Ohio App Ct: Padilla claim merits hearing

An intermediate appellate court in Ohio concluded that a claim of ineffective assistance of counsel brought pursuant to Padilla v. Kentucky, 130 S. Ct. 1473 (2010), was sufficiently meritorious that an evidentiary hearing was necessary to determine if a motion to withdraw a guilty plea ought to be granted. State v. Yahya, 2011-Ohio-6090 (Ohio Ct. App. 2011) (Dorrian, Klatt, and Connor, JJ.). Judge Dorrian wrote the panel’s opinion.

This case involved an LPR who pleaded guilty to theft, Ohio Rev. Code § 2913.02, on May
25, 2010. Yahya, 2011-Ohio-6090 at ¶ 2. Yahya was subsequently detained by ICE and placed in removal proceedings. Yahya, 2011-Ohio-6090 at ¶ 3. Soon thereafter she moved to withdraw her guilty plea on the basis that “her trial counsel provided ineffective assistance by advising her that a guilty plea would not adversely affect her immigration status or subject her to deportation” and “that ‘if I had known that my plea would subject me to mandatory detention, I would not have pled to the original charge.’” Yahya, 2011-Ohio-6090 at ¶ 8-9.

A guilty plea may be withdrawn on the basis of ineffective assistance. To permit withdrawal, though, a court must hold a hearing on the motion. Yahya, 2011-Ohio-6090 at ¶ 8. A hearing is required, the intermediate appellate court explained, if the reviewing court determines, first, that “taking her allegations as true, her trial counsel provided ineffective assistance,” and, “[s]econd, once again taking her allegations as true…the ineffective assistance would constitute manifest injustice requiring the trial court to permit withdrawal of the guilty plea.” Yahya, 2011-Ohio-6090 at ¶ 9.

The first prong of this two-part analysis of course turns on the familiar two-pronged measure of ineffective assistance of counsel announced in Strickland v.Washington, 466 U.S. 668 (1984): was the defense attorney’s performance constitutionally deficient and, if so, did that deficient performance prejudice the defendant?

Padilla refined the first part of the Strickland test to clarify that constitutionally competent representation requires advising noncitizen criminal defendants about the immigration consequences of conviction prior to entering a plea. “[W]hen the deportation consequence [of conviction] is truly clear,” the Padilla Court held, “the duty to give correct advice is equally clear.” Padilla, 130 S. Ct. at 1483. However, “[w]hen the law is not succinct and straightforward…a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Padilla, 130 S. Ct. at 1483.

The Ohio intermediate appellate court had no difficulty concluding that Yahya’s attorney was required to have informed her that a conviction for theft involving a restitution order of $131,549.27 clearly fell into the fraud or deceit category of aggravated felony: “in reviewing the law it appears sufficiently clear that appellant’s theft conviction would constitute an aggravated felony [under INA § 101(a)(43)(M)(i) relating to offenses that involve fraud or deceit in which the loss to the victim exceeds $10,000] and that she would be subject to deportation. Thus, appellant’s trial counsel had a duty to give her correct advice about the immigration consequences of her guilty plea and, assuming appellant’s claims are true, her attorney’s failure to give correct advice constitutes a deficiency sufficient to satisfy the first prong of the ineffective assistance of counsel test.” Yahya, 2011-Ohio-6090 at ¶ 11.

Having concluded that Yahya’s attorney provided deficient representation, the court then turned to Strickland’s second
prong, the prejudice requirement. The state argued that Yahya was not prejudiced because the trial court admonished her about the potential immigration consequences of conviction. In support of this position, the state relied on two recent Ohio intermediate appellate court decisions, State v. Yazici, 2011-Ohio-583 (Ohio App. Ct. 2011), and State v. Ikharo, 2011-Ohio-2746 (Ohio App. Ct. 2011).

The Yahya court distinguished those cases by explaining that they “were based on a lack of advice or a lack of complete advice from trial counsel, [while] this case involves an allegation that trial counsel gave incorrect advice to appellant.” Yahya, 2011-Ohio-6090 at ¶ 14. The court then went on to distinguish the facts of Yahya’s predicament with other cases in which an ineffective assistance claim “based on alleged failure to advise the defendants of the immigration consequences of their pleas” was denied. Yahya, 2011-Ohio-6090 at ¶ 14 (discussing State v. Gallegos-Martinez, 2010-Ohio-6463 (Ohio App. Ct. 2010), and State v. Velazquez, 2011-Ohio-4818 (Ohio App. Ct. 2011)).

The court continued distinguishing past decisions. Addressing State v. Bains, 2011-Ohio-5143 (Ohio App. Ct. 2011), the court explained that the Bains court “found that the trial court not only gave the statutory warning, ‘but also continued to probe even further into [the movant’s]understanding of it by pointedly asking [the movant] if he understood the seriouscon sequences of pleading guilty.’” Yahya, 2011-Ohio-6090 at ¶ 16 (quoting Bains, 2011-Ohio-5143 at ¶28). In contrast, “[i]n the present appeal, it appears that the trial court only gave the statutory warning, without any further ‘pointed’ discussion of the consequences of pleading guilty.” Yahya, 2011-Ohio-6090 at ¶ 16.

Further, the court explained, the trial court’s qualified admonishment that conviction “might” result in deportation would not necessarily cure the defense attorney’s specific advice that deportation would not result. Yahya, 2011-Ohio-6090 at ¶ 17.  Rather, acting on her attorney’s advice, Yahya claimed “that she relied on specific advice…that she would not be deported as a result of that plea.” Yahya, 2011-Ohio-6090 at ¶ 17.

If these allegations are true, the court added, Strickland’s prejudice prong might be satisfied.  Given Yahya’s fifteen years of permanent residency and family ties to the United States, the court went on, “it might be rational for [Yahya] to insist on going to trial if a guilty plea automatically subjects her to deportation.” Yahya, 2011-Ohio-6090 at ¶ 22.

As such, “if the trial court found the statements in appellant’s affidavit to be true, she would have demonstrated that her counsel’s performance was deficient and that, butfor this deficient performance, she would not have entered a guilty plea. Under these circumstances, trial counsel’s ineffective assistance might constitute manifest injustice sufficient to permit withdrawal of appellant’s guilty plea.” Yahya, 2011-Ohio-6090 at ¶ 23. Accordingly, “we find that the trial court abused its discretion by denying appellant’s motion without holding a hearing.” Yahya, 2011-Ohio-6090 at ¶ 23. The court reversed and remanded for an evidentiary hearing in which the trial court must determine whether Yahya’s allegations are credible.