[Cite as State v. Paniagua, 2025-Ohio-5800.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
MADISON COUNTY
STATE OF OHIO, : CASE NO. CA2025-03-009 Appellee, : OPINION AND vs. : JUDGMENT ENTRY 12/30/2025 EFRAIN V. PANIAGUA, :
Appellant. :
:
CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS Case No. CRI20210069
Nicholas A. Adkins, Madison County Prosecuting Attorney, and Michael S. Klamo, Assistant Prosecuting Attorney, for appellee.
Web Norman Law, Inc., and William B. Norman, for appellant.
___________ OPINION
M. POWELL, J.
{¶ 1} Appellant, Efrain Paniagua, appeals a decision of the Madison County Court
of Common Pleas denying his postsentence motion to withdraw his guilty plea. Madison CA2025-03-009
{¶ 2} Appellant is a citizen of Mexico. The record indicates he moved to the
United States in 1999, when he was three years old. In April 2021, appellant was indicted
on one count of first-degree felony aggravated possession of drugs and an accompanying
major drug offender specification. The charge arose after police discovered 22 kilograms
of narcotics in the vehicle in which appellant was a passenger.
{¶ 3} On October 1, 2021, the trial court held a plea hearing during which it
engaged in a full and proper Crim.R. 11 colloquy. The trial court also orally advised
appellant, in compliance with R.C. 2943.031, that "a conviction of the offense to which
you are pleading 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."
The court then asked appellant if he understood; appellant replied he did. The trial court
further inquired, "And you've discussed that with [defense counsel]?" Appellant replied,
"Yes, sir." Pursuant to plea negotiations, appellant then pled guilty to a second-degree
felony aggravated possession of drugs, and the major drug offender specification was
dismissed. Appellant was sentenced to an indefinite prison term of five to seven-and-one-
half years.
{¶ 4} On February 7, 2025, appellant moved to withdraw his guilty plea pursuant
to Crim.R. 32.1. on the ground defense counsel's failure to advise him of the immigration
consequences of pleading guilty deprived him of his constitutional right to the effective
assistance of counsel. In support of the motion, appellant attached his own affidavit in
which he averred he is not a United States citizen; he is a citizen of Mexico; he was
brought to the United States when he was three years old; his parents, siblings, and wife
all reside in the United States; and he has little connection to Mexico. Regarding his plea,
appellant further averred that although he repeatedly requested that defense counsel
advise him of the immigration consequences of a guilty plea, defense counsel continually
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postponed such discussion and ultimately never discussed with him the immigration
consequences of pleading guilty, including the fact that a conviction for aggravated
possession of drugs would "trigger a conclusive presumption of deportability"; that he
entered his guilty plea with the understanding he could challenge deportation as a
consequence of his guilty plea to a drug offense; that he first learned deportation was
presumptively mandatory in January 2023; and that he would never have pled guilty had
he known that deportation under the circumstances would be mandatory.
{¶ 5} The trial court denied appellant's motion without an evidentiary hearing.
Noting that a Crim.R. 32.1 motion to withdraw a plea may only be granted to correct a
manifest injustice, the trial court found that
[Defendant] cannot reasonably argue that his guilty plea was the product of manifest injustice by virtue of defense counsel's failure to advise him that he could be deported as a consequence of his plea. The Defendant was properly advised of such by the Court and when the Court inquired of whether or not the Defendant had engaged in such conversations with his attorney, the Defendant answered in the affirmative."
{¶ 6} The trial court also found that appellant's claims were barred by res judicata
because his assertions were based upon information available to him at the time he could
have filed a direct appeal, and therefore the issue of ineffective assistance of counsel at
the plea hearing could have been raised on direct appeal but was not.
{¶ 7} Appellant now appeals, raising three assignments of error. Appellant's first
and third assignments of error will be addressed together.
{¶ 8} Assignment of Error No. 1:
THE TRIAL COURT ERRED IN FINDING NO MANIFEST INJUSTICE WARRANTING WITHDRAWAL OF APPELLANT'S GUILTY PLEA.
{¶ 9} Assignment of Error No. 3:
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THE TRIAL COURT ERRED IN DENYING RELIEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING.
{¶ 10} In his first assignment of error, appellant argues that the trial court erred in
denying his motion to withdraw his guilty plea on the ground he failed to establish manifest
injustice. Appellant asserts that his R.C. 2925.11(A) aggravated possession of drugs
conviction subjects him to mandatory deportation as a controlled substance conviction
under 8 U.S.C. 1227(a)(2)(B)(i) or as an aggravated felony conviction under 8 U.S.C.
1227(a)(2)(A)(iii), and that had he known of the mandatory deportation consequences, he
would never have pled guilty to aggravated possession of drugs. Appellant also asserts
that "due process principles require this Court to grant an evidentiary hearing to determine
the veracity of [his] claims regarding defense counsel's failure to advise him of the fact
that he was subject to mandatory deportation." In his second assignment of error,
appellant argues that the trial court erred in denying his motion to withdraw his guilty plea
without conducting a hearing on the motion.
{¶ 11} Crim.R. 32.1 allows postsentence withdrawal of a guilty plea in limited
circumstances "to correct a manifest injustice." A defendant seeking to withdraw a guilty
plea after the imposition of sentence bears the burden of establishing the existence of a
manifest injustice. State v. Tapia-Cortes, 2016-Ohio-8101, ¶ 11 (12th Dist.). In general,
manifest injustice relates to a fundamental flaw in the proceedings that results in a
miscarriage of justice or is inconsistent with the demands of due process. Id. A motion
made pursuant to Crim.R. 32.1 is addressed to the sound discretion of the trial court. Id.
at ¶ 12. Consequently, an appellate court will not reverse the trial court's decision absent
an abuse of discretion. Id.
{¶ 12} Ineffective assistance of counsel is a proper basis for seeking a
postsentence withdrawal of a guilty plea, and can constitute a manifest injustice sufficient
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to allow the postsentence withdrawal of the guilty plea. Id. at ¶ 13; State v. Ayesta, 2015-
Ohio-1695, ¶ 8 (8th Dist.). When an alleged error underlying a motion to withdraw a guilty
plea is the ineffective assistance of counsel, the defendant must show (1) that his
counsel's performance was deficient and (2) that there is a reasonable probability that,
but for counsel's errors, he would not have pled guilty. Tapia-Cortes at ¶ 13; Strickland v.
Washington, 466 U.S. 668, 687-688 (1984).
{¶ 13} An evidentiary hearing on a Crim.R. 32.1 motion to withdraw a guilty plea is
not always required. Ayesta at ¶ 10. A hearing is not required where the record, "on its
face, conclusively and irrefutably contradicts the allegations in support of withdrawal," or
where the record indicates the movant is not entitled to relief. Id. However, an evidentiary
hearing is required if the facts alleged by the defendant, and accepted as true, would
require withdrawal of the plea. State v. Williams, 2013-Ohio-1387, ¶ 17 (12th Dist.).
{¶ 14} In his affidavit, appellant averred (1) that his conviction for aggravated
possession of drugs made his deportation presumptively mandatory, (2) that he first
learned about the conclusive presumption of deportability in January 2023, (3) that
although he repeatedly asked that defense counsel advise him of the immigration
consequences of pleading guilty, defense counsel continually postponed such discussion
and ultimately never discussed with him the immigration consequences of a guilty plea,
and (4) that he never would have pled guilty had he known that deportation under the
circumstances was mandatory.
{¶ 15} "[T]he negotiation of a plea bargain is a critical phase of litigation for
purposes of the Sixth Amendment right to effective assistance of counsel. The severity of
deportation . . . only underscores how critical it is for counsel to inform her noncitizen
client that he faces a risk of deportation." (Citations omitted.) Padilla v. Kentucky, 559
U.S. 356, 373-374 (2010). Consequently, when negotiating a guilty plea, counsel has a
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duty to accurately advise his noncitizen client of the immigration consequences of the
plea. Tapias-Cortes, 2016-Ohio-8101, at ¶ 14 (12th Dist.). Counsel breaches this duty by
either providing affirmative misadvice about immigration consequences or by not
providing any advice at all when advice is warranted. Padilla at 370-374.
{¶ 16} "When the law is not succinct and straightforward, a criminal defense
attorney need no more than advise a noncitizen client that pending criminal charges may
carry a risk of adverse immigration consequences." Id. at 369. However, when the
immigration consequences can "easily be determined from reading the removal statute,"
and "the deportation consequence is truly clear, . . . the duty to give correct advice is
equally clear." Id. Counsel's failure to provide a client with available advice regarding
deportation "clearly satisfies the first prong of the Strickland analysis." Id.
{¶ 17} Padilla involved a noncitizen defendant who pled guilty to the transportation
of a large amount of marijuana. The United States Supreme Court noted that "Padilla's
crime, like virtually every drug offense except for only the most insignificant marijuana
offenses, is a deportable offense under 8 U.S.C. 1227(a)(2)(B)(i)." Padilla, 559 U.S. at
359, fn. 1. "Padilla's counsel could have easily determined that his plea would make him
eligible for deportation simply from reading the text of the statute, which addresses not
some broad classification of crimes but specifically commands removal for all controlled
substances convictions except for the most trivial of marijuana possession offenses." Id.
at 368. Accordingly, Padilla's attorney had a duty to provide clear advice to Padilla that
his deportation was presumptively mandatory. Id. at 368-369.
{¶ 18} Appellant was convicted on one count of aggravated possession of drugs,
a second-degree felony. The drug at issue was methamphetamine. In his motion to
withdraw his guilty plea, appellant asserted that his conviction subjects him to mandatory
deportation under Padilla and 8 U.S.C. 1227(a)(2)(B)(i). On appeal, appellant also asserts
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the conviction subjects him to mandatory deportation under 8 U.S.C. 1227(a)(2)(A)(iii).
{¶ 19} 8 U.S.C. 1227 defines classes of deportable aliens.1 8 U.S.C.
1227(a)(2)(B)(i) provides that "[a]ny alien who at any time after admission has been
convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled
substance . . . other than a single offense involving possession for one's use of 30 grams
or less of marijuana, is deportable." 21 U.S.C. 802(6) defines "controlled substance" as
"a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V
of [21 U.S.C.S. § 812]." Methamphetamine is one such drug. Barbosa v. Garland, 70
F.4th 1080, 1082 (8th Cir. 2023); State v. Kurdi, 2022-Ohio-4459 (11th Dist.). 8 U.S.C.
1227(a)(2)(B)(i) is succinct, clear, and straightforward in defining the deportation
consequences resulting from a noncitizen offender's guilty plea to a controlled substance
conviction. Appellant's conviction of aggravated possession of drugs is a violation of Ohio
law relating to controlled substances, which the State admits, and is therefore a
deportable offense under 8 U.S.C. 1227(a)(2)(B)(i). Thus, defense counsel was
constitutionally obligated to advise appellant that as a result of his guilty plea, his
deportation would be "presumptively mandatory." Padilla, 559 U.S. at 368-369.
{¶ 20} 8 U.S.C. 1227(a)(2)(A)(iii) provides that "[a]ny alien who is convicted of an
aggravated felony at any time after admission is deportable." An "aggravated felony"
includes "illicit trafficking in a controlled substance . . ., including a drug trafficking crime."
8 U.S.C. 1101(a)(43). 18 U.S.C. 924(c)(2) defines "drug trafficking crime" as "any felony
punishable under the Controlled Substances Act (21 U.S.C. 801 et seq)." Appellant
1. We note that although the term "deportable" suggests that deportation is a potential consequence of a conviction, the United States Supreme Court has recognized that the practical result of such a conviction is that "the alien almost always will be deported." (Emphasis in original.) State v. Ayesta, 2015-Ohio-1695, ¶ 7 (8th Dist.), citing Padilla v. Kentucky, 559 U.S. 356, 360-364 (2010). Furthermore, courts have described the level of certainty of deportation for deportable offenses as 'virtually automatic' and 'unavoidable,' 'certain,' and 'presumptively mandatory.'" (Citations omitted.) Ayesta at ¶ 7.
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argues that his second-degree felony conviction is a felony punishable under the federal
Controlled Substances Act and therefore an "aggravated felony" for purposes of 8
U.S.C.A. § 1227(a)(2)(A)(iii). The State argues that the amendment of the aggravated
possession offense from a first-degree felony under R.C. 2925.11(C)(1)(d) to a second-
degree felony under R.C. 2925.11(C)(1)(c) reduced the amount of methamphetamine
involved to between 15 grams and 150 grams. Based upon that amount of drugs, the
State contends that the offense would be a federal class A misdemeanor and therefore
would not be an aggravated felony for purposes of 8 U.S.C.A. § 1227(a)(2)(A)(iii).
{¶ 21} As Justice Alito recognized in his concurrence in Padilla, "determining
whether a particular crime is an 'aggravated felony' . . . is not an easy task. . . . Defense
counsel who consults a guidebook on whether a particular crime is an 'aggravated felony'
will often find that the answer is not 'easily ascertained.'" State v. Taveras, 2017-Ohio-
1496, ¶ 29 (12th Dist.), quoting Padilla, 559 U.S. at 378. See also State v. Adames, 2017-
Ohio-4058, ¶ 26 (5th Dist.). "Therefore, as the determination of whether an offense is an
'aggravated felony' is not 'truly clear' or easily ascertainable, defense counsel's duty was
to provide advice that the 'criminal charges may carry a risk of adverse immigration
consequences.'" Taveras at ¶ 29, citing Padilla at 369.
{¶ 22} In denying appellant's Crim.R. 32.1 motion, the trial court never determined
whether appellant received ineffective assistance of counsel under Strickland. Rather, the
trial court primarily denied the motion on the ground appellant failed to establish manifest
injustice. Specifically, the trial court found that during the plea hearing, it properly warned
appellant of the immigration consequences of his plea as required under R.C.
2943.031(A) and then specifically inquired whether appellant had discussed such
consequences with defense counsel. The court stated that its inquiry and appellant's
ensuing affirmative answer directly contradicted appellant's assertion in his affidavit.
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{¶ 23} When accepting a guilty or no contest plea from a defendant who is not a
citizen of the United States, a trial court must give verbatim the warning set forth in R.C.
2943.031(A). State v. Francis, 2004-Ohio-6894, ¶ 20. It is not disputed that the trial court
fully complied with R.C. 2943.031(A). However, the narrow factual inquiry under Padilla
is whether the defendant was informed by defense counsel of certain immigration
consequences and whether prejudice resulted therefrom. "'It is counsel's duty, not the
court's, to warn of certain immigrations consequences, and counsel's failure cannot be
saved by a plea colloquy.'" State v. Romero, 2019-Ohio-1839, ¶ 18, quoting United States
v. Urias-Marrufo, 744 F.3d 361, 369 (5th Cir. 2014). "When, as here, the defendant
asserts a claim of ineffective assistance of counsel, the court must focus on counsel's
deficient performance and the prejudice arising from that deficiency." (Emphasis in
original.) Romero at ¶ 18.
{¶ 24} "The trial court's advisement under R.C. 2943.031(A) also does not cure an
attorney's failure to advise his client of the immigration consequences of a guilty plea." Id.
at ¶ 19. The R.C. 2943.031(A) advisement that a trial court must provide prior to accepting
a noncitizen defendant's guilty or no-contest plea to a felony or misdemeanor other than
a minor misdemeanor "warns defendants that 'pleading guilty may have the
consequence[ ] of deportation.'" (Emphasis in original.) Id. at ¶ 19-20. "But that
generalized warning does not replace counsel's duty to advise his client of the
consequences of his guilty plea, as Padilla instructs." Id. at ¶ 20. "'Warnings from a judge
during a plea colloquy are not a substitute for effective assistance of counsel.'" Id., quoting
United States v. Kayode, 777 F.3d 719, 728 (5th Cir. 2014); see also Tapias-Cortes,
2016-Ohio-8101 (12th Dist.) (counsel's failure to properly advise his client as to the
immigration consequences of a plea is not cured by the trial court's compliance with R.C.
2943.031).
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{¶ 25} The record is equivocal as to what advice defense counsel provided
appellant regarding the immigration consequences of pleading guilty. In his affidavit
attached to his motion to withdraw his plea, subject to perjury, appellant denies receiving
any such advice from defense counsel despite appellant's multiple requests for defense
counsel to discuss the immigration consequences of a guilty plea. By contrast, the
transcript of the plea hearing reflects that following the trial court's R.C. 2943.031(A)
advisement and its subsequent brief inquiry, appellant acknowledged he had discussed
the issue with defense counsel. The record does not reflect the details of defense
counsel's advice regarding the immigration consequences of a guilty plea. Whatever
advice defense counsel may have provided concerning the immigration consequences of
appellant's guilty plea, the record does not disclose that counsel advised that deportation
would be presumptively mandatory as a result of appellant's plea. Appellant's significant
connections to the United States and his little, if any, connection to Mexico, lends
credence to his claim that had he known that his deportation would be presumptively
mandatory, he would not have pled guilty. There is no affidavit from defense counsel to
clarify the issue.
{¶ 26} In light of the foregoing, and specifically that deportation for appellant's
controlled substance conviction is presumptively mandatory under 8 U.S.C.
1227(a)(2)(B)(1), and the equivocal record regarding what advice defense counsel
provided appellant concerning the immigration consequences of pleading guilty, we find
that appellant's motion and affidavit raised a colorable claim of ineffective assistance of
counsel at the plea hearing sufficient to warrant an evidentiary hearing on the motion.
Because the facts alleged by appellant, if accepted as true, might support granting
appellant's motion to withdraw his plea, we find the trial court abused its discretion in
denying appellant's motion to withdraw his guilty plea without holding a hearing.
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Accordingly, we reverse the trial court's denial of appellant's motion to withdraw his plea
and remand this case for the trial court to hold an evidentiary hearing to determine
appellant's ineffective assistance claim.
{¶ 27} Appellant's third assignment of error is sustained. Based on our resolution
of the third assignment of error, appellant's first assignment of error is moot and we need
not consider it.
{¶ 28} Assignment of Error No. 2:
THE TRIAL COURT ERRED IN APPLYING RES JUDICATA.
{¶ 29} Appellant argues the trial court erred in finding that his Crim.R. 32.1 motion
to withdraw his plea was barred by res judicata. In its decision, the trial court found that
appellant's assertions of ineffective assistance of counsel during the plea hearing were
"based upon information which was available to [him]" at the time he could have filed a
direct appeal, and therefore, the issue could have been raised on direct appeal but was
not.
{¶ 30} The doctrine of res judicata provides that a final judgment of conviction bars
a convicted defendant who was represented by counsel from raising and litigating in any
proceeding except an appeal from that judgment, any defense or any claimed lack of due
process that was raised or could have been raised by the defendant at the trial, which
resulted in that judgment of conviction, or an appeal from the judgment. State v. Wagers,
2012-Ohio-2258, ¶ 10 (12th Dist.), citing State v. Szefcyk, 1996-Ohio-337, ¶ 9. Thus, as
this court has stated previously, res judicata applies and "bars claims raised in a Crim.R.
32.1 postsentence motion to withdraw a guilty plea that were raised or could have been
raised in a prior proceeding." State v. Hagens, 2025-Ohio-4989, ¶ 21 (12th Dist.). In other
words, claims raised in support of a Crim.R. 32.1 postsentence motion to withdraw a guilty
plea that could have been raised on direct appeal, but were not, are barred by res judicata.
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Id.
{¶ 31} In some instances, competent, relevant, and material evidence presented
from outside the trial record may defeat the application of res judicata. Id. at ¶ 22.
However, this outside evidence "must demonstrate that the petitioner could not have
appealed the constitutional claim based upon information in the original record" and
possess some standard of cogency. State v. Daniels, 2019-Ohio- 2274, ¶ 30 (12th Dist.).
{¶ 32} We find that the trial court erred in applying res judicata. Appellant's affidavit
avers that he first learned deportation was presumptively mandatory in January 2023,
more than a year after he pled guilty and was sentenced for aggravated possession of
drugs. Moreover, the gist of appellant's argument involves cogent evidence outside the
trial record, that is, what advice, if any, defense counsel provided regarding the
immigration consequences of a guilty plea. Thus, appellant could not have appealed the
constitutional claim based upon information in the original trial record.
{¶ 33} Appellant's second assignment of error is sustained.
{¶ 34} Judgment reversed and remanded for further proceedings consistent with
this opinion.
SIEBERT, J., concurs.
PIPER, P.J., dissents.
PIPER, P.J., dissenting.
{¶ 35} More than three years after being sentenced, Paniagua has filed a motion
to withdraw his guilty plea, along with a carefully crafted, self-serving affidavit claiming his
trial attorney failed to advise him that his deportation is a "forgone conclusion." In
essence, Paniagua contends his plea was not entered knowingly, intelligently, and
voluntarily because he was never told by his attorney his plea would result in mandatory
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deportation. Although Paniagua never filed a direct appeal or a petition for postconviction
relief, he now claims it was an abuse of discretion by the trial court not to grant him an
evidentiary hearing. My respected colleagues agree with Paniagua; however, I do not.
{¶ 36} Before an evidentiary hearing is required on a motion to withdraw a guilty
plea, a defendant must "submit evidentiary documents containing sufficient operative
facts to demonstrate" an entitlement to relief. State v. Kapper, 5 Ohio St.3d 36, 38, (1983)
quoting State v. Jackson, 64 Ohio St.2d 107 (1980). "The credibility and weight of [a]
defendant's assertions in support of a motion to withdraw a plea and the decision as to
whether to hold a hearing are matters entrusted to the sound discretion of the trial court."
State v. Romero 2019-Ohio-1839, ¶ 34. An affidavit that is contradicted by the record may
be discounted by the trial court without resorting to an evidentiary hearing. State v. Miller
2016-Ohio-7360, ¶ 14 (12th Dist.). "[T]ypically, a self-serving affidavit is insufficient to
establish a manifest injustice." Id. This case is no exception.
{¶ 37} Here, as the trial court recognized in its entry, Paniagua's affidavit directly
contradicts his own statements at his original plea hearing. Because the trial court found
Paniagua's affidavit not to be credible, Paniagua has failed to demonstrate his counsel's
performance was deficient and an evidentiary hearing is not necessary. See State v.
Romero, 2019-Ohio-1839, ¶ 49, citing Strickland v. Washington, 466 U.S. 668, 687-688
(1984). Our inquiry should end there.2
{¶ 38} In his affidavit, Paniagua avers:
Prior to my plea of guilty in that case. which occurred on October 1, 2021. I repeatedly requested that Mr. Joslyn [explain] what the precise likely immigration consequences of my plea of guilty and conviction [are]; Each time, Mr. Joslyn responded that he would discuss those consequences with me later.
2. While both parties have made extensive arguments as to whether Paniagua's offense requires mandatory deportation, I find it unnecessary to decide the merit within those respective arguments. Yet I would say, I do not accept the majority's suggestion that the possibility of deportation, being deportable, is the same as mandatory deportation, being deportation required by operation of law. - 13 - Madison CA2025-03-009
At no time did we discuss those consequences prior to my plea of guilty in this case on October 1, 2021.
At no time prior to my plea did Mr. Joslyn advise me that my conviction would trigger a conclusive presumption of deportability.
{¶ 39} However, the plea transcript and Paniagua's colloquy with the trial court
belies the existence of any evasive or dilatory behavior on the part of trial counsel. And
furthermore, the affidavit never avers the attorney informed Paniagua that he would not
be deported or that he was not at near-certain risk of being deported. Paniagua's affidavit
does not contain sufficient operative facts and is not credible.
{¶ 40} As the majority recognizes, the generalized warnings of possible
deportation mandated by R.C. 2943.031(A) do not replace counsel's duty to advise his
client of the deportation consequences of his guilty plea. But here, the trial court did more
than read the statutory warning verbatim. After reading the statutory warning, the colloquy
went on:
THE COURT: "Do you understand that?" PANIAGUA: "Unfortunately, yes, Your Honor." THE COURT: "And you've discussed that with Mr. Joslyn?" PANIAGUA: "Yes, sir." ... THE COURT: "You've been represented by Mr. Joslyn throughout this process. Are you satisfied with his representation?" PANIAGUA: "He's a great lawyer, Your Honor."
{¶ 41} There is no reason to suspect Paniagua's responses when before the court
and on the record were not sincere and candid.
{¶ 42} As the trial court reasoned in its entry denying Paniagua's motion to
withdraw plea, one would have expected Paniagua to echo or raise the important
concerns he now attempts to construct in his affidavit at the time he was engaged in a
colloquy with the court. Instead, Paniagua recognized the "unfortunate" issue of
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deportation, affirmed discussing it with his attorney, and then went out of his way to
compliment his attorney's performance. Accordingly, the trial court properly concluded
that Paniagua could not reasonably argue his attorney failed to properly advise him and
that his self-serving affidavit was not credible. We should not presume Paniagua was
dishonest at his plea hearing before the trial court.
{¶ 43} Certainly, trial counsel has a duty to give correct advice regarding
deportation consequences. However, Paniagua's affidavit does not detail any of the
deportation advice he received, nor does it explain what false impression he was given.
While not required, it is noteworthy Paniagua did not produce an affidavit from his trial
counsel. Instead, Paniagua has deliberately chosen to assert evasiveness and
incompetence, in a vague way, on the part of his attorney, which contradicts his own
statements on the record. This undercuts his credibility. In reversing the trial court's
decision, the majority opinion puts the cart before the horse, skipping over the issue of
Paniagua's credibility and ordering an unnecessary evidentiary hearing. I do not find, as
my respected colleagues do, that the trial court's decision not to hold an evidentiary
hearing was unreasonable, arbitrary, or unconscionable. Paniagua simply fishes for an
opportunity to reconstruct the new claims against his previous attorney. Therefore, I
respectfully dissent.3
3. Paniagua asks us to assume there is evidence outside the record that his attorney never appropriately informed him of deportation consequences. However, like postconviction relief proceedings, suggestions of evidence outside the record must meet some threshold standard of cogency; otherwise simply attaching a self-serving affidavit which is contradicted by the existing record would automatically defeat the finality of prior proceedings. Paniagua’s affidavit did not tell the trial court what the attorney informed him regarding immigration consequences. - 15 - Madison CA2025-03-009
JUDGMENT ENTRY
The assignments of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, reversed and remanded for further proceedings consistent with the above Opinion.
It is further ordered that a mandate be sent to the Madison County Court of Common Pleas for execution upon this judgment and that a certified copy of this Opinion and Judgment Entry shall constitute the mandate pursuant to App.R. 27.
Costs to be taxed in compliance with App.R. 24.
/s/ Mike Powell, Judge
/s/ Melena S. Siebert, Judge
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