[Cite as State v. Cardenas, 2016-Ohio-5537.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      DARKE COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 2015-CA-16
                                                     :
 v.                                                  :   Trial Court Case No. 2011-CR-58
                                                     :
 SEBASTIAN CARDENAS                                  :   (Criminal Appeal from
                                                     :   Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

                            Rendered on the 26th day of August, 2016.

                                                ...........

DEBORAH S. QUIGLEY, Atty. Reg. No. 0055455, Assistant Darke County Prosecuting
Attorney, 504 South Broadway Street, Greenville, Ohio 45331
       Attorney for Plaintiff-Appellee

KAREN D. BRADLEY, Atty. Reg. No. 0066141, 300 College Park, Dayton, Ohio 45469
    Attorney for Defendant-Appellant

                                               .............




WELBAUM, J.
                                                                                        -2-




          {¶ 1} Defendant-appellant, Sebastian Cardenas, appeals from the judgment of the

Darke County Court of Common Pleas overruling his motion to withdraw his guilty plea.

For the reasons outlined below, the judgment of the trial court will be affirmed.



                            I. Facts and Course of Proceedings

          {¶ 2} Cardenas is a 61-year-old Mexican citizen who has been a lawful, permanent

resident of the United States since 1989. He has a wife and three children who are all

United States citizens. Cardenas and his family have lived in Ansonia, Darke County,

Ohio, since approximately 2006.

          {¶ 3} On February 25, 2011, the Darke County Grand Jury indicted Cardenas on

two counts of trafficking cocaine in an amount exceeding five grams but less than ten

grams, both felonies of the fourth degree, as well as one fifth-degree-felony count of

trafficking cocaine, all in violation of R.C. 2925.03(A)(1). Although he initially pled not

guilty to the charges, on April 21, 2011, Cardenas entered into a plea agreement and pled

guilty to the two fourth-degree felony trafficking charges. In exchange for his plea, the

State dismissed the fifth-degree felony trafficking charge and agreed to not oppose a

presentence investigation. As part of the agreement, Cardenas also agreed to pay $375

to the Miami Valley Regional Crime Laboratory and $875 to the Darke County Sheriff’s

Office.

          {¶ 4} Following Cardenas’s plea, on May 31, 2011, the trial court imposed a nine-

month prison term for each of Cardenas’s trafficking offenses. The trial court ordered

Cardenas’s prison terms to run concurrently for a total term of nine months in prison.
                                                                                       -3-


The trial court also ordered Cardenas to pay the restitution that was agreed upon by the

parties.

       {¶ 5} On March 30, 2015, three years after he had already completed his prison

sentence, Cardenas filed a motion with the trial court seeking to withdraw and vacate his

guilty plea. In the motion, Cardenas argued that the trial court did not properly advise

him at the plea hearing of the potential consequences his guilty plea would have on his

immigration status as required by R.C. 2943.031.        Cardenas also argued that he

received ineffective assistance of counsel when his former attorney failed to properly

inform him of the possibility of deportation.    In support of these claims, Cardenas

attached his own affidavit claiming he did not understand the deportation consequences

of entering his plea, as well as an affidavit from his former attorney who claimed that he

did not discuss the possibility of deportation with Cardenas. Cardenas also alleged that

he would not have pled guilty had he known that he would be subject to deportation.

       {¶ 6} In addition to these claims, Cardenas further alleged in his affidavit that

approximately two weeks after his sentencing hearing he received a notice from the

Department of Homeland Security (“DHS”) notifying him that he was charged with

removability and could be deported under the Immigration and Nationality Act as a result

of his conviction. According to Cardenas’s affidavit, this was the first time he became

aware that he could be deported and understood the serious nature of his plea.

       {¶ 7} Cardenas also averred that on June 12, 2013, the immigration court ordered

him to be deported and he provided supporting documentation to that effect.           The

affidavit and documentation further indicated that Cardenas appealed the order of

deportation, which the Board of Immigration Appeals affirmed on August 25, 2014.
                                                                                         -4-


Cardenas claims he then appealed to the United States Sixth Circuit Court of Appeals on

September 23, 2014. Cardenas filed his motion to withdraw guilty plea while the Sixth

Circuit appeal was pending. According to Cardenas, the Sixth Circuit ultimately denied

his petition on September 10, 2015.

       {¶ 8} While the Sixth Circuit appeal was pending, on April 9, 2015, the trial court

held a hearing on Cardenas’s motion to withdraw guilty plea. Cardenas and his former

attorney appeared and testified at the hearing.        Cardenas testified that his former

attorney never discussed the potential for deportation if he pled guilty.         However,

Cardenas testified that the trial court advised him of the possibility of deportation at the

plea hearing and that he fully understood that he could be deported, but did not think he

would be because his attorney said he “probably wouldn’t have any problems.” Hearing

Trans. (Apr. 9, 2015), p. 32.

       {¶ 9} In addition to this testimony, Cardenas’s former attorney testified that he did

not research whether Cardenas’s guilty plea would have immigration consequences and

did not explain to Cardenas that pleading guilty would subject him to deportation. The

attorney testified that he advised Cardenas that he would not be deported based on his

status as a lawful, permanent resident. His attorney also acknowledged that the trial

court advised Cardenas of the deportation consequences at the plea hearing and that

Cardenas was aware of the advisement. Additionally, Cardenas’s attorney claimed that

Cardenas did not ask him any questions about the trial court’s deportation advisement

and never asked him to withdraw his plea thereafter.

       {¶ 10} During the hearing, both Cardenas and his former attorney also testified to

an alleged language barrier that they claim contributed to Cardenas’s misunderstanding.
                                                                                            -5-


Cardenas’s attorney testified that Cardenas “didn’t really understand English” and that he

used Cardenas’s wife and daughter as interpreters during their meetings. Id. at 15.

Cardenas testified that Spanish is his “best” language and that his proficiency at English

is about 40 percent; however, he admitted to speaking some English at home with his

family. While Cardenas requested an interpreter for the motion hearing, he testified that

he did not request an interpreter for the plea hearing because he planned on using his

daughter as an interpreter, which the court did not allow.

       {¶ 11} On May 8, 2015, following the hearing on Cardenas’s motion to withdraw

guilty plea, Cardenas filed a post-hearing memorandum in support of his motion. In the

memorandum, Cardenas conceded that the trial court provided a warning at the plea

hearing that substantially complied with the advisement in R.C. 2943.031(A) and that he

understood the advisement. Cardenas also clarified that he was not challenging the

court’s explanation of the warnings in R.C. 2943.031(A), but rather his former attorney’s

failure to research the immigration-related consequences of his guilty plea and failure to

advise him that deportation was a possibility.

       {¶ 12} Three weeks later, on May 29, 2015, the trial court issued a written decision

denying Cardenas’s motion to withdraw guilty plea on grounds that: (1) the motion was

untimely; (2) the motion was barred by res judicata; (3) no language impediment existed

that kept Cardenas from understanding the deportation consequences of his plea; and

(4) Cardenas failed to demonstrate a manifest injustice through ineffective assistance of

counsel because his trial counsel did not provide deficient performance and Cardenas

suffered no prejudice. In so holding, the trial court noted that Cardenas was “gracious

to concede that the [trial court’s] non-literal reading of R.C. 2943.031 was * * * an effective
                                                                                        -6-


communication of the rights and notices contained therein” and that Cardenas “agreed

that he understood the inquiry by the Court.” Judgment Entry Overruling Defendant’s

Motion to Withdraw Plea (May 29, 2015), Darke County Court of Common Pleas Case

No. 2011-CR-58, Docket No. 31, p. 12.

        {¶ 13} Cardenas now appeals from the trial court’s decision denying his motion to

withdraw guilty plea, raising four arguments for our review. Although not designated as

assignments of error, Cardenas’s four arguments are summarized as follows:

        1.     The motion to withdraw guilty plea should have been granted

               because the trial court failed to substantially comply with the

               statutorily required advisements to noncitizens contained in R.C.

               2943.031(A).

        2.     The trial court erred in finding the motion to withdraw guilty plea

               untimely.

        3.     The motion to withdraw guilty plea should have been granted based

               on ineffective assistance of trial counsel.

        4.     Res judicata does not bar the trial court from ruling on the motion to

               withdraw guilty plea.1



                                II. Law and Analysis

        {¶ 14} As a preliminary matter, we note that Cardenas’s motion to withdraw guilty

plea sought to withdraw his plea based on both R.C. 2943.031 and Crim.R. 32.1.

“Criminal defendants who are not United States citizens are permitted to withdraw a guilty


1   We reordered Cardenas’s arguments for purposes of clarity.
                                                                                       -7-


plea in two distinct ways: (1) upon the finding that they were not given the warning

required by R.C. 2943.031(A)(1) (and that the court was not relieved of that requirement

under R.C. 2943.031(B)) of the potential consequences to their resident status in the

United States when they pled guilty to criminal charges (among other related

requirements contained in R.C. 2943.031(D)), or (2) when a court finds, pursuant to

Crim.R. 32.1, that it is necessary to correct manifest injustice.” (Footnotes omitted.)

State v. Toyloy, 10th Dist. Franklin No. 14AP-463, 2015-Ohio-1618, ¶ 12.

      {¶ 15} Section (F) of R.C. 2943.031 “clarifies that the statute does not prevent a

trial court from granting a plea withdrawal under the procedural rule, Crim.R. 32.1.” Id.

Thus, R.C. 2943.031 provides “an independent means of withdrawing a guilty plea

separate and apart from and in addition to the requirements of Crim.R. 32.1.” State v.

Weber, 125 Ohio App.3d 120, 129, 707 N.E.2d 1178 (10th Dist.1997). Accordingly,

when a motion to withdraw plea is premised under R.C. 2943.031(D), the usual “manifest

injustice” standard applied to Crim.R. 32.1 motions does not apply; rather, the standards

in R.C. 2943.031 apply. State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820

N.E.2d 355, ¶ 26.

      {¶ 16} However, regardless of whether the motion to withdraw plea is based on

R.C. 2943.031 or Crim.R. 32.1, an appellate court reviews a trial court’s decision on the

motion under an abuse of discretion standard. Id. at ¶ 32. Generally, “[a] trial court

abuses its discretion when it makes a decision that is unreasonable, unconscionable, or

arbitrary.” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34,

citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). The exercise of

discretion for motions based on R.C. 2943.031 applies to the trial court’s decision on
                                                                                        -8-


whether the elements in section (D) of the statute have been established while

considering other factors such as timeliness. Francis at ¶ 34.



                  1. Substantial Compliance with R.C. 2943.031(A)

      {¶ 17} Under his first claim, Cardenas contends the trial court abused its discretion

in overruling his motion to withdraw guilty plea because the trial court failed to comply

with R.C. 2943.031(A) by not properly advising him of the possible immigration-related

consequences of pleading guilty during the plea hearing. We disagree.

      {¶ 18} Section (A) of R.C. 2943.031 provides the advisement a trial court is

required to give prior to accepting a plea from an offender who is not a citizen of the

United States. That section of the statute provides as follows:

             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
                                                                                      -9-


      the laws of the United States.”

R.C. 2943.031(A).

      {¶ 19} Even though R.C. 2943.031(A) supplies specific language for the trial court

to use in warning a defendant of the possible immigration consequences of pleading

guilty, the Supreme Court of Ohio has held that only substantial compliance with the

statute is necessary. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355 at

¶ 46. Specifically, the Supreme Court held that:

             [I]f some warning of immigration-related consequences was given at

      the time a noncitizen defendant’s plea was accepted, but the warning was

      not a verbatim recital of the language in R.C. 2943.031(A), a trial court

      considering the defendant’s motion to withdraw the plea under R.C.

      2943.031(D) must exercise its discretion in determining whether the trial

      court that accepted the plea substantially complied with R.C. 2943.031(A).

      “Substantial compliance means that under the totality of the circumstances

      the defendant subjectively understands the implications of his plea and the

      rights he is waiving. * * * The test is whether the plea would have otherwise

      been made.” [State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474

      (1990)]; see, also, [State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415,

      814 N.E.2d 51, ¶ 12].

Francis at ¶ 48.

      {¶ 20} Section (D) of R.C. 2943.031 details the consequences of a trial court’s

failure to comply with the advisement in section (A). Upon such a failure, the statute

requires the court to set aside the judgment and permit the defendant to withdraw his or
                                                                                            -10-


her plea. R.C. 2943.031(D) provides that:

               Upon motion of the defendant, the court shall set aside the judgment

        and permit the defendant to withdraw a plea of guilty or no contest and enter

        a plea of not guilty or not guilty by reason of insanity, if, after the effective

        date of this section, the court fails to provide the defendant the advisement

        described in division (A) of this section, the advisement is required by that

        division, and the defendant shows that he is not a citizen of the United

        States and that the conviction of the offense to which he pleaded guilty or

        no contest may result in his being subject to deportation, exclusion from

        admission to the United States, or denial of naturalization pursuant to the

        laws of the United States.

        {¶ 21} “The clear and unambiguous language of subsection (D) of the statute

requires the trial court to set aside a conviction and allow the defendant to withdraw his

guilty plea if the following four requirements are met: ‘1) the court failed to provide the

advisement described in the statute; 2) the advisement was required to be given; 3) the

defendant is not a citizen of the United States, and 4) the offense to which the defendant

pled guilty may result in the defendant being subject to deportation, exclusion, or denial

of naturalization under federal immigration laws.’ ” State v. Ayupov, 2d Dist. Montgomery

No. 21621, 2007-Ohio-2347, ¶ 12, quoting Weber, 125 Ohio App.3d at 126, 707 N.E.2d

1178.

        {¶ 22} Cardenas contends the trial court failed to substantially comply with the

advisement required by R.C. 2943.031(A) because he claims, at the plea hearing, the

court simply advised that he could be deported, but did not mention the other immigration-
                                                                                           -11-

related consequences of his guilty plea. In support of his claim, Cardenas cites to State

v. Hernandez-Medina, 2d Dist. Clark No. 06CA0131, 2008-Ohio-418, a case in which we

held that the trial court did not substantially comply with the statutory advisement because

the court failed to mention two out of the three separate distinct consequences set forth

in the advisement, i.e., that the defendant’s guilty plea might result in exclusion from

admission to the United States or denial of naturalization. Id. at ¶ 30.

       {¶ 23} In the present case, we are unable to determine what exactly the trial court

said to Cardenas at the plea hearing because Cardenas failed to file a transcript of the

hearing. However, it appears as though a transcript of the hearing exists because both

parties cited to it in either their appellate brief or memoranda filed with the trial court. In

fact, the State specifically cited to it while discussing the trial court’s alleged deportation

advisement.

       {¶ 24} R.C. 2943.031(E) instructs 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.” Here, it is questionable whether there is an “absence of a record that the

court provided the advisement” since it appears as though a record of the trial court’s

advisement exists, but was simply not provided to this court. This is in contrast to cases

where the defendant claims no record exists or the parties stipulate that the proceedings

were never transcribed. See, e.g., Cleveland Heights v. Roland, 197 Ohio App.3d 661,

2012-Ohio-170, 968 N.E.2d 564, ¶ 14, 19; State v. Lovano, 8th Dist. Cuyahoga No.

100578, 2014-Ohio-3418, ¶ 2,10. Applying R.C. 2943.031(E) to the circumstances in

this case may encourage appellants to not provide appellate courts with the portions of
                                                                                         -12-


the record that contain the trial court’s advisement.

       {¶ 25} Nevertheless, we need not grapple with R.C. 2943.031(E) because

regardless of the missing plea hearing transcript, the fact remains that Cardenas

conceded during the lower-court proceedings that the trial court’s advisement at the plea

hearing substantially complied with R.C. 2943.031(A) and that he understood the

advisement. See Defendant’s Post-Hearing Memorandum (May 8, 2015), Darke County

Court of Common Pleas Case No. 2011 CR 00058, Docket No. 29, p. 2, 6. As a result

of this concession, the trial court did not specifically analyze the substantial compliance

issue in its decision, but merely noted that Cardenas conceded that the trial court’s

advisement effectively communicated the rights and notices contained in the statute.

Accordingly, the issue of substantial compliance with the advisement in R.C. 2943.031(A)

was waived by Cardenas and is not properly before this court. See State v. Willis, 12th

Dist. Butler No. CA2012-08-155, 2013-Ohio-2391, ¶ 16-17, citing State v. McMullen, 12th

Dist. Butler No. CA2009-09-235, 2010-Ohio-3369, ¶ 20-23 (finding an issue is waived for

appeal when a defendant raises the issue in his written motion, but then later concedes

at the motion hearing that he is no longer raising that issue); State v. Robinson, 7th Dist.

Mahoning No. 94-CA-42, 1998 WL 404216, * 3 (July 10, 1998) (finding the appellant

cannot appeal a conceded issue).

       {¶ 26} Cardena’s first argument is overruled.



            2. Timeliness of Cardenas’s Motion to Withdraw Guilty Plea

       {¶ 27} Under his second claim, Cardenas contends the trial court abused its

discretion in finding that his motion to withdraw guilty plea was untimely filed. We again
                                                                                         -13-


disagree.

       {¶ 28} The timeliness of a motion to withdraw guilty plea is a factor that should be

taken into account when determining whether it is appropriate to afford relief under R.C.

2943.031(D). Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355 at ¶ 40.

“The more time that passes between the defendant’s plea and the filing of the motion to

withdraw it, the more probable it is that evidence will become stale and that witnesses will

be unavailable.” Id. “It is certainly reasonable to require a criminal defendant who

seeks to withdraw a plea to do so in a timely fashion rather than delaying for an

unreasonable length of time.” Id. However, “[t]his is not a situation that requires a

bright-line rule. As one of many factors underlying the trial court’s exercise of discretion

in considering the motion to withdraw, timeliness of the motion will be of different

importance in each case, depending on the specific facts.” Id. at ¶ 42.

       {¶ 29} The timeliness of a motion to withdraw guilty plea may also be considered

when determining whether a defendant may withdraw his or her plea pursuant to Crim.R.

32.1. While Crim.R. 32.1 does not prescribe a time limitation, 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 granting of the motion.’ ” State v. Bush, 96 Ohio St.3d 235, 2002-

Ohio-3993, 773 N.E.2d 522, ¶ 14, quoting State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d

1324 (1977), paragraph three of the syllabus.

       {¶ 30} In Ayupov, 2d Dist. Montgomery No. 21621, 2007-Ohio-2347, the defendant

filed his motion to withdraw guilty plea 14 months after first discovering that his

immigration status was at risk because of his conviction. Id. at ¶ 16. We held that the
                                                                                         -14-


14-month delay was reasonable since the defendant had to retain new counsel and obtain

the video from his plea hearing to complete the record. Id.

       {¶ 31} In State v. Huang, 8th Dist. Cuyahoga No. 99945, 2014-Ohio-1511, the

defendant was convicted of a domestic violence charge in 2001 following a no contest

plea and then was contacted by immigration authorities in 2004 regarding a removal

hearing.   Id. at ¶ 3-4.   The removal hearing was canceled and the defendant was

subsequently convicted of additional felony charges in 2009. Id. at ¶ 4. In 2011 and

2012, the defendant again received notices regarding deportation proceedings resulting

from his criminal history.   Id.   In December 2012, the defendant filed a motion to

withdraw his 2001 no contest plea on the basis of ineffective assistance of counsel for

counsel’s failure to advise him of the immigration-related consequences of his plea. Id.

at ¶ 1, 5. In considering the defendant’s claim, the Eighth District found his 2012 motion

to withdraw guilty plea untimely. Id. at ¶ 16. The court held that the 2004 notice “alone

should have put Huang on notice that his legal issues were compromising his ability to

lawfully remain in the United States. Yet, despite this warning, Huang did not make any

effort to withdraw his no contest plea. It was only after his 2009 conviction for menacing

by stalking, followed by his receipt of the removal letters in 2011 and 2012, that Huang

decided to revisit his 2001 no contest plea.” Id.

       {¶ 32} Similarly, in State v. Abukhalil, 8th Dist. Cuyahoga No. 97129, 2012-Ohio-

1639, the Eighth District held that a seven-year delay in filing a motion to withdraw guilty

plea was unreasonable. The defendant in that case filed an affidavit stating that he did

not understand the immigration consequences of his plea until he was ordered to be

deported from the United States, which occurred eight months after entering his guilty
                                                                                          -15-

plea. Id. at ¶ 19. Because he filed his motion to withdraw guilty plea seven years after

that and provided no explanation for the delay, the court found the motion untimely. Id.

       {¶ 33} However, in State v. Sibai, 8th Dist. Cuyahoga No. 84407, 2005-Ohio-2730,

the Eighth District determined that a defendant’s nine-year delay in filing a motion to

withdraw guilty plea was reasonable. The defendant in that case entered his plea in

1995 and did not seek to withdraw it until 2004. Id. at ¶ 10. The defendant got married

in 1997 and reported to the immigration office in order to change his status from “political

asylum” to “married.” At that time, the defendant told the immigration officer about his

felony and the officer instructed him to file a “waiver of his felony,” in which he indicated

he was the sole supporter of his family. Id. The waiver was never ruled on; yet, every

year, the defendant’s work permit was renewed. Id. In 2002, the defendant was notified

that all non-citizens were required to register with the Immigration Department, which the

defendant did. Id. Thereafter, he was arrested and told he was to be deported. Id.

The defendant’s motion to withdraw guilty plea was considered timely by the Eighth

District because the defendant was not notified that he was to be deported until

approximately 12 to 18 months prior to filing the motion. Id. at ¶ 12.

       {¶ 34} In the present case, Cardenas was convicted and sentenced on May 31,

2011, and he completed his prison sentence sometime in February 2012. Approximately

two weeks after his conviction, in June 2011, the DHS issued a notice advising him that

he could be deported under the Immigration and Nationality Act as a result of his

conviction. Cardenas averred in his affidavit attached to his motion to withdraw guilty

plea that upon receiving that notice, he understood for the first time that he could actually

be deported. Cardenas secured an immigration attorney 17 months later in November
                                                                                           -16-


2012, and was ordered deported on June 12, 2013, a decision which he appealed.

Cardenas, however, waited until March 30, 2015, almost four years after receiving the

DHS notice, two and half years after obtaining an immigration attorney, and almost two

years after he was ordered deported, before filing his motion to withdraw guilty plea.

       {¶ 35} We find the facts of this case to be more akin to the facts in Abukhalil and

Huang and distinguishable from those in Sibai. Cardenas’s four-year delay in filing his

motion to withdraw guilty plea is also in stark contrast to the 14-month delay in Ayupov.

Although Cardenas was in the process of appealing the immigration court’s deportation

decision and hoped to obtain relief through that system, under the specific circumstances

of this case, the trial court did not abuse its discretion in finding that Cardenas’s delay in

filing his motion to withdraw guilty plea was unreasonable.

       {¶ 36} Cardenas’s second argument is overruled.



                          3. Ineffective Assistance of Counsel

       {¶ 37} Under his third claim, Cardenas contends he should have been permitted

to withdraw his guilty plea on the basis of ineffective assistance of counsel because his

former attorney failed to properly advise him that he could be deported as a result of

pleading guilty. This claim was brought pursuant to Crim.R. 32.1, which provides that

“[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.” As a result,

because Cardenas moved to withdraw his plea after sentencing, the trial court was

required to determine whether granting the motion would correct a manifest injustice.
                                                                                          -17-


       {¶ 38} It is well established that “[i]neffective assistance of counsel can constitute

manifest injustice sufficient to allow the post-sentence withdrawal of a guilty plea.” State

v. Banks, 2d Dist. Montgomery No. 25188, 2013-Ohio-2116, ¶ 9, citing State v. Dalton,

153 Ohio App.3d 286, 2003-Ohio-3813, 793 N.E.2d 509, ¶ 18 (10th Dist.). To establish

a claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged

test in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984).   The defendant must show that (1) defense counsel’s performance was so

deficient that he was not functioning as the counsel guaranteed under the Sixth

Amendment to the United States Constitution, and (2) that defense counsel’s errors

prejudiced the defendant. Id. The failure to make either showing defeats a claim of

ineffectiveness of trial counsel. Id.

       {¶ 39} With respect to the first prong, deficient performance, it has been held that

“[a] defense attorney has a duty to advise a noncitizen client that ‘pending criminal

charges may carry a risk of adverse immigration consequences,’ and, if it is ‘truly clear’

what those consequences are, counsel must correctly advise the defendant of the

consequences.” State v. Galdamez, 2015-Ohio-3681, 41 N.E.3d 467, ¶ 16 (10th Dist.),

quoting Padilla v. Kentucky, 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

“A defense attorney's failure to advise their client accordingly satisfies the first prong of

Strickland, as it constitutes deficient performance.” Id. Accord State v. Ayesta, 8th Dist.

Cuyahoga No. 101383, 2015-Ohio-1695, ¶ 15, citing Padilla at 373-374 (providing

misadvice about immigration consequences or failing to advise at all of potential

deportation consequences associated with a plea satisfies the first prong of Strickland).

       {¶ 40} In this case, Cardenas’s former attorney testified and provided an affidavit
                                                                                       -18-


averring that he did not advise Cardenas that he may be subject to deportation.

However, counsel also testified that he told Cardenas he would not be deported as a

result of his status as a lawful, permanent resident. Cardenas testified that his former

attorney never discussed the potential for deportation with him. However, Cardenas also

testified that his attorney told him he “probably wouldn’t have any problems” with respect

to deportation. Hearing Trans. (Apr. 9, 2015), p. 32. Based on the evidence of record,

we find that Cardenas’s trial counsel rendered deficient performance in either failing to

advise or misadvising Cardenas on the possible deportation consequences of his plea,

thus satisfying the first prong of the Strickland test.

       {¶ 41} With respect to the second prong of the Strickland test, a defendant may

demonstrate prejudice from entering a guilty plea by demonstrating that “ ‘there is a

reasonable probability that but for counsel’s errors, he would not have pleaded guilty.’ ”

State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992), quoting Hill v. Lockhart, 474

U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In the specific context of a defense

counsel failing to advise a defendant of the potential immigration consequences of

entering a plea, the United States Supreme Court has held that a defendant demonstrates

prejudice by convincing “the court that a decision to reject the plea bargain would have

been rational under the circumstances.” Padilla, 559 U.S. 372, 130 S.Ct. 1473, 176

L.Ed.2d 284. Accord Galdamez at ¶ 17.

       {¶ 42} In undergoing the rationality analysis, the Tenth District in Galdamez took

certain factors into consideration, including: (1) whether the timing of the defendant’s

motion to withdraw plea bolsters his assertion that he would not have entered the plea

had he received competent advice from counsel; (2) whether a guilty plea automatically
                                                                                          -19-


subjects the defendant to deportation, thus making it rational for a defendant to take his

chances at trial rather than subject himself to automatic deportation; and (3) the likeliness

of a favorable outcome at trial had the defendant not pled guilty, as it would not be rational

for a defendant to forgo a plea bargain and go to trial if a defendant faces overwhelming

evidence of his guilt. Galdamez, 2015-Ohio-3681, 41 N.E.3d 467 at ¶ 37-42.

       {¶ 43} As to the timing of Cardenas’s motion to withdraw guilty plea, we have

already determined that the delay in filing his motion is unreasonable. Accordingly, the

delay does not weigh in favor of withdrawing his plea nor bolster his assertion that he

would not have pled guilty had he received competent advice from his former attorney.

This is particularly true here considering Cardenas admitted that he fully understood that

he could be deported once he received the June 2011 DHS notice, yet waited almost four

years after that to file his motion to withdraw guilty plea.

       {¶ 44} The second factor—whether Cardenas would automatically be subject to

deportation as a result of his plea—however, supports finding that he would not have

otherwise entered his guilty plea had his counsel not rendered deficient performance.

The record indicates that the DHS notified Cardenas that he was subject to deportation

under sections 237(a)(2)(A)(iii) and 237(a)(2)(B)(i) of the Immigration and Nationality Act,

which are codified in the United States Code as 8 U.S.C.A. §1227(a)(2)(A)(iii), and 8

U.S.C.A. §1227(a)(2)(B)(i). Section 1227(a)(2)(A)(iii) provides that “[a]ny alien who is

convicted of an aggravated felony at any time after admission is deportable.” Likewise,

Section 1227(a)(2)(B)(i) provides that “[a]ny 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
                                                                                           -20-


involving possession for one’s own use of 30 grams or less of marijuana, is deportable.”

       {¶ 45} We note that an “aggravated felony” includes “illicit trafficking in a controlled

substance * * * including a drug trafficking crime * * *.” 8 U.S.C.A. § 1101(a)(43)(B). A

“controlled substance” is defined as “a drug or other substance, or immediate precursor,

included in schedule I, II, III, IV, or V of part B of this subchapter.” 21 U.S.C.A. § 802(6).

Pursuant to 21 U.S.C.A. § 812(c), cocaine is a schedule II controlled substance.

Therefore, Cardenas’s conviction for trafficking between five and ten grams of cocaine

qualifies as an “aggravated felony.”

       {¶ 46} While the use of the word “deportable” in the aforementioned code

provisions indicates that deportation is not a certainty or immediate, in analyzing the same

term in a similar provision of the United States Code, the Eighth District Court of Appeals

explained that:

       While the word “deportable,” in its most literal interpretation, means “able to

       be deported,” as the United States Supreme Court has recognized, the

       practical result of such a conviction is that the alien almost always will be

       deported. See Padilla at 360-364 (explaining how federal law has changed

       since the 1990s and stating that “[u]nder contemporary law, if a noncitizen

       has committed a removable offense * * * his removal is practically inevitable

       but for the possible exercise of limited remnants of equitable discretion

       vested in the Attorney General to cancel removal for noncitizens convicted

       of particular classes of offenses. See 8 U.S.C. 1229b.” Courts have been

       describing the level of certainty of deportation for deportable offenses as

       “virtually automatic” and “unavoidable,” United States v. Couto, 311 F.3d
                                                                                           -21-

       179, 184 (2d Cir.2002), “certain,” INS v. St. Cyr, 533 U.S. 289, 121 S.Ct.

       2271, 150 L.Ed.2d 347, 325 (2001), and “presumptively mandatory,”

       Hernandez v. State, 124 So.3d 757, 763 (Fla.2012).

Ayesta, 8th Dist. Cuyahoga No. 101383, 2015-Ohio-1695 at ¶ 7.

       {¶ 47} Based on the prevailing view, we find that it would be reasonable to believe

that Cardenas, a lawful, permanent resident of the United States for 27 years with a wife

and three children who are all United States citizens, would likely have taken his chance

at trial rather than risk the high likelihood of being deported and separated from his family.

Cardenas averred the same in his affidavit. Thus, in that respect, it would have been

rational for Cardenas to reject the plea offer had he known he would likely be deported

once convicted.

       {¶ 48} However, the third factor of considering the outcome of trial does not weigh

in Cardenas’s favor. While the plea and sentencing hearing transcripts were not filed in

this appeal, the record nevertheless includes a motion filed by the State requesting the

release of $675 held by the Darke County Sheriff’s Office that gives insight into the

circumstances underlying the charges against Cardenas.           The motion indicates that

Cardenas’s trafficking charges stemmed from a search warrant that was executed at his

home after the Darke County Drug Task Force engaged in several controlled drug

purchases at his residence. Based on this information, it is reasonable to assume that

the State had a strong case against Cardenas. Furthermore, there is nothing in the

record indicating that Cardenas had a defense to the trafficking charges. Accordingly,

the record indicates that a favorable outcome at trial would have been highly unlikely,

thus making the decision to reject a plea agreement irrational.
                                                                                       -22-


      {¶ 49} We also note that while Ohio courts have previously held that a trial court’s

proper advisement under R.C. 2943.031 cures the prejudice resulting from an attorney’s

deficient performance, more recently, Ohio courts and federal courts have begun to back

away from that principle and are holding that a proper advisement may preclude a finding

of prejudice. Galdamez, 2015-Ohio-3681, 41 N.E.3d 467 at ¶ 25; Ayesta, 8th Dist.

Cuyahoga No. 101383, 2015-Ohio-1695 at ¶ 20; State v. Yapp, 2015-Ohio-1654, 32

N.E.3d 996, ¶ 16 (8th Dist.); State v. Arrunategui, 9th Dist. Summit No. 26547, 2013-

Ohio-1525, ¶ 15; United States v. Batamula, 788 F.3d 166 (5th Cir.2015), rehearing en

banc granted, 805 F.3d 611 (5th Cir.2015), on rehearing en banc, 823 F.3d 237 (5th

Cir.2016); United States v. Kayode, 777 F.3d 719, 728-29 (5th Cir.2014) (while judicial

admonishments [regarding the possible deportation consequences of a plea] are not a

substitute for effective assistance of counsel, they are relevant under the second

Strickland prong in determining whether a defendant was prejudiced by counsel’s error).

As previously discussed, Cardenas conceded that the trial court in this case substantially

complied with the advisement in R.C. 2943.031(A), and while not determinative, this fact

weighs against a finding of prejudice.

      {¶ 50} Based on the foregoing analysis, we conclude that the trial court did not

abuse its discretion in finding no manifest miscarriage of justice with respect to

Cardenas’s ineffective assistance of counsel claim. Although the trial court incorrectly

found that Cardenas’s trial counsel did not render deficient performance, it correctly

determined that Cardenas failed to establish the prejudice prong of the Strickland

analysis, albeit for different reasons. See State v. Hall, 2d Dist. Miami No. 97 CA 22,

1997 WL 691509, *1 (Oct. 24, 1997), citing Newcomb v. Dredge, 105 Ohio App. 417, 152
                                                                                           -23-


N.E.2d 801 (2d Dist.1957) (“[i]f a trial court has stated an erroneous basis for its judgment,

an appellate court will affirm the judgment if it is legally correct on other grounds, that is,

when it achieves the right result for the wrong reasons”).

       {¶ 51} The unreasonable delay in filing his motion to withdraw guilty plea, the

unlikelihood of him succeeding at trial, and his professed understanding of the trial court’s

substantially compliant R.C. 2943.031 advisement does not support Cardenas’s claim

that he would not have accepted the plea agreement and entered a guilty plea had his

attorney correctly advised him that deportation was indeed a possibility. We find that the

strongest evidence to that effect is that Cardenas did not seek to withdraw his plea at a

reasonable time after he was notified by the DHS that he was subject to deportation.

       {¶ 52} Cardenas’s third argument is overruled.



                                      4. Res Judicata

       {¶ 53} Under his fourth claim, Cardenas contends the trial court erred in finding

that his motion to withdraw guilty plea was barred by the doctrine of res judicata. This

claim is moot because despite the trial court concluding that res judicata barred the

motion, the trial court still ruled on the merits of Cardenas’s motion to withdraw guilty plea

and properly overruled it.

       {¶ 54} Cardenas’s fourth argument is overruled.



                                       III. Conclusion

       {¶ 55} Having overruled all of Cardenas’s arguments, the judgment of the trial

court overruling Cardenas’s motion to withdraw guilty plea is affirmed.
                                                                                         -24-


                                   ...........

HALL, J., concurs.

DONOVAN, P.J., dissenting.

       {¶ 56} I respectfully dissent. Simply put, Cardenas was the victim of ineffective

assistance of counsel at every stage of the instant proceedings. Moreover, in view of

the totality of the circumstances surrounding Cardenas’ ill-advised guilty plea and

subsequent lengthy deportation proceedings, I find that the four-year delay in filing his

motion to withdraw his guilty plea was not unreasonable.

       {¶ 57} I agree with the majority that Attorney Finnarn’s failure to inform or

misadvising Cardenas that he would be subject to deportation if he pled to, and was

subsequently found guilty of three counts of trafficking constituted ineffective assistance.

At the hearing for Cardenas’ motion to withdraw his guilty pleas held on April 9, 2015,

Attorney Finnarn testified that he never discussed the possibility of deportation with the

defendant. Specifically, Finnarn testified that Cardenas was not subject to deportation

because he possessed a social security card, and he was disabled. Finnarn’s advice to

Cardenas that he “probably wouldn’t have any problems” regarding deportation is clearly

ineffective given Cardenas’ lack of knowledge with respect to the deportation process.

Thus, the first prong of Strickland is satisfied.

       {¶ 58} However, with respect to Strickland’s second prong, I believe that the

majority has incorrectly found that Cardenas was not prejudiced by Attorney Finnarn’s

concededly deficient counseling.          As a result of Attorney Finnarn’s deficient

performance, Cardenas pled guilty to the charges instead of exercising his constitutional

right to trial. Upon being found guilty after his pleas, Cardenas was subject to removal
                                                                                         -25-


proceedings. Cardenas asserts that, if he had received correct advice regarding the

consequences of his pleas, he would not have pled guilty, and would have taken his case

to trial. In determining prejudice, we must ask whether a decision to reject the plea would

have been rational under the circumstances. Padilla at 372, 130 S.Ct. 1473, 176 L.Ed. 2d

284. Here, Cardenas had nothing to lose and everything to gain by taking his case to

trial, especially in light of the fact that he was automatically subject to deportation upon

being found guilty. Galdamez, 2015-Ohio-3681, 41 N.E.3d 467, ¶ 39 (10th Dist.).

Cardenas has been a lawful, permanent resident of the United States since he was

married to a U.S. citizen and has a family. It is therefore reasonable to conclude that

Cardenas would have decided to take his chances at trial, rather than subject himself to

automatic deportation.

       {¶ 59} I’d also find that Cardenas’ four year delay in filing his motion to withdraw

was reasonable under the circumstances presented in the instant case.            First, it is

significant to note that R.C. 2943.031 provides no time limit regarding when a defendant

may file a motion to withdraw a guilty plea based upon their attorney’s failure to advise

him of the potential for deportation. State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-

6894, 820 N.E.2d 355.      However, even a considerable delay in filing the motion to

withdraw will not support a denial of said motion when the guilty plea will result in

immigration-related consequences which did not become evident for some time after the

plea was entered. State v. Khan, 2d Dist. Montgomery No. 21718, 2007-Ohio-4208, ¶ 39.

       {¶ 60} Here, Cardenas entered his pleas on April 21, 2011, and was sentenced to

an aggregate nine month sentence on May 31, 2011. While he was incarcerated, the

DHS issued a deportation notice to Cardenas on June 11, 2011.               Cardenas first
                                                                                        -26-


appeared before the immigration court on November 7, 2012. After a series of motions

and administrative hearings, the Board of Immigration Appeals (BIA), on August 24, 2014,

dismissed his appeal of the DHS’s decision ordering his deportation to Mexico.

Thereafter, Cardenas appealed the decision from the BIA in the Sixth Circuit Court of

Appeals in September of 2014. The Sixth Circuit granted a stay of the Immigration

Court’s removal order on December 18, 2014. While the appeal was pending in the Sixth

Circuit, Cardenas filed his motion to withdraw his guilty plea in the Darke County Court of

Common Pleas on March 30, 2015.

       {¶ 61} Simply put, Cardenas exhausted all of his administrative remedies before

pursuing the withdrawal of his plea.      Therefore, I cannot conclude that Cardenas’

conduct was dilatory. Once it became clear that his administrative path was foreclosed,

he quickly filed his motion to withdraw based upon the fact the he was not advised by the

trial court, or his admittedly deficient counsel, that he would be subject to automatic

deportation upon pleading guilty to the instant offenses. On these facts, the timing of

Cardenas’ motion to withdraw was reasonable and justified. Similar to the defendant in

Sibai, wherein the appellate court held that a ten-year delay was reasonable, Cardenas’

guilty pleas had significant immigration consequences that were not apparent until several

years after he entered his plea. Id. at 2005-Ohio-2730, ¶ 12-13.

       {¶ 62} Accordingly, I would reverse.

                                     .............
                        -27-




Copies mailed to:

Deborah S. Quigley
Karen D. Bradley
Hon. Jonathan P. Hein
