plea. See State ex rel. Chavis v. Griffin, 91 Ohio
St.3d 50, 50, 741 N.E.2d 130 (2001). Although the findings of fact and conclusions of law were
issued after the notice of appeal was filed, we can still consider them. See Langsam v. Tindera,
64 Ohio App.3d 228, 229, 580 N.E.2d 1157 (8th Dist.1990) (the trial court retained jurisdiction to
make findings of fact and conclusions of law mandated by Civ.R. 52 even though the appeal had
already been filed); see also State v. Greer, 9th Dist. Summit No. 15217, 1992 WL 316350, *2 (Oct.
28, 1992) (“A court's findings and conclusions, unlike a motion for a new trial, Civ.R. 59, or a
motion to vacate, Civ.R. 60(B), does not disrupt the judgment of the court, but explains it.”).


                                                    6
                     OHIO FIRST DISTRICT COURT OF APPEALS



case because it was part of the trial court proceedings, all of which is consistent with

State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), and its progeny.

                            Ineffective Assistance of Counsel

       {¶16} Diol argues that the trial court erred by denying his emergency motion

to vacate his guilty pleas without holding an evidentiary hearing. Specifically, Diol

contends that the trial court’s advisement that he may be deported did not cure the

prejudice from the incorrect advice given by his attorney. Diol further argues that

his statement during the plea colloquy that he was a United States citizen does not

defeat his claim of ineffective assistance of counsel because the record shows that he

was extremely confused about his immigration status. Diol contends that his

attorney must have known he was not a citizen because he requested the trial court

to advise Diol that he may be deported as the result of his pleas.

       {¶17} Diol’s motion is titled, “Emergency Motion to Vacate Guilty Plea

Under Padilla v. Kentucky and Lee v. United States,” and does not cite any rule of

criminal procedure under which he is seeking relief. Nevertheless, like the trial

court, we will treat his motion to vacate as a motion to withdraw his guilty pleas

pursuant to Crim.R. 32.1. See State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545,

882 N.E.2d 431, ¶ 12 (“Courts may recast irregular motions into whatever category

necessary to identify and establish the criteria by which the motion should be

judged.”); see also State v. Valdez, 1st Dist. Hamilton No. C-160437, 2017-Ohio-

4260, ¶ 4 (citing Schlee and recasting Valdez’s motion as a motion to withdraw his

guilty plea pursuant to Crim.R. 32.1).

       {¶18} Crim.R. 32.1 authorizes the postconviction withdrawal of a guilty plea

only “to correct manifest injustice.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d




                                               7
                      OHIO FIRST DISTRICT COURT OF APPEALS



1324 (1977), paragraph one of the syllabus. The defendant bears the burden of

proving “manifest injustice.” Id. The determination of whether the defendant has

sustained that burden is committed to the sound discretion of the trial court and will

not be disturbed on appeal unless the court abused its discretion. Id. at paragraph

two of the syllabus; see State v. Kostyuchenko, 2014-Ohio-324, 8 N.E.3d 353, ¶ 4

(1st Dist.).

        {¶19} It is well-established that the negotiation and entry of a guilty plea is a

“critical stage” of the criminal proceedings and a defendant is entitled to effective

assistance of counsel during this critical time. See, e.g., Lee v. United States, __ U.S.

__, 137 S.Ct. 1958, 1964, 198 L.Ed.2d 476 (2017); Missouri v. Frye, 566 U.S. 134,

140, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Padilla v. Kentucky, 559 U.S. 356, 373,

130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).            It is further well-established that

deportation is a “particularly severe penalty” which may be of greater concern to a

non-United States citizen facing criminal charges than “any potential jail sentence.”

Session v. Dimaya, __U.S. __, 138 S.Ct. 1204, 1213, 200 L.Ed.2d 549 (2018), citing

Jae Lee v. United States, __ U.S. __, 137 S.Ct. 1958, 1968, 198 L.Ed.2d 476 (2017);

see Padilla at 366.

        {¶20} The due-process protections afforded by Article I, Section 16 of the

Ohio Constitution and the Fourteenth Amendment to the United States Constitution

require that a guilty or no-contest plea “represent[ ] a voluntary and intelligent

choice among the alternative courses of action open to the defendant.”            North

Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); State v.

Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). A defendant who seeks to

withdraw his plea on the ground that the plea was the unintelligent product of his




                                               8
                      OHIO FIRST DISTRICT COURT OF APPEALS



counsel's ineffectiveness must demonstrate that counsel's representation was

constitutionally deficient, Strickland v. Washington, 466 U.S. 668, 687-688, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that “there is a reasonable probability that,

but for [that deficiency, the defendant] would not have pleaded guilty and would

have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88

L.Ed.2d 203 (1985); see State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992);

see also Kostyuchenko at ¶ 5.

       {¶21} In Padilla, the United States Supreme Court held that defense

counsel’s representation is constitutionally deficient under Strickland when it can be

easily determined from reading the removal statute that deportation is

presumptively mandatory for the offense to which his client pleaded guilty and

counsel provided incorrect advice in this regard. Padilla at 368-369. The Court said,

       [w]hen the law is not succinct and straightforward * * *, a criminal

       defense attorney need do no more than advise a noncitizen client that

       pending criminal charges may carry a risk of adverse immigration

       consequences. But when the deportation consequence is truly clear * *

       * the duty to give correct advice is equally clear.

Id. at 369. The Court did not determine whether Padilla was prejudiced, but rather

left it to the lower courts to decide whether Padilla’s “decision to reject the plea

bargain would have been rational under the circumstances.” Id. at 372, citing Roe v.

Flores-Ortega, 528 U.S. 470, 480 and 486, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).

       {¶22} Lee, __ U.S. __, 137 S.Ct. 1958, 198 L.Ed.2d 476, dealt with the

prejudice analysis after a court determines that defense counsel has rendered

deficient performance under Padilla. At an evidentiary hearing on Lee’s motion to




                                                9
                     OHIO FIRST DISTRICT COURT OF APPEALS



vacate his conviction, both Lee and his counsel testified that “deportation was the

determinative issue in Lee’s decision whether to accept the plea.” Lee at 1963. Lee’s

attorney acknowledged that if he had known that Lee was facing mandatory

deportation, he would have advised him to go to trial. Id.

       {¶23} In Lee, the government argued that it would have been irrational for

Lee to have rejected the plea offer and proceed to trial because he had no viable

defense. Id. at 1966 and 1968. The government asserted that going to trial would

only result in a longer sentence before the inevitable consequence of deportation. Id.

at 1968. The United States Supreme Court disagreed, and held that “[n]ot everyone

in Lee’s position would make the choice to reject the plea. But we cannot say it would

be irrational to do so.” Id. at 1969. The Court stated that because deportation is

always a particularly severe penalty, preserving the client’s right to remain in the

United States may be more important to the client than any potential jail sentence.

Id. at 1968, quoting Padilla at 368. Lee claimed that if he had been properly advised

that deportation was mandatory, he would have rejected the plea offer “in favor of

throwing a ‘Hail Mary’ at trial.” Lee at 1967. The Court found that “[i]n the unusual

circumstances of this case, we conclude that Lee has adequately demonstrated a

reasonable probability that he would have rejected the plea had he known that it

would lead to mandatory deportation.” Id. at 1967.

       {¶24} Diol claims that the law is clear that deportation is mandatory in his

case. He points to Section 237(a) of the Immigration and Nationality Act, which

states that certain classes of aliens “shall, upon the order of the Attorney General, be

removed * * *.” 8 U.S.C. 1227(a). The statute states that




                                              10
                      OHIO FIRST DISTRICT COURT OF APPEALS



        [a]ny alien who * * * has been convicted of a violation of * * * any law *

        * * 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.

8 U.S.C. 1227(a)(2)(B).

        {¶25} The state takes issue with Diol’s assertion that deportation is

mandatory and argues that the Attorney General has the authority to “cancel” Diol’s

removal pursuant to 8 U.S.C. 1229(b).          However, at oral argument, the state

admitted it was not sure if deportation was mandatory, or whether Diol even

qualified for cancelation of removal.

        {¶26} In Padilla, the United States Supreme Court held that 8 U.S.C.

1227(a)(2)(B) “specifically commands removal for all controlled substances

convictions except for the most trivial of marijuana possession offenses.” Padilla,

559 U.S. at 368, 130 S.Ct. 1473, 176 L.Ed.2d 284. The Court found that “Padilla’s

counsel could have easily determined that his plea would make him eligible for

deportation simply from reading the text of the statute * * *.” Id. Thus, we hold that

there is no question that deportation is presumptively mandatory in Diol’s case.

        {¶27} It is also clear from the record that Diol’s attorney gave him incorrect

advice when he advised him during the plea hearing, “I don’t believe this would lead

to automatic deportation. I believe at worst it possibly could make it discretionary.”

        {¶28} The state contends that because Diol represented to the trial court

during the plea colloquy that he was a United States citizen, he cannot show that his

attorney had any duty to advise him of the immigration consequences of his guilty

plea.   However, the record is clear that his attorney had some doubt if Diol was a




                                               11
                      OHIO FIRST DISTRICT COURT OF APPEALS



United States citizen, because he asked the trial court to give him the statutory

warning required by R.C. 2943.031, which requires courts to advise defendants on

the possibility of deportation, exclusion, or denial of naturalization prior to accepting

pleas. The record is also clear that Diol was confused about whether he was a United

States citizen. Accordingly, we find that Diol’s attorney had a duty to determine

whether he was or was not a United States citizen, and if he was not, advise him of

the immigration consequences of his guilty pleas.

       {¶29} The state contends that even if Diol’s attorney had a duty to advise him

of the immigration consequences of his guilty pleas, the trial court’s advisement

pursuant to R.C. 2943.031 cured any possible prejudice that may have resulted from

trial counsel’s deficiency. R.C. 2943.031(A) requires a trial court, prior to 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.

       {¶30} Because the statutory advisement states only that the defendant may

be deported, this advisement does not cure any deficient performance by counsel, as

recently confirmed by the Ohi0 Supreme Court. See State v. Romero, Slip Opinion

No. 2019-Ohio-1839, ¶ 20 (“The advisement in R.C. 2943.031(A) warns defendants

that ‘pleading guilty may have the consequence[] of deportation.’ But that

generalized warning does not replace counsel’s duty to advise his client of the

consequences of his guilty plea, as Padilla instructs.” (Emphasis added.)).




                                               12
                      OHIO FIRST DISTRICT COURT OF APPEALS



        {¶31} The state argues that because the trial court went beyond the statutory

advisement and asked Diol if he wished to plead guilty “even if it meant automatic

removal from the United States and you’re never able to return,” the court effectively

warned Diol that deportation was mandatory in this case. But, the issue we must

determine is whether the trial court’s admonishment in this case corrected the

deficient performance of counsel. See United States v. Akinsade, 686 F.3d 248, 255

(2012). In Akinsade, the United States Court of Appeals for the Fourth Circuit held

that “in order for a [trial court’s] admonishment to be curative, it should address the

particular issue underlying the affirmative misadvice.” Id.

        {¶32} In Diol’s case, the trial court did not state unequivocally that Diol

would be deported. Asking Diol if he still wished to plead guilty “even if” it meant

automatic deportation did not correct the misadvice given by Diol’s counsel that

deportation was discretionary. The trial court’s admonishment “did not provide the

degree of accuracy concerning immigration consequences that Padilla demands

when,    as   here,   federal   immigration   law   plainly   mandates   deportation.”

Kostyuchenko, 2014-Ohio-324, 8 N.E.3d 353, at ¶ 15, citing Padilla, 559 U.S. at 364,

130 S.Ct. 1473, 176 L.Ed.2d 284.



                                    Evidentiary Hearing

        {¶33} The state contends that Diol is not entitled to an evidentiary hearing

because he did not make a prima facie showing of merit.

        {¶34} The state claims that although Diol stated in his affidavit that he was a

citizen of Mauritania, he failed to state that he is not a United States citizen. The

state also claims that because Diol did not include an affidavit from trial counsel,




                                              13
                      OHIO FIRST DISTRICT COURT OF APPEALS



there are many unanswered questions regarding counsel’s knowledge of Diol’s

immigration status, and discussions Diol and his counsel may have had regarding the

immigration consequences of his guilty pleas.

       {¶35} A trial court is not automatically required to hold an evidentiary

hearing regarding a defendant’s motion to withdraw a guilty plea, and a trial court’s

decision not to hold an evidentiary hearing will be reversed only upon a finding of an

abuse of discretion. State v. Williams, 10th Dist. Franklin No. 03AP-1214, 2004-

Ohio-6123, ¶ 6. An abuse of discretion requires more than an error of law or

judgment, but that the court acted unreasonably, arbitrarily, or unconscionably. Id.

But, a hearing is required “if the facts as alleged by the defendant and accepted as

true would require the court to permit the guilty plea to be withdrawn.” Id.

       {¶36} It is indisputable that deportation is presumptively mandatory in this

case if Diol is not a United States citizen. Although the record indicates that both

Diol and his defense counsel were confused as to the status of Diol’s citizenship

during the plea hearing, Diol’s affidavit, which was attached to his motion to

withdraw his pleas, clearly states that he is a citizen of Mauritania. At oral argument,

the state contended that because Diol did not state in his affidavit that he was not a

United States citizen, he might be a dual citizen of both the United States and

Mauritania. While Diol’s affidavit could be clearer, it can certainly be read to allege

that he is not a United States citizen.

       {¶37} In his affidavit, Diol asserted that his defense counsel failed to inform

him of the immigration consequences for pleading guilty on the drug charges, and

that if he had known that deportation was a mandatory consequence of such pleas,

he would not have pleaded guilty.         The state claims that this affidavit is “self-




                                                14
                      OHIO FIRST DISTRICT COURT OF APPEALS



serving,” and, standing alone, is insufficient evidence to trigger an evidentiary

hearing.

       {¶38} But, Diol’s affidavit does not stand alone. The transcript of the plea

hearing not only indicates that defense counsel was uncertain of Diol’s immigration

status and the immigration consequences flowing from the guilty pleas, but he also

misadvised Diol about the immigration consequences for guilty pleas to the drug-

trafficking and possession charges.

       {¶39} Defense counsel attempted to cure the deficiency with the statutory

warning by the court. Nevertheless, as we have held, the trial court’s statutory

warning did not correct the misadvice given by Diol’s counsel that deportation was

discretionary.

       {¶40} In sum, Diol has alleged facts, which if accepted as true, would require

the court to permit the guilty pleas to be withdrawn. The trial court thus abused its

discretion in failing to hold an evidentiary hearing in this case.

       {¶41} The fact that trial counsel misadvised Diol about the deportation

consequences of convictions to marijuana trafficking and possession is clear from the

record, and satisfies the first prong of Strickland. However, the evidentiary hearing

can clarify whether Diol is a United States citizen and whether but for his attorney’s

misadvice, he would have pleaded not guilty and insisted on going to trial.

       {¶42} The recent Ohio Supreme Court case, Romero, Slip Opinion No. 2019-

Ohio-1839, holds that “In assessing whether it would be rational for a defendant to

go to trial instead of pleading guilty, the court should consider the totality of the

circumstances.” The Romero case lays out certain factors that trial courts should

consider in evaluating prejudice such as the consequences of going to trial, the




                                               15
                       OHIO FIRST DISTRICT COURT OF APPEALS



importance that the defendant placed on avoiding deportation, the defendant’s

connections to the United States, and the judicial advisement of immigration

consequences. Id. at ¶ 30-32. As the court stated in Romero, “From these and other

factors in a given case, the trial court will 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.

Given that neither the trial court nor counsel had the benefit of Romero at the time

the motion was pending, these considerations are also worthy of exploration at the

evidentiary hearing.



                                        Conclusion

       {¶43} For the foregoing reasons, Diol’s assignments of error are sustained,

and the judgment of the trial court denying his motion to withdraw his pleas is

reversed. The cause is remanded to the trial court to conduct an evidentiary hearing

on Diol’s motion to withdraw his guilty pleas consistent with this opinion.

                                            Judgment reversed and cause remanded.

BERGERON, P.J., concurs.
WINKLER, J., dissents.

WINKLER, J., dissenting.

       {¶44} I respectfully dissent. I would overrule the assignments of error and

affirm the common pleas court’s decision overruling Diol’s Crim.R. 32.1 motion to

withdraw his guilty pleas.

       {¶45} On that motion, Diol bore the burden of demonstrating that counsel

had been constitutionally deficient in advising him concerning the removal

consequences of his convictions upon his pleas, and that this deficiency in counsel’s



                                             16
                      OHIO FIRST DISTRICT COURT OF APPEALS



performance had prejudiced him, that is, that “a decision to reject the plea bargain

would have been rational under the circumstances.” See Padilla v. Kentucky, 559

U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The prejudice prong of that

analysis thus required an inquiry into the circumstances surrounding Diol’s decision

to plead. Those circumstances necessarily included matters that transpired at the

hearing where his pleas had been entered and accepted. See State v. Valdez, 1st Dist.

Hamilton No. C-160437, 2017-Ohio-4260, ¶ 18.

       {¶46} A photocopy of the plea-hearing transcript was attached to the motion.

That attachment, lacking proper certification, was not self-authenticating for

purposes of the common pleas court’s decision on the motion. See Evid.R. 902(4).

Nor was the attachment, as App.R. 9(B) requires for this court’s decision in the

appeal, bound, certified as correct with an original signature of the transcriber, and

filed with the common pleas court clerk under App.R. 10(A).

       {¶47} On March 26, 2018, the common pleas court entered judgment

overruling the motion. From that entry, Diol filed this appeal, and on April 27, 2018, he

caused to be filed with this court an App.R. 9(B)-compliant transcript of the plea

hearing.

       {¶48} On June 11, 2018, the common pleas court issued a second “Entry

Denying Motion to Vacate Guilty Plea * * *,” and this time the court, although not

required to do so, included findings of fact and conclusions of law. But the March 2018

entry overruling the motion was, without findings of fact and conclusions of law, a final

appealable order. And the March 2018 entry, along with this appeal from that entry,

divested the common pleas court of jurisdiction to decide the motion and vested

jurisdiction in this court to review the common pleas court’s decision. Thus, the June




                                               17
                       OHIO FIRST DISTRICT COURT OF APPEALS



2018 entry, issued by the common pleas court after it had lost jurisdiction over the

motion, constituted a legal nullity. See, e.g., Farris v. State, 1 Ohio St. 188, 189 (1853)

(applying the fundamental principle that a judgment of a court acting without

jurisdiction is a “nullity”); Lambda Research v. Jacobs, 170 Ohio App.3d 750, 2007-

Ohio-309, 869 N.E.2d 39, 45 (1st Dist. 2007) (holding that an entry concerning

issues directly related to the subject of an appeal, entered after that appeal had

divested the trial court of jurisdiction, constituted a “legal nullity”); Perez Bar & Grill

v. Schneider, 9th Dist. Lorain No. 09CA009573, 2010-Ohio-1352, ¶ 9 (holding that

supplemental findings of fact and conclusions of law filed after the notice of appeal

from a final appealable order constituted a nullity, because the notice of appeal

deprived the trial court of jurisdiction to act on the motion for findings).

       {¶49} The App.R. 9(B)-compliant plea-hearing transcript filed in this appeal

was not before the common pleas court during the proceedings resulting in the March

2018 entry overruling Diol’s Crim.R. 32.1 motion. Nevertheless, the majority asserts

that this court, in deciding this appeal from the March 2018 entry, may “consider” that

transcript, because the June 2018 entry was demonstrably the product of the common

pleas court’s “review[] [of] and reli[ance] on [that] transcript.”

       {¶50} But the Ohio Supreme Court has declared, as “a bedrock principle of

appellate practice in Ohio,” that an appeals court is limited to the record of the

proceedings resulting in the judgment appealed. Morgan v. Eads, 104 Ohio St.3d

142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13; see Valdez, 1st Dist. Hamilton No. C-

160437, 2017-Ohio-4260, at ¶ 20. And upon that principle, the court has long held

that “[a] reviewing court cannot add matter to the record before it, which [matter]

was not a part of the trial court’s proceedings, and then decide the appeal on the




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basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500

(1978), paragraph one of the syllabus. See, e.g., Valdez at ¶ 20 (following Ishmail in

declining to consider a plea-hearing transcript filed with the court of appeals after

appellant had appealed the judgment overruling his motion to vacate his plea); State

v. Tekulve, 188 Ohio App.3d 792, 2010-Ohio-3604, 936 N.E.2d 1030 (1st Dist.2010)

(following Ishmail in declining to consider a plea-hearing transcript attached to

appellant's brief that was not before the municipal court in deciding appellant’s

Crim.R. 32.1 motion); Metzcar v. Metzcar, 1st Dist. Hamilton No. C-850801, 1986

WL 12741, *1 (Nov. 12, 1986) (following Ishmail in declining to consider a transcript

of proceedings before a domestic-relations magistrate that had been filed with the

court of appeals, but had not yet been prepared when the domestic-relations court

overruled objections and adopted the magistrate’s report).

       {¶51} The App.R. 9(B)-compliant plea-hearing transcript filed in this appeal

was not before the common pleas court during the proceedings resulting in the March

2018 entry from which the appeal was taken. Under the rule of Ishmail, along with

our long line of decisions following Ishmail, this court may not consider that

transcript in deciding this appeal. In the absence of that transcript, the common

pleas court cannot be said to have abused its discretion in overruling Diol’s Crim.R.

32.1 motion to withdraw his guilty pleas.            Accordingly, I would overrule the

assignments of error and affirm the court’s decision.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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