         [Cite as State v. Bishop, 2014-Ohio-173.]




                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :    APPEAL NO. C-130074
                                                         TRIAL NO. 06CRB-25910
        Plaintiff-Appellant,                         :

  vs.                                                :       O P I N I O N.

HAROLD BISHOP,                                       :

    Defendant-Appellee.                              :



Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: January 22, 2014



John Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and Heidi Rosales,
Senior Assistant City Prosecutor, for Plaintiff-Appellant,

McKinny & Namei Co., LPA, and Paul W. Shonk, for Defendant-Appellee.




Please note: we have removed this case from the accelerated calendar.
                 OHIO FIRST DISTRICT COURT OF APPEALS



Per Curiam.

       {¶1}   Plaintiff-appellant the state of Ohio appeals from the Hamilton County

Municipal Court’s judgment granting defendant-appellee Harold Bishop’s Crim.R.

32.1 motion to withdraw his no-contest plea. Upon our determination that the court

abused its discretion in retroactively applying Padilla v. Kentucky, 559 U.S. 356, 130

S.Ct. 1473, 176 L.Ed.2d 284 (2010), to permit Bishop to withdraw his plea, we

reverse the court’s judgment.

       {¶2}   Bishop was convicted in 2006 upon his no-contest plea to domestic

violence. He did not appeal his conviction. Instead, in 2011, he unsuccessfully

sought to expunge it. And in 2012, he moved under Crim.R. 32.1 to withdraw his no-

contest plea on the ground that his plea had been the unintelligent product of his

trial counsel’s ineffectiveness in advising him concerning the immigration

consequences of his conviction.     Following a hearing, the common pleas court

granted the motion, and this appeal followed.

       {¶3}   On appeal, the state advances a single assignment of error, challenging

the granting of Bishop’s motion. The challenge is well taken.

       {¶4}   Crim.R. 32.1 authorizes the postconviction withdrawal of a guilty or

no-contest plea only “to correct manifest injustice.” State v. Smith, 49 Ohio St.2d

261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. The defendant bears the

burden of proving “manifest injustice.” The determination of whether the defendant

has sustained that burden is committed to the sound discretion of the trial court and

will not be disturbed on appeal unless the court abused its discretion.        Id. at

paragraph two of the syllabus.




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         {¶5}   The due-process protections afforded by Article I, Section 16 of the

Ohio Constitution and the Fourteenth Amendment to the United States Constitution

require that a guilty or no-contest plea “represent[] a voluntary and intelligent choice

among the alternative courses of action open to the defendant.” North Carolina v.

Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); State v. Engle, 74 Ohio

St.3d 525, 527, 660 N.E.2d 450 (1996). A defendant who seeks to withdraw his plea

on the ground that the plea was the unintelligent product of his counsel’s

ineffectiveness must demonstrate that counsel’s representation was constitutionally

deficient, Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984), and that “there is a reasonable probability that, but for [this

deficiency, the defendant] would not have pleaded guilty and would have insisted on

going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203

(1985); see State v. Xie, 62 Ohio St.3d, 521, 524, 584 N.E.2d 715 (1992); State v.

Blackwell, 1st Dist. Hamilton No. C-970150, 1998 Ohio App. LEXIS 1856 (May 1,

1998).

         {¶6}   Inaccurate          advice         concerning            immigration

consequences. In support of his motion to withdraw his no-contest plea, Bishop

contended that his trial counsel’s representation had been constitutionally deficient

because counsel had advised him that the domestic-violence conviction resulting

from his no-contest plea “may” make him deportable, when his conviction mandated

deportation. Bishop also insisted that if he had known that his conviction would

make him deportable, he would not have entered the plea.

         {¶7}   For purposes of the Sixth Amendment right to the effective assistance

of counsel, a plea negotiation is a critical phase of a criminal prosecution. Hill at 57.




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In Padilla, the United States Supreme Court held that the Sixth Amendment imposes

upon counsel in a criminal case a duty to accurately advise a noncitizen client

concerning the immigration consequences of a guilty plea. Padilla, 559 U.S. at 374,

130 S.Ct. 1473, 176 L.Ed.2d 284. If the consequence of deportation can be “easily

determined from reading the removal statute,” counsel must inform his client of that

fact. “When the law is not succinct and straightforward,” counsel “need do no more

than advise a noncitizen client that pending criminal charges may carry a risk of

adverse immigration consequences.” Id. at 368-369.

       {¶8}   Bishop testified at the hearing that his counsel had advised him that

his conviction upon his no-contest plea to domestic violence “may” result in his

deportation. But federal immigration law expressly mandates the removal of “[a]ny

alien * * * convicted of a crime of domestic violence.” 8 U.S.C. 1227(a)(2)(E)(i).

Because counsel did not advise Bishop that deportation was mandatory, counsel’s

representation was constitutionally deficient.

       {¶9}   Padilla is not retroactive. But in Chaidez v. United States, ___

U.S. ___, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), the Supreme Court, applying the

principles set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334

(1989), held that Padilla could not be applied retroactively to convictions that had

become final before March 31, 2010, when the case was decided, because the case

announced a “new rule” when it answered an open question concerning the reach of

the Sixth Amendment in a way that altered the law of most jurisdictions. Chaidez at

1107-1113.

       {¶10} A conviction becomes final when all appellate remedies have been

exhausted. Teague at 295; Agee v. Russell, 92 Ohio St.3d 540, 2001-Ohio-1279, 751




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                  OHIO FIRST DISTRICT COURT OF APPEALS



N.E.2d 1043. Thus, Bishop’s conviction became final in 2006, when the time for

perfecting a direct appeal from his conviction had expired.           Because Bishop’s

conviction was final before Padilla was decided, the municipal court could not,

consistent with Chaidez, allow Bishop to withdraw his no-contest plea based on a

violation of the Sixth Amendment right announced in Padilla.

       {¶11} We follow Chaidez. Nevertheless, Bishop urges us to follow the

lead of the Supreme Judicial Court of Massachusetts in Commonwealth v. Sylvain,

466 Mass. 422, 995 N.E.2d 760 (2013), and hold that he was entitled to relief under

Crim.R. 32.1, because the rule announced in Padilla was not a “new rule” under Ohio

law. We decline to do so.

       {¶12} In Teague, the United States Supreme Court held that a person whose

conviction is final before a case is decided may avail himself of that decision in a

collateral proceeding if the case applies a settled rule, but not if the case announces a

“new rule,” unless that new rule constitutes either a rule placing “conduct beyond the

power of the [government] to proscribe” or a “watershed rule[] of criminal procedure

implicating the fundamental fairness and accuracy of the criminal proceeding.”

Teague, 489 U.S. at 311, 109 S.Ct. 1060, 103 L.Ed.2d 334. The court in Teague

stated that “a case announces a new rule if the result was not dictated by precedent

existing at the time the defendant’s conviction became final.” Id. at 301. And the

court later declared that a holding is not dictated by existing precedent unless it

would have been “apparent to all reasonable jurists.” Lambrix v. Singletary, 520

U.S. 518, 527-528, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997). The Court in Chaidez

applied Teague and Lambrix to hold that Padilla had stated a new rule.               See

Chaidez, 133 S.Ct. at 1107, 185 L.Ed.2d 149.




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                   OHIO FIRST DISTRICT COURT OF APPEALS



        {¶13} In Danforth v. Minnesota, 552 U.S. 264, 282, 128 S.Ct. 1029, 169

L.Ed.2d 859 (2008), the Supreme Court held that Teague does not bar a state from

giving a federal constitutional rule deemed “new” under Teague broader retroactive

effect in its own state collateral proceedings. In Sylvain, the Supreme Judicial Court

of Massachusetts exercised its authority under Danforth to define and determine

under state law what constitutes a “new rule” and held that the Padilla rule was not

“new” under Massachusetts law. Sylvain at 435. Massachusetts’s highest court had

long ago adopted the Teague analysis for determining retroactivity.                          See

Commonwealth v. Bray, 407 Mass. 296, 300-301, 553 N.E.2d 538 (1990). But in

Sylvain, the court said that the Supreme Court since Teague had “greatly expanded

the meaning of what is ‘new’ to include results not apparent to all reasonable jurists

at the time.” Sylvain at 433. Distinguishing the post-Teague precedent, the court

applied what it called the “original formulation” of the Teague analysis, and it

concluded that Padilla had not announced a new rule, because the Supreme Court in

Padilla had simply applied the settled law of Strickland to a specific factual situation,

and because “Massachusetts precedent at the time Padilla was decided would [not]

have dictated an outcome contrary to that in Padilla.”1 Id. The court also found in

the commonwealth’s constitution a right, “coextensive” with the Sixth Amendment

right, to accurate advice concerning immigration consequences, and the court

determined, for the same reasons, that its recognition of that right did not constitute

a new rule. Id. at 436.



1 We note that the Supreme Court in Teague stated that “a case announces a new rule if the result
was not dictated by precedent existing at the time the defendant’s conviction became final.”
(Emphasis added.) Teague, 489 U.S. at 301, 109 S.Ct. 1060, 103 L.Ed.2d 334. Sylvain’s
conviction became final in 2007. But the court in Sylvain, while purporting to apply the Teague
definition of a “new rule,” focused on “Massachusetts precedent at the time Padilla was decided.”
Sylvain at 435.


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                 OHIO FIRST DISTRICT COURT OF APPEALS



       {¶14} But the holding in Padilla—that the Sixth Amendment imposes upon

counsel a duty to accurately advise a noncitizen client concerning the immigration

consequences of a plea—cannot be said to have been dictated by Ohio precedent

when, in 2006, Bishop’s conviction became final. See State v. Lei, 10th Dist. Franklin

No. 05AP-288, 2006-Ohio-2608, ¶ 32 (“Though the court must inform defendants of

deportation consequences prior to accepting a plea of guilty or no contest, pursuant

to R.C. 2943.031, no statutory or decisional authority requires trial counsel to advise

a defendant of the civil, collateral consequence of deportation for purposes of the

defendant’s decision as to whether to accept a plea agreement or to exercise her

constitutional right to trial”); accord State v. Sok, 170 Ohio App.3d 777, 2007-Ohio-

729, 869 N.E.2d 60, ¶ 16 (1st Dist.); State v. Bulgakov, 6th Dist. Wood No. WD-03-

096, 2005-Ohio-1675, ¶ 24; State v. Garcia, 3rd Dist. Defiance No. 4-98-24, 1999

Ohio App. LEXIS 1768 (Apr. 9, 1999) (holding that after R.C. 2943.031 was enacted

in 1989, the duty to notify defendant of immigration consequences is on the trial

court, not counsel). See also State v. Arvanitis, 36 Ohio App.3d 213, 218, 522 N.E.2d

1089 (9th Dist.1986) (declaring, before R.C. 2943.031 was enacted, that it was “not

disposed to announce a hard and fast rule” that counsel had violated an essential

duty in failing to advise a noncitizen client concerning the immigration consequences

of a guilty plea). Compare State v. Hamilton, 8th Dist. Cuyahoga No. 90141, 2008-

Ohio-455, ¶ 18 (following Sok, Bulgakov, and Garcia), with State v. Creary, 8th

Dist. Cuyahoga No. 82767, 2004-Ohio-858, ¶ 8 (holding that when counsel “was

fully aware of [defendant’s] interest in deportation consequences, the failure to

inform him concerning deportation can be held to fall below professional

standards”).   Therefore, even if we were to eschew Chaidez and adopt the




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                  OHIO FIRST DISTRICT COURT OF APPEALS



retroactivity standard applied in Sylvain, Bishop would not have been entitled to

retroactive application of the rule of Padilla.

       {¶15} Some state courts have simply applied Chaidez to deny retroactive

application of Padilla in state collateral proceedings. See Ex parte De Los Reyes, 392

S.W.3d 675 (Tex.Crim.App.2013) (following Chaidez because, as a matter of state

habeas practice, the court followed Teague, and the petitioner’s case provided no

reason to deviate from that standard); Miller v. State, 77 A.3d 1030, 2013 Md. LEXIS

596 (Md.2013) (following Chaidez because the state constitution had not, prior to

defendant’s conviction, provided an independent state basis for finding counsel

deficient for failing to advise a noncitizen client concerning immigration

consequences).     Other state courts have, like the court in Sylvain, applied

retroactivity standards formulated by the states’ highest courts, but then have

determined that Padilla is not retroactively applicable under state law. See State v.

Garcia, 2013 S.D. 46, 834 N.W.2d 821 (2013); People v. Andrews, 108 A.D.3d 727,

970 N.Y.S.2d 226 (N.Y. App.Div.2d Dept.2013).

       {¶16} Ohio’s retroactivity jurisprudence contains no suggestion that the

retroactive effect of Padilla should be determined under a standard other than that

set forth in Teague.       Before Teague, the United States Supreme Court had

determined retroactivity based on the factors set forth in Linkletter v. Walker, 381

U.S. 618, 636-640, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and the Ohio Supreme Court

adopted and applied the Linkletter factors in Pinch v. Maxwell, 3 Ohio St.2d 212,

215, 210 N.E.2d 883 (1965).         The Ohio Supreme Court has not yet had an

opportunity to apply Teague. See Agee, 92 Ohio St.3d at 542, 2001-Ohio-1279, 751

N.E.2d 1043 (holding that Teague was inapposite in determining the retroactive




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                 OHIO FIRST DISTRICT COURT OF APPEALS



application of a case construing a state statute). Thus, the court has had no occasion

to consider whether Ohio law would allow retroactive effect where Teague would not.

But several Ohio appellate districts have applied Teague to determine the retroactive

effect of other cases. See State v. Tucker, 8th Dist. Cuyahoga No. 88568, 2007-Ohio-

2123; State v. Bruggeman, 3rd Dist. Auglaize No. 2-04-26, 2005-Ohio-956; State v.

Shorter, 2d Dist. Montgomery No. 16983, 1998 Ohio App. LEXIS 4649 (Oct. 2,

1998). And the Tenth Appellate District in State v. Spivakov, 10th Dist. Franklin

Nos. 13AP-32 and 13AP-33, 2013-Ohio-3343, with no mention of Danforth, followed

Chaidez to affirm the overruling of the defendant’s motion to withdraw his guilty

pleas, because his 2006 convictions were final before Padilla was decided.

       {¶17} We reverse. We, therefore, follow Chaidez to hold that, because

Bishop’s 2006 conviction was final before Padilla was decided, the municipal court

abused its discretion in retroactively applying Padilla to permit Bishop to withdraw

his no-contest plea. Accordingly, we sustain the assignment of error, reverse the

judgment granting Bishop’s Crim.R. 32.1 motion, and remand for further

proceedings consistent with the law and this opinion.

                                             Judgment reversed and cause remanded.

CUNNINGHAM, P.J., FISCHER and DEWINE, JJ.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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