[Cite as State v. Lopez, 2017-Ohio-4048.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                    :

                 Plaintiff-Appellee,              :           No. 16AP-478
                                                           (C.P.C. No. 12CR-1884)
v.                                                :
                                                      (ACCELERATED CALENDAR)
Omar C. Lopez,                                    :

                 Defendant-Appellant.             :




                                            D E C I S I O N

                                       Rendered on May 30, 2017


                 On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
                 Walton, for appellee.

                 On brief: Rodriguez Bell & DiFranco Law Office, LLC, and
                 Brian C. DiFranco, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
        {¶ 1} Defendant-appellant, Omar C. Lopez, appeals the judgment of the Franklin
County Court of Common Pleas in which the court denied his motion to withdraw his
guilty plea. For the following reasons, we affirm.
        {¶ 2} Appellant is a native of Mexico and entered the United States in February
2000. He has three children who are United States citizens. On November 2, 2015,
appellant pled guilty to attempted possession of cocaine, a misdemeanor of the first
degree. The trial court issued an entry the same day, finding appellant guilty and
sentencing him to 90 days at the Franklin County Correction Center, but suspended as
time served.
No. 16AP-478                                                                              2

       {¶ 3} Appellant is subject to a final order of removal from the United States
Immigration Court which determined that he was statutorily barred from seeking relief
from removal pursuant to 8 U.S.C. 1229b(b). In addition, appellant is subject to 8 U.S.C.
1226(c), which mandates custody for any conviction for an offense involving a controlled
substance (other than a single offense involving possession for one's own use of 30 grams
or less of marijuana). 8 U.S.C. 1227(a)(2)(B)(i).
       {¶ 4} On February 29, 2016, appellant filed a motion to withdraw his guilty plea
pursuant to Crim.R. 32.1. In his motion, appellant claimed his trial counsel was ineffective
when she failed to advise him of the consequences that pleading guilty to a controlled
substance charge would have on his immigration status. Appellant claimed his attorney
told him she had spoken to another attorney regarding the immigration issues and there
would be no consequences. Appellant did not believe the conversation occurred.
       {¶ 5} The trial court did not hold a hearing on appellant's motion to withdraw his
guilty plea and denied the motion on May 24, 2016. Appellant appeals the judgment,
asserting the following three assignments of error:
              [I.] The Trial Court abused its' [sic] discretion and denied
              appellant due process under the U.S. and Ohio Constitutions
              by failing to address or otherwise adjudicate a Federal claim
              presented in Appellant's Motion to Withdraw Guilty Plea
              specifically pursuant to Padilla v. Kentucky, 599 U.S. 356
              (2010)[,] 130 S.Ct. 1382 (March 31, 2010)[.] Appellant was
              denied effective assistance of counsel. Prior to conviction
              former Counsel failed to provide Appellant affirmative or
              correct advice or to assist him upon request whether his guilty
              plea rendered him Removable from the United States.

              [II.] The Appellant/Defendant's guilty plea was not made
              knowingly, intelligently and voluntarily.

              [III.] Appellant was denied due process where he presented
              his ineffective assistance arguments to the trial court in 2016
              and the trial court failed to conduct a hearing on the
              ineffective assistance of counsel arguments and merely ruled
              on the motion.

       {¶ 6} Appellant argues in his first assignment of error the trial court erred when it
failed to find he was denied effective assistance of counsel based on counsel's failure to
provide him correct advice regarding his immigration status before his guilty plea.
No. 16AP-478                                                                              3

       {¶ 7} A motion to withdraw a guilty plea is 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." Since appellant filed his motion to withdraw his guilty plea after sentencing, the
trial court was required to determine 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. 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 the imposition
of sentence has the burden of establishing manifest injustice based on specific facts
contained in the record or supplied through affidavits attached to the motion. State v.
Ikharo, 10th Dist. No. 10AP-967, 2011-Ohio-2746, ¶ 8, citing State v. Orris, 10th Dist. No.
07AP-390, 2007-Ohio-6499; State v. Galdamez, 10th Dist. No. 14AP-527, 2015-Ohio-
3681, ¶ 13, citing State v. Sansone, 10th Dist. No. 11AP-799, 2012-Ohio-2736, ¶ 7.
       {¶ 8} A trial court's ruling on a post-sentence motion to withdraw a plea of guilty,
pursuant to Crim.R. 32.1, is reviewed using an abuse of discretion standard. State v.
Smith, 49 Ohio St.2d 261 (1977), paragraph two of the syllabus. Absent an abuse of
discretion by the trial court, its decision regarding a Crim.R. 32.1 motion to withdraw a
plea of guilty must be affirmed. State v. Xie, 62 Ohio St.3d 521, 527 (1992). An abuse of
discretion connotes more than an error of law or judgment; it implies that the court's
attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983). "[W]e note that no court has the authority, within its discretion, to
commit an error of law." State v. Tovar, 10th Dist. No. 11AP-1106, 2012-Ohio-6156, ¶ 7,
citing State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶ 70.
       {¶ 9} To establish a claim of ineffective assistance of counsel, defendant must
satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 687 (1984). Appellant
must show that (1) his counsel's performance was so deficient that she was not
No. 16AP-478                                                                               4

functioning as the counsel guaranteed under the Sixth Amendment of the United States
Constitution, and (2) that defense counsel's errors prejudiced him. Galdamez at ¶ 15,
citing Strickland. The failure to demonstrate either prong of the test defeats a claim of
ineffective trial counsel. Id.
       {¶ 10} Appellant's argument hinges on the United States Supreme Court case,
Padilla v. Kentucky, 559 U.S. 356 (2010). In Padilla, the court found that a defense
attorney has a duty to advise a non-citizen client that "pending criminal charges may carry
a risk of adverse immigration consequences," and, if it is "truly clear" what those
consequences are, counsel has a duty to provide correct advice of the circumstances to the
defendant. Id. at 369. The failure of a defense attorney to advise their client accordingly
satisfies the first prong of Strickland. Id. However, because "[i]mmigration law can be
complex" there are "numerous situations in which the deportation consequences of a
particular plea are unclear or uncertain" and that limits the duty of the private
practitioner. "When the law is not succinct and straightforward * * * a criminal defense
attorney need do no more than advise a noncitizen client that pending criminal charges
may carry a risk of adverse immigration consequences.             But when the deportation
consequence is truly clear, * * * the duty to give correct advice is equally clear." Id.
       {¶ 11} A defendant may demonstrate prejudice under the second prong of
Strickland by demonstrating that " 'there is a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty.' " Xie at 524, quoting Hill v. Lockhart, 474 U.S.
52, 59 (1985). In Padilla, at 372, the Supreme Court found that a defendant demonstrates
such prejudice by convincing "the court that a decision to reject the plea bargain would
have been rational under the circumstances."
       {¶ 12} In Padilla, a non-citizen defendant pled guilty to the charge of drug
distribution, which is a deportable offense pursuant to 8 U.S.C. 1227(a)(2)(B)(i). Padilla's
attorney did not advise him of the deportation consequences of his plea and provided
misleading advice by informing him he " 'did not have to worry about immigration status
since he had been in the country so long.' " Id. at 359, quoting Commonwealth v. Padilla,
253 S.W.3d 482, 483 (Ky.2008). Padilla asserted he would have insisted on a trial if he
had not received the incorrect advice.        The United States Supreme Court held that
counsel's failure to inform Padilla regarding the deportation consequences constituted
No. 16AP-478                                                                                 5

deficient performance under the first prong of Strickland because the relevant
immigration statute was succinct and clear. The court did not address the second prong
of Strickland, but remanded the case for the trial court to determine the prejudice issue.
       {¶ 13} We first must determine whether appellant's trial counsel provided
ineffective assistance of counsel. We note that appellant did not submit a valid affidavit in
support of his motion. Appellant attached an "affidavit" contending that trial counsel
never advised him of the immigration consequences and she advised him she had spoken
to an immigration attorney and he "would not have any problems regarding his
immigration status." ("Affidavit" attached to Mot. to Withdraw Guilty Plea, Feb. 29, 2016
at ¶ 3.) Appellant asserts he did not enter his plea of guilty knowingly because of counsel's
incorrect information. However, appellant's "affidavit" was not notarized. See State v.
Graggs, 10th Dist. No. 10AP-249, 2010-Ohio-5716. There is no indication the affidavit
was given under oath.
       {¶ 14} Moreover, even if the affidavit were properly notarized, it is still deficient to
establish a claim of manifest injustice. The facts of this case differ from the facts of
Padilla in a significant way. In Padilla, the defendant became eligible for deportation
based on his plea of guilty. In this case, deportation proceedings had already begun. The
"Notice of Hearing of Removal Proceedings" was dated October 27, 2015, and appellant
pled guilty on November 2, 2015. Appellant contends his plea of guilty to a controlled
substance offense subjected him to deportation pursuant to 8 U.S.C. 1227(a)(2).
However, the deportation proceeding had already started.
       {¶ 15} Appellant also argues that the plea of guilty disqualified him from obtaining
a cancelling of removal under 8 U.S.C. 1229b(b)(1)(C). A cancelling of removal is a benefit
that appellant was not guaranteed to receive even without the conviction because
appellant did not demonstrate he met the other factors provided in 8 U.S.C. 1229b(b)(1),
and the Attorney General retains the discretion to deny the benefit. 8 U.S.C. 1229b
provides, as follows:
              (b) Cancellation of removal and adjustment of status for
              certain nonpermanent residents.

              (1) In general. The Attorney General may cancel removal of,
              and adjust to the status of an alien lawfully admitted for
No. 16AP-478                                                                           6

             permanent residence, an alien who is inadmissible or
             deportable from the United State if the alien –

             (A) has been physically present in the United States for a
             continuous period of not less than 10 years immediately
             preceding the date of such application;

             (B) has been a person of good moral character during such
             period;

             (C) has not been convicted of an offense under section
             212(a)(2), 237(a)(2), or 237(a)(3) [8 USCS § 1182(a)(2),
             1227(a)(2), or 1227(A)(3)], subject to paragraph (5); and

             (D) establishes that removal would result in exceptional and
             extremely unusual hardship to the alien's spouse, parent, or
             child, who is a citizen of the United States or an alien lawfully
             admitted for permanent residence.

      {¶ 16} Appellant did not demonstrate he was otherwise eligible for cancellation of
removal since he did not demonstrate that he was continuously in the United States for
the previous ten years, although he stated he moved to the United States in 2000, that he
has been a person of good moral character, and that removal would cause "exceptional
and extremely unusual hardship."
      {¶ 17} Appellant also argues that his conviction subjected him to custody under 8
U.S.C. 1226, which provides, as follows:
             (c) Detention of criminal aliens.

             (1) Custody. The Attorney General shall take into custody any
             alien who - -

             (A) is inadmissible by reason of having committed any offense
             covered in section 212(a)(2) [8 USCS § 1182(a)(2)],

             (B) is deportable by reason of having committed any offense
             covered in section 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) [8
             USCS § 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D)],

             (C) is deportable under section 237(a)(2)(A)(i) [8 USCS §
             1227(a)(2)(A)(i)] on the basis of an offense for which the alien
             has been sentence [sentenced] to a term of imprisonment of at
             least 1 year, or
No. 16AP-478                                                                                              7

                (D) is inadmissible under section 212(a)(3)(B) [8 USCS §
                1182(a)(3)(B)] or deportable under section 237(a)(4)(B) [8
                USCS § 1227(a)(4)(B)], when the alien is released, without
                regard to whether the alien is released on parole, supervised
                release, or probation, and without regard to whether the alien
                may be arrested or imprisoned again for the same offense.

        {¶ 18} However, again, being in custody pending removal proceedings does not
carry the same effects as the removal in Padilla.
        {¶ 19} Appellant alleges his attorney advised him that he would "not have any
problems regarding immigration status." Appellant stated that he believed his attorney
never consulted with an immigration lawyer, despite telling him she did.
        {¶ 20} Licensed attorneys carry a strong presumption that they act competently.
State v. Smith, 17 Ohio St.3d 98, 100 (1985). Appellant has not presented affidavits from
either his defense attorney or his immigration attorney concerning whether the defense
attorney consulted an immigration attorney. Further, as noted above, appellant has not
submitted his own affidavit. In the absence of any evidence that his defense attorney did
not act competently, she is entitled to a presumption that she did so.
        {¶ 21} Finally, appellant signed a plea form stating that his conviction "may have
the consequences of deportation from admission to the United States, or denial of
naturalization pursuant to the laws of the United States." We further presume that the
trial court gave appellant the statutory advisement under R.C. 2943.031(A).1
        {¶ 22} Even if we were to find appellant's counsel rendered a deficient
performance, appellant has not demonstrated prejudice.                       Appellant stated in his
"affidavit" that he "did not enter his plea of guilty knowingly." However, appellant was
indicted on a felony of the third degree carrying mandatory prison time and his plea of
guilty was to a misdemeanor of the first degree. He does not state that he would not have
entered the plea of guilty without his trial counsel's "errors." In Padilla, the United States
Supreme Court held that a defendant demonstrates prejudice in this context by
convincing "the court that a decision to reject the plea bargain would have been rational
under the circumstances." Id. at 372. Here, appellant has not done so.



1Appellant did not provide a transcript of the plea hearing, but is not arguing that the trial court did not
properly advise him.
No. 16AP-478                                                                                8

       {¶ 23} Further, appellant "makes no attempt to explain what defense he would
have asserted if the matter had proceeded to trial." Tovar at ¶ 15. Appellant did not meet
his burden of establishing a manifest injustice or prejudice; therefore, his first assignment
of error is overruled.
       {¶ 24} Appellant argues in his second assignment of error that the trial court erred
when it failed to find his guilty plea was not made knowingly, intelligently, and
voluntarily. When a plea is not knowingly, voluntarily or intelligently entered, it may
constitute manifest injustice. Williams at ¶ 9. However, appellant provided no evidence
that supports his contention that trial counsel failed to advise him properly. Appellant did
not file his own affidavit nor did he present an affidavit of trial counsel or his immigration
counsel. Further, the record does not contain a copy of the transcript of the plea hearing.
"In the absence of a transcript, 'this court must presume the regularity of the hearing.' "
State v. Rembert, 10th Dist. No. 16AP-543, 2017-Ohio-1173, ¶ 13, quoting State v. Smith,
11th Dist. No. 2007-T-0076, 2008-Ohio-1501, ¶ 20. Further, appellant's signature on the
guilty plea form directly contradicts his contention that his plea was not made knowingly,
intelligently, and voluntarily. On review of the record on appeal, we conclude the trial
court did not err in finding appellant made his plea of guilty knowingly, intelligently, and
voluntarily. Appellant's second assignment of error is overruled.
       {¶ 25} Appellant argues in his third assignment of error that the trial court erred
when it failed to hold a hearing on his motion to withdraw his guilty plea. A trial court is
not automatically required to hold a hearing on a post-sentence motion to withdraw a
plea of guilty. A hearing is only required if the facts, as alleged by the defendant, accepted
as true, would require the defendant be allowed to withdraw the plea. Williams at ¶ 6,
citing State v. Kent, 10th Dist. No. 03AP-722, 2004-Ohio-2129, ¶ 8.
       {¶ 26} There is nothing in the record in this case that substantiates appellant's
contentions. In fact, the only evidence before the trial court regarding immigration was
appellant's signature that he understood there may be immigration consequences as a
result of his plea. However, appellant submitted an unsworn, self-serving "affidavit" that
contends his attorney did not provide correct advice. "[G]enerally, a self-serving affidavit
or statement is insufficient to demonstrate manifest injustice." State v. Honaker, 10th
Dist. No. 04AP-146, 2004-Ohio-6256, ¶ 9, citing State v. Patterson 5th Dist. No.
No. 16AP-478                                                                              9

2003CA00135, 2004-Ohio-1569, ¶ 18, citing State v. Laster, 2d Dist. No. 19387, 2003-
Ohio-1564. " '[W]here nothing in the record supports a defendant's claim that his plea
was not knowingly and voluntarily made other than his own self-serving affidavit or
statement, the record is insufficient to overcome the presumption that the plea was
voluntary.' " Honaker at ¶ 18, quoting Laster at ¶ 8. Considering that is the case here, the
trial court did not err when it failed to hold a hearing on appellant's motion to withdraw
his guilty plea and his third assignment of error is overruled.
       {¶ 27} Accordingly, appellant's three assignments of error are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                       Judgment affirmed.

                                SADLER, J., concurs.
                          HORTON, J., concurs in judgment only.

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