[Cite as State v. Ashraf, 2015-Ohio-5323.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :       Hon. John W. Wise, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
WAQAR ASHRAF                                 :       Case No. CT2015-0052
                                             :
        Defendant - Appellant                :       OPINION



    CHARACTER OF PROCEEDING:                         Appeal from the Muskingum County
                                                     Court of Common Pleas, Case No.
                                                     CR2014-0327




JUDGMENT:                                            Reversed and Remanded




DATE OF JUDGMENT:                                    December 17, 2015




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

D. MICHAEL HADDOX                                    WAQAR ASHRAF, pro se
Prosecuting Attorney                                 #A715-169
                                                     Noble Correctional Institution
By: GERALD V. ANDERSON II                            15708 McConnelsville Road
Assistant Prosecuting Attorney                       Caldwell, Ohio 43724
27 North 5th St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2015-0052                                                      2



Baldwin, J.

       {¶1}   Appellant Waqar Ashraf appeals a judgment of the Muskingum County

Common Pleas Court dismissing his petition for postconviction relief. Appellee is the

State of Ohio.

                              STATEMENT OF FACTS AND CASE

       {¶2}   On October 22, 2014, appellant was charged by indictment with thirty-six

counts of illegal use of food stamp benefits in violation of R.C. 2913.46(B) and thirteen

counts of trafficking in drugs in violation of R.C. 2925.03(A)(1). He entered a guilty plea

on March 2, 2015 to 20 counts of illegal use of food stamp benefits, trafficking in drugs

(oxycodone, percocet) with a school specification, trafficking in drugs (marijuana),

trafficking in drugs (oxycodone, oxycontin) with a school specification, trafficking in drugs

(methamphetamine) with a school specification, trafficking in drugs (cocaine) with a

school/juvenile specification, and trafficking in drugs (alprazolam) with a school

specification. He was sentenced on April 17, 2015 to an aggregate term of incarceration

of 71 months.

       {¶3}   Appellant filed a petition for postconviction relief on September 14, 2015. In

his petition he argued that his trial counsel failed to inform him that if he entered a guilty

plea he could face deportation. His petition further alleged that on June 22, 2015, he

learned from the Department of Homeland Security that an immigration detainer was

placed against him, and if he failed to demonstrate that he is a legal permanent resident,

he will be removed from the United States to Pakistan. He attached an affidavit to his

petition averring that his counsel did not inform him that he could face deportation and be

sent back to Pakistan, and the trial court did not advise him of the potentially adverse
Muskingum County, Case No. CT2015-0052                                                       3


effects of a criminal conviction pursuant to R.C. 2943.031. The trial court dismissed the

petition. Appellant assigns four errors on appeal:

       {¶4}   “I.     THE    TRIAL    COURT      ERRED      IN   DENYING       DEFENDANT-

APPELLANT’S MOTION TO WITHDRAW PLEA AND VACATE CONVICTION

PURSUANT TO PADILLA V. KENTUCKY (2010), 130 S.CT. 1473.

       {¶5}   “II.       THE TRIAL COURT ERRED BY FAILING TO HOLD AN

EVIDENTIARY HEARING ON APPELLANT’S MOTION TO WITHDRAW HIS GUILTY

PLEA AND VACATE HIS CONVICTION PURSUANT TO R.C. 2953.21 DESPITE

APPELLANT’S CLEAR AND UNEQUIVOCAL REQUEST.

       {¶6}   “III.      THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED

5TH CIRCUIT PRECEDENT WHEN IT REFUSED TO GRANT APPELLANT ORAL

ARGUMENT ON HIS POSTCONVICTION PETITION.

       {¶7}   “IV. THE TRIAL COURT ERRED BY FAILING TO STATE CONCLUSIONS

OF FACT AND LAW WHEN IT DENIED APPELLANT’S MOTIONS TO WITHDRAW HIS

GUILTY PLEA AND VACATE CONVICTION PURSUANT TO R.C. 2953.21.”

                                                 IV.

       {¶8}   We address appellant’s fourth assignment of error first, as it is dispositive

of the instant appeal.

       {¶9}   In his fourth assignment of error, appellant argues that the court erred in

failing to make findings of fact and conclusions of law upon dismissing his petition.

       {¶10} Petitions for post-conviction relief are governed by R.C. 2953.21.

Specifically, the statute provides that when a trial court denies a petition for postconviction

relief without a hearing, it is required to issue findings of fact and conclusions of law. R.C.
Muskingum County, Case No. CT2015-0052                                                        4


2953.21(G). The requirement that a trial court make findings of fact and conclusions of

law is essential in order to prosecute an appeal. State v. Mapson, 1 Ohio St.3d 217, 219,

438 N.E.2d 910 (1982).       While a trial court is not required to make findings when

dismissing a successive petition for relief (See State ex rel. Jennings v. Nurre, 72 Ohio

St.3d 596, 1995-Ohio-280, 651 N.E.2d 1006) or when dismissing a petition as untimely

(See State ex rel. Kimbrough v. Greene, 98 Ohio St.3d 116, 2002-Ohio-7042, 781 N.E.2d

155), in the instant case the petition was appellant’s first petition and was timely filed.

       {¶11} The court’s judgment entry dismissing the petition states:

       {¶12} “This matter comes before the Court upon the motion filed on September

14, 2015, by the Defendant for Post-Conviction Relief pursuant to Section 2953.21 and

2953.23 of the Ohio Revised Code. The Court, after due consideration of the motion for

relief, hereby Denies said motion.”

       {¶13} The judgment is insufficient to comply with the requirement of R.C.

2953.21(G) that the court issue findings of fact and conclusions of law when denying a

petition for postconviction relief without a hearing. The fourth assignment of error is

sustained.
Muskingum County, Case No. CT2015-0052                                               5


      {¶14} The judgment of the Muskingum County Common Pleas Court is reversed

and this cause is remanded to that court with instructions to make findings of fact and

conclusions of law. Costs are assessed to appellee.


By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.
