[Cite as State v. Adames, 2017-Ohio-587.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                :       JUDGES:
                                              :       Hon. Patricia A. Delaney, P.J.
         Plaintiff - Appellee                 :       Hon. John W . W ise, J.
                                              :       Hon. Craig R. Baldwin, J.
 -vs-                                         :
                                              :
 HUMBERTO ADAMES                              :       Case No. 16-CA-45
                                              :
         Defendant - Appellant                :       OPINION



 CHARACTER OF PROCEEDING:                             Appeal from the Licking County
                                                      Court of Common Pleas, Case No.
                                                      15 CA 343




 JUDGMENT:                                            Affirmed




 DATE OF JUDGMENT:                                    February 13, 2017




 APPEARANCES:

 For Plaintiff-Appellee                               For Defendant-Appellant

 PAULA M. SAW YERS                                    GEORGE A. KATCHMER
 Assistant Prosecuting Attorney                       1886 Brock Road NE
 20 S. Second Street, 4th Floor                       Bloomingburg, Ohio 43106
 Newark, Ohio 43055
[Cite as State v. Adames, 2017-Ohio-587.]


 Baldwin, J.

         {¶1}       Appellant Humberto Adames appeals a judgment of the Licking County

 Common Pleas Court overruling his motion to withdraw his guilty plea to three counts of

 illegal use of supplemental nutrition or W IC benefits (R.C. 2913.46(B)) and one count of

 receiving stolen property (R.C. 2913.51(A)). Appellee is the State of Ohio.

                                 STATEMENT OF THE FACTS AND CASE

         {¶2}     On June 4, 2015, appellant was indicted with three counts of illegal use of

 supplemental nutrition or W IC benefits and one count of receiving stolen property. He

 entered guilty pleas to all four counts of the indictment on November 24, 2015. He was

 represented by counsel and had the assistance of a Spanish interpreter at the hearing.

 The trial court informed appellant that if he was not a citizen of the United States, the

 conviction of the offense to which he was pleading guilty may have the consequences of

 deportation, exclusion from admission to the United States, or denial of naturalization. In

 addition, the written plea form, signed by appellant, included an acknowledgement that

 he understood the consequences of a conviction upon him if he was not a U.S. citizen.

 Appellant was convicted and sentenced to two years of community control. Appellant did

 not file an appeal.

         {¶3}     Appellant filed a motion to withdraw his guilty plea on April 22, 2016, on the

 basis that his trial counsel was ineffective. He specifically argued that counsel failed to

 inform him that a plea to a felony requires a mandatory detention and nearly immediate

 removal from the United States. In an affidavit attached to the motion, appellant stated

 that his attorney told him to “just say ‘yes,yes’” to the judge. He averred that counsel did
[Cite as State v. Adames, 2017-Ohio-587.]


 not say anything to him about immigration consequences of the plea, and had his attorney

 told him he would face mandatory detention and deportation, he would not have pled

 guilty.

           {¶4}   The trial court overruled the motion, finding that appellant was specifically

 advised by the court during the plea colloquy that he could be deported if he was

 convicted. He assigns a single error to this Court on appeal:

           {¶5}     “A PLEA THAT IS INVOLUNTARY, UNKNOW ING AND DUE TO THE

 INEFFECTIVENESS OF COUNSEL MUST BE VACATED.”

           {¶6}   Appellant argues that despite the trial court informing him that he could be

 deported upon conviction, his counsel was ineffective for failing to inform him that a plea

 to a felony requires mandatory detention and nearly immediate removal from the United

 States, and he was simply told by his attorney that he must plead guilty.

           {¶7}   Crim.R. 32.1 provides, “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.”

           {¶8}   Appellate review of a trial court's decision under Crim.R. 32.1 is limited to a

 determination of whether the trial court abused its discretion. State v. Caraballo, 17 Ohio

 St.3d 66, 477 N.E.2d 627 (1985). In order to find an abuse of that discretion, we must

 determine the trial court's decision was unreasonable, arbitrary or unconscionable and not

 merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450

 N.E.2d 1140 (1983).
[Cite as State v. Adames, 2017-Ohio-587.]


         {¶9}     Ineffective assistance of counsel can form the basis for a claim of manifest

 injustice to support withdrawal of a guilty plea pursuant to Crim.R. 32.1. State v. Dalton,

 153 Ohio App.3d 286, 292, 2003–Ohio–3813, ¶18. A Crim.R. 32.1 motion is not a

 collateral challenge to the validity of a conviction or sentence, and instead only focuses

 on the plea. State v. Bush, 96 Ohio St.3d 235, 773 N.E.2d 522, 2002–Ohio–3993, ¶13.

 However, under the “manifest injustice” standard, a post-sentence withdrawal motion is

 granted only in extraordinary cases. State v. Aleshire, Licking App.No. 09–CA–132,

 2010–Ohio–2566, ¶60.

         {¶10} A properly licensed attorney is presumed competent. State v. Hamblin, 37

 Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

 ineffective assistance of counsel, appellant must show counsel's performance fell below

 an objective standard of reasonable representation and but for counsel’s error, the result

 of the proceedings would have been different. 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).

         {¶11} W e have previously held that a defendant cannot show prejudice from his

 attorney’s failure to inform him of the deportation consequences of a plea if the trial court

 informed the defendant of the potential immigration consequences during the plea

 colloquy.      State v. Gallegos-Martinez, 5th Dist. Delaware No. 10-CAA-06-0043, 2010-

 Ohio-6463, ¶39; State v. Amagatcher, 5th Dist. Delaware No. 15 CAC 10 0081, 2016-

 Ohio-5198, ¶21.

         {¶12} In the instant case, appellant appeared before the court represented by

 counsel and with the assistance of an interpreter. The trial court informed appellant:
[Cite as State v. Adames, 2017-Ohio-587.]


         I’m required to advise you that if you are not a citizen of the United States

         you are hereby advised that the 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.

         {¶13} Judgment, June 7, 2016, Exhibit A.

         {¶14} Further, while the trial court appended the page of the transcript in which he

 informed appellant of the immigration consequences of the plea, appellant has not

 provided this Court with a full transcript of the plea hearing, which may have demonstrated

 that counsel did in fact discuss the immigration consequences with appellant prior to his

 plea. In the absence of a transcript, we must presume regularity in the proceedings below.

 Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197, 199, 400 N.E.2d 384, 385.
      {¶15} The assignment of error is overruled. The judgment of the Licking County

Common Pleas Court is affirmed. Costs are assessed to appellant.


By: Baldwin, J.

Delaney, P.J. and

Wise, J. concur.
