[Cite as State v. Martinez, 2014-Ohio-2425.]
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                   No. 13AP-704
v.                                               :            (M.C. No. 2012 TRC 108526)

Nelson Martinez,                                 :           (REGULAR CALENDAR)

                 Defendant-Appellant.            :


                                          D E C I S I O N

                                       Rendered on June 10, 2014


                 Brian J. Hoffman, LLC, and Brian J. Hoffman, for appellant.

                       APPEAL from the Franklin County Municipal Court

T. BRYANT, J.
        {¶ 1} Defendant-appellant, Nelson Martinez, appeals from the May 30, 2013
judgment of the Franklin County Municipal Court denying his Crim.R. 32.1 motion to
withdraw his guilty plea. For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} In the early morning hours of January 29, 2012, a Whitehall police officer
charged appellant with: (1) operating a motor vehicle while under the influence of alcohol,
a misdemeanor of the first degree, in violation of R.C. 4511.19(A)(1)(a); (2) operating a
motor vehicle while under the age of 21 with a concentration of more than .02 grams but
less than .08 grams by weight of alcohol per 210 liters of breath, a misdemeanor of the
fourth degree, in violation of R.C. 4511.19(B)(3); (3) operating a motor vehicle without
reasonable control, a minor misdemeanor, in violation of R.C. 4511.202(A); and (4)
operating a motor vehicle outside marked lanes, a minor misdemeanor, in violation of
R.C. 4511.33(A)(1).
        {¶ 3} On July 9, 2012, appellant entered a plea of guilty to a stipulated first
offense of operating a vehicle while under the influence of alcohol, a misdemeanor of the
No. 13AP-704                                                                                               2

first degree, in violation of R.C. 4511.19(A)(1)(a). The plea form, signed by appellant and
his trial counsel, includes the following advisement for non-citizens: "If you are not a
citizen of the United States, you are hereby advised that conviction of the offense(s) to
which you are pleading guilty or no contest may have the consequences of deportation,
exclusion from admission to the United States, or denial of naturalization pursuant to
laws of the United States." Appellant marked the box on the plea form indicating: "I am
not a U.S. citizen."
        {¶ 4} The trial court accepted appellant's guilty plea and, pursuant to the
prosecution's request, dismissed the remaining charges. The court issued a judgment
entry on July 9, 2012, which indicates: "Non-citizen advisement given."1 The judgment
entry also includes the notation"prior 2011."
        {¶ 5}     On May 3, 2013, appellant, through new counsel, filed a motion to
withdraw his guilty plea pursuant to Crim.R. 32.1. In the motion, appellant alleged he is a
citizen and national of El Salvador residing in the United States under a federal
Temporary Protected Status ("TPS") benefit that permits nationals of certain foreign
countries to remain in the United States during designated periods in which return to
their home country would be unsafe. He further averred he was notified in March 2013
that his TPS benefit had been withdrawn pursuant to Section 244.4(a) of the Code of
Federal Regulations on Aliens and Nationality. See 8 C.F.R. 244.4(a). Appellant asserted
that, pursuant to 8 C.F.R. 244.4(a), an alien is ineligible for a TPS benefit when he or she
has been convicted of two or more misdemeanors committed in the United States. He
also asserted his July 2012 conviction subjected him to the provisions of 8 C.F.R.
244.4(a), as he previously had been convicted in August 2011 of a misdemeanor offense of
operating a vehicle while under the influence of alcohol.
        {¶ 6} Appellant conceded that, prior to accepting his guilty plea, the trial court
advised him that "convictions could lead to your deportation." (Emphasis sic.) (May 3,
2013 Motion, 2.) He maintained, however, that prior to entering the plea, he was neither


1 Although the judgment entry does not expressly so state, and the transcript of the plea hearing is not part

of the record on appeal, we presume the "non-citizen advisement" referenced by the trial court was that
required by R.C. 2943.031(A). ("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.") Absent a transcript of the plea hearing, we must presume the
regularity of that proceeding. State v. Angus, 10th Dist. No. 09AP-1129, 2010-Ohio-3290, ¶ 10.
No. 13AP-704                                                                               3

independently aware, nor had he been advised by trial counsel, that his guilty plea "would
automatically result in a withdrawal of his Temporary Protected Status." (Emphasis sic.)
(May 3, 2013 Motion, 2.)
       {¶ 7} Appellant asserted that, to the extent he may have contemplated the
immigration effects of his guilty plea, it was reasonable for him to believe, albeit
incorrectly, that a stipulated first offense for criminal purposes likewise would be
considered a first offense for immigration purposes. He stated he would not have entered
a guilty plea had he been informed that it would automatically make him ineligible for a
TPS benefit and subject him to deportation proceedings. Appellant noted he has lived in
the United States since the age of seven, is a high school graduate with aspirations to
pursue a college degree, is gainfully employed, sends a portion of his earnings to his
extended family in El Salvador, and that U.S. Department of State travel warnings
indicate that El Salvador had the second highest murder rate in the world in 2011.
       {¶ 8} Appellant requested that the trial court set aside the judgment of conviction
and permit him to withdraw his guilty plea because: (1) he entered the plea without a full
understanding of the immigration consequences, i.e., he would automatically be ineligible
for a TPS benefit, resulting in his imminent deportation from the United States; (2) trial
counsel rendered ineffective assistance by failing to advise him that his guilty plea would
make him ineligible for a TPS benefit; and (3) manifest injustice would result if he were
forced to live the rest of his life in an unsafe country he barely remembers. Appellant did
not attach an affidavit or any other evidence in support of the assertions made in the
motion.
       {¶ 9} On May 22, 2013, plaintiff-appellee, State of Ohio, filed a memorandum
contra urging denial of appellant's motion. That same day, the trial court held a hearing
on the motion. Counsel for appellant conceded that the trial court properly advised
appellant at the plea hearing of the possible immigration consequences of the guilty plea.
Counsel argued, however, that, pursuant to Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct.
1473 (2010), appellant's trial counsel was ineffective in not advising him that, pursuant to
8 C.F.R. 244.4(a), a second misdemeanor conviction would automatically result in
revocation of his TPS benefit and subject him to deportation proceedings. He also argued
that appellant's plea was not voluntary due to trial counsel's ineffectiveness. Specifically,
counsel maintained that, for appellant's plea to be voluntary, he must have had a "full
No. 13AP-704                                                                               4

understanding of the consequences" of the plea, and that such "full understanding"
applied to collateral consequences, including immigration consequences. (Tr. 3.)
       {¶ 10} Upon the court's inquiry, counsel conceded that he had not subpoenaed
appellant's trial counsel to testify at the hearing. Counsel averred, however, that appellant
was present and prepared to testify that "he was not advised about the collateral
immigration consequences of a second misdemeanor plea other than in general by the
Court in colloquy." (Tr. 4-5.) The court then asked counsel if there was "[a]nything else,"
and counsel responded, "No, your Honor." (Tr. 5.)
       {¶ 11} Immediately thereafter, the trial court permitted the state to assert its
position on the motion. The state maintained that appellant had failed to present any
evidence that his trial counsel failed to advise him of the deportation consequences of the
plea prior to entering the plea. The state also noted that the trial court had advised
appellant that his plea may have immigration ramifications. Accordingly, the state argued
that appellant's motion should be denied.
       {¶ 12} Subsequently, upon the court's inquiry, appellant's counsel conceded that
he neither cited the Padilla case in the motion to withdraw, nor had a readily available
copy of the case for the court's use. Counsel averred, however, that he would provide the
court a copy of the memorandum he submitted to the United States Citizenship and
Immigration Service ("USCIS"), Administrative Appeals Office in support of the appeal of
the revocation of appellant's TPS benefit.    Upon the court's request, counsel agreed to
submit a copy of both the Padilla case and the USCIS memorandum to the court. Counsel
made no further assertions regarding appellant testifying, nor made a proffer of
appellant's testimony.
       {¶ 13} On May 23, 2013, appellant filed a supplemental motion to withdraw his
guilty plea. Appellant attached to the motion a copy of the USCIS memorandum, along
with a copy of the Padilla case. Once again, appellant did not attach an affidavit or any
other evidence in support of his contention that his trial counsel failed to advise him of
the deportation consequences of his guilty plea.
       {¶ 14} By decision and entry issued May 30, 2013, the trial court denied appellant's
motion to withdraw his guilty plea. The trial court noted that appellant had failed to
present evidence, such as an affidavit, in support of his allegation that his trial counsel
was deficient in failing to advise him of the deportation consequences of his plea. The
No. 13AP-704                                                                                  5

court averred, however, that, "[e]ven if the Court were to accept the defendant's allegation
of deficient performance as true without the required evidence, the defendant has not
shown prejudice." (May 30, 2013 Decision and Entry, 4.) In finding that appellant had
failed to demonstrate prejudice, the court stated:
              In this case, the defendant has alleged that, had he known that
              his TPS benefit would be withdrawn, he would not have
              accepted the plea bargain. However, the defendant has not
              shown that a decision to forgo the plea bargain and go to trial
              would have been rational. He has not alleged that he had any
              defense to the charges against him. He has not alleged any
              other reason that a trial would not have resulted in a guilty
              verdict on one or more of the charges. Faced with a trial
              conviction, he would not have been any better off than he is
              now. His situation would likely have been worse, because
              without the plea agreement he would have faced enhanced
              penalties under R.C. 4511.19(G)(1)(c) for a second OVI offense
              within six years. In addition, the defendant would have been
              subject to the three misdemeanor charges that were dismissed
              as part of the plea agreement, any one of which would have
              resulted in withdrawal of his TPS benefit. The defendant has
              offered no evidence to show that a decision to refuse the plea
              bargain would have been rational, and has therefore failed to
              show that any deficiency in his trial counsel's performance
              prejudiced him.

(May 30, 2013 Decision and Entry, 5-6.)
II. ASSIGNMENTS OF ERROR:
       {¶ 15} Appellant filed a timely notice of appeal and assigns the following as error:
              ASSIGNMENT OF ERROR NO. 1

              THE TRIAL COURT ABUSED ITS DISCRETION BY
              DENYING DEFENDANT'S MOTION TO WITHDRAW HIS
              GUILTY PLEA[.]

              ASSIGNMENT OF ERROR NO. 2

              THE TRIAL COURT ERRED IN FINDING THAT THE
              DEFENDANT DID NOT SHOW PREJUDICE[.]

              ASSIGNMENT OF ERROR NO. 3

              THE TRIAL COURT ERRED IN NOT ACCEPTING DEFEND-
              ANT'S OFFER OF TESTIMONY[.]
No. 13AP-704                                                                               6

              ASSIGNMENT OF ERROR NO. 4

              THE TRIAL COURT ERRED IN FAILING TO CONSIDER
              DEFENDANT'S ARGUMENT THAT HIS PLEA WAS
              INVOLUNTARY BECAUSE HE LACKED FULL UNDER-
              STANDING OF THE CONSEQUENCES[.]

III. DISCUSSION
       {¶ 16} Appellant's assignments of error are interrelated and, thus, will be
considered together. In his first assignment of error, appellant contends the trial court
abused its direction in denying his motion to withdraw his guilty plea. Specifically,
appellant maintains he was denied the effective assistance of counsel because his trial
counsel did not inform him of the deportation consequences of his plea as required by
Padilla. By his second assignment of error, appellant asserts the trial court abused its
discretion in finding he did not establish prejudice resulting from trial counsel's deficient
actions. In his third assignment of error, appellant contends the trial court erred in
denying him the opportunity to testify at the hearing. In his fourth and final assignment
of error, appellant argues that, because of trial counsel's noncompliance with Padilla, his
guilty plea was not voluntarily entered.
       {¶ 17} Motions to withdraw guilty pleas are governed by Crim.R. 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." Because appellant filed his motion after sentencing, the issue before the trial court
was whether granting the motion would correct a manifest injustice. " '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. Yahya, 10th Dist.
No. 10AP-1190, 2011-Ohio-6090, ¶ 6, quoting State v. Williams, 10th Dist. No. 03AP-
1214, 2004-Ohio-6123, ¶ 5. Manifest injustice " 'is an extremely high standard, which
permits a defendant to withdraw his guilty plea only in extraordinary cases.' " State v.
Tabor, 10th Dist. No. 08AP-1066, 2009-Ohio-2657, ¶ 6, quoting State v. Price, 4th Dist.
No. 07CA47, 2008-Ohio-3583, ¶ 11. A defendant seeking to withdraw a guilty plea
following imposition of sentence bears the burden of establishing manifest injustice based
on specific facts either contained in the record or supplied through affidavits attached to
No. 13AP-704                                                                                7

the motion. State v. Barrett, 10th Dist. No. 11AP-375, 2011-Ohio-4986, ¶ 8, citing State v.
Orris, 10th Dist. No. 07AP-390, 2007-Ohio-6499.
       {¶ 18} A trial court's decision to deny a post-sentence motion to withdraw a guilty
plea is subject to review for abuse of discretion. Id. at ¶ 10. "Absent an abuse of discretion
on the part of the trial court, its decision concerning a post-sentence motion to withdraw
[a] guilty plea must be affirmed." State v. Tovar, 10th Dist. No. 11AP-1106, 2012-Ohio-
6156, ¶ 7, citing State v. Xie, 62 Ohio St.3d 521, 527 (1992). "Although an abuse of
discretion is typically defined as an unreasonable, arbitrary, or unconscionable decision,
State v. Beavers, 10th Dist. No. 11AP-1064, 2012-Ohio-3654, ¶ 8, we note that no court
has the authority, within its discretion, to commit an error or law." Tovar at ¶ 7, citing
State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶ 70.
       {¶ 19} Appellant contends the trial court abused its discretion by denying his
motion to withdraw his guilty plea because, pursuant to Padilla, his trial counsel rendered
ineffective assistance by not advising him about the risk of deportation arising out of his
guilty plea. Ineffective assistance of counsel may constitute manifest injustice requiring
post-sentence withdrawal of a guilty plea. Tovar at ¶ 9, citing Yahya at ¶ 9. To establish a
claim of ineffective assistance of counsel, appellant must demonstrate that his trial
counsel's performance was deficient and that trial counsel's deficient performance
prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to
make either showing defeats a claim of ineffectiveness of trial counsel. Id. at 697.
       {¶ 20} Appellant also argues that his plea was not voluntarily entered due to trial
counsel's ineffectiveness. A manifest injustice occurs when a plea is not knowingly,
voluntarily or intelligently entered. Williams at ¶ 9.
       {¶ 21} In order to demonstrate that his counsel's performance was deficient,
appellant must prove that trial counsel's performance fell below an objective standard of
reasonable representation. State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 133.
Appellant must overcome the strong presumption that trial counsel's conduct falls within
a wide range of reasonable professional assistance. Strickland at 689. To demonstrate
prejudice, appellant must establish that there is a reasonable probability that, but for trial
counsel's unprofessional errors, the result of the proceeding would have been different.
State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶ 204. As applied to guilty pleas, the
second prong of the ineffective-assistance test requires the defendant to " 'show that there
No. 13AP-704                                                                               8

is a reasonable probability that, but for trial counsel's errors, he would not have pleaded
guilty.' " Xie at 524, quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366 (1985).
       {¶ 22} As noted above, appellant's ineffective-assistance claim is premised
primarily upon the United States Supreme Court's decision in Padilla. In that case,
Padilla, a native of Honduras who had been a lawful permanent resident of the United
States for over 40 years, pleaded guilty to the transportation of a large amount of
marijuana, a deportable offense under 8 U.S.C. 1227(a)(2)(B)(i). Padilla claimed that his
trial counsel not only failed to advise him of this deportation consequence prior to his
entering the plea, but affirmatively misadvised him that he did not have to worry about
his immigration status because he had lived in the United States for such a long period.
Padilla claimed that he relied on his trial counsel's erroneous advice when he pleaded
guilty to the drug charges that made his deportation virtually mandatory and that he
would have insisted on going to trial had he not received incorrect advice from his
attorney.
       {¶ 23} The Supreme Court held that 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. Id. at 374.     The Supreme Court found the terms of the
relevant immigration statute to be "succinct, clear, and explicit" in defining the removal
consequence of Padilla's conviction and that Padilla's trial 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." Id. at 368. Accordingly, under the facts of Padilla,
because "[t]he consequences of Padilla's plea could easily be determined from reading the
removal statute, his deportation was presumptively mandatory, and his trial counsel's
advice was incorrect." Id. at 368-69.
       {¶ 24} The Supreme Court also recognized, however, that immigration law "can be
complex," and that there will "undoubtedly be numerous situations in which the
deportation consequences of a particular plea are unclear or uncertain." Id. at 369. The
Supreme Court determined that, in those instances in which the law "is not succinct and
straightforward[,]" the duty of trial counsel "is more limited," and "a criminal defense
No. 13AP-704                                                                                  9

attorney need do no more than advise a noncitizen client that pending criminal charges
may carry a risk of adverse immigration consequences." Id.
       {¶ 25} The Supreme Court rejected the government's proposition that Strickland
applied to Padilla's claim only to the extent that he had alleged affirmative misadvice.
"[T]here is no relevant difference 'between an act of commission and an act of omission'
in this context." Id. at 370, citing Strickland at 690. " 'The court must then determine
whether, in light of all the circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance.' " Id. at 370, citing Strickland at 690.
       {¶ 26} As to the prejudice prong of the Strickland test, the Supreme Court averred
that a defendant "must convince the court that a decision to reject the plea bargain would
have been rational under the circumstances." Id. at 372. This court has stated that the
determination regarding whether a decision to reject a plea bargain would have been
rational under the circumstances "is an objective one which is dependent on the likely
outcome of a trial had the defendant not pleaded guilty." Tovar at ¶ 13. While the Padilla
court found that trial counsel's performance was deficient under the first prong of
Strickland, the Supreme Court did not grant a new trial; rather, the Supreme Court
remanded the matter on the prejudice issue because the lower court decisions had not
addressed it. Padilla at 374.
       {¶ 27} In the present case, a review of 8 C.F.R. 244.4(a) arguably supports
appellant's claim that deportation would automatically result from his plea based on the
circumstances of his case. That provision states that an alien shall be ineligible for a TPS
benefit if he or she has been convicted of "two or more misdemeanors, as defined in
§ 244.1." Section 244.1 defines "misdemeanor" as "a crime committed in the United
States, either: (1) [p]unishable by imprisonment for a term of one year or less, regardless
of the term such alien actually served, if any, or (2) [a] crime treated as a misdemeanor
under the term 'felony' of this section." Pursuant to the guilty plea entered on July 9,
2012, appellant has been convicted of two misdemeanor offenses punishable by
imprisonment for a term of one year or less. See R.C. 4511.19. Pursuant to 8 C.F.R.
244.4(a), appellant's second misdemeanor conviction resulted in his ineligibility for a TPS
benefit. As in Padilla, appellant's trial counsel could have easily determined that his
guilty plea would make him ineligible for a TPS benefit and, thus, subject to deportation
simply from reading the text of the relevant statute. Accordingly, appellant's trial counsel
No. 13AP-704                                                                              10

was obligated to advise appellant that his pending criminal charge carried a risk of
adverse immigration consequences, including deportation. See Padilla at 369.
       {¶ 28} Although appellant contends that his trial counsel did not advise him of the
mandatory deportation consequences of his plea, appellant presents no evidence
establishing that fact. As noted above, appellant did not file an affidavit in support of
either his original motion or his supplemental motion. Further, appellant did not present
any testimonial evidence at the hearing establishing that trial counsel failed to properly
advise appellant of the plea consequences. As noted above, counsel conceded at the
hearing that he had not subpoenaed appellant's trial counsel to testify. In addition,
appellant did not testify on his own behalf. Although appellant argues that the trial court
refused to accept his offer of testimony, the transcript of the hearing does not support this
contention.   When counsel asserted that appellant was prepared to testify that trial
counsel did not advise him of the immigration consequences of a second misdemeanor
conviction, the court did not affirmatively indicate that it would not permit appellant to
testify; rather, the court merely asked counsel if there was "anything else." Rather than
formally calling appellant to testify, counsel stated that he had nothing further to offer.
Counsel made no further attempt to call appellant as a witness during the remainder of
the hearing, and he did not attempt to proffer appellant's testimony.
       {¶ 29} To demonstrate deficient performance by trial counsel, appellant presents
only his present counsel's written words (contained in the motion to withdraw) and oral
assertions (made at the hearing on the motion to withdraw) that appellant's trial counsel
did not advise him of the deportation consequences of his guilty plea.       The absence of
evidence in the record to support counsel's unsworn assertions means that appellant has
failed in his burden of establishing that trial counsel performed deficiently. "Where the
defendant fails to 'carry his burden of presenting facts from the record or supplied
through affidavit that establish manifest injustice * * *,' we are not required to permit
withdrawal of the plea." State v. Muhumed, 10th Dist. No. 11AP-1001, 2012-Ohio-6155,
¶ 47, quoting State v. Garcia, 10th Dist. No. 08AP-224, 2008-Ohio-6421, ¶ 15.
       {¶ 30} Having determined that appellant failed to demonstrate that trial counsel's
performance was deficient as required under the first prong of Strickland, we need not
consider appellant's arguments whether, under the second prong of Strickland, appellant
No. 13AP-704                                                                              11

demonstrated prejudice. See State v. Bieksza, 10th Dist. No. 12AP-176, 2012-Ohio-5976,
¶ 24.
        {¶ 31} Appellant has not demonstrated that his trial counsel was ineffective in
failing to comply with Padilla. Because appellant's argument regarding the
involuntariness of his plea is predicated on his ineffective-assistance-of-counsel claim, he
has failed to prove that his plea was not entered voluntarily. Accordingly, this court
concludes that the trial court did not abuse its discretion in denying appellant's motion to
withdraw his guilty plea.
IV. DISPOSITION
        {¶ 32} Based on the foregoing, we overrule appellant's four assignments of error
and hereby affirm the judgment of the Franklin County Municipal Court.
                                                                       Judgment affirmed.
                            KLATT and CONNOR, JJ., concur.
              T. BRYANT, J., retired, of the Third Appellate District,
              assigned to active duty under the authority of the Ohio
              Constitution, Article IV, Section 6(C).
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