[Cite as State v. Yazici, 2011-Ohio-583.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

STATE OF OHIO                                       JUDGES:
                                                    Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                          Hon. John W. Wise, J.
                                                    Hon. Julie A. Edwards, J.
-vs-
                                                    Case No. 2010CA00138
ARMAGAN YAZICI

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Stark County Common
                                                Pleas Court, Case No. 2010CR0044


JUDGMENT:                                       Affirmed


DATE OF JUDGMENT ENTRY:                          February 7, 2011


APPEARANCES:


For Plaintiff-Appellee                          For Defendant-Appellant


JOHN D. FERRERO                                 DOUGLAS C. BOND
PROSECUTING ATTORNEY,                           MORELLO & BOND, LTD.
STARK COUNTY, OHIO                              700 Courtyard Centre
                                                116 Cleveland Avenue N.W.
By: KATHLEEN O. TATARSKY                        Canton, Ohio 44702
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2010CA00138                                                        2

Hoffman, P.J.


        {¶1}   Defendant-appellant Armagan Yazici appeals her April 22, 2010

conviction, pursuant to a negotiated plea agreement, entered by the Stark County Court

of Common Pleas on two counts of felonious assault. Plaintiff-appellee is the State of

Ohio.

                                  STATEMENT OF THE CASE1

        {¶2}   On February 26, 2010, the Stark County Grand Jury indicted Appellant on

two counts of felonious assault, a violation of R.C. 2903.11(A)(1) and/or (A)(2).

Appellant entered a plea of not guilty to the counts.

        {¶3}   On April 22, 2010, Appellant entered a plea of guilty to both counts of

felonious assault, executing a Criminal Rule 11 (C) plea form, which included the

following provision:

        {¶4}   “6. I understand that if I am not a citizen of the United States, I am hereby

advised the conviction of the offenses to which I am pleading guilty to 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.

        {¶5}   “***

        {¶6}   “I understand the consequences of a conviction upon me if I am not a U.S.

Citizen” (emphasis added).

        {¶7}   The trial court acknowledged the agreed upon plea and the agreed upon

sentence, and the following exchange occurred on the record:



1
  A rendition of the facts relating to the underlying charge is unnecessary for our
disposition of this appeal.
Stark County, Case No. 2010CA00138                                                        3


       {¶8}    “The Court: Now, it’s also been indicated to me that, that your client is not

an American citizen; is that correct?

       {¶9}    “Mr. Glantz: That is correct, Judge.

       {¶10} “The Court: Have you discussed the situation with her concerning her

potential deportation from the United States at the conclusion of any prison term?

       {¶11} “Mr. Glantz: Judge, I have. Early on in the case I spoke to a, a - -an

immigration attorney by the name of Matt Bernstein out of the Chicago area that my

client had contacted. I spoke with him at length regarding the issues.

       {¶12} “I spoke to my client and her family regarding those issues.             They

understand that that is a possibility at the end of the case and that is something that

would be brought by the immigration department, that they can then at that time hire an

attorney to oppose that or, or have hearings relative to that. But she understands that

that is a possibility.

       {¶13} “She and her family have spoken to, I believe, a couple different

immigration lawyers in addition to the one that I spoke to, and they’re fully aware of

those circumstances” (emphasis added).

       {¶14} Tr. at 4-5.

       {¶15} The trial court later engaged Appellant in the following colloquy,

       {¶16} “The Court: And I, I need you to understand, and it’s in the written plea

form, but I want to again also orally tell you, that if you are not a citizen of the United

States that I need to advise you that the conviction of this offense to a felony, there

being two felony charges here of felonious assault, that these may have the

consequences of deportation or exclusion from admission to the United States or denial
Stark County, Case No. 2010CA00138                                                          4


of naturalization meaning that you could be denied ever becoming a citizen of the

United States pursuant to federal law, and in fact, our experience has been, especially

since 2001, that individuals that are convicted of felonies, in particular felonies that may

be considered felonies of violence like this charge or the two charges we have here,

that they will in fact be deported. You understand that?

       {¶17} “The Defendant: Yes, sir.

       {¶18} “The Court: And you’ve also discussed this with - - you or your family has

discussed this - -

       {¶19} “The Defendant: Yes.

       {¶20} “The Court: - - with counsel that specialized in this area; is that correct?

       {¶21} “The Defendant: Yes.

       {¶22} “The Court: And you feel comfortable with going forward at this point?

       {¶23} “The Defendant: Yes, sir.

       {¶24} “The Court: Thank you.”

       {¶25} Tr. at 12-13 (emphasis added).

       {¶26} The trial court then accepted Appellant’s plea, and sentenced Appellant

accordingly.

       {¶27} Appellant now appeals, asserting as error:

       {¶28} “I. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL UNDER ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION AND

THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.”

       {¶30} 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
Stark County, Case No. 2010CA00138                                                       5


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 (1993), 506 U.S. 364, 113 S.Ct. 838,

122 L.Ed.2d 180; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80

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

       {¶31} To prevail on this claim, appellant must meet both the deficient

performance and prejudice prongs of Strickland and Bradley. Knowles v. Mirzayance

(2009), --- U.S. ----, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251.

       {¶32} To show deficient performance, appellant must establish that “counsel's

representation fell below an objective standard of reasonableness.” Strickland, at 688.

In light of “the variety of circumstances faced by defense counsel [and] the range of

legitimate decisions regarding how best to represent a criminal defendant,” the

performance inquiry necessarily turns on “whether counsel's assistance was reasonable

considering all the circumstances.” Id., at 688-689. At all points, “[j]udicial scrutiny of

counsel's performance must be highly deferential.” Id ., at 689.

       {¶33} Appellant must further demonstrate that he suffered prejudice from his

counsel's performance. See Strickland, 466 U.S., at 691 (“An error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment”). To establish prejudice, “[t]he

defendant must show that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694.
Stark County, Case No. 2010CA00138                                                         6


       {¶34} The United States Supreme Court and the Ohio Supreme Court have held

a reviewing court “need not determine whether counsel's performance was deficient

before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697.

       {¶35} In the sole assignment of error, Appellant maintains trial counsel was

ineffective in failing to inform her of the effect of her negotiated plea because she was

not a United States citizen. Appellant relies upon the United States Supreme Court

holding in Padilla v. Kentucky, (2001)____ U.S. ____, 130 S. Ct. 1473, for the

proposition trial counsel is per se ineffective if he fails to advise a non citizen of the

United States pleading guilty to felonious assault will result in a presumption of

mandatory deportation. While Appellant herein was misinformed as to the mandatory

deportation that would result from her plea, this case is distinguishable from Padilla

where the defendant was told he had “nothing to worry about”, and was not advised

there was a possibility of deportation as a result of his plea.

       {¶36} This Court recently addressed the issue raised herein in State v. Gallegos-

Martinez, December 28, 2010, Delaware App. No. 10-CAA-06-0043, holding:

       {¶37} “The United States Supreme Court recently determined ‘it is critical for

counsel to inform her noncitizen client that he faces a risk of deportation’ and that failure

to do so can satisfy the first prong of the Strickland analysis. Padilla v. Kentucky (2010),

--- U.S. ---- 130 S.Ct. 1473, 176 L.Ed.2d 284. Notwithstanding, the defendant must still

demonstrate prejudice as a result thereof before being entitled to relief. The court in

Padilla remanded the case for a determination of prejudice.
Stark County, Case No. 2010CA00138                                                         7

       {¶38} “Padilla, however, is not analogous to this case. Most notably, the

Kentucky court did not advise Padilla of the possible immigration consequences of his

plea and conviction. Id. at fn. 15 [footnote omitted]. In addition, Padilla's counsel

allegedly misadvised him that he ‘ ‘did not have to worry about immigration status since

he had been in the country for so long’ and never advised him otherwise.’ Id. at 1477.

       {¶39} “ ***

       {¶40} “***Most notably, the Kentucky court did not advise Padilla of the possible

immigration consequences of his plea and conviction. Id. at fn. 15. The Court

concluded, ‘Whether Padilla is entitled to relief will depend on whether he can

demonstrate prejudice as a result thereof, a question we do not reach because it was

not passed on below.’ Further, this is not a case of counsel allegedly misadvised

appellant that he would not be deported if he pleads guilty, as was the case in Padilla.

       {¶41} “***Failure to advise the defendant of the possible deportation risks did not

result in an automatic reversal in Padilla; rather the United States Supreme Court

remanded the case for a hearing to determine whether Padilla was prejudiced by the

failure of his attorney to advise him of the possible deportation consequences of his

guilty plea.

       {¶42} “While we agree with the appellant that, based on Padilla, if defense

counsel fails to advise a Defendant of possible deportation risks, this would fail the first

prong of the Strickland test; however, we find in the case at bar that appellant has failed

to establish prejudice as required under the second-prong of the Strickland test, i.e. that

he would not have pleaded guilty had his attorney rather than the trial court given the

advice.”
Stark County, Case No. 2010CA00138                                                   8


      {¶43} Similarly, in this case, Appellant was advised by counsel there was a

possibility of deportation as a result of her plea to the felony charges. While she was

not advised deportation would be mandatory upon her conviction, she was aware

deportation was a possibility as a consequence of the negotiated plea and a

subsequent conviction. As was the case in Gallegos-Martinez, we find Appellant has

not demonstrated prejudice in the record before us as a result of the alleged error of

counsel; therefore, has not met the second prong of the Strickland test.

      {¶44} Appellant’s assigned error is overruled.

By: Hoffman, P.J.

Wise, J. and

Edwards, J. concur

                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ John W. Wise______________________
                                            HON. JOHN W. WISE


                                            s/ Julie A. Edwards___________________
                                            HON. JULIE A. EDWARDS
Stark County, Case No. 2010CA00138                                                    9


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
ARMAGAN YAZICI                             :
                                           :
       Defendant-Appellant                 :         Case No. 2010CA00138


       For the reason stated in our accompanying Opinion, Appellant’s conviction in

the Stark County Court of Common Pleas is affirmed. Costs to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ John W. Wise______________________
                                           HON. JOHN W. WISE


                                           s/ Julie A. Edwards___________________
                                           HON. JULIE A. EDWARDS
