[Cite as State v. Romero, 2017-Ohio-2950.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. Craig R. Baldwin, J.
                     Plaintiff-Appellee       :       Hon. Earle E. Wise, Jr., J.
                                              :
-vs-                                          :
                                              :
CARLOS ROMERO                                 :       Case No. 2016CA00201
                                              :
                     Defendant-Appellant      :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Stark County
                                                  Court of Common Pleas, Case No.
                                                  2016CR0331

JUDGMENT:                                         Reversed and Remanded


DATE OF JUDGMENT ENTRY:                           May 22, 2017

APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

JOHN D. FERRERO                                   KIM ALABASI
STARK COUNTY PROSECUTOR                           5368 St. Clair
BY: RONALD MARK CALDWELL                          Cleveland, OH 44103
110 Central Plaza South, Ste. 510
Canton, OH 44702-1413
Stark County, Case No. 2016CA00201                                                                 2

Gwin, P.J.

       {¶1}    Appellant Carlos Romero [“Romero”] appeals the October 21, 2016

decision from the Stark County Court of Common Pleas that denied his post-sentence

motion to withdraw his negotiated guilty plea. The appellee is the State of Ohio.

                                     Facts and Procedural History

       {¶2}    Romero is a 50 year-old man born in Honduras. Romero married a United

States citizen in 1995 and legally obtained his permanent residence or "green card" status

on April 1, 1998.

       {¶3}    On March 21, 2016, the Stark County Grand Jury returned an indictment

that charged Romero with: 1). possession of marijuana in violation of R.C. 2925.11(A), a

felony of the third degree per R.C. 2925.11(C)(3)(a), 2). trafficking in marijuana in violation

of R.C. 2925.03(A)(2), a felony of the third degree per R.C. 2025.03(C)(3)(e), and 3),

possession of cocaine in violation of R.C. 2925.11(A)(3), a felony of the fifth degree per

R.C. 2925.11(C)(4)(a).

       {¶4}    On June 1, 2016, Romero appeared with counsel and entered guilty pleas

to the charges set forth in the indictment. Sentencing was deferred until June 29, 2016

pending the completion of a pre-sentence investigation report1. Romero was sentenced

by Judgment Entry filed July 6, 2016 to community control sanctions (intensive supervised

probation) for a period of three years. In addition to this sentence, Romero was ordered

to perform 100 hours of community service, and his driver's license was suspended for

six months.


       1 A transcript of Romero’s June 1, 2016 plea hearing is attached as “Court’s Exhibit A” to the

Judgment Entry Denying Defendants’ Emergency Motion to Withdraw Pleas and Vacate Sentences, filed
October 21, 2016. No transcript of Romero’s June 29, 2016 Sentencing Hearing has been filed with this
Court.
Stark County, Case No. 2016CA00201                                                             3


       {¶5}   Romero filed an Emergency Motion to Withdraw Pleas and Vacate

Judgment on October 14, 2016 claiming that his attorney failed to advise him of the

immigration consequences that would result from his guilty pleas. The trial court

overruled the motion by judgment entry filed October 21, 2016 citing language from the

transcript indicating that the appropriate immigration warnings pursuant to R.C.

2943.031 were read to Romero before accepting his pleas. The trial court concluded

that because of the compliance with R.C. 2943.031, Romero's pleas were entered

knowingly, voluntarily, and intelligently.

                                         Assignment of Error

       {¶6}   “I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO

WITHDRAW PLEA AND VACATE CONVICTION PURSUANT TO OHIO RULE 32.1.”

                                          Law and Analysis

       {¶7}   The entry of a plea of guilty is a grave decision by an accused to dispense

with a trial and allow the state to obtain a conviction without following the otherwise difficult

process of proving his guilt beyond a reasonable doubt. See Machibroda v. United States,

368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473(1962). A plea of guilty constitutes a complete

admission of guilt. Crim. R. 11(B)(1). “By entering a plea of guilty, the accused is not

simply stating that he did the discreet acts described in the indictment; he is admitting

guilt of a substantive crime.” United v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 762, 102

L.Ed.2d 927(1989).

       Withdraw of Guilty plea Crim.R. 32.1.

       {¶8}   Crim.R. 32.1 provides that a trial court may grant a defendant’s post

sentence motion to withdraw a guilty plea only to correct a manifest injustice. Therefore,
Stark County, Case No. 2016CA00201                                                                         4


“[a] defendant who seeks to withdraw a plea of guilty after the imposition of sentence has

the burden of establishing the existence of manifest injustice.” State v. Smith, 49 Ohio

St.2d 261,361 N.E.2d 1324(1977), paragraph one of the syllabus. Although no precise

definition of “manifest injustice” exists, in general, “‘manifest injustice relates to some

fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is

inconsistent with the demands of due process.’” State v. Wooden, 10th Dist. Franklin No.

03AP–368, 2004–Ohio–588, ¶ 10, quoting State v. Hall, 10th Dist. Franklin No. 03AP–

433, 2003–Ohio–6939; see, also, State v. Odoms, 10th Dist. Franklin No. 04AP–708,

2005–Ohio–4926, quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699

N.E.2d 83(1998) (“[a] manifest injustice has been defined as a ‘clear or openly unjust

act’”).       Under this standard, a post-sentence withdrawal motion is allowable only in

extraordinary cases. Smith, 49 Ohio St.2d at 264, 361 N.E.2d 1324.

          {¶9}     “A motion made pursuant to Crim.R. 32.1 is addressed to the sound

discretion of the trial court, and the good faith, credibility and weight of the movant’s

assertions in support of the motion are matters to be resolved by that court.” Smith at

paragraph two of the syllabus. Thus, we review a trial court’s denial of a motion to

withdraw a guilty plea under an abuse-of-discretion standard, and we reverse that denial

only if it is unreasonable, arbitrary, or unconscionable. Odoms, 2005–Ohio–4926.

          Withdraw of Guilty plea for non-citizen.

          {¶10} However, “[c]riminal defendants who are not United States citizens are

permitted to withdraw a guilty plea in two distinct ways: (1) upon the finding that they were

not given the warning required by R.C. 2943.031(A)(1)2 (and that the court was not


          2
          The required warning is “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
Stark County, Case No. 2016CA00201                                                                            5


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)3), 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, 2015 WL

1913431, ¶ 12.

        {¶11} R.C. 2943.031(F) “clarifies that the statute does not prevent a trial court

from granting a plea withdrawal under the procedural rule, Crim.R. 32.1.” Toyloy, ¶ 12.

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.

        Appellate Review.

        {¶12} However, regardless of whether the motion to withdraw the guilty 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. Francis at ¶ 32. Generally, “[a] trial


consequences of deportation, exclusion from admission to the United States, or denial of naturalization
pursuant to the laws of the United States.” R.C. 2943.031(A).
         3 R.C. 2943.031(D) provides: “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 * * * 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.”
Stark County, Case No. 2016CA00201                                                           6


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). See also, State v. Cardenas, 2nd Dist. Darke No. 2015-CA-16, 2016-Ohio-5537,

61 N.E.3d 20, ¶ 14-¶16.

         Ineffective Assistance as a Ground for Withdrawing a Guilty Plea.

         {¶13} In his motion, Romero alleged ineffective assistance of counsel as a ground

for withdrawing his guilty pleas.

         {¶14} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122

L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).

         {¶15} In order to warrant a finding that trial counsel was ineffective, the petitioner

must meet both the deficient performance and prejudice prongs of Strickland and Bradley.

Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251(2009);

Accord, Buck v. Davis, __U.S. ___, 137 S.Ct. 759, 775, ___L.Ed.2d ___ (U.S. Feb. 22,

2017).

         Attorney’s duty to a non-citizen client.

         {¶16} 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
Stark County, Case No. 2016CA00201                                                           7


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

consequences. 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 his client accordingly satisfies the first prong

of Strickland, as it constitutes deficient performance.            Id.   However, because

“[i]mmigration law can be complex,” when the relevant immigration “law is not succinct

and straightforward * * *, a criminal defense attorney need do no more than advise a

noncitizen client that pending criminal charges may carry a risk of adverse immigration

consequences.”     Padilla, 559 U.S. 369, 130 S.Ct. 1473.           Nevertheless, when the

immigration consequences of a guilty plea can be “easily determined from reading the

removal statute,” and “the deportation consequence is truly clear * * * the duty to give

correct advice is equally clear.” Id.

       {¶17} In Padilla the Court explained the importance of a defendant understanding

his or her potential for deportation,

              Finally, informed consideration of possible deportation can only

       benefit both the State and noncitizen defendants during the plea-bargaining

       process.    By bringing deportation consequences into this process, the

       defense and prosecution may well be able to reach agreements that better

       satisfy the interests of both parties. As in this case, a criminal episode may

       provide the basis for multiple charges, of which only a subset mandate

       deportation following conviction.        Counsel who possess the most

       rudimentary understanding of the deportation consequences of a particular

       criminal offense may be able to plea bargain creatively with the prosecutor

       in order to craft a conviction and sentence that reduce the likelihood of
Stark County, Case No. 2016CA00201                                                         8


       deportation, as by avoiding a conviction for an offense that automatically

       triggers the removal consequence.         At the same time, the threat of

       deportation may provide the defendant with a powerful incentive to plead

       guilty to an offense that does not mandate that penalty in exchange for a

       dismissal of a charge that does.

559 U.S. at 373, 130 S.Ct. 1473, 176 L.Ed.2d 284.

       {¶18} Further, in Padilla, the Supreme Court rejected the government’s

proposition that Strickland should apply only “to the extent that [Padilla] ha[d] alleged

affirmative misadvice.” Id. at 369, 130 S.Ct. 1473. The court agreed with Padilla that “there

is no relevant difference ‘between an act of commission and an act of omission’ in this

context.” Id. at 370, 130 S.Ct. 1473, quoting brief of respondent, 30. See also Strickland

at 690, 104 S.Ct. 2052; State v. Ayesta, 8th Dist. No. 101383, 2015-Ohio-1695, 2015 WL

2091679, ¶ 15 (noting that counsel breaches its duty under Padilla “by either providing

affirmative misadvice about immigration consequences, or by not providing any advice at

all when advice is warranted”). The Padilla court observed that “[a] holding limited to

affirmative misadvice would invite” the following two absurd results: (1) “it would give

counsel an incentive to remain silent on matters of great importance, even when answers

are readily available,” and (2) “it would deny a class of clients least able to represent

themselves the most rudimentary advice on deportation even when it is readily available.”

Id. at 370–71, 130 S.Ct. 1473

       {¶19} Indeed, “[w]hen attorneys know that their clients face possible exile from

this country and separation from their families, they should not be encouraged to say

nothing at all.” Id. at 370, 130 S.Ct. 1473. The court further noted that “‘“[p]reserving the
Stark County, Case No. 2016CA00201                                                            9


client’s right to remain in the United States may be more important to the client than any

potential jail sentence.”’” Id. at 368, 130 S.Ct. 1473, quoting INS v. St. Cyr, 533 U.S. 289,

322, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), quoting 3 Bender, Criminal Defense

Techniques, Sections 60A.01–02 (1999). Thus, the court concluded that the “severity of

deportation—‘the equivalent of banishment or exile,’ * * *—only underscores how critical

it is for counsel to inform her noncitizen client that he faces a risk of deportation.” Id. at

373–74, 130 S.Ct. 1473.

         {¶20} Padilla concerned a noncitizen defendant who pled guilty to the charge of

drug distribution, a deportable offense under 8 U.S.C. 1227(a) (2)(B)(i). Padilla’s attorney

did not advise him of the deportation consequences of his plea, and affirmatively

misadvised Padilla that he had nothing to worry about with respect to his immigration

status. Padilla asserted, “he would have insisted on going to trial if he had not received

incorrect advice from his attorney.” 559 U.S. at 359, 130 S.Ct. 1473. The Supreme Court

held that Padilla’s trial counsel’s failure to inform Padilla “whether his plea carrie[d] a risk

of deportation” constituted deficient performance under the first prong of Strickland, as

the relevant immigration statute was “succinct, clear, and explicit.” 559 U.S. at 374, 368,

130 S.Ct. 1473. The court did not address the issue of prejudice, and remanded the case

for the lower court to determine the prejudice issue in the first instance.

         {¶21} In Padilla, the Court gave a brief history of immigration law. The Court

noted,

               [F]rom 1917 forward, there was no such creature as an automatically

         deportable offense. Even as the class of deportable offenses expanded,
Stark County, Case No. 2016CA00201                                                      10


      judges retained discretion to ameliorate unjust results on case-by-case

      bases.

559 U.S. at 362, 130 S.Ct. 1473.        However, this procedure known as a judicial

recommendation against deportation, or JRAD is no longer part of our law. The Court

explained,

               Congress first circumscribed the JRAD provision in the 1952

      Immigration and Nationality Act (INA), and in 1990 Congress entirely

      eliminated it, 104 Stat. 5050.     In 1996, Congress also eliminated the

      Attorney General’s authority to grant discretionary relief from deportation,

      110 Stat. 3009–596, an authority that had been exercised to prevent the

      deportation of over 10,000 noncitizens during the 5-year period prior to

      1996, INS v. St. Cyr, 533 U.S. 289, 296, 121 S.Ct. 2271, 150 L.Ed.2d 347

      (2001).     Under contemporary law, if a noncitizen has committed a

      removable offense after the 1996 effective date of these amendments, 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. Subject to limited exceptions, this discretionary relief is not

      available for an offense related to trafficking in a controlled substance. See

      § 1101(a)(43)(B); § 1228.

559 U.S. at 363-364, 130 S.Ct. 1473 (footnotes omitted)(emphasis added).

      {¶22} In the case at bar, the record indicates that the DHS notified Romero that

he was subject to deportation under sections 237(a)(2)(A)(iii) and 237(a)(2)(B)(i) of the
Stark County, Case No. 2016CA00201                                                        11


Immigration and Nationality Act [“INA”], which are codified in the United States Code as

8 U.S.C. §1227(a)(2)(A)(iii), and 8 U.S.C. §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.” We note that an “aggravated felony” includes “illicit trafficking

in a controlled substance * * * including a drug trafficking crime * * *.” 8 U.S.C. §

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. § 802(6). State v. Cardenas, 2nd Dist. Darke No. 2015-CA-16, 2016-Ohio-

5537, 61 N.E.3d 20, ¶45. Marijuana is a Schedule I drug. 21 U.S.C. § 812(c). Gonzales

v. Raich, 545 U.S. 1, 14, 125 S.Ct. 2195, 162 L.Ed.2d 1(2005). Accordingly, Romero’s

conviction for trafficking between five thousand and twenty thousand grams of marijuana

qualifies as an “aggravated felony.”

       {¶23} 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 involving possession for one’s own use of 30 grams or less of marijuana,

is deportable.” Accordingly, Romero’s convictions are for violating Ohio law relating to

control substances.

       {¶24} In State v. Cardenas, the Second District Court of Appeals observed,

              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:
Stark County, Case No. 2016CA00201                                                       12


               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 [130 S.Ct. 1473] (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 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, 2015 WL

      2091679 at ¶ 7.

2016-Ohio-5537, 61 N.E.3d 20, ¶46. Indeed, in Padilla the United States Supreme

Court found,

               In the instant case, the terms of the relevant immigration statute are

      succinct, clear, and explicit in defining the removal consequence for

      Padilla’s conviction. See 8 U.S.C. § 1227(a)(2)(B)(i) (“Any alien who at any

      time after admission has been convicted of a violation of (or a conspiracy or
Stark County, Case No. 2016CA00201                                                       13


      attempt to violate) any law or regulation of a State, the United States or a

      foreign country relating to a controlled substance ..., other than a single

      offense involving possession for one’s own use of 30 grams or less of

      marijuana, is deportable”). Padilla’s counsel could have easily determined

      that his plea would make him eligible for deportation simply from reading

      the text of the statute, which addresses not some broad classification of

      crimes but specifically commands removal for all controlled substances

      convictions except for the most trivial of marijuana possession offenses.

559 U.S. at 368-369, 130 S.Ct. 147.

      {¶25} In the case at bar, the trial court never made a finding concerning whether

Romero’s attorney properly advised him, or did not properly advise him, that his guilty

pleas would result in Romero’s deportation. The trial court instead relied upon the fact

that the court had advised Romero in accordance with R.C. 2943.031. In Padilla, the trial

court did not give the defendant any advisement concerning the deportation

consequences of his plea prior to accepting his guilty plea.

      R.C. 2943.031 warning.

      {¶26} In Ohio, R.C. 2943.031 obligates a trial court, prior to accepting a guilty plea

from a noncitizen defendant, to provide the following advisement: “you are hereby advised

that conviction of the offense to which you are pleading guilty * * * 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.” R.C. 2943.031(A).

      {¶27} The trial court gave Romero the following admonishment,
Stark County, Case No. 2016CA00201                                                       14


             THE COURT:           If you are not a citizen of the United States, you

      are going to be advised and you are hereby advised 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.

Transcript of Plea & PSI, June 1, 2016 at 5. (Emphasis added). Accordingly, the

plea hearing transcript reveals the trial court complied with R.C. 2943.031(A). See

State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, syllabus.

      {¶28} In his affidavit, Romero does not allege that his attorney gave him

inaccurate or incomplete advice concerning the immigration consequences of his pleas,

             4. Further, Affiant says that his attorney…never advised him of the

      immigration consequences of his guilty pleas to drug possession and

      trafficking, most importantly, that he would be immediately deported.

Affidavit of Carlos Humberto Romero, attached as “Exhibit C,” Emergency Motion

to Withdraw Pleas and Vacate Judgment, filed Oct. 14, 2016.

      {¶29} Romero provides no explanation as to his failure to inquire in open court in

response to the trial court’s warnings under R.C. 2943.031(A).

      {¶30} While Ohio courts, including this one, 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. State v. Kostyuchenko, 1st Dist. Hamilton No. C-130257, 2014-Ohio-324, 8

N.E.3d 353, ¶15 (“But the plea form and the R.C. 2943.031 advisement, because they
Stark County, Case No. 2016CA00201                                                     15


informed Kostyuchenko only that he “may” be deported, did not provide the degree of

“accura[cy]” concerning immigration consequences that Padilla demands when, as here,

federal immigration law plainly mandates deportation. See Padilla, 559 U.S. at 364, 130

S.Ct. 1473, 176 L.Ed.2d 284. Therefore, neither counsel’s review of the plea form with

Kostyuchenko, nor the trial court’s compliance with R.C. 2943.031, effectively precluded

a finding that Kostyuchenko had been prejudiced by counsel’s violation of his duty under

Padilla to advise him that he would be deported.”); State v. Cardenas, 2nd Dist. Darke

No. 2015-CA-16, 2016-Ohio-5537, 61 N.E.3d 20, ¶49; State v. Yapp, 8th Dist. Cuyahoga

Nos. 101247, 101248, 2015-Ohio-1654, ¶16 (“Therefore, we clarify that a trial court’s R.C.

2943.031(A) advisement does not necessarily foreclose the possibility of finding prejudice

under Padilla and move away from the progeny of Bains [8th Dist. Cuyahoga No. 94330,

2010-Ohio-5143] that seemed to expansively interpret Bains as a bright line rule that the

advisement cures all prejudice.”); State v. Arrunategui, 9th Dist. Summit No. 26547, 2013-

Ohio-1525, ¶15 (“While the State argues that compliance with Revised Code Section

2943.031(A) in and of itself prevents Arrunategui from successfully proving he was

prejudiced by counsel’s performance, this Court will not go so far as to hold that

compliance with that statute is always determinative of the issue of prejudice when a

defendant claims ineffective assistance of counsel.”); State v. Galdamez, 10th Dist.

Franklin No. 14AP-527, 2015-Ohio-3681, ¶25; State v. Tapia-Cortes, 12th Dist. Butler No.

CA2016-Ohio-02-031, 2016-Ohio-8108, ¶30; See also, 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
Stark County, Case No. 2016CA00201                                                    16

defendant was prejudiced by counsel’s error); 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 Urias 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)).

       {¶31} Thus, under the current view, compliance with R.C. 2943.031(A) is not

determinative; it is merely one factor for the trial court to consider.

       Prejudice under Strickland.

       {¶32} Generally under the second prong of Strickland, a defendant must show

there is a reasonable probability that, but for counsel’s errors, he would not have pled

guilty. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 303(1985). In the

specific context of a defense counsel’s failure to advise a defendant of the immigration

consequences of a guilty plea, the United States Supreme Court has held that a

defendant demonstrates prejudice by “convinc[ing] the court that a decision to reject the

plea bargain would have been rational under the circumstances.” Padilla, 559 U.S. at

372, 130 S.Ct. 1473, 176 L.Ed.2d 284; State v. Galdamez, 10th Dist. Franklin No. 14AP-

527, 2015-Ohio-3681, ¶37.

                                            Conclusion.

       {¶33} Accordingly, because the trial court denied the motion solely on the basis

of the R.C. 2943.031 advisement we find it appropriate to remand the case for the parties

to develop a record regarding whether Romero’s decision to reject the plea bargain would
Stark County, Case No. 2016CA00201                                                        17

have been rational under the circumstances. In State v. Francis, the Ohio Supreme Court

noted,

                There is no specific requirement to hold a hearing in this situation.

         However, it sometimes is difficult for an appellate court to review a trial

         court’s ruling on a motion to withdraw a plea to determine whether an abuse

         of discretion occurred when no hearing was held.

                In State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715, at paragraph one

         of the syllabus, this court acknowledged the importance of a hearing to aid

         in developing a record that could be examined by a reviewing court to

         determine whether a trial court properly exercised its discretion in ruling on

         a motion to withdraw a plea. Xie stands for the proposition that, unless it is

         clear that denial of the motion is warranted, a trial court should hold a

         hearing. See, also, Garmendia, supra, Montgomery App. No. 2002-CA-18,

         2003-Ohio-3769, 2003 WL 21658528, at ¶ 12, which mentions the

         importance of a trial-court hearing on an R.C. 2943.031(D) motion to

         establish whether the defendant has met the statutory factors, including that

         the defendant has shown that he or she is not a citizen of the United States

         and that there may be immigration-related consequences from the

         conviction resulting from the plea. In some situations when a hearing

         should have been held, a trial court’s failure to have held a hearing amounts

         to an abuse of discretion. We find this case to be one in which a hearing

         should have been held.
Stark County, Case No. 2016CA00201                                                     18

104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶50-¶51; State v.

Galdamez, 10th Dist. Franklin No. 14AP-527, 2015-Ohio-3681, 41 N.E.3d 467,

¶45; State v. Arrunategui, 9th Dist. Summit No. 26547, 2013-Ohio-1525, ¶15.

      {¶34} Accordingly, we find the trial court abused its discretion in denying Romero’s

motion without a hearing to determine whether Romero’s decision to reject the plea

bargain would have been rational under the circumstances.

      {¶35} We reverse the judgment of the Stark County Court of Common Pleas and

remand the case for proceedings consistent with this decision.



By Gwin, P.J.,

Baldwin, J., and

Wise, Earle, J., concur
