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Court News Ohio
Court News Ohio

Court Must Reconsider Guilty Plea Withdrawal by Immigrant Facing Deportation

A Honduran native living in Stark County and facing deportation will be allowed pursue his claim that he received ineffective legal assistance, the Ohio Supreme Court ruled today.

A Supreme Court majority ruled that a trial judge who had warned Carlos Romero that he “may” be deported by pleading guilty to three drug-related crimes in 2016 used the wrong standard to deny Romero his right to withdraw his pleas.   

The Ohio Supreme Court directed the Stark County Common Pleas Court to use a standard developed by the U.S. Supreme Court to determine if Romero’s lawyer was ineffective and whether effective legal assistance would have changed the outcome of his case.

In the Court’s lead opinion, Justice Judith L. French outlined various factors the trial court should consider, including: the defendant’s connection to the United States; the importance the defendant places on avoiding deportation; and the impact of the court advising the defendant of the consequences of pleading guilty to the crime. The Court’s ruling gave the trial judge the discretion to rule on the matter based on the materials already presented or to conduct an evidentiary hearing.

Chief Justice Maureen O’Connor and Justice Patrick F. Fischer joined the opinion. Justices Michael P. Donnelly and Melody J. Stewart concurred with separate written opinions, in which both justices stated that the trial court should be required to have a hearing before deciding the outcome.

In a dissenting opinion, Justice R. Patrick DeWine wrote that Supreme Court should have resolved the case by ruling on Romero’s request to withdraw his guilty pleas. The dissent, which was joined by Justice Sharon L. Kennedy, stated that the trial court was correct in denying Romero his right to withdraw his pleas because he had not demonstrated that the outcome of his case would have changed if his lawyer had discussed the impact of the pleas on his immigration status.

Deportation Effort Prompts Plea Change
Romero has been living in the United States since 1998 as a lawful permanent resident, and has five children, all born in the United States. In March 2016, he was indicted on felony charges of possessing marijuana and cocaine, and trafficking in marijuana. He appeared in trial court with his attorney to plead guilty to the charges. Responding to the judge’s question, Romero said he was not a U.S. citizen and the judge, as required by R.C. 2943.031(A), told him that he was “hereby advised that a 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.”

The judge asked if Romero understood, and he responded that he did. The judge then asked if he still was prepared to go forward with the pleas, and he said he was. The trial court then allowed Romero to confer with his attorney and discuss the plea form before signing it. He also stated he was satisfied with the quality of legal service his attorney provided, and when asked if he had any questions before entering his pleas, he asked the trial court about the impact the pleas had on his ability to work, but did not ask any immigration-related questions.

After pleading to the charges, Romero was sentenced to three years of community control, ordered to perform 100 hours of community service, and had his driver’s license suspended for six months.

A month after the sentence, U. S. Immigration and Customs Enforcement detained him and notified him it was instigating removal proceedings. He was scheduled for a deportation hearing in October 2016.

Four days before the hearing, Romero sought an emergency order from the trial court to withdraw his guilty pleas and vacate the conviction. He claimed ineffective assistance of counsel because his attorney failed to advise him of the potential for deportation. The trial judge referred to the trial transcript and noted she read the advisement to Romero about the consequences and he responded that he understood. The court denied his motion.

Romero appealed the decision to the Fifth District Court of Appeals, which reversed the trial court’s ruling. The Stark County Prosecuting Attorney appealed the decision to the Supreme Court, which agreed to hear the case.

Judge’s Warning Does Not Settle Issue
Justice French explained the U.S. Constitution’s Sixth Amendment guarantees a defendant the effective assistance of counsel at critical stages of a criminal proceeding, including when entering a guilty plea. The U.S. Supreme Court set up a two-prong test in its 1984 Strickland v. Washington decision. Romero first must show his attorney’s performance was deficient, and in cases involving noncitizen clients, that includes informing the client whether the plea carries the risk of deportation. If there is deficient performance, Strickland requires Romero to prove he was prejudiced by the lawyer’s action, and that if it had not been for the lawyer’s errors, he would not have pleaded guilty and insisted on going to trial.

Rather than examine what Romero’s lawyer did, the trial judge only noted that she advised Romero of the possible consequences of him pleading guilty, had a lengthy conversation with him regarding the pleas, and that he did not express any dissatisfaction with his lawyer. The Court’s opinion stated that is the wrong analysis. Rather than focus on what the trial judge did, the trial judge was supposed to conduct the two-prong Strickland test, examining the performance of the attorney.

The Court stated the attorney’s performance must be the focus of an ineffective assistance of counsel claim, and the “trial court’s advisement under R.C. 2943.31(A) does not cure an attorney’s failure to advise his client of the immigration consequence of a guilty plea.”

Trial Court Must Reevaluate Case
The Court remanded the case to the trial court to evaluate the claim under the Strickland test and noted that immigration law can be complex and deportation consequences of a particular plea will not always be clear. The Court wrote that under its ruling, Ohio lawyers must understand the immigration consequences of a guilty plea when representing noncitizens.

Simply failing to warn Romero of the consequences will not determine if his lawyers were ineffective, the Court stated, and the trial court also must determine if the failure harmed his case. The trial court will have to look at the “totality of circumstances,” the opinion stated. Once the court examines all the factors, the trial judge can decide whether to allow Romero to withdraw his pleas or to hold a hearing to gather more information before deciding.

Concurring Justices Support Hearing
In his concurring opinion, Justice Donnelly noted the lead opinion cited the Ohio Supreme Court’s 1992 State v. Xie decision. He wrote that in Xie and subsequent cases, the Court has ruled that unless it is clear that a motion to withdraw will be denied, the court should hold a hearing. He wrote a full evidentiary hearing is necessary and appropriate to develop a record that can be examined by a reviewing court if the trial court’s decision is appealed.

In her concurrence, Justice Stewart stated that when the evidence and facts support the substantive claims of a motion to withdraw a plea, it is “generally understood that trial courts should hold an evidentiary hearing.” She wrote that Romero presented enough evidence to warrant a hearing.

Dissent Finds Plea Withdrawal Not Warranted
In his dissent, Justice DeWine wrote that instead of remanding the case to the lower court, the Supreme Court should simply uphold the trial court decision refusing to allow Romero to withdraw his pleas. 

Romero was required to “submit evidentiary documents containing sufficient operative facts to demonstrate” that he is entitled to withdraw his guilty pleas. He wrote that even if the trial court accepted everything Romero said in his affidavit as true, it would not be enough to entitle him to withdraw his pleas.

Romero’s affidavit claimed that his attorney had not advised him of the immigration consequences to pleading guilty. But the trial judge had warned Romero that he could be deported as a result of the pleas, and Romero said he understood that he could be deported.

“I assume that Romero meant what he said at the plea hearing – that he understood that he could be deported as a result of the plea,” wrote DeWine. “In light of the court’s advisement and Mr. Romero’s affirmative representation that he understood that he could be deported, Romero cannot demonstrate that he was prejudiced.”

Justice DeWine noted that this case was different from other cases in which courts have found lawyers to be ineffective because they gave their clients advice that “undermined, or contradicted, the trial court’s clear warning.”

“Simply put, Romero’s bald assertion that his attorney never advised him about the immigration consequences of pleading guilty does not amount to prejudice, because he plainly expressed that he understood he could be deported,” the dissent concluded.

2017-0915. State v. Romero, Slip Opinion No. 2019-Ohio-1839.

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Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

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