[Cite as State v. Ahmed, 2020-Ohio-4057.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                Plaintiff-Appellee,               :        No. 108548

                v.                                :

AMIR ABDI AHMED,                                  :

                Defendant-Appellant.              :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: REVERSED AND REMANDED
                RELEASED AND JOURNALIZED: August 13, 2020


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-12-560103-C


                                            Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Gregory J. Ochocki, Assistant Prosecuting
                Attorney, for appellee.

                Amato Law Office, L.P.A., and Joseph N. Phillips;
                Russell S. Bensing, for appellant.
ON RECONSIDERATION1

ANITA LASTER MAYS, J.:

               Pursuant to defendant-appellant’s Amir Abdi Ahmed (“Ahmed”),

App.R. 26 application for reconsideration, the opinion as announced on April 2,

2020, State v. Ahmed, 8th Dist. Cuyahoga No. 108548, 2020-Ohio-1279, is hereby

vacated and substituted with this opinion.

               Defendant-appellant Amir Abdi Ahmed (“Ahmed”) appeals the trial

court’s denial of Ahmed’s motion to withdraw his postsentence guilty plea, and asks

this court to vacate the plea. We reverse the judgment and remand to the trial court

for a hearing on the motion to determine if Ahmed’s trial counsel misadvised him

on the consequences of a guilty plea and how it would affect his immigration status.

               Ahmed pleaded guilty to attempted drug possession, a first-degree

misdemeanor, in violation of R.C. 2923.02 and 2925.11(A).             The trial court

sentenced him to pay a fine of $1,000.

I.    Facts and Procedural History

               On December 11, 2012, at Ahmed’s plea and sentencing hearing,

Ahmed pleaded guilty to attempted drug possession. The trial court asked Ahmed

if he was satisfied with his trial counsel’s representation, to which Ahmed replied

that he was very much satisfied. (Tr. 8.) Trial counsel also indicated to the court



      1 The original decision in this appeal, State v. Ahmed, 8th Dist. Cuyahoga
No. 108548, 2020-Ohio-1279, released on April 2, 2020, is hereby vacated. This opinion,
issued upon reconsideration, is the court’s journalized decision in this appeal. See
App.R 22(C); see also S.Ct. Prac.R. 7.01.
that Ahmed was aware of his constitutional rights even though the trial court would

later explain his rights. (Tr. 7.) The trial court stated,

      your attorney has already noted that you are not a U.S. citizen. I am
      required to advise you that since you are not a citizen of the United
      States, the offense — conviction of the offense to which you are
      pleading guilty may have the consequences of deportation from the
      United States, exclusion from admission to the United States, or
      denial of naturalization pursuant to the laws of the United States. You
      understand that?

(Tr. 10.)

Ahmed responded that he understood. Id.

               The trial court then stated, “[o]kay. By the way, I have no control over

what happens with that, that’s for the federal authorities to decide. * * * .” Id. Ahmed

entered a plea of guilty, and the trial court imposed a fine after Ahmed’s counsel

asked for a minimum sentence in order to look more favorable in his federal

immigration case. (Tr. 13-14.)

               On December 4, 2018, six years after Ahmed was sentenced, Ahmed

was served with a notice to appear in immigration court. Ahmed was informed that

removal proceedings had been initiated against him as a result of his misdemeanor

conviction and he was detained. Ahmed filed a motion to withdraw and vacate plea

with the trial court. The trial court denied Ahmed’s motion without a hearing.

Ahmed has remained in federal immigration custody since 2018, and filed this

appeal assigning one error for our review:

      I.     The trial court abused its discretion by denying Appellant’s
             motion to withdraw his previously entered guilty plea.
II.   Postsentence Guilty Plea Withdrawal

      A.    Standard of review

              Crim.R. 32.1 provides that “[a] motion to withdraw a plea of

guilty * * * 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.” “We review a trial court’s

decision to grant or deny a postsentence motion to withdraw a guilty plea pursuant

to Crim.R. 32.1 for abuse of discretion.” State v. Johnson, 8th Dist. Cuyahoga

No. 107617, 2019-Ohio-2332, ¶ 12 citing State v. Wilkey, 5th Dist. Muskingum

No. CT2005-0050, 2006-Ohio-3276, ¶ 21. “The term ‘abuse of discretion’ connotes

more than an error of law or judgment; it implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983).

      B.    Whether the Trial Court Abused its Discretion by Denying
            Appellant’s Crim.R. 32.1 Motion

              In Ahmed’s sole assignment of error, he contends that the trial court

erred when it denied his motion to withdraw his guilty plea, in accordance with

Crim.R. 32.1. Ahmed, who seeks to withdraw a plea of guilty after the imposition of

sentence, has the burden of establishing the existence of manifest injustice.

Richmond Hts. v. McEllen, 8th Dist. Cuyahoga No. 99281, 2013-Ohio-3151, ¶ 7,

citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of

the syllabus. “‘[M]anifest injustice’ comprehends a fundamental flaw in the path of
justice so extraordinary that the defendant could not have sought redress from the

resulting prejudice through another form of application reasonably available to him

or her.” State v. Sneed, 8th Dist. Cuyahoga No. 80902, 2002-Ohio-6502, ¶ 13.

               Ahmed argues that the manifest injustice occurred as a result of his

trial counsel’s representation. Ahmad contends that his trial counsel misadvised

him as to the state of law and how it could affect his future in the United States. As

a result, Ahmad pleaded guilty to the offense based on the belief that it would not

affect his immigration status. Ahmed reasons that he would not have pleaded guilty

in this matter had he known that he was facing mandatory deportation. “‘A claim of

ineffective assistance of counsel is waived by a guilty plea, except to the extent that

the ineffective assistance of counsel caused the defendant’s plea to be less than

knowing, intelligent, and voluntary.’” State v. Barnes, 8th Dist. Cuyahoga No.

104910, 2018-Ohio-86, ¶ 12, quoting State v. Vinson, 2016-Ohio-7604, 73 N.E.3d

1025, ¶ 30.

               Ahmed “can prevail only by demonstrating that there is a reasonable

probability that, but for counsel’s deficient performance, he would not have pleaded

guilty and would have insisted on going to trial.” State v. Williams, 8th Dist.

Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11, citing State v. Xie, 62 Ohio St.3d 521,

524, 584 N.E.2d 715 (1992); Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d

203 (1985). In addition, “[t]he requisite showing of manifest injustice must be based

on specific facts in the record or supplied through affidavits submitted with the
motion.” (Citation omitted.) State v. Norris, 8th Dist. Cuyahoga No. 107894, 2019-

Ohio-3768, ¶ 24.

              Ahmed cites the 2010 United States Supreme Court case Padilla v.

Kentucky, 559 U.S. at 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which held that

an attorney’s performance is deficient when he or she has failed, at a minimum, to

advise a noncitizen defendant-client that “pending criminal charges may carry a risk

of adverse immigration consequences.” An attorney’s performance is also deficient

when his or her advice regarding deportation issues, which are “easily determined

from reading the removal statute,” is incorrect. Id.

              Generally, the trial court’s abidance to Crim.R. 11 “raises a

presumption that the plea was voluntarily entered.” (Citations omitted.) Id. at ¶ 26,

citing State v. Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699,

¶ 10. Notably a “self-serving affidavit is generally insufficient to demonstrate

manifest injustice.” Id. The record demonstrating compliance with Crim.R. 11 has a

much greater probative value than a self-serving affidavit, and the record does

demonstrate that the trial court complied with Crim.R. 11. However, the record, in

addition to Ahmed’s claims, does not irrefutably demonstrate that Ahmed’s trial

counsel notified Ahmed of the immigration consequences associated with a guilty

plea regarding deportation.

              Ahmed contends that our decisions in State v. Ayesta, 8th Dist.

Cuyahoga No. 101383, 2015-Ohio-1695, and State v. Bozso, 8th Dist. Cuyahoga

No. 106149, 2018- Ohio-1750, are relevant here because the record in those cases
did not establish that the attorneys counseled the appellants about the effects of the

pleas on their immigration statuses. Recently, the Supreme Court of Ohio reversed

our decision in Bozso, and held that Bozso did not demonstrate that there is a

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

guilty. State v. Bozso, Slip Opinion No. 2020-Ohio-3779. However, in Bozso, the

trial court held a hearing to determine whether Bozso’s attorney advised him on his

immigration status. The trial court determined that Bozso did not receive ineffective

assistance of counsel. In this instance case, the trial court did not hold a hearing to

make that determination.

               Although the record demonstrates that Ahmed’s counsel was aware

of his immigration status, we agree that the record does not demonstrate that

Ahmed’s attorney counseled him about the effects of Ahmed’s guilty plea regarding

his immigration status as it relates to deportation. Counsel stated at the plea

hearing,

      [h]e has a federal case that’s pending, and I would ask the Court for
      sentencing purposes to give him a very minimum sentence if you could.
      I’m asking that because, one, of the green card situation that the Court
      indicated, and two, because of the point system that they have in
      Federal Court. If the Court would give him under 60 days, he would end
      up with one point or less. We would be very appreciative. We would
      appreciate that and place him on probation. I’m sure you won’t have a
      problem with him again. Thank you, your Honor.

(Tr. 12-13.)

               Upon receiving a notice to appear from the federal government and

learning that deportation proceeding had begun, Ahmed requested a hearing
pursuant to Crim.R. 32. The trial court denied Ahmed’s motion to withdraw his

pleas without holding a hearing. As in Ayesta, the trial court denied the appellant’s

request to withdraw his guilty plea without a hearing. In that case, this court stated,

       [w]hile we recognize that the trial court has discretion to determine the
       credibility of the affidavit, we note that the court did not voice any
       concerns regarding the truth of Ayesta’s contentions when it denied the
       motion without a hearing. Therefore, we conclude that the court denied
       the motion for other reasons: namely that Ayesta was advised by the
       trial court, in accordance with R.C. 2943.031, that he may be deported
       as a result of taking the plea.

Id. at ¶ 18.

               As in Ayesta, the record shows that at the plea hearing the trial court

properly advised Ahmed that pleading guilty may subject him to deportation, and

that Ahmed stated that he understood those consequences. However, it cannot be

said that the record, on its face, demonstrates that his trial counsel advised him of

the immigration consequence. Id. at ¶ 19. And in this case the consequences were

mandatory. Id.

               Ahmed has not necessarily demonstrated that his trial counsel’s

performance was deficient or that trial counsel failed, at a minimum, to advise

Ahmed that his pending criminal charges may carry a risk of adverse immigration

consequences. As previously stated, “‘[a] claim of ineffective assistance of counsel

is waived by a guilty plea, except to the extent that the ineffective assistance of

counsel caused the defendant’s plea to be less than knowing, intelligent, and

voluntary.’” State v. Barnes, 8th Dist. Cuyahoga No. 104910, 2018-Ohio-86, ¶ 12,

quoting State v. Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 30. “As Padilla
acknowledged, ‘immigration law can be complex,’ but there are times when it is

‘succinct and straightforward,’ and in those instances, defense counsel has the

responsibility to advise his or her client what the consequences of his or her plea will

be with respect to deportation. Id. at 369.” Bozso, 2018-Ohio-1750, 111 N.E.3d 786,

¶ 20 (8th Dist.).

               The trial court informed Ahmed of the effects of his guilty plea

regarding his immigration status. The trial court explained to Ahmed that his

immigration status may be affected by his guilty plea because he was not a citizen of

the United States, to which Ahmed replied that he understood. To ensure that a plea

to a misdemeanor charge is knowingly, intelligently, and voluntarily entered into, a

trial court must follow the dictates of Crim.R. 11(D). “In misdemeanor cases

involving serious offenses the court * * * shall not accept such plea without first

addressing the defendant personally and informing the defendant of the effect of the

pleas of guilty, * * * and determining that the defendant is making the plea

voluntarily.” Crim.R. 11(D). Crim.R. 2(C) provides that a “[s]erious offense means

any felony, and any misdemeanor for which the penalty prescribed by law includes

confinement for more than six months.”

               Ahmed bears the burden of demonstrating that a manifest injustice

occurred in the plea proceeding. State v. Sneed, 8th Dist. Cuyahoga No. 80902,

2002-Ohio-6502, ¶ 13 (a manifest injustice is “an extraordinary and fundamental

flaw in the plea proceeding”). In this case, Ahmed claims his trial counsel was

ineffective at the time he entered his plea, so he bears the burden of showing that
counsel’s performance led to a manifest injustice. State v. Bankston, 8th Dist.

Cuyahoga No. 92777, 2010-Ohio-1576 at ¶ 53. We determined that trial counsel

made the trial court aware of Ahmed’s citizenship status. However, we cannot

determine that Ahmed’s trial counsel informed Ahmed about the effects of his guilty

plea.   See, e.g., United States v. Urias-Marrufo, 744 F.3d 361, 368-369 (5th

Cir.2014) (“It is counsel’s duty, not the court’s, to warn of certain immigration

consequences, and counsel’s failure cannot be saved by a plea colloquy. Thus, it is

irrelevant that the magistrate judge asked [the defendant] whether she understood

that there might be immigration consequences and that she and her attorney had

discussed the possible adverse immigration consequences of pleading guilty.”

(Footnotes omitted)).

                Consistent with our decisions in Ayesta, we acknowledge that the

record does not otherwise indicate that Ahmed is not entitled to relief. Ayesta at

¶20. Thus, as the trial court’s advisement did not necessarily foreclose the

possibility of finding prejudice, we cannot conclude that the court’s properly giving

the advisement, alone, is a valid reason for denying a hearing on the motion when

Ahmed presented prima facie evidence of ineffective assistance, and we remand to

the trial court for a hearing on the motion to determine if Ahmed’s trial counsel

misadvised him as to how Ahmed’s guilty plea would affect his immigration status

and assess the prejudice prong.

                Judgment reversed and remanded.

        It is ordered that the appellant recover from appellee costs herein taxed.
      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



_______________________________
ANITA LASTER MAYS, JUDGE

EILEEN T. GALLAGHER, A.J., and
MARY EILEEN KILBANE, J., CONCUR
