[Cite as State v. Akbari, 2013-Ohio-5709.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                    No. 13AP-319
v.                                                  :          (C.P.C. No. 08CR-08-6223)

Farzad Akbari,                                      :          (REGULAR CALENDAR)

                 Defendant-Appellant.               :




                                             D E C I S I O N

                                   Rendered on December 24, 2013


                 Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
                 appellee.

                 Muchnicki & Bittner, LLP, and Brandon W. Puckett, for
                 appellant.

                   APPEAL from the Franklin County Court of Common Pleas

KLATT, P.J.
        {¶ 1} Defendant-appellant, Farzad Akbari, appeals from a judgment of the
Franklin County Court of Common Pleas denying his postsentence motion to withdraw
guilty plea. Because the trial court did not abuse its discretion, we affirm that judgment.
I. Factual and Procedural Background
        {¶ 2} On August 26, 2008, a Franklin County Grand Jury indicted appellant with
one count of possession of cocaine, a fifth-degree felony. Appellant initially entered a not
guilty plea to the charge. On June 3, 2009, appellant withdrew that plea and entered a
guilty plea to one count of possession of cocaine. The trial court accepted appellant's
No. 13AP-319                                                                                   2

guilty plea, found him guilty, and sentenced him accordingly. Appellant did not appeal
his conviction or sentence.
       {¶ 3} On December 12, 2012, however, appellant filed a motion to withdraw his
guilty plea. Appellant alleged that he should be allowed to withdraw his plea pursuant to
the United States Supreme Court's 2010 decision in Padilla v. Kentucky, 559 U.S. 356,
(2010) and because his plea was not made knowingly, voluntarily, and intelligently
because of mental health issues. Without a hearing, the trial court denied appellant's
motion. In its decision, the trial court first noted that Padilla did not apply retroactively
to appellant's case.1 Second, the trial court also found that manifest injustice did not
support granting appellant's motion to withdraw. The trial court specifically rejected
appellant's claim that he did not enter his plea knowingly, voluntarily, and intelligently
because of mental health problems. The trial court noted that its plea colloquy with
appellant established that his plea was made knowingly, voluntarily, and intelligently, and
that his responses to the questioning indicated that he understood what he was doing at
the plea hearing and that he understood the consequences of his plea. The trial court also
pointed out that appellant's delay of 3 1/2 years in filing his motion strongly militated
against granting the motion.
II. The Appeal
       {¶ 4} Appellant appeals and assigns the following errors:
              1. The trial court erred by not vacating Defendant's guilty plea
              to correct manifest injustice pursuant to Ohio Criminal Rule
              32.1 where defendant did not knowingly, intelligently, and
              voluntarily enter his plea because he suffered psychotic
              depression.

              2. The trial court erred by finding Defendant's delay in
              submitting his Motion to Vacate strongly militated against
              granting the motion.

       {¶ 5} Appellant's two assignments of error both address the trial court's decision
to deny his motion to withdraw.




1 See Chaidez v. United States, __ U.S. __, 133 S.Ct. 1103 (2013). Appellant has not pursued this
argument on appeal.
No. 13AP-319                                                                                3

       A. Standard of Review
       {¶ 6} Crim.R. 32.1 permits a motion to withdraw a guilty plea "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."
Manifest injustice relates to some fundamental flaw in the proceedings which results in a
miscarriage of justice or is inconsistent with the demands of due process. State v.
Chandler, 10th Dist. No. 13AP-452, 2013-Ohio-4671, ¶ 6. Manifest injustice " 'is an
extremely high standard, which permits a defendant to withdraw his guilty plea only in
extraordinary cases.' " State v. Tabor, 10th Dist. No. 08AP-1066, 2009-Ohio-2657, ¶ 6,
quoting State v. Price, 4th Dist. No. 07CA47, 2008-Ohio-3583, ¶ 11. A defendant seeking
to withdraw a guilty plea following imposition of sentence bears the burden of
establishing manifest injustice with specific facts either contained in the record or
supplied through affidavits submitted with the motion. State v. Garcia, 10th Dist. No.
08AP-224, 2008-Ohio-6421, ¶ 11, citing State v. Gegia, 157 Ohio App.3d 112, 2004-Ohio-
2124 (9th Dist.).
       {¶ 7} The decision whether to grant or deny a motion to withdraw is left to the
discretion of the trial court. State v. Smith, 49 Ohio St.2d 261 (1977), paragraph two of
the syllabus; Chandler at ¶ 8. Therefore, this court's review of the trial court's denial of a
post-sentence motion to withdraw a guilty plea is limited to a determination of whether
the trial court abused its discretion. State v. Conteh, 10th Dist. No. 09AP-490, 2009-
Ohio-6780, ¶ 16. Absent an abuse of discretion on the part of the trial court, its decisions
concerning a post-sentence motion to withdraw guilty plea must be affirmed. State v. Xie,
62 Ohio St.3d 521, 527 (1992). Although an abuse of discretion is typically defined as an
unreasonable, arbitrary, or unconscionable decision, State v. Beavers, 10th Dist. No.
11AP-1064, 2012-Ohio-3654, ¶ 8, we note that no court has the authority, within its
discretion, to commit an error of law. State v. Beechler, 2d Dist. No. 09-CA-54, 2010-
Ohio-1900, ¶ 70.
              B. Appellant's First Assignment of Error—Was his Plea Entered
              Knowingly, Voluntarily and Intelligently?

       {¶ 8} Appellant contends that he established a manifest injustice for the
withdrawal of his guilty plea because his plea was not entered knowingly, voluntarily, and
No. 13AP-319                                                                                4

intelligently.   He argues that the trial court did not ensure that he understood the
consequences of his plea because the court was on notice of his mental health issues, but
did not question him about those issues. We disagree.
        {¶ 9} A guilty plea that is not entered knowingly, intelligently, or voluntarily,
creates a manifest injustice that would entitle a defendant to withdraw a guilty plea. State
v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶ 5, 9. To help ensure that guilty
pleas are knowingly, intelligently, and voluntarily made, Crim.R. 11(C) sets forth specific
requirements for a trial judge to follow when accepting a guilty plea. State v. Owens, 181
Ohio App.3d 725, 2009-Ohio-1508, ¶ 45 (7th Dist.). The transcript of appellant's plea
hearing reveals that the trial court fully complied with the requirements of Crim.R. 11(C)
before it accepted appellant's guilty plea. The trial court strictly advised him of the
constitutional rights he waived as a result of his guilty plea, the nature of the charge
against him, the possible penalties he could face and the effect of his guilty plea. As noted,
the trial court specifically told appellant about possible immigration consequences as a
result of the plea and noted that trial counsel had discussed those consequences. (Tr. 6-7.)
        {¶ 10} Appellant argues that his mental health issues caused him to not
subjectively understand the effect of his guilty plea. Because this is a nonconstitutional
element of the Crim.R. 11(C) requirements, we must determine whether, under the
totality of the circumstances, appellant subjectively understood the consequences of his
plea. See State v. Nero, 56 Ohio St. 3d 106, 108 (1990) (only requiring substantial
compliance with nonconstitutional requirements of rule, which means that under the
totality of the circumstances, the defendant subjectively understands the implications of
his plea and the rights he is waiving); State v. Franks, 10th Dist. No. 04AP-362, 2005-
Ohio-462, ¶ 8. Here, the trial court advised appellant about a number of consequences
that could occur from his guilty plea, including immigration consequences. Appellant's
answers to those questions do not indicate any confusion about the guilty plea he
entered or the possible effects of the plea. Additionally, the "Entry of Guilty Plea" that
he signed on the day of his plea hearing indicates that he understood his guilty plea and
its effects.
        {¶ 11} Appellant argues that the trial court should have questioned him about his
mental health status after trial counsel mentioned appellant's mental health.             We
No. 13AP-319                                                                                       5

disagree. A trial court is not required to specifically ask about a defendant's physical or
mental health status before accepting a guilty plea. State v. Boyce, 11th Dist. No. 2005-P-
0021, 2007-Ohio-4379, ¶ 18. Trial counsel only told the court at the plea hearing that
"[appellant]'s been battling with depression these past several years and, unfortunately,
instead of seeking professional help perhaps tried to self-medicate. I think he certainly
knows that's not the way to go. He needs to seek professional help." (Tr. 9.) This
statement was insufficient to put the trial court on notice of mental health issues that
would have affected appellant's ability to understand the consequences of his plea at that
time.2 Further, appellant did not engage in any irrational or questionable behavior during
the plea hearing. There is simply nothing in this record that would have alerted the trial
court during the plea hearing that it should inquire about appellant's mental health or
that such issues could affect appellant's understanding of the consequences of his guilty
plea. See State v. Hackathorn, 11th Dist. No. 2004-A-0008, 2004-Ohio-6694, ¶ 20
(defendant who enters a plea of guilty is not entitled to a subsequent competency
hearing when the record does not contain a sufficient indicia of incompetence).
Therefore, the trial court did not err by not questioning appellant about his mental health
status during the plea hearing.
       {¶ 12} Because appellant entered his guilty plea knowingly, voluntarily, and
intelligently, and with the full knowledge and understanding of the consequences of his
plea, he has failed to establish that withdrawal of a guilty plea is necessary to correct
manifest injustice. Franks at ¶ 18, citing State v. Honaker, 10th Dist. No. 04AP-146,
2004-Ohio-6256, ¶ 16. Accordingly, we overrule appellant's first assignment of error.
       C. Appellant's Second Assignment of Error—Delay in Filing his Motion
       {¶ 13} Appellant also contends that the trial court erred by finding that 3 1/2 years
was an undue delay that militated against granting his motion. We disagree.
       {¶ 14} As appellant concedes, an " 'undue delay between the occurrence of the
alleged cause for withdrawal of a guilty 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




2Similarly, the affidavit appellant presented in support of his motion contains allegations about his
mental health status which were not presented to the trial court during his plea hearing.
No. 13AP-319                                                                                6

granting of the motion.' " State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, ¶ 14,
quoting Smith at paragraph three of the syllabus.
       {¶ 15} Appellant entered his guilty plea on June 3, 2009 and did not file his
motion to withdraw until December 12, 2012, 3 1/2 years later. This is the delay the trial
court considered in its decision. Appellant argues that the delay in filing his motion
should not start to run from the day he entered his plea because the "occurrence of the
alleged cause for withdrawal" happened in March 2012 when he learned that he would be
deported as a result of his plea. Therefore, he argues that the delay in filing his motion
was only nine months. We disagree.
       {¶ 16} On June 3, 2009, the day appellant entered his guilty plea, the trial court
advised him that "because you are not a citizen of the United States, that there may be the
consequence of your being deported, being excluded from admission to the U.S. or being
denied naturalization as a citizen." (Tr. 6.) Appellant answered that he understood that
fact. Additionally, trial counsel noted at the plea hearing that appellant "obviously has
worse potential consequences coming up. He's been here for the past 30 years with little
or no record, and I think he is at this point just praying to stay." (Tr. 9.) Appellant then
received a "Notice to Appear" from the U.S. Department of Homeland Security dated
June 4, 2009 which notified him that he was subject to removal from the country because
of this conviction. The trial court did not err when it calculated appellant's delay in filing
his motion based upon when appellant learned that deportation was a possible
consequence of his guilty plea, and not when he subsequently learned that he would
actually be deported. State v. Garcia, 10th Dist. No. 08AP-224, 2008-Ohio-6421, ¶ 15
(delay begins from time defendant learned of possible deportation consequence at plea
hearing and after receiving notice of hearing from federal government); State v.
Abukhalil, 8th Dist. No. 97129, 2012-Ohio-1639, ¶ 17-19, citing State v. Villafuerte, 8th
Dist. No. 90367, 2008-Ohio-5587, ¶ 16 (delay runs from time defendant learns of
deportation as a possible consequence); State v. Pineda, 8th Dist. No. 86116, 2005-Ohio-
6386, ¶ 30 (delay runs from notice of deportation, not when actually deported). We
overrule appellant's second assignment of error.
No. 13AP-319                                                                            7

III. Conclusion
      {¶ 17} The trial court did not abuse its discretion by denying appellant's motion to
withdraw guilty plea. Accordingly, we overrule appellant's two assignments of error and
affirm the judgment of the Franklin County Court of Common Pleas.
                                                                     Judgment affirmed.

                          TYACK and CONNOR, JJ., concur.
