[Cite as State v. Tapia-Cortes, 2016-Ohio-8101.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, : CASE NO. CA2016-02-031 Plaintiff-Appellee, : OPINION : 12/12/2016 - vs - :
MATEO TAPIA-CORTES, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT Case No. 15CRB03940
Neal D. Schuett, 345 High Street, 2nd Floor, Hamilton, Ohio 45011, for plaintiff-appellee
McKinney & Namei Co., LPA, Paul W. Shonk, 15 East Eighth Street, Cincinnati, Ohio 45202, for defendant-appellant
M. POWELL, P.J.
{¶ 1} Defendant-appellant, Mateo Tapia-Cortes, appeals a decision of the Hamilton
Municipal Court denying his post-sentence motion to withdraw his guilty plea and vacate
his conviction.
{¶ 2} Appellant is a citizen of Mexico but has been a legal resident in the United
States since 2013. The record indicates he was originally admitted in the United States in
2008 as a temporary nonagricultural worker. Appellant is married to an American citizen State v. Tapia-Cortes
with whom he has children.
{¶ 3} On October 14, 2015, appellant was charged with domestic violence, a first-
degree misdemeanor, as a result of an altercation with his wife. On October 15, 2015,
appellant was brought from jail to the municipal court where he met briefly and for the first
time with his court-appointed attorney ("defense counsel"). A plea hearing was then held
in the municipal court. During the hearing, the municipal judge orally advised appellant, in
compliance with R.C. 2943.031(A), that a guilty plea could have adverse immigration
consequences. The municipal judge then asked appellant if he understood; appellant
replied he did. Appellant was also provided with two printed advisement forms, one in
English and one in Spanish, which stated:
If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) 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.
Appellant signed both forms. He then pled guilty to domestic violence, a first-degree
misdemeanor. Appellant was sentenced to 180 days in jail, with 165 of those days
suspended, placed on community control for two years, and ordered to pay a fine and court
costs.
{¶ 4} On December 3, 2015, appellant moved to withdraw his guilty plea and vacate
his conviction on the ground defense counsel's failure to advise him of the immigration
consequences of his guilty plea deprived him of his constitutional right to the effective
assistance of counsel. Appellant asserted that "without inquiring into [appellant's]
immigration history or advising him of the mandatory deportation consequences of a guilty
plea," defense counsel advised appellant to plead guilty and further advised him that if he
pled guilty, he would be released the same day. Appellant was not released following his
-2- State v. Tapia-Cortes
guilty plea but was instead detained by the United States Immigration and Customs
Enforcement and is now subject to deportation proceedings. Appellant asserted that had
he known of the "mandatory" deportation consequences arising from a conviction of
domestic violence, he would never have pled guilty. In support of his motion, appellant
cited Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473 (2010), and the federal deportation
statute, 8 U.S.C. 1227.
{¶ 5} The municipal court held a hearing on appellant's motion. Appellant and his
former defense counsel both testified. Appellant testified that during his brief meeting with
defense counsel, immigration issues were not discussed, even though appellant told
counsel he "was doing the paperwork with immigrations." Rather, defense counsel told
appellant to plead guilty "and [you] will be out of jail the same day." Defense counsel warned
appellant that if he did not plead guilty, he would remain in jail throughout the proceedings
and ultimately be found guilty. Appellant stated he was never advised that as a result of his
domestic violence conviction, deportation would be mandatory. Had he known, he would
never have entered a guilty plea. Appellant acknowledged receiving and signing the two
forms described above and being orally advised by the municipal judge during the plea
hearing about immigration consequences.
{¶ 6} Defense counsel testified he always asks his clients if they are United States
citizens, and if they are not, always tells them there is a possibility that being found guilty
may have immigration consequences. However, defense counsel had no specific
recollection as to what he may have advised appellant about immigration consequences of
a guilty plea. Counsel specifically recalled talking to appellant about the facts of the case
and telling him there was a likelihood he would be found guilty. Consequently, appellant
told defense counsel he felt bad about what he did, did not want to put his wife through a
trial, and wanted to take responsibility for his actions. Defense counsel did not dispute
-3- State v. Tapia-Cortes
appellant's characterization of counsel's legal advice. Defense counsel testified he is not
an immigration specialist, does not know what offenses may result in deportation, and
leaves it to his clients to consult with others regarding those issues.
{¶ 7} On January 14, 2016, the municipal court denied appellant's motion to
withdraw his guilty plea on the basis of State v. Aguirre, 12th Dist. Preble No. CA2011-03-
001, 2012-Ohio-144. The municipal court found that appellant was unable to establish he
was prejudiced by defense counsel's alleged deficient performance because he was
advised by the municipal court, prior to entering his plea, of the adverse immigration
consequences of his guilty plea.
{¶ 8} Appellant now appeals, raising one assignment of error:
{¶ 9} THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING
APPELLANT'S MOTION TO VACATE GUILTY PLEA UNDER PADILLA V. KENTUCKY.
{¶ 10} Appellant argues the municipal court abused its discretion in denying his
motion to withdraw his guilty plea. Relying on Padilla and 8 U.S.C. 1227(a)(2)(E)(i),
appellant argues he was denied the effective assistance of counsel because defense
counsel failed to advise him that his guilty plea to domestic violence would result in his
deportation. Appellant further argues the fact he was advised by the municipal court, prior
to entering his plea, of potential adverse immigration consequences of his guilty plea does
not cure defense counsel's deficient representation.
{¶ 11} Although not specifically delineated as such, we will address appellant's
motion as a Crim.R. 32.1 post-sentence motion to withdraw his plea. State v. Guerrero,
12th Dist. Butler No. CA2010-09-231, 2011-Ohio-6530, ¶ 3. Crim.R. 32.1 allows post-
sentence 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. Aguirre, 2012-Ohio-
-4- State v. Tapia-Cortes
144 at ¶ 7. 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.
{¶ 12} A motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion
of the trial court. Id. at ¶ 8. Consequently, an appellate court will not reverse the trial court's
decision absent an abuse of discretion. Id.
{¶ 13} Ineffective assistance of counsel is a proper basis for seeking a post-sentence
withdrawal of a guilty plea. Guerrero, 2011-Ohio-6530 at ¶ 5. 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. Id.;
Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984).
{¶ 14} "[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, 130 S.Ct. at 1486. Consequently,
when negotiating a guilty plea, counsel has a duty to accurately advise his noncitizen client
of the immigration consequences of the plea. State v. Ayesta, 8th Dist. Cuyahoga No.
101383, 2015-Ohio-1695, ¶ 15. 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 1484, 1486-1487.
{¶ 15} "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 1483. However, when the immigration
consequences can "easily be determined from reading the removal statute," and "the
-5- State v. Tapia-Cortes
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. at 1484.
{¶ 16} Padilla involved a noncitizen defendant who pled guilty to the transportation
of a large amount of marijuana. Padilla sought postconviction relief, alleging his counsel
did not advise him of the deportation consequences of his plea, and affirmatively misadvised
him he did not have to worry about immigration issues because he had been in the country
so long. Padilla asserted he would have insisted on going to trial if he had not received
incorrect advice from his attorney. Noting that Padilla's crime was a deportable offense
under the federal deportation statute, 8 U.S.C. 1227, the United States Supreme Court
found that counsel's failure to inform Padilla of the adverse immigration consequences of
the plea constituted deficient performance under the first prong of Strickland:
In the instant case, the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla's conviction. See 8 U.S.C. § 1227(a)(2)(B)(i) ("Any alien who at any time after admission has been convicted of a violation of * * * any law or regulation of a State, the United States or a foreign country relating to a controlled substance ..., other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable"). 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. * * * This is not a hard case in which to find deficiency: The consequences of Padilla's plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel's advice was incorrect.
Padilla, 130 S.Ct. at 1473, 1486. The Supreme Court did not address the issue of prejudice,
instead remanding the case to the Kentucky courts to determine whether Padilla met the
Strickland prejudice prong. Id. at 1487.
-6- State v. Tapia-Cortes
{¶ 17} In the case at bar, appellant was convicted of domestic violence. Like in
Padilla, appellant's crime is a deportable offense under 8 U.S.C. 1227. See 8 U.S.C.
1227(a)(2)(E)(i) ("Any alien * * * in and admitted to the United States shall, upon order of
the Attorney General, be removed if the alien is within one or more of the following classes
of deportable aliens: Any alien who at any time after admission is convicted of a crime of
domestic violence * * * is deportable"). We find that the statute is succinct, clear, and
straightforward in defining the deportation consequences resulting from a noncitizen
offender's guilty plea to domestic violence. Here, as was the case in Padilla, defense
counsel could have easily determined that appellant's guilty plea would make him eligible
for deportation by simply reading the text of the federal statute. Because the deportation
consequences of appellant's guilty plea were truly clear, defense counsel was
constitutionally obligated to advise appellant that as a result of his guilty plea, his
deportation would be "presumptively mandatory." Padilla at 1483.
{¶ 18} Appellant testified defense counsel did not advise him of the immigration
consequences of his guilty plea. Defense counsel did not rebut or challenge appellant's
testimony. We also note that defense counsel's testimony provided little insight as to his
understanding of the factual background of the offense or his awareness of any potential
defenses. It is unknown whether defense counsel ever communicated with appellant's wife
concerning her account of the incident and her willingness to cooperate in the prosecution.
Defense counsel's delegation of his professional responsibility to appellant and "others" to
review 8 U.S.C. 1227(a)(2)(E)(i) and the case law discussing the immigration
consequences of a domestic violence conviction for a noncitizen defendant under the
statute is deficient representation. Accordingly, appellant has satisfied the first prong of the
Strickland test. See State v. Galdamez, 10th Dist. Franklin No. 14AP-527, 2015-Ohio-3681;
State v. Yapp, 8th Dist. Cuyahoga Nos. 101247 and 101248, 2015-Ohio-1654.
-7- State v. Tapia-Cortes
{¶ 19} We next turn to the prejudice prong of the Strickland test. Generally under
that prong, a defendant must show there is a reasonable probability that, but for counsel's
errors, he would not have pled guilty. Guerrero, 2011-Ohio-6530 at ¶ 5. In the specific
context of a defense counsel's failure to advise a defendant of the immigration
consequences of a guilty plea, the United States Supreme Court has held that a defendant
demonstrates prejudice by "convinc[ing] the court that a decision to reject the plea bargain
would have been rational under the circumstances." Padilla, 130 S.Ct. at 1485.
{¶ 20} In undergoing the rationality analysis, Ohio courts have identified several
factors: (1) the interval of time between the guilty plea and the motion to withdraw the plea,
(2) whether a conviction of the offense mandates deportation, (3) the likelihood of a
favorable outcome at trial had the defendant not pled guilty, (4) the trial court's compliance
with R.C. 2943.031, (5) the defendant's familial and other connections to the community,
(6) the defendant's length of residence in the United States, and (7) whether the plea was
to a reduced charge or otherwise beneficial to the defendant.
{¶ 21} In the case at bar, appellant expeditiously moved to withdraw his plea seven
weeks after pleading guilty to domestic violence. As stated above, pursuant to 8 U.S.C.
1227(a)(2)(E)(i), appellant was deportable as a result of his guilty plea. Defense counsel
negotiated a plea of guilty as charged in the complaint, leading appellant to believe his plea
would result in his immediate release that same day. Appellant was sentenced to 180 days
in jail, with 165 of those days suspended, and was placed on community control for two
years. The plea had no apparent benefit to appellant as he was not released from jail as
he was informed prior to entering his plea.
{¶ 22} The record indicates appellant was originally admitted in the United States in
2008 as a temporary nonagricultural worker. At the time of the plea, appellant was
employed, was married to a U.S. citizen with whom he has children, and had been a legal
-8- State v. Tapia-Cortes
resident in the United States since 2013. Therefore, appellant is legally integrated into the
community. At the hearing on his motion to withdraw, appellant was asked how far he was
in the immigration process at the time of his plea. Appellant replied he had "received a
letter in the mail * * * advising me that I was waiting for card that would have removed the
conditions." In an affidavit attached to his motion to withdraw, appellant asserted he would
never have pled guilty had he known his deportation was mandatory. He further asserted,
"I relied on the advice of my criminal defense attorney, who led me to believe that I could
plead guilty and still have a chance of remaining in the United States."
{¶ 23} "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.'" Galdamez, 2015-Ohio-3681 at ¶ 42, quoting
Dando v. Yukins, 461 F.3d 791, 802 (6th Cir.2006).
{¶ 24} In the case at bar, the complaint alleged that appellant "smacked the victim
across the face and grabbed her by the shirt and shoulders and began shoving her." Apart
from the allegations in the complaint, the record provides little insight into the facts of the
underlying charges or what appellant's defenses to those charges might have been.
Appellant did not provide this court with a transcript of the plea hearing. The extent of
appellant's wife's cooperation in his prosecution, if at all, is unknown. The municipal court's
decision denying appellant's motion to withdraw his plea contains no findings and simply
states the court denied the motion "[f]or the reasons set forth on the record in open court at
9:10 AM on January 14, 2016," at the hearing on appellant's motion to withdraw. A review
of the transcript of that hearing shows that the municipal court denied the motion based on
the court's belief appellant could not establish prejudice because appellant was advised by
the court, prior to entering his plea, of the adverse immigration consequences of his guilty
plea in compliance with R.C. 2943.031. In support of its decision, the municipal court cited
-9- State v. Tapia-Cortes
this court's opinion in Aguirre, 2012-Ohio-144.
{¶ 25} Pursuant to R.C. 2943.031(A), a trial court is required, before accepting a
guilty plea from a noncitizen defendant, to provide the following advisement:
If you are not a citizen of the United States, you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) 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.
{¶ 26} In cases involving a guilty plea by a noncitizen defendant, this court and other
Ohio courts have generally taken the position that a trial court's R.C. 2943.031(A)
advisement that the defendant may be deported as a result of his plea, is sufficient to
overcome any prejudice caused by defense counsel's failure to properly advise the
defendant. See Aguirre, 2012-Ohio-144; Guerrero, 2011-Ohio-6530; State v. Lababidi, 8th
Dist. Cuyahoga No. 96755, 2012-Ohio-267; and State v. Ikharo, 10th Dist. Franklin No.
10AP-967, 2011-Ohio-2746.
{¶ 27} However, more recently, Ohio courts and federal courts have begun to back
away from the principle that a trial court's R.C. 2943.031(A) advisement during the plea
hearing cures an attorney's failure to properly advise his client as to the immigration
consequences of a plea. Specifically, the Eighth and Tenth Appellate Districts now hold
that a trial court's proper advisement under R.C. 2943.031(A) may preclude a finding of
prejudice. Ayesta, 2015-Ohio-1695; Galdamez, 2015-Ohio-3681.
{¶ 28} As stated above, the municipal court denied appellant's motion to withdraw
his plea on the basis of this court's opinion in Aguirre. However, Aguirre is factually
distinguishable and therefore not applicable here. In that case, deportation for the offense
was not expressly provided for by 8 U.S.C. 1227. In addition, based upon defense counsel's
testimony that she discussed the immigration consequences of the defendant's plea "each
- 10 - State v. Tapia-Cortes
and every time" she met with him, the trial court found, and we upheld the finding, that
defense counsel had properly advised the defendant of the possible immigration
consequences of his guilty plea. By contrast here, the deportation consequences of
appellant's domestic violence conviction were clear under 8 U.S.C. 1227, and defense
counsel did not advise appellant he was deportable as a consequence of his guilty plea to
the offense of domestic violence.
{¶ 29} Likewise, we find that this court's opinions in Guerrero and State v. Guzman,
12th Dist. Butler No. CA2015-11-198, 2016-Ohio-1487, cited by the state, are inapplicable
here. In both cases, we upheld the trial court's denial of the defendants' Crim.R. 32.1
motions to withdraw their pleas on the ground that even if we were to assume trial counsel's
representation was deficient, the defendants had failed to prove prejudice under Strickland
as the trial court had advised them in compliance with R.C. 2943.031. In Guerrero, the trial
court did not simply provide the R.C. 2943.031 advisement but went further by strongly
warning the defendant that "immigration people" were going to seek his deportation.
Guerrero, 2011-Ohio-6530 at ¶ 18-20. In Guzman, we summarily upheld the denial of the
Crim.R. 32.1 motion on the basis of Guerrero and without addressing or describing what
happened during the plea hearing.
{¶ 30} We find that defense counsel's failure to advise appellant of the adverse
immigration consequences of his guilty plea to domestic violence constitutes deficient
performance. We further find that the municipal court's R.C. 2943.031(A) advisement
during the plea hearing did not cure the prejudice resulting from that deficiency. Upon a
consideration and weighing of the various factors detailed above, including the timeliness
of appellant's motion to withdraw his plea, the duration of his residence in the United States,
his integration into the country based upon his employment and familial connections to the
community, and the minimal benefit he obtained from pleading guilty, we find that appellant
- 11 - State v. Tapia-Cortes
has satisfied the Strickland prejudice prong. Based upon the factual scenario presented in
the record, the municipal court abused its discretion in denying appellant's motion to
withdraw his guilty plea. Appellant's assignment of error is sustained.
{¶ 31} Judgment reversed and cause remanded to the municipal court for further
proceedings consistent with this opinion.
HENDRICKSON and PIPER, JJ., concur.
- 12 -