State v. Sok

869 N.E.2d 60, 170 Ohio App. 3d 777, 2007 Ohio 729

• Court: Ohio Court of Appeals
• Decided: February 23, 2007
• Docket: No. C-060033.
• Status: Published

Opinions

{¶ 1} Appellant, Soy Sok, was born in Cambodia. He was granted refugee status and entered the United States in 1984. In 1995, he entered a guilty plea to attempting to carry a concealed weapon, a felony of the fourth degree. In 2001, appellant was ordered by an immigration judge to be deported under federal law based on this conviction. He had also been convicted previously of involuntary manslaughter, but this crime was not a deportable offence.

{¶ 2} Appellant filed a motion with the trial court for leave to withdraw his guilty plea on the ground that the trial court had not advised him of the possible deportation consequences of his plea. Under Ohio law, when a trial court accepts a guilty plea from one who is not a citizen of the United States, it must warn the defendant that the plea "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."¹

{¶ 3} It is clear from the record, and appellant now concedes, that the trial court did in fact give him the warning required by statute. But he maintains that at the time of the plea, his attorney told him that it was the attorney's understanding that there would be no consequences from the immigration authorities as a result of the plea. He argues that this advice was in error and that he based his plea, as least in part, on this erroneous advice. He presents five assignments of error, four of which assert that the trial court abused its discretion in not granting his motion to withdraw his plea; one states that his counsel was ineffective in giving the erroneous advice concerning the consequences of the plea. We consider all five together and find no merit in any of the assignments.

{¶ 4} The record reveals that the trial court advised appellant of the possible deportation consequences of his plea at the plea hearing in 1995. Moreover, the warning was also on the plea form that he signed. Appellant nonetheless argues that his plea was not made with knowledge of the possible immigration-related consequences and that he was never adequately warned. A review of the record refutes this claim. The following took place after his counsel had made the representation that he did not believe that there would be any problem with deportation:

{¶ 5} "THE COURT: if you have any questions as we go through this, just ask, because that's the whole point of what we're doing now is to make sure you understand the significance of what's going on here.

{¶ 6} "THE COURT: Gentlemen, becauseyou're not citizens of the United States, I must advise you yourconviction, that is if you are found guilty of this offense, mayhave the consequences of deportation, exclusion from admissionto the United States, or denial of naturalization pursuant tothe laws of the United States. Do you understand that, Mr.Sok?

{¶ 7} "DEFENDANT SOK: Yeah.

{¶ 8} "THE COURT: There's been some discussion of probation, but you can get a year-and-a-half in jail. So you might get probation, but you could get a year-and-a-half in jail. So you may have the punishment of not only imprisonment, but possible deportation. Do you understand that, Mr. Sok?

{¶ 9} "DEFENDANT SOK: Yes.* * *

{¶ 10} "THE COURT: In each case I have forms indicating Entry Withdrawing Plea of Not Guilty, and Entering Plea of Guilty. Mr. Sok, is this your signature?

{¶ 11} "DEFENDANT SOK: Yes. * * *

{¶ 12} "THE COURT: Based on everything you know about this case, your conversations with your lawyer, the plea agreement, and what you and I have now talked about in court, what is your plea to this one count of attempted carrying a concealed weapon?

{¶ 13} "DEFENDANT SOK: Guilty.

{¶ 14} "THE COURT: Okay. I will accept the plea * * *." (Emphasis added.)

{¶ 15} All of the court's warnings came after counsel's remarks. The warnings were actually given twice, and the appellant indicated on the record that he understood the warnings and still wished to plead guilty. An appellate court reviews a trial court's postsentence decision on a motion to withdraw a plea under an abuse-of-discretion standard.² A trial court is required to set aside a conviction and withdraw a guilty plea if the defendant establishes that the court failed to provide the warnings described in the statute.³ That was not the case here.

{¶ 16} Appellant argues, however, that because his attorney gave him incorrect advice, the attorney's conduct fell below an objectively reasonable standard in violation ofStrickland v. Washington}⁴ First, the duty to notify a defendant of the potential for deportation belongs to the trial court, not counsel,⁵ and the trial court fulfilled its obligation in this case. The trial court's warnings were given after counsel's remarks and clearly informed appellant that deportation was a possible consequence of his plea regardless of what his attorney had said. A similar case was considered by the Rhode Island Supreme Court.⁶ That case also involved a weapon-possession charge, and the defendant wanted his plea vacated because his attorney had said that he would not be deported as a result of entering the plea. Rhode Island's statute is similar to Ohio's, requiring warnings for nonresident defendants. The Rhode Island court stated that the defendant was made aware of the possible immigration consequences of his plea, but that there was no duty by the court to inform an alien defendant of how likely deportation would be. The second prong of Strickland requires that a defendant show that there is a reasonable probability that but for counsel's error, he would not have pleaded guilty and that he was prejudiced by counsel's action. The Rhode Island court held that even if counsel's misrepresentations might have fallen below acceptable standards, the defendant had not demonstrated that the outcome of the case would have been different if he had proceeded to trial. As in this case, the defendant's motion and brief were devoid of any evidence or argument tending to show his innocence of the underlying weapons charge. Therefore, we conclude in this case that it is most probable that a trial would have resulted in a conviction and that appellant would be in the same circumstance that he is in now.

{¶ 17} We conclude that a trial court fulfills its responsibility by warning a defendant pursuant to the statute and that the trial court in this case fully complied. The duty to give proper warnings was on the court, not on counsel. The trial court clearly explained to appellant that he could be deported after counsel gave his contrary opinion, and the court also asked appellant whether, knowing about the possible deportation consequences, he still wanted to plead guilty. Appellant answered that he did. Further, we hold that appellant has not demonstrated any prejudice to himself as a result of his plea, because had he gone to trial, there is nothing in the record to suggest that he would not have been found guilty and been in the same situation that he finds himself in now. The trial court did not abuse its discretion in overruling the motion to withdraw a plea entered 11 years ago. We affirm its judgment.

Judgment affirmed.

HILDEBRANDT, P.J., Concur.

PAINTER, J., dissents.

¹ R.C. 2943.03 1(A)

² State v. Francis, 104 Ohio St.3d 490,2004-Ohio-6894, 820 N.E.2d 355.

³ State v. Castillo, 8th Dist. No. 84143,2005-Ohio-93, 2005 WL 77083.

⁴ Strickland v. Washington (1984), 466 U.S. 668,104 S.Ct. 2052, 80 L.Ed.2d 674.

⁵ State v. Bulgakov, 6th Dist. No. WD-03-096,2005-Ohio-1675, 2005 WL 791403; see, also, State v.Garcia (Apr. 9, 1999), 3d Dist. No. 4-98-24,1999 WL 254288.

⁶ State v. Figueroa (R.I. 1994), 639 A.2d 495.