Oral Argument Preview: Are Trial Court Advisements of Potential Immigration Consequences of a Guilty Plea Sufficient to Replace Advice of Counsel? State of Ohio v. Carlos Romero
Read an analysis of the oral argument here.
On January 29, 2019, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Carlos Romero, 2017-0915. At issue in the case is whether a trial court’s advisements of potential immigration consequences of a guilty plea will be sufficient to replace advice of counsel.
Carlos Romero married a United States citizen in 1995. Three years later, in 1998, Romero obtained permanent resident or “green card” status. He has lived in the U.S. as a lawful permanent resident for 20 years, and has 5 American children.
In March of 2016, a grand jury returned an indictment against Romero on three counts: possession of marijuana, trafficking in marijuana, and possession of cocaine. At the plea hearing, at which Romero was represented by counsel, Stark County Court of Common Pleas Judge Kristin G. Farmer engaged in an extensive colloquy with Romero in which she advised him of the possible consequences of his guilty plea, including the immigration advisement for noncitizens codified at R.C. 2943.031(A). Romero indicated to the court that he understood the deportation consequences and was ready to proceed with his plea. Romero pled guilty to all charges and on June 29, 2016 was sentenced to three years of intensive supervised probation, ordered to perform one-hundred hours of community service, and had his driver’s license suspended for six months.
Shortly after his sentencing hearing, Romero was taken into custody by ICE, and placed in removal proceedings. While in custody, in an order dated September 20, 2016, Romero received notice to appear in federal Immigration Court on October 18, 2016, because of the trafficking conviction, which made him subject to removal.
On October 14, 2016, Romero filed an emergency motion to withdraw his guilty plea and vacate judgment in his state case, claiming that his attorney failed to advise him of the mandatory immigration consequences that would result from his guilty plea. Judge Farmer overruled Romero’s motion, finding that Romero’s plea was entered knowingly, voluntarily, and intelligently.
On appeal, the Fifth District, in a unanimous opinion by Judge Scott Gwin, joined by Judges Craig Baldwin and Earle Wise, reversed the decision of the trial court. The appeals court found that even though Judge Farmer gave the proper advisements, she abused her discretion by failing to hold an evidentiary hearing on whether Romero’s attorney failed to tell him that deportation was mandatory for the drug offenses to which he was pleading guilty.
Votes to Accept the Case
Yes: Justices DeGenaro, DeWine, Fischer, French, Kennedy, and O’Donnell
No: Chief Justice O’Connor
Key Statutes and Precedent
Crim.R. 11 (A defendant may enter a plea of not guilty, not guilty by reason of insanity, guilty, or no contest.)
Crim.R. 32.1 (A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.)
United States Constitution, Amendment VI (In all criminal prosecutions the defendant shall be entitled to have the assistance of counsel for his or her defense.)
R.C. 2943.031(A) (The court shall address the defendant and notify him or her of the following:
“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.”
Strickland v. Washington, 466 U.S. 668 (1984) (The appropriate standard for ineffective assistance of counsel requires both that the defense attorney was objectively deficient and that there was a reasonable probability that a competent attorney would have led to a different outcome.)
State v. Francis, 2004-Ohio-6894 (An appellate court reviews a trial court’s decision on a motion to withdraw a plea under an abuse-of-discretion standard.)
Padilla v. Kentucky, 559 U.S. 356 (2010) (Defense attorneys must communicate with non-citizen clients about immigration consequences of a conviction, including advising them when deportation may result and when it will result.)
Hernandez v. State, 124 So.3d 757 (Fla. 2012) (Notice of possible deportation given by judicial instruction does not alleviate defense counsel of the obligation to affirmatively warn a client of the actual immigration consequences of a guilty plea.)
State v. Arrunategui, 2013-Ohio-1525 (9th Dist.) (A trial court abuses its discretion if it grants or denies a motion to withdraw a plea without holding a hearing to determine whether a defendant was prejudiced by counsel’s performance.)
Lee v. United States, 137 S.Ct. 1958 (2017) (When a defendant claims ineffective assistance of counsel, prejudice can be shown by demonstrating a reasonable probability that the defendant, but for counsel’s errors, would have insisted on taking the case to trial.)
Generally, motions to withdraw a guilty plea can only be made prior to the imposition of a sentence. However, courts do recognize an exception if the defendant can demonstrate that failing to accept the withdrawal would constitute a manifest injustice. Trial courts are vested with broad discretion when determining whether allowing a plea to remain in effect would constitute a manifest injustice, and those decisions are reviewed under an abuse of discretion standard. Romero asserts ineffective assistance of counsel as the reason for withdrawing his guilty plea, in failing to advise him of the deportation consequences of his plea.
To overcome the manifest injustice standard under an ineffective assistance of counsel claim a defendant must satisfy a two-prong test. First, a criminal defendant must show that counsel’s performance fell below an objective standard of reasonable representation. Second, that failure of reasonable representation must be shown to have prejudiced the defendant.
The defendant must provide evidentiary support for a claim of ineffective assistance of counsel; the mere assertion of ineffective assistance is insufficient to warrant post-conviction relief consideration. Romero provided only post hoc assertions contained in his self-serving and inadequate affidavit. He did not deny committing the charged offenses or claim that he would be acquitted of those charges, nor did he enter into a plea bargain. He did not state that had he been advised that deportation was mandatory, he would have taken his case to trial. Despite a clear lack of evidentiary support for the statements in his affidavit, Romero nevertheless asserts that he is entitled to post-conviction relief.
Although courts recognize that compliance with Crim.R. 11 does not absolutely immunize a guilty plea from collateral attack, it does provide great probative value. The compliance with Crim.R. 11, when considered with the trial court’s full compliance with R.C. 2943.031, which Romero concedes, demonstrates that the trial court did not abuse its discretion when denying Romero’s motion. Further, the trial transcript undercuts Romero’s claim of ineffective assistance and illustrates the trial court’s compliance with the law.
Finally, if the Fifth District’s opinion is left uncorrected it will have negative implications for Ohio’s criminal justice system. All a defendant need do to obtain a full evidentiary hearing is assert, under Crim.R. 32.1, that counsel either did not provide advice about deportation consequences or provided erroneous advice. The trial court’s actions become irrelevant. This would negatively impact Ohio’s criminal justice system by undermining the finality of the plea-bargaining system. Prosecutors and judges would be forced to expend considerable additional time and money to undertake new hearings when evidence has been disposed of by the relevant bodies because of the belief the case had been disposed of already. For these reasons the judgment of the Fifth District should be reversed.
Romero concedes that the trial court gave him the proper advisements under R.C. 2943.031 by telling him he may be subject to deportation. But that isn’t good enough. Trial attorneys have a constitutional duty to advise their noncitizen clients of the immigration consequences of their pleas. In this case, trial counsel failed in his duty to advise Romero that his plea to trafficking meant mandatory deportation.
Romero adopts in its entirety the decision of the Fifth District and offers additional arguments to supplement the Fifth District’s reasoning.
The trial court abused its discretion by requiring Romero to do the impossible. Romero claimed that he did not know that deportation was mandatory when he pled guilty. Romero’s claim was denied, according to the trial court, because Romero did not state what he did not know. Further, Romero’s affidavit did not say he was unaware of possible immigration consequences for his plea. Rather, he simply stated that he was not knowledgeable about the criminal justice system and about the ramifications of a guilty plea on his immigration status. It is consistent for a noncitizen who is unaware of mandatory deportation to remain silent upon hearing that a plea may result in deportation. By requiring defense counsel to provide a client with this additional information and clarification, defendants are protected from voluntarily submitting to a conviction without knowing the impact the conviction will have on his or her immigration status. Placing this burden on defense counsel also relieves judges of the obligation to stay abreast of changes in immigration law and the punitive implications for every offense.
Numerous state courts and federal circuits have held that a general advisement of possible immigration consequences does not relieve trial counsel of the constitutional obligation to warn a defendant of mandatory deportation. Only one state court, Rhode Island, has ruled otherwise, and the Fifth District properly chose not to follow the isolated reasoning of the Rhode Island court. While some states differ on the question of non-mandatory deportation, the issue before the court is for mandatory deportation only. Accordingly, the Court should affirm the decision of the Fifth District which conforms to the manifest weight of other courts across the country.
The State’s argument that Romero should have affirmatively stated that he would have taken his case to trial if his attorney had advised him that deportation was mandatory should be dismissed. This argument was not presented for review by the trial court and was forfeited by failing to raise it in the memorandum for jurisdiction before this court. Further, Romero sufficiently demonstrated that he had a defense to offer the jury when he said he thought the State’s evidence would be insufficient, but pled guilty based on the advice of his trial attorney. He also explicitly swore that he received ineffective assistance of counsel at trial.
Romero also asked about the possibility of continuing to work, indicating he did not expect to be taken into custody, and Romero has five American children which provide a strong incentive to stay in the country. To accept the State’s argument on this point would be to elevate form above substance and ignore the actual facts of Romero’s affidavit.
Additionally, Romero supplied more than just his own affidavit to support his plea withdrawal motion. Romero supplied federal immigration documents charging him with an aggravated felony for purposes of federal immigration law. Yet, even without these additional documents, there is no reason to discount Romero’s affidavit. The trial court reviewed the affidavit and found it consistent with the trial record.
Finally, the General Assembly left open the possibility that a defendant could seek to withdraw a guilty plea despite full compliance with R.C. 2943.031. The General Assembly included a provision which explicitly permits trial courts to set aside convictions and permit a defendant to withdraw a guilty plea. For these reasons the decision of the Fifth District should be affirmed.
State’s Proposed Proposition of Law
A trial court does not abuse its discretion in overruling a motion to withdraw guilty plea pursuant to Crim.R. 32.1 when the trial court has fully complied with the colloquy requirements of Crim.R. 11 and with the advisement requirements of R.C. 2943.031 regarding the consequences of a guilty plea on a defendant’s immigration status.
Romero’s Proposed Counter Proposition of Law
Because the United States Supreme Court has expressly rejected the argument that a voluntary plea supersedes errors by defense counsel, a trial court’s compliance with R.C. 2943.031, which informs a defendant that a plea may result in deportation, does not eliminate trial counsel’s constitutional duty to advise a defendant that the plea will result in mandatory deportation.
Amici in Support of Romero
The Immigrant Defense Project and the National Association of Criminal Defense Lawyers filed a joint brief in support of Romero. Amici highlight several aspects of notification that are at play in Romero’s case including the impact of judicial notification, the constitutional duties owed by defense counsel, and the benefits of case-specific notification. First, Amici assert that judicial notification of potential consequences to a defendant’s immigration status does not cure the defense counsel’s failure to provide specific advice to the client. Specific advice affords a defendant the benefit of making informed decisions with knowledge of what is likely to occur or will mandatorily occur if a guilty plea is entered. Second, Amici warn that Ohio’s statutory notification requirement is insufficient to inform defendants adequately of the gravity of the potential consequences of a specific plea. The use of the word “may” does not carry the proper significance when a defendant faces mandatory deportation if the defendant enters a guilty plea. Third, because the judicial notification required by Ohio law fails to afford case-specific notice of potential consequences the giving of judicial notification can have little weight when considering whether prejudice is cured. Fourth, defense counsel has a separate duty to properly advice a client of the specific immigration consequences if a guilty plea is entered. This requirement is constitutional and enshrined by the Sixth Amendment; while judicial notification is only statutorily required. The constitutional protection acts as the defendant’s primary protection and judicial notification as a secondary safeguard. The safeguard, however, is insufficient to compensate for a complete lack of the first. Finally, to permit defense counsel to circumvent constitutional responsibilities by relying on judicial notification runs contrary to recent rulings from the United States Supreme Court. For these reasons Amici urge the court to uphold the Fifth District’s ruling.
Amici’s Proposed Proposition of Law
A non-citizen defendant suffers prejudice when defense counsel fails to advise of potential immigration consequences, even if the court notifies defendant that he or she “may” face immigration consequences.
Student Contributor: Paul Taske