[Cite as State v. Galdamez, 2015-Ohio-3681.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                 :

                Plaintiff-Appellee,            :
                                                                   No. 14AP-527
v.                                             :            (M.C. No. 2012 TRC 141077)

Dionicio A. Galdamez,                          :           (REGULAR CALENDAR)

                Defendant-Appellant.           :



                                        D E C I S I O N

                                  Rendered on September 10, 2015


                Richard C. Pfeiffer, Jr., City Attorney, Lara N. Baker, City
                Prosecutor, Melanie R. Tobias and Orly Ahroni, for appellee.

                Margaret W. Wong & Associates, and Margaret W. Wong,
                for appellant.

                      APPEAL from the Franklin County Municipal Court

HORTON, J.
        {¶ 1} Defendant-appellant, Dionicio A. Galdamez, appeals from a judgment of
the Franklin County Municipal Court denying his motion to withdraw his guilty pleas.
Because the trial court abused its discretion in denying the motion, we reverse.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} In the early morning hours of May 14, 2012, a police officer stopped
defendant's vehicle for a traffic violation. Defendant received the following criminal
charges as a result of that traffic stop: in case No. 2012 TRC 141077, defendant was
charged with (1) operating a motor vehicle while impaired, in violation of R.C.
4511.19(A)(1)(a), (2) having a second OVI offense within 20 years of a prior OVI offense,
in violation of R.C. 4511.19(A)(2)(a), and (3) driving left of center, in violation of R.C.
No. 14AP-527                                                                             2


4511.25; in case No. 2012 CRA 13005, defendant was charged with possession of
cocaine, in violation of R.C. 2925.11. Defendant had a prior OVI conviction from May 29,
2007.
        {¶ 3} On May 15, 2012, the state made a written plea offer to defendant, offering
to amend Count 1 of the indictment in 2012 TRC 141077 to a stipulated first OVI offense
within 6 years, in violation of R.C. 4511.19(A)(1)(a), and to dismiss Counts 2 and 3 of the
indictment. As part of the plea agreement, defendant would also plead guilty to the
amended charge of attempted possession of drugs in case No. 2012 CRA 13005.
Defendant accepted the plea bargain that same day and pled guilty to the charges.
During the plea colloquy, the trial court acknowledged that defendant was "not a U.S.
citizen," and advised defendant, pursuant to R.C. 2943.031(A), as follows:
              THE COURT: Okay. I have to tell you three more things. You
              understand this conviction could be used to keep you from
              coming into the United States in the future? Do you
              understand that?

              THE DEFENDANT: Yes, sir.

              THE COURT: It also could keep you from becoming a
              citizen. Do you understand that?

              THE DEFENDANT: Yes, sir.

              THE COURT: And it could be used for deportation purposes.
              Do you understand that?

              THE DEFENDANT: Yes, sir.

(May 15, 2012 Tr. 5.) The court concluded that defendant had knowingly, voluntarily
and intelligently entered his guilty pleas.
        {¶ 4} Defense counsel noted that, although defendant was "not a U.S. citizen, he
is documented to be here. He's here on a work permit, which is why there was some
discussions about the potential consequences with his job * * * if he accepted the
program," whereby the court would seal the record of the attempted possession of drugs
conviction upon defendant's successful completion of the court's program. (May 15,
2012 Tr. 6-7.) Counsel noted that defendant had wanted "to fight the felony, because
No. 14AP-527                                                                           3


[the cocaine] wasn’t his," but stated that defendant decided to plead to the amended
charge and enter the court's program because he understood "the far reaching
consequences if he is indicted, with potential for his job, his citizenship, just living
arrangements, everything could be jeopardized by that." (May 15, 2012 Tr. 7.) Counsel
also noted her belief that the court's "program [wasn't] going to cause [defendant] any
hurdles." (May 15, 2012 Tr. 7.) The court sentenced defendant to 180 days in jail,
suspended 177 days, and credited defendant with 2 days of time served. The court also
imposed a 1 year community control sanction, and suspended defendant's driver's
license for 6 months.
      {¶ 5} On July 31, 2012, defendant filed a motion to withdraw his guilty pleas.
Defendant asserted that his trial counsel's failure to properly advise him of the
immigration consequences of his guilty pleas deprived him of his constitutional right to
the effective assistance of trial counsel. Defendant attached an affidavit to his
memorandum, explaining that he fled his home country of El Salvador and entered the
United States in 1998. Upon entry to the United States, defendant applied for
Temporary Protected Status ("TPS"), which he received in 2002. Defendant explained
that he received a letter from the United States Citizenship and Immigration Services
("USCIS") department on July 13, 2012, informing him that, because he had pled guilty
to OVI and to the amended charge of attempted drug possession on May 15, 2012, and
because he had a prior OVI conviction from May 29, 2007, defendant had "pled guilty to
and been convicted of two or more misdemeanors committed in the United States."
(Apr. 17, 2014 Tr., exhibit No. 2.) As such, defendant was ineligible for TPS pursuant to
8 C.F.R. 244.4(a) and, without legal authority to be in this country, defendant was
subject to removal.
      {¶ 6} On April 4, 2014, defendant filed a supplemental memorandum in support
of his motion to vacate his guilty pleas. In the supplemental memorandum, defendant
asserted that, although his trial counsel informed him that his guilty pleas "might have
an impact on his ability to naturalize in the future," she "did not mention the immediate
termination of his Temporary Protected Status ("TPS") as a mandatory and clear
consequence of his guilty plea to the two misdemeanors." (Supplemental Memorandum
in Support of Motion to Vacate Guilty Pleas, 1.) Defendant thus asserted that, despite
No. 14AP-527                                                                            4


the trial court's R.C. 2943.031(A) advisement, he relied on his attorney's advice that his
guilty plea would only cause him problems if he tried to become a citizen in the future.
Defendant filed an amended affidavit in support of the supplemental memorandum,
averring as follows:
              I was represented in both cases by a public defender * * *. I
              only met with [my attorney], briefly, right before my hearing
              where I pled guilty. She told me that my plea might cause me
              problems in becoming a citizen in the future. She never
              mentioned the consequences pleading to the misdemeanors
              would have on my Temporary Protected Status and that I
              would be subject to removal right away. I have had
              Temporary Protected Status in the United States since 2002.
              [My attorney] never told me whether she consulted with an
              immigration       attorney     regarding     my     immigration
              consequences. She counseled me that it would be better to
              'get it all done at once' and that this was the 'best way to go.'
              We never discussed any legal strategies in my case or the
              consequence of entering a plea to the charges instead of
              trying to negotiate further or go to trial. [My attorney] was
              aware that I was not a U.S. citizen and not a lawful
              permanent resident. When the judge spoke to me about
              immigration consequences, I believed he was only discussing
              my ability to become a citizen in the future and not the
              consequences to my Temporary Protected Status. I never
              would have entered guilty pleas to the charged offenses and
              agreed to these dispositions if I had known that I would
              immediately lose my Temporary Protected Status and be
              subject to removal from the United States.

(Amended Affidavit, ¶ 3.)
       {¶ 7} The trial court held a hearing on defendant's motion to withdraw his guilty
pleas on April 17, 2014. Defense counsel clarified that defendant was "not arguing that
the Court failed to give the proper immigration advisements required by statute," but
that defendant was arguing that the court's advisement did "not foreclose the possibility
of establishing ineffective assistance of counsel." (Apr. 17, 2014 Tr. 3-4.) Counsel
asserted that defendant's trial counsel effectively misadvised him when she informed
defendant that he may have problems naturalizing in the future, but did not state that
his guilty plea would affect his TPS.
No. 14AP-527                                                                             5


       {¶ 8} Defendant testified briefly at the hearing, noting that, when he heard the
court's R.C. 2943.031 immigration warnings, he continued to rely on his attorney's
advice that he would only "have problems if [he] tr[ied] to become a citizen," and as
such he never thought he would "lose what [he] had" with respect to his TPS. (Apr. 17,
2014 Tr. 13.) Defendant noted that he trusted his trial counsel, and stated that, if he had
been advised correctly, he would have "looked for a lawyer and asked for time for next
court or whatever, take it to a trial or something," as he "would have had nothing to
lose" by going to trial. (Apr. 17, 2014 Tr. 13.) Defendant noted that he has a ninth grade
education from El Salvador, and that he has a four-year-old son in this country who is a
U.S. citizen.
       {¶ 9} The court noted that it "accept[ed] the facts most favorably in
[defendant's] light. But the transcript [was] the transcript, and [the court] clearly went
through the things that need to be gone through." (Apr. 17, 2014 Tr. 9.) Thus, because
the court provided defendant with the R.C. 2943.031 advisement, the court concluded
that it could not grant defendant's motion to withdraw his guilty pleas. On June 10,
2014, the trial court filed an entry stating simply that, "[a]fter due consideration of the
matters contained" in defendant's motion, the court found "[d]efendant's motion not to
be well taken." (Entry, 1.)
II. ASSIGNMENTS OF ERROR
       {¶ 10} Defendant appeals, assigning the following errors for our review:
                I. THE TRIAL COURT ERRED WHEN IT DID NOT PERMIT
                THE APPELLANT'S GUILTY PLEAS TO BE VACATED AS
                HIS CRIMINAL ATTORNEY'S CONDUCT CONSTITUTES
                INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE
                TWO-PRONG STRICKLAND TEST.

                II. THE TRIAL COURT ERRED BY FAILING TO STATE
                CONCLUSIONS OF FACT AND LAW WHEN IT DENIED
                APPELLANT'S MOTION TO WITHDRAW HIS GUILTY
                PLEAS AND VACATE CONVICTIONS.

       {¶ 11} In his first assignment of error, defendant asserts that the trial court
abused its discretion by denying his motion to withdraw his guilty pleas. Relying on
Padilla v. Kentucky, 559 U.S. 356 (2010), defendant asserts that he was denied the
No. 14AP-527                                                                             6


effective assistance of counsel when his counsel failed to advise him that his guilty pleas
would result in the loss of his TPS benefits and his removal from this country. For the
reasons which follow, we find that trial counsel's performance was deficient and that the
court's R.C. 2943.031(A) advisement during the plea colloquy did not cure the prejudice
resulting from that deficiency.
       {¶ 12} 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 defendant moved to withdraw his guilty plea after sentencing, the
trial court had to determine whether granting the motion would correct a manifest
injustice.
       {¶ 13} The term manifest injustice "relates to some fundamental flaw in the
proceedings which results in a miscarriage of justice or is inconsistent with the demands
of due process." State v. Spivakov, 10th Dist. No. 13AP-32, 2013-Ohio-3343, ¶ 10, citing
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 "bears the burden of establishing a manifest injustice based on specific facts
in the record or facts supplied through affidavits attached to the motion." State v.
Sansone, 10th Dist. No. 11AP-799, 2012-Ohio-2736, ¶ 7, citing State v. Hagler, 10th
Dist. No. 10AP-291, 2010-Ohio-6123, ¶ 7. "Ineffective assistance of counsel can
constitute a manifest injustice sufficient to allow the post-sentence withdrawal of a
guilty plea." State v. Dalton, 153 Ohio App.3d 286, 2003-Ohio-3813, ¶ 18 (10th Dist.)
       {¶ 14} "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). An abuse of discretion is typically defined as an unreasonable,
arbitrary, or unconscionable decision. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983).
No. 14AP-527                                                                            7


       {¶ 15} 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). Defendant
must show that (1) defense counsel's performance was so deficient that she was not
functioning as the counsel guaranteed under the Sixth Amendment to the United States
Constitution, and (2) that defense counsel's errors prejudiced defendant. Id. The failure
to make either showing defeats a claim of ineffectiveness of trial counsel. Id. at 697.
Defendants have a Sixth Amendment right to the effective assistance of counsel when
deciding whether to enter a guilty plea. Padilla at 364; Strickland at 686; McMann v.
Richardson, 397 U.S. 759, 771 (1970).
       {¶ 16} A defense attorney has a duty to advise a noncitizen client that "pending
criminal charges may carry a risk of adverse immigration consequences," and, if it is
"truly clear" what those consequences are, counsel must correctly advise the defendant
of the consequences. Padilla at 369. A defense attorney's failure to advise their client
accordingly satisfies the first prong of Strickland, as it constitutes deficient
performance. Id. However, because "[i]mmigration law can be complex," when the
relevant immigration "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." Id. Nevertheless, when the
immigration consequences of a guilty plea can be "easily determined from reading the
removal statute," and "the deportation consequence is truly clear * * * the duty to give
correct advice is equally clear." Id.
       {¶ 17} With respect to guilty pleas, a defendant may demonstrate prejudice under
the second prong of the Strickland analysis 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). See Hill at 59 (noting that,
to establish prejudice, a defendant "must show that there is a reasonable probability
that, but for counsel's errors, he would not have pleaded guilty and would have insisted
on going to trial"). In Padilla, the Supreme Court of Ohio 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." Padilla at 372.
No. 14AP-527                                                                                8


       {¶ 18} Padilla concerned a noncitizen defendant who pled guilty to the charge of
drug distribution, a deportable offense under 8 U.S.C. 1227(a)(2)(B)(i). Padilla's
attorney did not advise him of the deportation consequences of his plea, and
affirmatively misadvised Padilla that he had nothing to worry about with respect to his
immigration status. Padilla asserted that "he would have insisted on going to trial if he
had not received incorrect advice from his attorney." Id. at 359. The Supreme Court held
that Padilla's 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, as
the relevant immigration statute was "succinct, clear, and explicit." Id. at 374, 368. The
court did not address the issue of prejudice, and remanded the case for the lower court
to determine the prejudice issue in the first instance.
       {¶ 19} Notably, in Padilla, the Supreme Court rejected the government's
proposition that Strickland should apply only "to the extent that [Padilla] ha[d] alleged
affirmative misadvice." Id. at 369. The court agreed with Padilla that "there is no
relevant difference 'between an act of commission and an act of omission' in this
context." Id. at 370, quoting brief of respondent, 30. See also Strickland at 690; State v.
Ayesta, 8th Dist. No. 101383, 2015-Ohio-1695, ¶ 15 (noting that counsel breaches its
duty under Padilla "by either providing affirmative misadvice about immigration
consequences, or by not providing any advice at all when advice is warranted"). The
Padilla court observed that "[a] holding limited to affirmative misadvice would invite"
the following two absurd results: (1) "it would give counsel an incentive to remain silent
on matters of great importance, even when answers are readily available," and (2) "it
would deny a class of clients least able to represent themselves the most rudimentary
advice on deportation even when it is readily available." Id. at 370-71.
       {¶ 20} Indeed, "[w]hen attorneys know that their clients face possible exile from
this country and separation from their families, they should not be encouraged to say
nothing at all." Id. at 370. The court further noted that " ' "[p]reserving the client's right
to remain in the United States may be more important to the client than any potential
jail sentence." ' " Id. at 368, quoting INS v. St. Cyr, 533 U.S. 289, 3223 (2001), quoting 3
Bender, Criminal Defense Techniques, Sections 60A.01-02 (1999). Thus, the court
concluded that the "severity of deportation – 'the equivalent of banishment or exile,' * *
No. 14AP-527                                                                             9


* – only underscores how critical it is for counsel to inform her noncitizen client that he
faces a risk of deportation." Id. at 373-74.
       {¶ 21} Pursuant to Padilla, we begin our analysis by asking whether the
deportation consequences of defendant's guilty pleas were truly clear. 8 C.F.R. 244.4(a)
provides that "[a]n alien is ineligible for Temporary Protected Status if the alien: * * *
[h]as been convicted of any felony or two or more misdemeanors, as defined in § 244.1,
committed in the United States." 8 C.F.R. 244.1 defines a misdemeanor as a crime
committed in the United States which is "[p]unishable by imprisonment for a term of
one year or less, regardless of the term such alien actually served." When defendant pled
guilty to the OVI charge herein, he was convicted of a first-degree misdemeanor,
punishable by a term of imprisonment of six months or less. See R.C. 4511.19(G)(1)(a);
R.C. 2929.24(A)(1). Accordingly, the OVI conviction alone would have rendered
defendant ineligible for TPS, as it was defendant's second misdemeanor OVI conviction.
Defendant's guilty pleas thus rendered him ineligible for TPS.
       {¶ 22} We find 8 C.F.R. 244.4(a) to be succinct, clear, and straightforward.
Defendant's trial counsel could have easily determined that defendant's guilty pleas
would make him ineligible for TPS by simply reading the text of the relevant regulation.
See State v. Martinez, 10th Dist. No. 13AP-704, 2014-Ohio-2425, ¶ 27 (reviewing 8
C.F.R. 244.4 and similarly finding that the defendant's trial counsel could have easily
determined that the defendant's "guilty plea would make him ineligible for a TPS benefit
and, thus, subject him to deportation simply from reading the text" of the regulation).
Because the deportation consequences of defendant's guilty pleas were truly clear,
defense counsel was constitutionally obligated to advise defendant that his guilty pleas
would result in the loss of his TPS benefits and in his deportation. As such, defendant
has satisfied the first prong of the Strickland analysis.
       {¶ 23} Accordingly, we turn to the prejudice prong of the Strickland analysis. The
state contends that defendant is unable to demonstrate prejudice for the following
reasons: (1) the trial court properly advised defendant pursuant to R.C. 2943.031(A),
thereby curing any prejudice resulting from defendant's attorney's failure to so advise
him, and (2) defendant has not shown that a decision to reject the plea bargain would
have been rational under the circumstances. (Appellee's Brief, 13.)
No. 14AP-527                                                                             10


       A. The R.C. 2943.031(A) advisement
       {¶ 24} R.C. 2943.031 obligates a trial court, prior to accepting a guilty plea from a
noncitizen defendant, to provide the following advisement: "you are hereby advised that
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." R.C. 2943.031(A). As the plea
hearing transcript reveals, the trial court substantially complied with R.C. 2943.031(A).
See State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, syllabus. Defendant notes
that, "because his attorney only discussed naturalization problems," he believed "that
would be the extent of the impact the plea would have on his immigration status," and
thus "reasonably continued to rely on the assurances of his defense attorney despite the
Trial Court's general warnings." (Appellant's Brief, 13.)
       {¶ 25} Ohio courts have previously held that a trial court's proper advisement
under R.C. 2943.031 cures the prejudice resulting from an attorney's deficient
performance under Padilla. See State v. Ikharo, 10th Dist. No. 10AP-967, 2011-Ohio-
2746, ¶ 19, citing State v. Yazici, 5th Dist. No. 2010CA00138, 2011-Ohio-583, ¶ 43
(holding that "Ohio courts since Padilla have concluded that Padilla is not implicated in
cases where a trial court complied with R.C. 2943.031(A)," because the statute places a
defendant "on notice that entry of a plea of guilty might have adverse consequences on
the defendant's immigration status"). However, more recently, this court, other Ohio
courts, and federal courts have begun to back away from the position that a trial court's
general immigration advisement during the plea colloquy cures an attorney's failure to
adequately inform their client regarding the immigration consequence of a plea. See
State v. Arrunategui, 9th Dist. No. 26547, 2013-Ohio-1525, ¶ 15 (noting that, "[w]hile
the State argue[d] that compliance with Revised Code Section 2943.031(A) in and of
itself prevent[ed] Arrunategui from successfully proving he was prejudiced by counsel's
performance," the court would not "hold that compliance with that statute is always
determinative of the issue of prejudice").
       {¶ 26} In State v. Yahya, 10th Dist. No. 10AP-1190, 2011-Ohio-6090, this court
held that a defendant may establish prejudice despite the trial court's proper R.C.
2943.031 advisement, where the defendant received affirmative misadvice from counsel
No. 14AP-527                                                                             11


regarding the immigration consequences of a plea. In Yahya, the noncitizen defendant
asserted that her trial counsel provided constitutionally ineffective assistance by
advising Yahya that her "plea would not adversely affect her immigration status." Id. at
¶ 3. We observed that the law was "sufficiently clear that appellant's theft conviction
would constitute an aggravated felony" and subject Yahya "to deportation," and thus
concluded that "assuming appellant's claims [were] true, her attorney's failure to give
correct advice constitute[d] a deficiency sufficient to satisfy the first prong of the
ineffective assistance of counsel test." Id. at ¶ 11.
       {¶ 27} The state asserted, relying on Ikharo and Yazici, that Yahya could not
establish prejudice, as the trial court had provided Yahya with the R.C. 2943.031
advisement during the plea colloquy. We distinguished both cases, observing that
"[u]nlike Ikharo and Yazici, which were based on a lack of advice or a lack of complete
advice from trial counsel," Yahya involved "an allegation that trial counsel gave
incorrect legal advice to appellant." Id. at ¶ 14. Yahya averred that, when she asked her
attorney about the immigration consequences of her plea, her attorney showed her a
document which stated that she would not be subject to deportation if she pled guilty,
thereby leading her "to believe that she would be safe from deportation." Id. at ¶ 14.
       {¶ 28} Because Yahya relied on specific misadvice from her attorney, we held that
"[w]hen the trial court subsequently delivered the statutory warning that pleading guilty
might result in deportation, exclusion, or denial of naturalization, it might have been
reasonable for appellant to rely on her attorney's specific assurance that she would not
be deported." Yahya at ¶ 17. As such, we held that the trial court's R.C. 2943.031(A)
advisement "would not necessarily cure her attorney's specific error regarding the
consequences of a guilty plea," and remanded the case for the court to hold a hearing on
Yahya's motion to withdraw her guilty plea.
       {¶ 29} In Yahya, we distinguished State v. Bains, 8th Dist. No. 94330, 2010-
Ohio-5143, where the trial court gave the R.C. 2943.031(A) statutory warning, but also
" 'continued to probe even further into [the movant's] understanding of it by pointedly
asking [the movant] if he understood the "serious consequences" of pleading guilty.' "
Yahya at ¶ 16, quoting Bains at ¶ 28. We noted that in Yahya "it appear[ed] that the
trial court only gave the statutory warning, without any further 'pointed' discussion of
No. 14AP-527                                                                           12


the consequences of pleading guilty." Id. at ¶ 16. Thus, the trial court's probing inquiry
beyond the mere statutory advisement in Bains, led the Bains court to conclude that the
defendant therein could not "establish the requisite prejudice necessary to entitle him to
relief." Bains at ¶ 29. See also State v. Guerrero, 12th Dist. No. CA2010-09-231, 2011-
Ohio-6530, ¶ 10, 19, 20 (finding that the defendant "failed to prove that he was
prejudiced" by his attorney's incorrect advice that he would not be deported as a result
of his plea, as the court gave the R.C. 2943.031 advisement and "went further," telling
the defendant it was the court's understanding that the "immigration people are going to
seek your deportation"); State v. Hrnjak, 9th Dist. No. 26554, 2013-Ohio-5726, ¶ 13-14
(finding no Padilla violation when counsel and the court went beyond the statutory
advisement to warn "that deportation was all but certain").
      {¶ 30} Notably, the Eighth District Court of Appeals recently clarified that Bains
"does not stand for the broad proposition that a trial court's proper advisement under
R.C. 2943.031(A) 'cures' any potential prejudice and always precludes a finding of
prejudice under Padilla." (Emphasis sic.) State v. Yapp, 8th Dist. No. 101247, 2015-
Ohio-1654, ¶ 15. In Yapp, the court stated that it wanted to "move away from the
progeny of Bains," including cases relied on by the state herein such as State v.
Lababidi, 8th Dist. No. 96755, 2012-Ohio-267 and State v. Velazquez, 8th Dist. No.
95978, 2011-Ohio-4818, "that seemed to expansively interpret Bains as a bright line rule
that the [R.C. 2943.031] advisement cures all prejudice." Yapp at ¶ 16. See also Ayesta
at ¶ 20. Thus, in Yapp, the court held that, "although the trial court complied with its
duty to advise the defendant pursuant to R.C. 2943.031 * * *, the record support[ed] the
trial court's conclusion that," because Yapp's trial counsel failed to inform him that he
would be deported as a result of his guilty plea, Yapp "did not appreciate his actual risk
of deportation." Id. at ¶ 17. As such, the court affirmed the lower court's decision
granting Yapp's motion to withdraw his guilty pleas.
      {¶ 31} In State v. Kostyuchenko, 1st Dist. No. C-130257, 2014-Ohio-324, the
court found prejudice, despite the trial court's proper R.C. 2943.031(A) advisement.
There, trial counsel testified that he had a very brief conversation with Kostyuchenko
prior to the plea colloquy, during which counsel told Kostyuchenko that "a felony
conviction 'could get [him] deported' and [counsel] did not discuss with him any
No. 14AP-527                                                                            13


available forms of relief." Id. at ¶ 8. Counsel also reviewed the written plea form with
Kostyuchenko, which stated that his conviction may have the consequence of
deportation. Kostyuchenko's guilty plea, however, made his deportation mandatory, not
merely a possibility.
       {¶ 32} As the advisement in the written plea form and the court's recitation of the
statutory advisement at the plea hearing informed Kostyuchenko "only that he 'may' be
deported," the reviewing court concluded that these advisements "did not provide the
degree of 'accura[cy]' concerning immigration consequences that Padilla demands
when, as here, federal immigration law plainly mandates deportation." Id. at ¶ 15. As
such, the court concluded that "neither counsel's review of the plea form with
Kostyuchenko, nor the trial court's compliance with R.C. 2943.031, effectively precluded
a finding that Kostyuchenko had been prejudiced by counsel's violation of his duty
under Padilla to advise him that he would be deported." Id. Accordingly, the reviewing
court affirmed the lower court's decision granting Kostyuchenko's motion to withdraw
his guilty pleas.
       {¶ 33} In United States v. Batamula, _F.3d_, 5th Cir. No. 12-20630 (June 2,
2015), the Fifth Circuit Court of Appeals also found that a trial court's general
advisement regarding deportation during a plea colloquy did not preclude the defendant
from establishing prejudice. Batamula's trial counsel averred that he advised Batamula
of the immigration consequences of his guilty pleas "based on the language (if any) of
the plea agreement provided by the office," and averred that he did not tell Batamula
that he would be deported as a result of his pleas. Id. During the plea colloquy, the trial
court informed Batamula that "he would likely be deported after he served his
sentence." Id. The reviewing court concluded that, given the Supreme Court's "repeated
emphasis on the paramount importance of providing effective representation and
competent advice regarding the immigration consequences of conviction before entry of
the defendant's guilty plea," the court could not "conclude that the prejudice caused by a
violation of that duty can be categorically erased by a judge's general and laconic
statement during the plea colloquy that deportation is 'likely' after that bargaining
process is complete, and immediately prior to the court's acceptance of the guilty plea."
Id. The court thus noted that a defendant, who receives a general judicial admonishment
No. 14AP-527                                                                                14


regarding immigration consequences during the plea colloquy, but who has not received
specific immigration advice from counsel, "may reasonably 'interpret[] his lawyer's
silence [in the face of the admonition] to mean that pleading guilty would not place him
in jeopardy of deportation[.]' " Id., quoting United States v. Bonilla, 637 F.3d 980, 984-
85 (9th Cir.2011).
       {¶ 34} Thus, while the trial court herein fully complied with R.C. 2943.031(A),
the court's compliance with that statute does not cure the prejudice resulting from
defendant's attorney's constitutionally deficient representation. See United States v.
Akinsade, 686 F.3d 248, 255 (4th Cir.2012). Defendant was effectively misadvised
regarding the immigration consequences of his plea. Defendant's attorney told him that
his "plea might cause [him] problems in becoming a citizen in the future" and she "never
mentioned the consequences pleading to the misdemeanors would have on [his]
Temporary Protected Status [or] that [he] would be subject to removal right away."
(Amended Affidavit, ¶ 3.) Trial counsel did not remain silent on the immigration
consequences of defendant's pleas; rather, she provided defendant with some advice on
a minor immigration issue, while failing to comment on the larger, more important
immigration consequence of defendant's pleas–that defendant would clearly and
undoubtedly lose his legal right to be in this country and be forced to leave his family.
       {¶ 35} By only mentioning issues with respect to naturalization, and not
commenting on the near certain consequence of deportation, defendant's attorney led
defendant to believe that deportation was not a possible result of his guilty pleas.
Accordingly, when the trial court subsequently advised defendant that his guilty pleas
"could be used for deportation purposes," it was reasonable for defendant to continue to
rely on his attorney's advice that his guilty pleas would only affect his ability to become a
citizen in the future. (May 15, 2012 Tr. 5.) Defendant reasonably relied on his attorney's
advice, and believed that advice to be competent and accurate. See Yahya at ¶ 17 (noting
that "a defendant is entitled to rely on advice from counsel and to trust that the advice is
competent and accurate"). The court's advisement alerted defendant to only potential or
possible immigration consequences which could result from his pleas; the advisement
failed to inform defendant that he would certainly and inevitably be removed from the
country which he has resided in for the past seventeen years. Although the court
No. 14AP-527                                                                              15


complied with R.C. 2943.031(A), the court did not engage in any deeper or more pointed
discussion with defendant regarding the immigration consequences of his pleas.
          {¶ 36} Counsel's deficient performance rendered defendant unable to appreciate
the actual risk of deportation that would result from his guilty pleas, and the trial court's
general R.C. 2943.031 advisement, unaccompanied by any further discussion on the
immigration consequences of defendant's pleas, did not cure defendant's attorney's
specific error. Accordingly, under the facts of this particular case, the trial court's R.C.
2943.031 advisement was insufficient to cure the constitutional error resulting from
counsel's deficient performance.
          B. Rational Under the Circumstances
          {¶ 37} Defendant averred that he "never would have entered guilty pleas to the
charged offenses and agreed to these dispositions if [he] had known that [he] would
immediately lose [his] Temporary Protected Status and be subject to removal from the
United States." (Amended Affidavit, ¶ 3.) Defendant asserts that, if he had received
correct advice regarding the consequences of his pleas, he would not have pled guilty,
and would have taken the cases to trial. In determining prejudice, we must ask whether
a decision to reject the plea would have been rational under the circumstances. Padilla
at 372.
          {¶ 38} Initially, we observe that the timing of defendant's motion to withdraw his
guilty pleas bolsters his assertion that he would not have entered the pleas if he had
received constitutionally competent advice from his counsel. Defendant entered his
guilty pleas on May 15, 2012, received the letter from USCIS on July 13, 2012, and filed
his motion to withdraw his guilty pleas on July 31, 2012. In Yahya, we found that the
timing of defendant's motion to withdraw her guilty plea, filed within six months of
Yahya's guilty plea, "support[ed] her claim that she would not have pled guilty if she had
been properly advised of the immigration consequences of that plea." Id. at ¶ 21.
Defendant filed his motion to withdraw his guilty pleas a mere two and one-half months
after entering his guilty pleas, and only two weeks after USCIS notified him that his TPS
was being withdrawn.
          {¶ 39} In Yahya, we also observed that, "assuming appellant's statements are
true, it might be rational for her to insist on going to trial if a guilty plea automatically
No. 14AP-527                                                                                               16


subjects her to deportation." Id. at ¶ 22. We noted that Yahya, a native of Pakistan, had
been a resident of the U.S. since 1996, or "more than one-third of her life," and that "her
husband, to whom she has been married since 1999, [was] also a legal permanent
resident of the United States." Id. at ¶ 22. As such, we held that Yahya might rationally
"decide to take her chances at trial, rather than subject herself to automatic
deportation," and concluded that, "if the trial court found the statements in appellant's
affidavit to be true, she would have demonstrated that her counsel's performance was
deficient and that, but for this deficient performance, she would not have entered a
guilty plea." Id. at ¶ 22-23.
          {¶ 40} Defendant fled El Salvador and entered this country in 1998 when he was
seventeen years old. He has spent seventeen years, and his entire adult life, residing in
this country. Defendant is employed, and has a four-year-old son who is a United States
citizen. Defendant has only a ninth-grade education. Thus, defendant might have
rationally decided to take his chances at trial rather than subject himself to automatic
deportation and be removed from his child and the only adult life he has ever known.
See also Yapp at ¶ 17 (noting that, "[i]n finding prejudice, the court noted that Yapp
possessed limited education and language skills, had lived in the United States since
1998 and had three children").
          {¶ 41} The state notes that, in Tovar, this court held that the determination of
prejudice was an objective one, "which is dependent on the likely outcome of a trial had
the defendant not pleaded guilty." Id. at ¶ 13.1 See also Dando v. Yukins, 461 F.3d 791,
798 (6th Cir.2006) (holding that, whether a decision to reject a plea bargain and go to
trial would be rational, requires a "prediction of the likely outcome at trial"). During the
hearing on the motion to withdraw, there was no discussion from either party regarding
the likely outcome of a trial, and the trial court made no findings in its entry regarding
defendant's potential defenses or what the likely outcome of trial would have been.
          {¶ 42} In considering the likely outcome of trial, the court "need not determine to
an absolute certainty that a jury would have acquitted * * * [r]ather, [the court] need
only find a likelihood of a favorable outcome at trial." Dando at 802. See Pilla v. United
States, 668 F.3d 368, 373 (6th Cir.2012) (analyzing Pilla's chance of success at trial and

1   This further prejudice finding was not utilized or discussed in either Yahya, Kostyuchenko, or Yapp.
No. 14AP-527                                                                                17


concluding that, because she "faced overwhelming evidence of her guilty," it would not
have been rational for her to "have proceeded to trial"); Haddad v. United States, 486
Fed.Appx. 517, 521 (6th Cir.2012) (noting that Haddad's mere statement that "he would
have gone to trial if his attorney had advised him that pleading guilty would make him
deportable" was "not enough to establish prejudice"); United States v. Abou-Khodor,
E.D. Mich. No. 99-CV-81073 (Aug. 30, 2013) (noting that defendant had established
prejudice under Padilla, as a decision to reject the plea and go to trial would have been
rational, where "[t]he evidence against him was weak and circumstantial, relying
primarily on his fraternal connection to his brother who was also named as a
defendant").
       {¶ 43} The record before us provides little insight into the facts of the underlying
charges or what defendant's defenses to those charges might have been. The state did
not read the facts of the case into the record during the plea hearing. However, during
the plea hearing, defense counsel did state that defendant initially had "some additional
hesitation" about entering the court's diversion program "because ultimately, he may
want to fight the felony, because [the cocaine] wasn't his." (May 15, 2012 Tr. 7.) Thus,
there is at least some indication in the record that defendant may have had a defense to
the possession charge. Additionally, defendant refused to submit to a test of his blood-
alcohol content on the night of the incident, and thus scientific evidence of defendant's
level of intoxication is not in the record. Defendant averred that his attorney did not
discuss "any legal strategies in [his] case or the consequence of entering a plea to the
charges instead of trying to negotiate further or go to trial." (Amended Affidavit, ¶ 3.)
       {¶ 44} Notably, the court's decision denying the motion contains no findings, and
states simply that, "[a]fter due consideration of the matters contained" in defendant's
motion to withdraw his guilty plea, the court found the motion not to be well-taken.
(Entry, 1.) See State v. Creary, 8th Dist. No. 82767, 2004-Ohio-858, ¶ 4 (noting that
"while we give deference to factual findings, a judge's unexplained order makes no
factual findings that require deference"). However, a review of the transcript from the
hearing on the motion to withdraw reveals that the trial court denied defendant's
motion based on the court's belief that defendant could not establish prejudice, as the
No. 14AP-527                                                                            18


trial court had provided defendant with the R.C. 2943.031 advisement. (See Apr. 17,
2014 Tr. 8-9.)
       {¶ 45} Accordingly, because the trial court denied the motion solely on the basis
of the R.C. 2943.031 advisement, because there is at least some indication in the record
that defendant had a defense to at least one of the charges, and considering the
importance of the constitutional violation at issue herein, we find it appropriate to
remand the case to the trial court for the parties to develop a record regarding the likely
outcome of a trial. As such, we find the trial court abused its discretion by denying
defendant's motion to withdraw his guilty plea solely on the basis of the court's R.C.
2943.031 advisement. Based on the foregoing, defendant's first assignment of error is
sustained.
IV. SECOND ASSIGNMENT OF ERROR - FINDINGS
       {¶ 46} Defendant's second assignment of error asserts that the trial court erred by
failing to state conclusions of fact and conclusions of law in its entry denying the
motion. Defendant cites R.C. 2953.21(C) to support his contention that "[a] court's
judgment entry denying post-conviction relief must include findings of fact and
conclusions of law." (Appellant's Brief, 19.) However, the court's entry did not deny an
R.C. 2953.21 petition for post-conviction relief; rather, it denied a Crim.R. 32.1 motion
for withdrawal of a guilty plea. See State v. Adams, 2d Dist. No. 2014-CA-61, 2014-Ohio-
5359, ¶ 11 (noting that "Crim.R. 32.1 does not require the trial court to issue findings of
fact and conclusions of law when ruling on a motion to withdraw a plea"). As such,
defendant's second assignment of error is overruled.
V. DISPOSITION
       {¶ 47} Having sustained defendant's first assignment of error, and having
overruled defendant's second assignment of error, we reverse the judgment of the
Franklin County Municipal Court and remand the case for proceedings consistent with
this decision.
                                                     Judgment reversed, case remanded.

                                   TYACK, J., concurs.
                                 DORRIAN, J., dissents.
No. 14AP-527                                                                           19


DORRIAN, J., dissenting.
       {¶ 48} I believe the facts in this case are more analogous to the facts in State v.
Ikharo, 10th Dist. No. 10AP-967, 2011-Ohio-2746, than to the facts in State v. Yahya,
10th Dist. No. 10AP-1190, 2011-Ohio-6090. In both of those cases, as well as in the case
before us, the trial court gave the general immigration advice required by R.C.
2943.031(A). However, in Yahya, trial counsel provided incorrect legal advice to the
defendant regarding immigration consequences; whereas, in Ikharo, and in the instant
case, trial counsel provided the defendant with a lack of advice or a lack of complete
advice regarding immigration consequences. Accordingly, and pursuant to my
interpretation of this court's precedent, I respectfully dissent.
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