[Cite as State v. Ahmed, 2020-Ohio-1279.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                Plaintiff-Appellee,               :         No. 108548

                v.                                :

AMIR ABDI AHMED,                                  :

                Defendant-Appellant.              :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: April 2, 2020


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-12-560103-C


                                            Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Gregory J. Ochocki, Assistant Prosecuting
                Attorney, for appellee.

                Amato Law Office, L.P.A., and Joseph N. Phillips, for
                appellant.


ANITA LASTER MAYS, J.:

                  Defendant-appellant Amir Abdi Ahmed (“Ahmed”) appeals the trial

court’s denial of Ahmed’s motion to withdraw his postsentence guilty plea, and asks

this court to vacate the plea. We affirm the trial court’s decision.
               Ahmed pleaded guilty to attempted drug possession, a first-degree

misdemeanor, in violation of R.C. 2923.02 and 2925.11(A).              The trial court

sentenced him to pay a fine of $1,000.

I.    Facts and Procedural History

               On December 11, 2012, at Ahmed’s plea and sentencing hearing,

Ahmed pleaded guilty to attempted drug possession. The trial court asked Ahmed

if he was satisfied with his trial counsel’s representation, to which Ahmed replied

that he was very much satisfied. (Tr. 8.) Trial counsel also indicated to the court

that Ahmed was aware of his constitutional rights even though the trial court would

later explain his rights. (Tr. 7.) The trial court stated,

      your attorney has already noted that you are not a U.S. citizen. I am
      required to advise you that since you are not a citizen of the United
      States, the offense — conviction of the offense to which you are
      pleading guilty may have the consequences of deportation from the
      United States, exclusion from admission to the United States, or
      denial of naturalization pursuant to the laws of the United States. You
      understand that?

(Tr. 10.) Ahmed responded that he understood. Id.

               The trial court then stated, “[o]kay. By the way, I have no control over

what happens with that, that’s for the federal authorities to decide. * * * .” Id. Ahmed

entered a plea of guilty, and the trial court imposed a fine after Ahmed’s counsel

asked for a minimum sentence in order to look more favorable in his federal

immigration case. (Tr. 13-14.)

               On December 4, 2018, six years after Ahmed was sentenced, Ahmed

was served with a “Notice to Appear” in immigration court. Ahmed was informed
that removal proceedings had been initiated against him as a result of his

misdemeanor conviction and he was detained. Ahmed filed a motion to withdraw

and vacate plea with the trial court. The trial court denied Ahmed’s motion. Ahmed

has remained in federal immigration custody since 2018, and filed this appeal

assigning one error for our review:

      I.    The trial court abused its discretion by denying Appellant’s
            motion to withdraw his previously entered guilty plea.

II.   Postsentence Guilty Plea Withdrawal

      A.    Standard of review

              Crim.R. 32.1 provides that “[a] motion to withdraw a plea of

guilty * * * 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.” “We review a trial court’s

decision to grant or deny a postsentence motion to withdraw a guilty plea pursuant

to Crim.R. 32.1 for abuse of discretion.” State v. Johnson, 8th Dist. Cuyahoga

No. 107617, 2019-Ohio-2332, ¶ 12 citing State v. Wilkey, 5th Dist. Muskingum

No. CT2005-0050, 2006-Ohio-3276, ¶ 21. “The term ‘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, 450 N.E.2d 1140 (1983).
      B.     Whether the Trial Court Abused its Discretion by
             Denying Appellant’s Crim.R. 32.1 Motion

              In Ahmed’s sole assignment of error, he contends that the trial court

erred when it denied his motion to withdraw his guilty plea, in accordance with

Crim.R. 32.1. Crim.R. 32.1 provides that “[a] motion to withdraw a plea of guilty *

* * 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.” Ahmed, who seeks to withdraw a plea of

guilty after the imposition of sentence, has the burden of establishing the existence

of manifest injustice. Richmond Hts. v. McEllen, 8th Dist. Cuyahoga No. 99281,

2013-Ohio-3151, ¶ 7, citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324

(1977), paragraph one of the syllabus.       “‘[M]anifest injustice’ comprehends a

fundamental flaw in the path of justice so extraordinary that the defendant could

not have sought redress from the resulting prejudice through another form of

application reasonably available to him or her.” State v. Sneed, 8th Dist. Cuyahoga

No. 80902, 2002-Ohio-6502, ¶ 13.

              Ahmed argues that the manifest injustice occurred as a result of his

trial counsel’s representation. Ahmad contends that his trial counsel misadvised

him as to the state of law and how it could affect his future in the United States. As

a result, Ahmad pleaded guilty to the offense based on the belief that it would not

affect his immigration status. Ahmed reasons that he would not have pleaded guilty

in this matter had he known that he was facing mandatory deportation. “‘A claim of
ineffective assistance of counsel is waived by a guilty plea, except to the extent that

the ineffective assistance of counsel caused the defendant’s plea to be less than

knowing, intelligent, and voluntary.’” State v. Barnes, 8th Dist. Cuyahoga No.

104910, 2018-Ohio-86, ¶ 12, quoting State v. Vinson, 2016-Ohio-7604, 73 N.E.3d

1025, ¶ 30 (8th Dist.).

               Ahmed “can prevail only by demonstrating that there is a reasonable

probability that, but for counsel’s deficient performance, he would not have pleaded

guilty and would have insisted on going to trial.” State v. Williams, 8th Dist.

Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11, citing State v. Xie, 62 Ohio St.3d 521,

524, 584 N.E.2d 715 (1992); Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d

203 (1985). In addition, “[t]he requisite showing of manifest injustice must be based

on specific facts in the record or supplied through affidavits submitted with the

motion.” (Citation omitted.) State v. Norris, 8th Dist. Cuyahoga No. 107894, 2019-

Ohio-3768, ¶ 24.

               Ahmed cites the 2010 United States Supreme Court case Padilla v.

Kentucky, 559 U.S. at 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which held that

an attorney’s performance is deficient when he or she has failed, at a minimum, to

advise a noncitizen defendant-client that “pending criminal charges may carry a risk

of adverse immigration consequences.” An attorney’s performance is also deficient

when his or her advice regarding deportation issues, which are “easily determined

from reading the removal statute,” is incorrect. Id. However, “[p]rior to Padilla,

Ohio courts have held that the duty to notify a defendant of immigration
consequences is on the trial court, not counsel.” State v. Passafiume, 2018-Ohio-

1083, 109 N.E.3d 642, ¶ 23 (8th Dist.).

                Although Ahmed claims that his trial counsel did not inform him of

the immigration consequences of his plea, his “self-serving affidavit is generally

insufficient to demonstrate manifest injustice.” Id. at ¶ 26, citing State v. Geraci,

8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699, ¶ 10. The record

demonstrating compliance with Crim.R. 11 has a much greater probative value than

Ahmed’s self-service affidavit.    Id.    In addition, the trial court’s abidance to

Crim.R. 11 “raises a presumption that the plea was voluntarily entered.” (Citations

omitted.) Id.

                Ahmed has not demonstrated that his plea was less than knowing,

intelligent, and voluntary. The trial court informed Ahmed of the effects of his guilty

plea regarding his immigration status. The trial court explained to Ahmed that his

immigration status may be affected by his guilty plea because he was not a citizen of

the United States, to which Ahmed replied that he understood. To ensure that a plea

to a misdemeanor charge is knowingly, intelligently, and voluntarily entered into, a

trial court must follow the dictates of Crim.R. 11(D). “In misdemeanor cases

involving serious offenses the court * * * shall not accept such plea without first

addressing the defendant personally and informing the defendant of the effect of the

pleas of guilty, * * * and determining that the defendant is making the plea

voluntarily.” Crim.R. 11(D). Crim.R. 2(C) provides that a “ [s]erious offense means
any felony, and any misdemeanor for which the penalty prescribed by law includes

confinement for more than six months.”

               Ahmed bears the burden of demonstrating that a manifest injustice

occurred in the plea proceeding. State v. Sneed, 8th Dist. Cuyahoga No. 80902,

2002-Ohio-6502, ¶ 13 (a manifest injustice is “an extraordinary and fundamental

flaw in the plea proceeding”). In this case, Ahmed claims his trial counsel was

ineffective at the time he entered his plea, so he bears the burden of showing that

counsel’s performance led to a manifest injustice. State v. Bankston, 8th Dist.

Cuyahoga No. 92777, 2010-Ohio-1576, ¶ 53. We determined that trial counsel made

the trial court aware of Ahmed’s citizenship status. We also can determine that the

trial court fully complied with Crim.R. 11, and did advise Ahmed of the effect of his

guilty plea as it relates to his immigration status.

      {¶14} Therefore, Ahmed’s sole assignment of error is overruled.

      {¶15} Judgment affirmed.

      It is ordered that the appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



_______________________________
ANITA LASTER MAYS, JUDGE

EILEEN T. GALLAGHER, A.J., and
MARY EILEEN KILBANE, J., CONCUR
