[Cite as State v. Perry, 2019-Ohio-2699.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. John W. Wise, P.J.
        Plaintiff - Appellee                 :       Hon. Craig R. Baldwin, J.
                                             :       Hon. Earle E. Wise, J.
-vs-                                         :
                                             :
WENROSS S. PERRY                             :       Case No. CT2018-0045
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Muskingum County
                                                     Court of Common Pleas, Case No.
                                                     CR2017-0179




JUDGMENT:                                            Reversed and Remanded



DATE OF JUDGMENT:                                    July 1, 2019



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellee

D. MICHAEL HADDOX                                    JOSEPH N. PHILLIPS
Prosecuting Attorney                                 Amato Law Office, L.P. A.
Muskingum County, Ohio                               420 Broadway Avenue
                                                     Wellsville, Ohio 43968
By: GERALD V. ANDERSON II
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2018-0045                                                 2

Baldwin, J.

        {¶1}   Wenross S. Perry appeals the decision of the Muskingum County Court of

Common Pleas denying his request to withdraw his guilty plea. Appellee is the State of

Ohio.

                        STATEMENT OF FACTS AND THE CASE

        {¶2}   The facts leading to Appellants arrest are unnecessary for the consideration

and resolution of the issues before this court and are therefore omitted.

        {¶3}   Appellant was charged with possession of drugs with a forfeiture

specification, a third degree felony in violation of R.C. 2925.11(A) as well as trafficking in

drugs with a forfeiture specification, also a third degree felony in violation of R.C.

2925.03(A)(2).

        {¶4}   Appellant entered a plea of not guilty on May 17, 2017, then changed his

plea to guilty to one count of violating 2925.03(A)(2), trafficking in drugs, on June 19,

2017. (The violation of R.C. 2925.11(A) was dismissed by the state.) During the plea

hearing, the following exchange occurred:

        THE COURT: And you understand that you are a resident of the United

        States but you're not a United States citizen to the point that by entering this

        plea you could be deported?

        THE DEFENDANT: Yes, sir.

        THE COURT: You also understand you have a right to contact your

        consulate and that type of thing, if you need to. You understand that?

        THE DEFENDANT: Yes, sir.
Muskingum County, Case No. CT2018-0045                                                  3


       THE COURT: And that could also be a possible consequence to you

       entering the plea. You understand that?

       THE DEFENDANT: Yes, sir.

       ***

       THE COURT: I normally would as at this point in time, are you a U.S.

       citizen?

       THE DEFENDANT: I'm a resident of the United States.

Plea Hearing, June 19, 2017, pp. 8-10.

       {¶5}   Appellant’s guilty plea was accepted and he was sentenced to a twelve

month prison term, given eighty-three days credit for time served and ordered to forfeit

$5,055.00 that was on his person when he was arrested.

       {¶6}   On November 20, 2017, Appellant received a Notice to Appear in

Immigration Court. Removal proceedings were initiated as a result of his conviction in this

case pursuant to Sections 2327(a)(2)(A)(iii) and 237(a)(2)(B)(i) of the Immigration and

Nationality Act.

       {¶7}   Appellant filed a motion to withdraw his guilty plea as a result of the initiation

of the deportation proceedings. He attached his affidavit containing the following

statements:

       2. Affiant states that he is a lawful permanent resident of the United States;

       he is not a United States Citizen.

       3. Affiant states that he is a citizen of Jamaica.

       4. Affiant states that he pled guilty to one count of Trafficking in Drugs —

       Marijuana, with a forfeiture specification, in violation of R.C. §
Muskingum County, Case No. CT2018-0045                                                   4


       2925.03(A)(2), a third degree felony, in Muskingum County Court of

       Common Pleas case number CR2017-0179 on June 19, 2017.

       5. Affiant states that he was not given any explanation of his rights or the

       consequences of entering his plea, and further, that he did not understand

       the consequences of his plea and was not aware that a conviction for the

       charged offense would affect his immigration status.

       6. Affiant states that his defense counsel did not advise him of any adverse

       immigration consequences from entering his plea.

       7. Affiant further states that had he known pleading guilty to the charged

       offense would have consequences on his immigration status, he would not

       have entered the plea and would have exercised his rights and fought the

       case in court.

       8. Affiant states that as a result of his conviction for Trafficking in Drugs —

       Marijuana, with a forfeiture specification, in violation of R.C. §

       2925.03(A)(2), a third degree felony, in Muskingum County Court of

       Common Pleas case number CR2017-0179, he is removable from and

       inadmissible to the United States.

       {¶8}   Appellant also attached the affidavit of Kathleen S. Fish. Ms. Fish identified

herself as an immigration attorney. She reviewed Appellant’s conviction and concluded

that it made Appellant removable from United States, ineligible for admission to the United

States and ineligible for U.S. citizenship.

       {¶9}   Appellant argued that the trial court failed to comply with the requirements

of R.C. 2943.031(A) when he was sentenced. That section requires that:
Muskingum County, Case No. CT2018-0045                                             5


             (A)      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:

                      (B)    “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.”

                      Upon request of the defendant, the court shall allow

                      him additional time to consider the appropriateness of

                      the plea in light of the advisement described in this

                      division.”

      {¶10} Revised Code 2943.031(D) describes the remedy for failure to comply with

the requirements of Subsection (A):
Muskingum County, Case No. CT2018-0045                                                6


                    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.

      {¶11} The trial court considered the motion and the state’s response and denied

Appellant’s request without a hearing finding:

      *** the Defendant was advised of the risk of deportation and opportunity to

      contact the Jamaican consulate regarding the legal ramifications of his plea.

      The Court finds that the advisements provided substantially comply with

      R.C. §2943.031. Furthermore, the Defendant argues that his defense

      attorney failed to inform him that deportation is mandated in his case;

      however, he fails to provide any support for such a claim and only the

      Department of Homeland Security has authority to deport a non-U.S.

      citizen, and only after a hearing pursuant to Immigration and Nationality Act

      §240(3) has been held; the Defendant has not had such a hearing.
Muskingum County, Case No. CT2018-0045                                            7


      Therefore, after due consideration of the same, the Defendant's motion is

      Denied, and his request for an oral hearing is Denied.

      {¶12} Appellant filed a timely notice of appeal from the trial court’s decision and

submitted three assignments of error:

      {¶13} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

APPELLANT'S MOTION TO WITHDRAW AND VACATE HIS GUILTY PLEA BECAUSE

THE TRIAL COURT FAILED TO SUBSTANTIALLY COMPLY WITH THE STATUTORILY

REQUIRED ADVISEMENTS TO NONCITIZENS CONTAINED IN R.C. § 2943.031(A).”

      {¶14} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

APPELLANT'S MOTION TO WITHDRAW AND VACATE HIS GUILTY PLEA BECAUSE

APPELLANT'S PLEA WAS NOT KNOWINGLY, INTELLIGENTLY, OR VOLUNTARILY

MADE DUE TO THE TRIAL COURT'S FAILURE TO SUBSTANTIALLY COMPLY WITH

THE STATUTORILY REQUIRED ADVISEMENTS TO NONCITIZENS CONTAINED IN

R.C. § 2943.03L(A).”

      {¶15} “III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

APPELLANT'S MOTION TO WITHDRAW HIS GUILTY PLEA ON THE BASIS OF

INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS FORMER ATTORNEY

FAILED TO PROPERLY ADVISE HIM OF THE IMMIGRATION CONSEQUENCES AS A

RESULT OF PLEADING GUILTY PURSUANT TO PADILLA V. KENTUCKY, 559 U.S.

356, 364, 130 S.CT. 1473, 176 L.ED.2D 284 (2010).”

                              STANDARD OF REVIEW

      {¶16} Appellant asked to withdraw his guilty plea pursuant to Crim.R. 32.1 and

R.C. 2943.031. While post-sentence motions filed under Crim.R. 32.1 are subject to the
Muskingum County, Case No. CT2018-0045                                                8


manifest injustice standard, that requirement is not applicable when the Appellant claims

a violation of R.C. 2943.031. State v. Oluoch, 10th Dist. Franklin No. 07AP-45, 2007-

Ohio-5560, ¶ 9. “R.C. 2943.031(D)'s explicit language mandates that a trial court set aside

a judgment of conviction and allow a defendant to withdraw his guilty plea if the defendant

satisfies four requirements. Showing manifest injustice is not included as one of the

requirements.” State v. Weber, 125 Ohio App.3d 120, 129, 707 N.E.2d 1178 (10th

Dist.1997).

       {¶17} Appellant must instead show that “(1) the court failed to provide the

defendant with the advisement contained in R.C. 2943.031(A); (2) the advisement was

required; (3) the defendant is not a United States citizen; and (4) the offense to which the

defendant pled guilty may result in deportation under the immigration laws of the federal

government.” Id. at 126, 707 N.E.2d 1178.

       {¶18} The trial court’s decision regarding whether the elements have been

established is reviewed under an abuse of discretion standard. Francis at ¶ 32.

              To clarify, the exercise of discretion “applies to the trial court's

       decision on whether the R.C. 2943.031(D) elements have been established

       (along with the factors of timeliness and prejudice * * *), not generally to the

       trial court's discretion once the statutory provisions have been met.” Id. at ¶

       34, 820 N.E.2d 355. “[A] defendant seeking relief under R.C. 2943.031(D)

       must make his or her case before the trial court under the terms of that

       statute, * * * the trial court must exercise its discretion in determining

       whether the statutory conditions are met, and * * * an appellate court
Muskingum County, Case No. CT2018-0045                                              9


       reviews a trial court's decision on the motion under an abuse-of-discretion

       standard in light of R.C. 2943.031(D). Id. at ¶ 36, 820 N.E.2d 355.

State v. Muhumed, 10th Dist. Franklin No. 11AP-1001, 2012-Ohio-6155, ¶¶ 8-10.

       {¶19} Appellee contends that substantial compliance with the statute is sufficient

and a verbatim reading of the statutory warning is not mandatory. State v. Francis, 104

Ohio St.3d 490, 2004-0hio-6894.

       {¶20} The Appellant also contends that his trial counsel rendered ineffective

assistance by failing to inform him of the consequences of a finding of guilt. The Supreme

Court of Ohio recently issued an opinion regarding an analogous fact pattern and

addressed the appropriate standard to apply to a claim of ineffective assistance of

counsel in this context:

              The Sixth Amendment to the United States Constitution guarantees

       a defendant the effective assistance of counsel at “‘critical stages of a

       criminal proceeding,’ including when he enters a guilty plea.” Lee v. United

       States, ––– U.S. ––––, 137 S.Ct. 1958, 1964, 198 L.Ed.2d 476 (2017),

       quoting Lafler v. Cooper, 566 U.S. 156, 165, 132 S.Ct. 1376, 182 L.Ed.2d

       398 (2012); Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203

       (1985). When a defendant alleges ineffective assistance of counsel arising

       from the plea process, the defendant must meet the two-prong test set out

       in Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See Hill at 58,

       106 S.Ct. 366 (applying Strickland to guilty pleas); State v. Xie, 62 Ohio

       St.3d 521, 524, 584 N.E.2d 715 (1992) (same).
Muskingum County, Case No. CT2018-0045                                               10


             First, the defendant must show that counsel's performance was

      deficient. Strickland at 687, 104 S.Ct. 2052; Xie at 524, 584 N.E.2d 715.

      When an attorney's noncitizen client is considering a plea, the United States

      Supreme Court has held that “counsel must inform her client whether his

      plea carries a risk of deportation.” Padilla, 559 U.S. at 374, 130 S.Ct. 1473,

      176 L.Ed.2d 284. Given the grave consequences of deportation, an

      ineffective-assistance claim is not limited to affirmative misadvice or false

      information. Id. at 369-371, 130 S.Ct. 1473. The failure to give any advice

      at all about possible deportation consequences satisfies the first prong of

      Strickland. Id. “The severity of deportation * * * only underscores how critical

      it is for counsel to inform her noncitizen client that he faces a risk of

      deportation.” Id. at 373-374, 130 S.Ct. 1473.

             Second, the defendant must demonstrate prejudice resulting from

      counsel's deficient performance. Strickland at 687, 104 S.Ct. 2052. The

      defendant can show prejudice by demonstrating a “reasonable probability

      that, but for counsel's errors, he would not have pleaded guilty and would

      have insisted on going to trial.” Hill at 59, 106 S.Ct. 366; Xie at 524, 584

      N.E.2d 715.

State v. Romero, 2019-Ohio-1839, ¶¶15-16.

      {¶21} Appellee claims that Appellant is contending his counsel failed to advise

him of the certainty and imminence of deportation, but that relevant precedent does not

obligate trial counsel to do any more than provide accurate advice. Appellee also implies
Muskingum County, Case No. CT2018-0045                                                  11


the uncertainty of immigration consequences as of the date of the motion prevents relief

to the Appellant.

                                         ANALYSIS

       {¶22} Appellant’s first and second assignments of error focus upon the question

of whether the trial court substantially complied with the requirements of R.C. 2943.031,

so we will begin with an analysis of that issue.

       {¶23} The Supreme Court of Ohio requires that any motion seeking relief under

R.C. 2943.031 be timely. State v. Khan, 2nd Dist. Montgomery No. 21718, 2007-Ohio-

4208, ¶ 31. In the case before us, the issue of timeliness is not addressed by the trial

court, nor is it asserted as a fault by Appellee in its brief, so we consider that issue waived.

       {¶24} Revised Code R.C. 2943.031(A) describes the duty of the trial court to

provide the warning therein as a mandatory obligation by the use of the word “shall” most

often used to designate a clear requirement. The Code requires that “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.” Id. (Emphasis added.) Further, the language of the advisement is

separately set out, in quotation marks, suggesting that the Legislature intended the trial

courts to provide a verbatim recitation of that language, but that section of the Code does

not expressly include that requirement.

       {¶25} The Supreme Court of Ohio resolved this issue in State v. Francis, 104 Ohio

St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355. In the first paragraph of the syllabus, the

Court held that a verbatim recital is required:
Muskingum County, Case No. CT2018-0045                                                12


              A trial court accepting a guilty or no-contest plea from a defendant

       who is not a citizen of the United States must give verbatim the warning set

       forth in R.C. 2943.031(A), informing the defendant that conviction of the

       offense for which the plea is entered “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.”

       {¶26} A failure to provide a verbatim recitation of the warning need not be fatal,

as the Supreme Court of Ohio noted in the second paragraph of the syllabus:

              If 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).

       {¶27} The Court defined “substantial compliance” as meaning “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 at 108, 564 N.E.2d 474; see, also,

Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, at ¶ 12. Francis at ¶ 48

(2004). The Supreme Court of Ohio referenced State v. Malcolm (2001), 257 Conn. 653,

778 A.2d 134, in support of its holding that substantial compliance is sufficient to satisfy

the requirement of the Revised Code.         While that Court did find that substantial

compliance was sufficient, the statute at issue in that case is worded differently than R.C.
Muskingum County, Case No. CT2018-0045                                              13


2943.031 and does not contain a mandatory advisement but only requires that the trial

court “shall not accept a plea of guilty or nolo contendere from any defendant in any

criminal proceeding unless the court first addresses the defendant personally and

determines that the defendant fully understands” the potential consequences of his plea.

Conn.Gen.Stat.Ann. 54-1j. Chief Justice Moyer and Justice Pfeiffer dissented in Francis

and noted that the unambiguous requirement of the statute was a verbatim recitation of

the advisement. Nevertheless, we are bound to comply with the holding in Francis and

determine whether the trial court complied with the Code.

       {¶28} The trial court did not comply with the first paragraph of the syllabus of

Francis, supra, because it failed to “give verbatim the warning set forth in R.C.

2943.031(A), informing the defendant that conviction of the offense for which the plea is

entered “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.” We

must next review whether the trial court abused its discretion by “determining whether [it]

*** substantially complied with R.C. 2943.031(A).”          As noted above, 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.” Francis at ¶ 48 (2004).

       {¶29} Appellant was arrested and charged on May 5, 2017, and changed his plea

to guilty on June 19, 2017, approximately six weeks after his arrest.     During the plea

hearing, the trial court warned that “by entering this plea you could be deported” but did

not warn of the possibility of “exclusion from admission to the United States, or denial of

naturalization pursuant to the laws of the United States.” R.C. 2943.031(A).”            The
Muskingum County, Case No. CT2018-0045                                                  14


conviction made Appellant subject to deportation and his removal was virtually inevitable.

State v. Romero, 5th Dist. Stark No. 2016CA00201, 2017-Ohio-2950, ¶ 19, appeal

allowed, 151 Ohio St.3d 1502, 2018-Ohio-365, 90 N.E.3d 945, (2018), and aff'd and

remanded, 2019-Ohio-1839. Appellant stated in his affidavit that he is not a United States

citizen and “was and is inadmissible to the United States.” He also contended that had he

known of the immigration consequences of a guilty plea, he would have fought the

charges. Appellant also offered the supplemental affidavit of an immigration attorney

confirming that the conviction rendered Appellant removable, inadmissible, and

prevented him from becoming a United States citizen.

       {¶30} The immigration consequences alleged by Appellant were a certainty

regardless of whether the conviction was the result of a plea or a trial, so it is reasonable

to conclude that had Appellant subjectively understood all of the consequences of his

plea, including inadmissibility, it is likely that he would not have entered his plea of guilty.

In the context of this case, Appellant now faces permanent separation from his wife and

step-daughter as it appears he has been deported and cannot return to the United States.

       {¶31} As for the trial court’s performance, we must conclude that substantial

compliance did not occur. We agree with the Second District Court of Appeals when it

determined that:

              The trial court failed to advise Defendant that his guilty plea might

       result in exclusion from admission to the United States, or denial of

       naturalization. Thus, in advising Defendant about the possible adverse

       immigration consequences of his guilty plea the trial court failed to even

       mention two out of the three separate, distinct consequences set forth in
Muskingum County, Case No. CT2018-0045                                                 15


       R.C. 2943.031(A). In our view, that does not constitute substantial

       compliance with R.C. 2943.031(A). See: State v. Zuniga, Lake App.

       Nos.2003-P-0082, 2004-P-0002, 2005-Ohio-2078.

State v. Hernandez-Medina, 2nd Dist. Clark No. 06CA0131, 2008-Ohio-418, ¶ 30.

       {¶32} We find that the Appellant could not subjectively understand the rights he

was waiving when he was not fully advised of the rights that may be impacted by a finding

of guilty. Our conclusion is buttressed by the first paragraph in the syllabus in Francis

mandating a verbatim recitation of the advisement in R.C. 2943.031 which leads us to

conclude that the second paragraph, which permits substantial compliance, requires

advisement of all three consequences described in the advisement. The trial court in the

case below failed to substantially comply because it did not address the consequences

of denial of naturalization or potential inadmissibility. The Legislature determined all three

issues were of such significant import that it included specific language for the trial court’s

use when advising defendants. Concluding that a trial court substantially complied with

the requirement of the Code without any mention of two of the consequences is

tantamount to changing the language of the statute and we are not willing to adopt such

an interpretation. Our conclusion is indirectly supported by the decision in State v. Sow,

10th Dist. Franklin No. 17AP-772, 2018-Ohio-4186, ¶ 17 where the Tenth District Court

of Appeals held that the trial court substantially complied with statutory requirements by

informing defendant of the three possible consequences of deportation, exclusion from

the admission and denial of naturalization, but did not provide a verbatim recital of the

advisement.
Muskingum County, Case No. CT2018-0045                                               16


       {¶33} We hold that the trial court abused its discretion by finding that it

substantially complied with the requirements of R.C. 2943.031. The trial court did not

provide a verbatim recitation and failed to include two of the potential consequences of a

guilty finding. Because there was not substantial compliance with the statutory

requirements, the first and second assignment of errors are sustained.

       {¶34} In his third assignment of error, Appellant contends he received ineffective

assistance of counsel when his trial attorney failed to advise him of any potential

immigration consequences of pleading guilty. Appellant provided an affidavit asserting

that “his defense counsel did not advise him of any adverse immigration consequences

from entering his plea” and “that had he known pleading guilty to the charged offense

would have consequences on his immigration status, he would not have entered the plea

and would have exercised his rights and fought the case in court.” (Affidavit, ¶¶ 6-7). The

trial court responded to this issue by concluding that Appellant failed “to provide any

support for such a claim and only the Department of Homeland Security has authority to

deport a non-U.S. citizen, and only after a hearing pursuant to Immigration and Nationality

Act §240(3) has been held; the Defendant has not had such a hearing.”

       {¶35} We addressed a very similar fact pattern in State v. Romero, supra and the

Supreme Court of Ohio recently issued a decision affirming our holding with some

modification. State v. Romero, 2019-Ohio-1839, --- N.E.3d ----, 2019 WL 2111666.

       {¶36} The Appellant in Romero was convicted of charges of drug trafficking and

possession. The trial court advised Romero “that a conviction of the offense to which you

are pleading guilty may have the consequence of deportation, exclusion from admission

to the United States, or denial of naturalization pursuant to the laws of the United States.”
Muskingum County, Case No. CT2018-0045                                             17


Romero agreed that he understood, acknowledged that he was satisfied with his

representation and he was given the opportunity to ask questions. He had no questions,

entered a guilty plea and was sentenced.

      {¶37} In the month following his sentencing, he was detained by United States

Immigration and Customs Enforcement and served with a notice to appear in federal court

for removal proceedings. “The notice informed Romero that he was subject to deportation

from the United States under sections 237(a)(2)(A)(iii) and 237(a)(2)(B)(i) of the

Immigration and Nationality Act, as amended, codified in 8 U.S.C. 1227(a)(2)(A)(iii) and

8 U.S.C. 1227(a)(2)(B)(i). Romero's convictions were for an aggravated felony and a

violation of law related to a controlled substance, which made him subject to deportation.”

Romero, at ¶ 9.

      {¶38} Romero filed a motion to withdraw his guilty plea and vacate the conviction

claiming ineffective assistance of counsel. The trial court noted that it had read the R.C.

2943.031(A) advisement and that he had indicated that he understood the consequences

and agreed to enter a guilty plea. We reversed and concluded the trial court failed to

conduct the two prong analysis required by Strickland to determine an allegation of

ineffective assistance of counsel.

      {¶39} The Supreme Court of Ohio accepted jurisdiction and described the

appropriate analysis as follows:

             First, the defendant must show that counsel's performance was

      deficient. Strickland at 687, 104 S.Ct. 2052; Xie at 524, 584 N.E.2d 715.

      When an attorney's noncitizen client is considering a plea, the United States

      Supreme Court has held that “counsel must inform her client whether his
Muskingum County, Case No. CT2018-0045                                                  18

       plea carries a risk of deportation.” Padilla, 559 U.S. at 374. Given the grave

       consequences of deportation, an ineffective-assistance claim is not limited

       to affirmative misadvice or false information. Id. at 369-371, 130 S.Ct. 1473.

       The failure to give any advice at all about possible deportation

       consequences satisfies the first prong of Strickland. Id. “The severity of

       deportation * * * only underscores how critical it is for counsel to inform her

       noncitizen client that he faces a risk of deportation.” Id. at 373-374, 130

       S.Ct. 1473.

              Second, the defendant must demonstrate prejudice resulting from

       counsel's deficient performance. Strickland at 687, 104 S.Ct. 2052. The

       defendant can show prejudice by demonstrating a “reasonable probability

       that, but for counsel's errors, he would not have pleaded guilty and would

       have insisted on going to trial.” Hill at 59, 106 S.Ct. 366; Xie at 524, 584

       N.E.2d 715.

Romero, at ¶¶ 15-16.

       {¶40} In Romero, the trial court did not consider Romero’s ineffective assistance

of counsel claim, but instead relied upon its R.C. 2943.031 advisement to dismiss the

motion. In the case at bar, the trial court concludes Appellant failed to provide any support

for his claim and only the Department of Homeland Security may deport him after a

hearing that had not yet occurred.

       {¶41} The trial court’s finding Appellant failed to provide support for his claim is

contradicted by the record. Appellant supplied an affidavit and a motion in which he

asserted his trial counsel provided no advice regarding immigration consequences arising
Muskingum County, Case No. CT2018-0045                                                19


from a conviction. Trial counsel filed a sentencing memorandum that made no reference

to deportation or any immigration penalty, lending further support to Appellant’s

contention that he was not advised by his counsel. The failure to give any advice satisfies

the first prong of the Strickland analysis. State v. Taveras, 12th Dist. No. CA2016-06-

054, 2017-Ohio-1496, 89 N.E.3d 6, ¶ 19.

       {¶42} Appellant demonstrated from facts in the record and his affidavit that he

suffered prejudice as a result of ineffective assistance of counsel. He offered his affidavit,

copy of the notice of deportation hearing, as well as affidavit of an immigration attorney

confirming Appellant was deportable, removable, and inadmissible to the United States

and would not be eligible to become a United States citizen as a proximate result of the

conviction. State v. Muhumed, 10th Dist. Franklin No. 11AP-1001, 2012-Ohio-6155, ¶ 28.

The trial court’s conclusion that Appellant may be deported only after hearing disregards

the finding of the United States Supreme Court that deportation, in the circumstances, is

“practically inevitable,” “virtually automatic” and “certain.” The identity of the agency

pursuing deportation and the conduct of the hearing prior to deportation does not alter the

“unavoidable” consequence of deportation. State v. Ayesta, 8th Dist. Cuyahoga No.

101383, 2015-Ohio-1695, ¶ 7.

       {¶43} Appellant has provided unrebutted evidence that he received no advice

from his counsel regarding immigration consequences as a result of pleading guilty and

that had he received that advice he would not have entered a guilty plea and, as a result

of the guilty plea faces deportation and may have been deported. The trial court’s

conclusion that Appellant failed to provide evidence in support of his assertions is not

supported by competent, credible, evidence.
Muskingum County, Case No. CT2018-0045                                                 20


       {¶44} The totality of the circumstances of this case lead to a conclusion that

Appellant has suffered prejudice as a result of his trial counsel’s ineffectiveness, fulfilling

the second prong of the Strickland analysis. As noted above, once begun, deportation is

“virtually automatic” and “certain” and may have already occurred in this case. The

Supreme Court of the United States noted in Padilla “[p] reserving the client’s right to stay

in the United States may be more important to the client and any potential jail sentence.”

Padilla, supra at 1483. This right was particularly important to Appellant, because his wife

and stepdaughter remain in this country.

       {¶45} The inevitability of deportation after a plea of guilty or conviction, Appellant’s

connections to the United States, the importance of avoiding deportation to remain with

his wife and stepdaughter and the lack of substantial compliance by the trial court are

factors that, when viewed from the Appellant’s perspective, are all factors supporting the

rationality of Appellant’s assertion that he would have gone to trial rather than entering a

guilty plea. Romero, 2019-Ohio-1839, ¶¶ 28-34. State v. Bozso, 8th Dist. No. 106149,

2018-Ohio-1750, 111 N.E.3d 786, ¶ 24, appeal allowed, 153 Ohio St.3d 1494, 2018-Ohio-

4092, 108 N.E.3d 1103, ¶ 24.

       {¶46} We find that the trial court abused its discretion by failing to conduct a

hearing on Appellant’s motion to withdraw his plea due to ineffective assistance to

determine whether Appellant’s claims fulfilled the requirements of Strickland. Appellant’s

third assignment of error is granted.
Muskingum County, Case No. CT2018-0045                                      21


      {¶47} Appellant’s conviction is vacated and this matter is remanded to the

Muskingum County Court of Common Pleas for further proceedings consistent with this

opinion.

By: Baldwin, J.

Wise, John, P.J. and

Wise, Earle, J. concur.
