[Cite as State v. Arrunategui, 2013-Ohio-1525.]


STATE OF OHIO                     )                      IN THE COURT OF APPEALS
                                  )ss:                   NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                            C.A. No.   26547

        Appellant

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
JIMMY A. ARRUNATEGUI                                     COURT OF COMMON PLEAS
                                                         COUNTY OF SUMMIT, OHIO
        Appellee                                         CASE No.   CR 2010 05 1197

                                 DECISION AND JOURNAL ENTRY

Dated: April 17, 2013



        HENSAL, Judge.

        {¶1}     Plaintiff-Appellant, State of Ohio, appeals from the trial court’s decision that

granted Defendant-Appellee, Jimmy A. Arrunategui’s, motion to withdraw his guilty plea. For

the reasons set forth below, this Court reverses.

                                                    I.

        {¶2}     On September 8, 2010, Arrunategui pled guilty to one count of possession of

cocaine. Prior to sentencing, he stated on the record that he was a permanent resident of the

United States. The court advised Arrunategui pursuant to Revised Code Section 2943.031(A)

that, “if you’re not a citizen of the United States, you are hereby advised that as a conviction to

the event (sic) which you are pleading 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.” Arrunategui stated that he understood the advisement, and was sentenced.
                                                 2


       {¶3}    After completion of his sentence, Arrunategui was served with an Immigration

and Customs Enforcement (ICE) arrest warrant. He filed a motion pursuant to Criminal Rule

32.1 to set aside the judgment of conviction and withdraw his guilty plea on the basis of

ineffective assistance of counsel, which was granted by the trial court.

       {¶4}    The State now appeals the decision of the trial court to allow Arrunategui to

withdraw his plea, and raises one assignment of error for review.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN GRANTING THE MOTION TO
       WITHDRAW THE PLEA.

       {¶5}    In its sole assignment of error, the State argues that the trial court erred in

granting Appellee’s motion to withdraw his guilty plea as Arrunategui was not prejudiced by his

counsel’s failure to advise him of the likelihood of deportation since he was notified of the

possibility by the court pursuant to Revised Code Section 2943.031(A).

       {¶6}     It is within the trial court’s sound discretion whether to grant a motion to

withdraw a plea. State v. Smith, 49 Ohio St.2d 261, 264 (1977). “An appellate court reviews a

trial court's decision on a motion to withdraw a plea under an abuse-of-discretion standard.”

State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, ¶ 32. An abuse of discretion “implies

that the court's attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore,

5 Ohio St.3d 217, 219 (1983). An appellate court may not substitute its judgment for that of the

trial court when reviewing a matter pursuant to this standard. Berk v. Matthews, 53 Ohio St.3d

161, 169 (1990).

       {¶7}    Section 2943.031(A) requires that in certain circumstances, the court must advise

a defendant on the record about possible immigration consequences and ascertain if the
                                                3


defendant understands the advisement. Section 2943.031(F) states that: “[n]othing in this

section shall be construed as preventing a court, in the sound exercise of its discretion pursuant

to Criminal Rule 32.1, from setting aside the judgment of conviction and permitting a defendant

to withdraw his plea.”

      {¶8}     In the motion to withdraw his guilty plea, Arrunategui argued that the failure of

his former attorney to inform him of the likelihood of deportation constituted ineffective

assistance of counsel. He does not dispute that the trial court correctly gave the advisement

required by Section 2943.031(A) at the plea/sentencing hearing. Arrunategui instead argues

that the advisement does not cure the prejudice he experienced as a result of counsel’s deficient

performance.

      {¶9}     The Sixth Amendment right to the effective assistance of counsel is applicable to

plea negotiations. Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 1384 (2012). In order to

prove a claim of ineffective assistance of counsel, Arrunategui must demonstrate that counsel’s

performance fell below an “objective standard of reasonableness” and he was prejudiced by the

performance. State v. Chapman, 9th Dist. No. 26175, 2013-Ohio-357, ¶ 43, quoting State v.

Reynolds, 80 Ohio St.3d 670, 674 (1998).

      {¶10} Arrunategui submitted an affidavit from his former counsel who stated she did not

advise him of the deportation consequences of his conviction. The trial court relied upon the

United States Supreme Court case of Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473 (2010)

to find that Arrunategui’s counsel was required to advise him of the likelihood of deportation

and that failure to do so violated his right to the effective assistance of counsel. While the State

distinguishes Padilla from the case sub judice by arguing that the U.S. Supreme Court

remanded the matter to decide whether the defendant was prejudiced by counsel’s actions, the
                                                4


clear holding of the case was that counsel must inform the client whether the plea carries a risk

of deportation. Id. at 1486. Given the holding in Padilla, the trial court did not abuse its

discretion in finding that the performance of Arrunategui’s counsel failed to meet the

professional competency standards required by the Sixth Amendment.

       {¶11} The State further argues that any defendant notified of the risk of deportation by

virtue of the advisement provided in Revised Code Section 2943.031(A) cannot demonstrate

prejudice sufficient to establish an ineffective assistance of counsel claim. To prove that he was

prejudiced by counsel’s performance, Arrunategui must establish there was a reasonable

probability that “but for counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial.” Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399, 1409 (2012),

quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985).

       {¶12} The transcript from the plea/sentencing hearing and the affidavit of former

counsel were the only items submitted with Arrunategui’s motion to withdraw his plea. He did

not submit his own affidavit in support of the motion. Counsel’s affidavit stated that:

        It is my understanding that Mr. Arrunategui did not know that pleading guilty to
       the drug charge would trigger deportation consequences.

       It is also my understanding that Mr. Arrunategui would not have plead (sic) to
       the charge had he known his immigration consequences.

This Court finds that the statements contained therein, which are based on assumptions of what

Arrunategui would have done rather than personal knowledge, are insufficient to conclusively

establish that he would not have pled guilty and would have insisted on going to trial. While the

trial court found that Arrunategui was prejudiced, it did not elaborate on how it reached that

conclusion other than to reason that compliance with Section 2934.031 cannot cure counsel’s

deficient performance.
                                                5


       {¶13} Arrunategui’s motion was filed pursuant to Criminal Rule 32.1, which provides

that: “A motion to withdraw a plea of guilty or no contest 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.” “Manifest injustice” is a “clear

or openly unjust act” that is a “miscarriage of justice or is inconsistent with the demands of due

process.”   State v. Ford, 9th Dist. No. 26260, 2012-Ohio-4028, ¶ 5, quoting State ex rel.

Schneider v. Kreiner, 83 Ohio St.3d 203, 208 (1998). “An evidentiary hearing on a post-

sentence motion to withdraw a guilty plea is not required if the ‘record indicates that the movant

is not entitled to relief and the movant has failed to submit evidentiary documents sufficient to

demonstrate a manifest injustice.’” State v. Razo, 9th Dist. No. 05CA008639, 2005-Ohio-3793,

¶ 20, quoting State v. Russ, 8th Dist. No. 81580, 2003-Ohio-1001, ¶ 12.

       {¶14} While former counsel’s affidavit does not prove that Arrunategui was prejudiced

by the deficient performance, the affidavit and eventual consequence suffered by Arrunategui

sufficiently allege that manifest injustice may have occurred so as to warrant a hearing on the

motion to enable the necessary finding of prejudice. “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.” Francis 2004-Ohio-6894 at ¶ 50. “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.” Id. at ¶ 51.

       {¶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
                                                 6


determinative of the issue of prejudice when a defendant claims ineffective assistance of counsel.

In this case, however, the Court finds that the trial court abused its discretion in granting

Arrunategui’s motion without a hearing to determine whether he was prejudiced by counsel’s

deficient performance. Accordingly, the State’s only assignment of error is sustained and the

trial court order granting Arrunategui’s motion to withdraw his plea is vacated. Arrunategui’s

plea and conviction remain valid.

                                                III.

        {¶16} The State’s only assignment of error is sustained. The judgment of the Summit

County Court of Common Pleas granting Appellee’s motion to withdraw his plea is reversed and

the matter is remanded to the trial court for a hearing on Arrunategui’s motion to withdraw his

guilty plea.

                                                                               Judgment reversed
                                                                             and cause remanded.




        There were reasonable grounds for this appeal.

        We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

        Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                                 7


       Costs taxed to Appellee.




                                                      JENNIFER HENSAL
                                                      FOR THE COURT




BELFANCE, P. J.
CONCURRING.

       {¶17} Based upon the unique circumstances of this case, I agree that it is appropriate to

remand this matter to the trial court to conduct a hearing on Mr. Arrunategui’s motion. The

affidavit submitted by Mr. Arrunategui’s counsel is somewhat problematic. The affidavit states

that

       [i]t is my understanding that Mr. Arrunategui did not know that pleading guilty to
       the drug charge would trigger deportation consequences.

       []It is also my understanding that Mr. Arrunategui would not have plead to the
       charge had he known his immigration consequences.

As noted by the main opinion, trial counsel’s affidavit could be read to mean that trial counsel is

assuming that Mr. Arrunategui did not know the deportation consequences of his plea and would

not have pled had he known the consequences. However, the language could also be read to

indicate that Mr. Arrunategui would not have pled and would instead have chosen to go to trial if

he was aware of the immigration consequences, that he informed trial counsel of the same, and,

thus, such was her understanding. There is nothing in the record to contradict that. Thus, Mr.

Arrunategui’s averments are sufficient to warrant a hearing on his motion, and, given the

problematic nature of the affidavit, I agree that it is appropriate to remand the matter to the trial

court to conduct a hearing.
                                                8


       {¶18} However, I also write separately to note that, given the lawyer’s failure to inform

Mr. Arrunategui of the mandatory deportation consequences of his plea, it is not surprising that

the trial court would have determined that a manifest injustice occurred, thereby warranting

vacation of the plea.    However, Mr. Arrunategui specifically alleged that his counsel was

ineffective, which added an additional layer of analysis under Padilla v. Kentucky, 559 U.S. 356,

130 S.Ct. 1473, 1484, 1486 (2010). In advancing an ineffective assistance of counsel argument,

Mr. Arrunategui would need to establish that his counsel was deficient and that he was

prejudiced. Id. at 1482. Here, there is no question that trial counsel’s performance was deficient

in light of Padilla. See id. at 1486. Mr. Arrunategui’s trial counsel failed to even inform him

that his plea could result in deportation, let alone inform him that it was nearly certain that his

plea would result in deportation. See id. at 1483 (noting that removal is mandatory for all

controlled substance convictions except for minor marijuana possession offenses and that when

the deportation consequences of a conviction are clear, counsel’s advice must be equally clear).

As to whether Mr. Arrunategui was prejudiced by his counsel’s failure to inform him of the

inevitable consequences of his plea, it would seem that such a failure is inherently prejudicial.

Although in Padilla, the Supreme Court remanded the matter to the state court to determine

whether prejudice had occurred, see id. at 1487, it recognized that deportation can be the most

important part of the penalty that a noncitizen defendant faces upon pleading guilty. Id. at 1480.

Thus, the Court seemed to suggest that establishing the prejudice prong under such

circumstances is not onerous. See id. at 1483. While it is difficult to envision a situation in

which mandatory deportation would not be prejudicial to a particular defendant, because of the

problematic wording of the affidavit, I agree that it is appropriate to remand the matter for a

hearing under the circumstances.
                                                  9


WHITMORE, J.
CONCURRING IN PART, AND DISSENTING IN PART.

       {¶19} Although I agree that the case must be reversed, I would not remand the matter

for a hearing. Instead, I would conclude that the trial court erred by granting Arrunategui’s

motion to withdraw his plea because the record demonstrates that he failed to satisfy the manifest

injustice standard. Therefore, I would sustain the State’s sole assignment of error and order

Arrunategui’s conviction reinstated. As such, I concur in part and dissent in part.

       {¶20} “Under the manifest injustice standard, a post-sentence ‘withdrawal motion is

allowable only in extraordinary cases.’” State v. Brown, 9th Dist. No. 24831, 2010-Ohio-2328, ¶

9, quoting State v. Smith, 49 Ohio St.2d 261, 264 (1977). To withdraw his plea based on the

ineffective assistance of his trial counsel, Arrunategui was required to demonstrate both that (1)

his counsel’s performance was deficient, and (2) a reasonable probability existed that “but for his

counsel’s error, he would not have pleaded guilty and would have insisted on going to trial.”

State v. Evans, 9th Dist. No. 09CA0049-M, 2010-Ohio-3545, ¶ 4. I agree that Arrunategui

proved his counsel’s performance was deficient. I would conclude, however, that he failed to

prove that he was prejudiced as a result of the deficiency.

       {¶21} Arrunategui conceded in his motion to withdraw that the trial court complied with

R.C. 2943.031 during his plea hearing. Consistent with that statute, the trial court advised

Arrunategui that his conviction “may have the consequence of deportation * * *.” The court

then asked Arrunategui if he understood, and Arrunategui responded affirmatively.

Nevertheless, Arrunategui argues that he was unaware of the consequences of a guilty plea

because his counsel never discussed the possibility of deportation with him. Arrunategui’s trial

counsel attested in an affidavit that she did not advise Arrunategui that his plea and conviction

could result in deportation prior to or during his plea.
                                                 10


       {¶22} This is not a case where trial counsel gave improper or misleading advice about

the possibility of deportation. See, e.g., State v. Yahya, 10th Dist. No. 10AP-1190, 2011-Ohio-

6090, ¶ 14-17 (hearing on motion to withdraw necessary when appellant alleged that, before the

court’s explanation about the possibility of deportation, trial counsel led her to believe she would

not be deported). Rather, it is a case where trial counsel failed to offer any advice about the

possibility of deportation. Several courts have held that, in such cases, a defendant cannot

demonstrate prejudice as a result of his or her counsel’s failure to advise when the record reflects

that the court complied with R.C. 2943.031 at the plea hearing. See State v. Ikharo, 10th Dist.

No. 10AP-967, 2011-Ohio-2746, ¶ 19-20; State v. Gallegos-Martinez, 5th Dist. No. 10-CAA-06-

0043, 2010-Ohio-6463, ¶ 35-36. See also State v. Velazquez, 8th Dist. No. 95978, 2011-Ohio-

4818, ¶ 27-28. I would adopt the rationale of our sister districts.

       {¶23} Because the trial court notified Arrunategui of the possibility of deportation at his

plea hearing and Arrunategui indicated that he understood the court’s notification, I would

conclude that Arrunategui was not prejudiced by his counsel’s failure to advise him of the

possibility of deportation. See Ikharo at ¶ 19-20; Gallegos-Martinez at ¶ 35-36. See also State v.

Gegia, 157 Ohio App.3d 112, 2004-Ohio-2124, ¶ 28-29 (9th Dist.) (“[E]ven assuming that trial

counsel failed to personally advise appellant of possible deportation[,] * * * appellant was

properly advised by the trial court that he could possibly be deported to the Republic of Georgia

if he pleaded guilty, * * * and therefore trial counsel was not ineffective on this ground.”). The

court’s notification put him on notice that deportation was a possibility.            Nevertheless,

Arrunategui proceeded to enter his plea and serve his entire sentence before seeking to withdraw

it. See State v. Gordon, 9th Dist. No. 25911, 2012-Ohio-902, ¶ 9, quoting Smith, 49 Ohio St.2d

at paragraph three of the syllabus (“Undue delay in a defendant’s Crim.R 32.1 motion to
                                               11


withdraw is a factor ‘militating against the granting of the motion.’”). The record does not

support the conclusion that this was an “extraordinary case” justifying the post-sentence

withdrawal of Arrunategui’s plea. Brown, 2010-Ohio-2328, at ¶ 9, quoting Smith, 49 Ohio St.2d

at 264.

          {¶24} Because the trial court erred by granting Arrunategui’s motion to withdraw, I

would sustain the State’s sole assignment of error and order Arrunategui’s conviction reinstated.

Thus, I concur insofar as I agree that this Court must reverse the trial court’s judgment, but

dissent as to the remainder of the opinion.


APPEARANCES:

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellant.

TANIA NEMER, Attorney at Law, for Appellee.
