[Cite as State v. Huang,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99945

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

TAO Z. HUANG DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-00-403717

BEFORE: Stewart, J., Celebrezze, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: April 10, 2014 ATTORNEY FOR APPELLANT

Philip J. Korey 410 Leader Building 526 Superior Avenue, East Cleveland, OH 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: T. Allan Regas Amy E. Venesile Kristen L. Sobieski Assistant County Prosecutors The Justice Center 1200 Ontario Street, 9th Floor Cleveland, OH 44113 MELODY J. STEWART, J.:

{¶1} Defendant appellant Tao Huang appeals the trial court’s denial of his motion

to withdraw his 2001 plea of no contest to a domestic violence charge for which he was

subsequently convicted. In 2012, Huang filed a motion to withdraw the plea after

receiving notices from the U.S. Department of Homeland Security that he was facing

deportation proceedings. In his motion, Huang argued that at the time of the plea, his

trial counsel was ineffective because she failed to advise him that a plea of no contest to a

domestic violence charge by a noncitizen mandates deportation proceedings. Huang also

argued that the trial court should not have accepted his plea because it was not made

knowingly and voluntarily and that the court failed to fully comply with Crim.R. 11.

After a hearing on this issue, the trial court denied the motion. We affirm the decision of

the trial court.

{¶2} Huang was born in China and entered the United States in 1990 as a lawful,

permanent resident. He resided in the Cleveland area and initially worked as a waiter

and restaurant manager for six years. During this time, Huang earned a bachelor’s

degree in psychology and later opened a Taoist healing studio.

{¶3} Huang was first convicted in the city of Rocky River in 1996 for domestic

violence against his then wife. In March 2001, he was again indicted for domestic

violence against his wife. He pled no contest to a fifth-degree felony domestic violence

charge. He was convicted of the offense and sentenced to five years community control. {¶4} In 2004, Huang was contacted by immigration authorities and was advised of

a removal hearing. However, the hearing was canceled. Again, in 2011 and 2012,

Huang received notices regarding deportation proceedings resulting from his criminal

history. One of the notices, dated November 7, 2011, specified three convictions that

included the 2001 domestic violence conviction, along with two convictions in 2009 for

menacing by stalking and gross sexual imposition.

{¶5} In December 2012, Huang filed a motion to withdraw his 2001 no contest

plea on the basis of ineffective assistance of counsel. The trial court held an evidentiary

hearing on this issue. At the hearing, Huang’s original counsel testified that she

distinctly remembered having discussed issues relating to naturalization and immigration

with Huang prior to his plea. Huang’s motion to withdraw was denied.

{¶6} In his first two of four assignments of error, Huang argues that the trial court

erred in overruling his motion to withdraw because, at the time of his plea, his trial

counsel was ineffective. In particular, Huang argues that the general immigration

warnings given by the trial court did not absolve Huang’s trial counsel of her separate

duty to inform him of the mandatory deportation proceedings he faced as a result of

pleading no contest to a domestic violence offense. In his third assigned error, Huang

claims his plea was not entered into knowingly or voluntarily because he was not fully

aware of the consequences of the plea. In Huang’s fourth and final assigned error, he

asserts that the trial court erred in overruling his motion to vacate his plea because the court failed to comply with Crim.R. 11 by not specifically advising him that he could not

be compelled to testify against himself.

{¶7} Crim.R. 32.1 provides that:

[A] motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court, after sentence, may set aside the judgment of conviction and permit the defendant to withdraw his plea.

Under the manifest injustice standard, “a post-sentence withdrawal motion is allowable

only in extraordinary cases.” State v. Conner, 8th Dist. Cuyahoga No. 98084,

.

{¶8} This court reviews a denial of a motion to withdraw a no contest plea for an

abuse of discretion. Shaker Hts. v. Jackson, 8th Dist. Cuyahoga No. 86161,

,  9. And in order to establish that the assistance of counsel was

ineffective, a defendant must show (1) deficient performance by his or her counsel, i.e.,

performance falling below an objective standard of reasonable representation, and (2)

prejudice, i.e., a reasonable probability that but for the counsel’s errors, the proceedings’

outcome would have been different. Strickland v. Washington,

,

,

(1984); State v. Bradley,

,

(1989), paragraphs two and three of the syllabus.

{¶9} Huang argues that his trial counsel was ineffective for failing to warn him

that a plea of no contest would trigger mandatory deportation proceedings,1 and such a

We note that both appellant and appellee seem to use interchangeably the concepts of 1

pleading no contest to an offense and being convicted of an offense. Although the former, more failure on the part of counsel created a manifest injustice. After reviewing the transcript

from the evidentiary hearing on the motion to vacate, as well as the transcript from July

2001 when the no contest plea was entered, we find Huang’s 2001 trial counsel properly

warned him of the immigration consequences of his no contest plea.

{¶10} Huang’s counsel testified:

[I]n reading, reviewing my file and in reading my notes, I clearly and distinctly remember going through issues regarding naturalization and immigration issues and was advised at the time that not only did he have me representing him in the criminal matter, but he had also sought — he had also sought the assistance of an immigration lawyer.

While Huang argues there was nothing written in his counsel’s notes stating that

immigration matters were discussed during the hearing on his motion to withdraw,

counsel stated that in 2001 she specifically recalled warning Huang of the immigration

consequences. She went on to testify that this is her standard practice with any

noncitizen client facing criminal charges.

{¶11} Huang cites Padilla v. Kentucky,

,

,

(2010), to stand for the proposition that a lawyer has an affirmative duty to

specifically advise his client on the immigration consequences of a guilty or no contest

plea. Huang argues that his trial counsel never told him that with his no contest plea,

deportation proceedings were mandatory, not merely a possibility. According to Huang,

had he been aware that his plea would trigger mandatory deportation proceedings, he

often than not, results in the later, 8 U.S.C. 1227(a)(2)(E)(i) specifically states that “any alien who * * * is convicted of a crime of domestic violence is deportable.” (Emphasis added.) would have chosen to go to trial rather than enter a plea of no contest. Huang asks this

court to draw the distinction between being told that deportation proceedings are possible

versus being told they are mandatory. However, such a distinction is unsupported by

case law.

{¶12} In Padilla, the United States Supreme Court determined that the “weight of

prevailing professional norms supports the view that counsel must advise her client

regarding the risk of deportation.”

at  367. However, we find the facts of Padilla

are not comparable to this case because Padilla involves an attorney giving his client the

false assurance “not to worry” about his immigration status. See

.

{¶13} State v. Hrnjak, 9th Dist. Summit No. 26554,

, presents a

more similar set of circumstances. The defendant in Hrnjak, a noncitizen, was indicted

for burglary, one count of grand theft, and one count of tampering with evidence.

Pursuant to plea negotiations, he pleaded guilty to attempted burglary, a felony of the

third degree, and the remaining charges were dismissed. During the plea hearing,

defendant was advised of the possible immigration consequences of his plea by both the

trial court and his defense counsel. Nearly two years later, the defendant filed a petition

for postconviction relief to withdraw his guilty plea to correct a manifest justice.

at 

4. Citing Padilla, he argued that he did not knowingly enter his plea because he was not

aware that his conviction would have an adverse impact on his immigration status.

In

affirming the decision of the trial court, the Ninth District appellate court stated:

While neither counsel nor the trial court used the word “mandatory” or explicitly stated that he would definitely be deported, it is clear from the record that [the defendant] was advised that there was a substantial risk of deportation if he pleaded guilty to the charge. It is equally clear from the record that [the defendant] chose to proceed with the plea despite having been told he would likely be deported. This is not a case wherein the defendant was misadvised about the risk of deportation, such as in Padilla, or not advised at all. This is a case wherein the defendant proceeded to change his plea despite being told that he could be deported as a consequence of his conviction.

at  14.

{¶14} In State v. Bains, 8th Dist. Cuyahoga No. 94330,

,  25,

this court citing Padilla held that failure to inform a noncitizen client that he faces a risk

of deportation can satisfy the first prong of an ineffective assistance of counsel claim by

demonstrating that counsel’s performance was deficient.

Notwithstanding this first

prong, however, a defendant alleging ineffective assistance of counsel must still

demonstrate prejudice as a result.

We find Huang’s claims that he would not have

pleaded no contest and would have gone to trial had he known the consequences of

pleading guilty are unpersuasive to demonstrate a prejudice suffered. Even if this court

were to accept that Huang’s counsel should have done more to highlight the ramifications

of a domestic violence conviction at the time Huang pled no contest, Huang fails to

demonstrate that, but for his counsel’s failure to properly advise him, he would have

prevailed against the domestic violence charge at trial.

{¶15} In State v. Bieksza, 10th Dist. Franklin Nos. 12AP-176, 12AP-177,

, the Tenth District faced a similar issue. In that case, the defendant, a

noncitizen, pleaded guilty in two cases: he pleaded to one count of importuning in one

case and five counts of pandering obscenity in the other. The Department of Homeland Security subsequently initiated removal proceedings against the defendant. In response

to the threat of removal from the United States, the defendant moved to withdraw his plea

and to vacate his two convictions. The trial court denied his motion. On appeal, the

defendant argued that the trial court abused its discretion by not permitting him to

withdraw his plea because he received ineffective assistance of counsel. The defendant

claimed that his counsel told him there was only a “very small possibility” that his

immigration status would be affected by his plea and that but for the conduct of his

lawyer, he would have gone to trial because he had “nothing to lose” by doing so.

at

 13-15. The Tenth District found no error. The court reasoned that the counsel’s

conduct did not equate to offering the defendant objectively incorrect advice.

at  23.

{¶16} Lastly, regarding his ineffective assistance claims, we find that Huang’s

motion was untimely. Huang had notice of immigration issues years prior to moving to

withdraw his plea. In 2004, Huang was contacted by immigration authorities and a

deportation-removal hearing was scheduled. This alone should have put Huang on

notice that his legal issues were compromising his ability to lawfully remain in the United

States. Yet, despite this warning, Huang did not make any effort to withdraw his no

contest plea. It was only after his 2009 conviction for menacing by stalking, followed by

his receipt of the removal letters in 2011 and 2012, that Huang decided to revisit his 2001

no contest plea. {¶17} The state has an interest in maintaining the finality of a conviction in a case

that has been closed for an extended period of time. State v. Francis,

,

,

,  40. Here, Huang has waited too long since

first receiving notice of possible immigration consequences to file his withdrawal motion.

“It is certainly reasonable to require a criminal defendant who seeks to withdraw a plea

to do so in a timely fashion rather than delaying for an unreasonable length of time.”

Allowing Huang to withdraw his plea would prejudice the state’s ability to prosecute the

underlying domestic violence charge. We overrule Huang’s first and second assignments

of error.

{¶18} Huang’s third and fourth assigned errors — that his plea was entered in

violation of Crim.R. 11 because he was not fully aware of the consequences of his plea

and the trial court failed to specifically advise him that he could not be compelled to

testify against himself — are likewise without merit.

{¶19} A trial court must follow the dictates of Crim.R. 11(C)(2) in order to ensure

that a plea to a felony charge is knowingly, intelligently, and voluntarily made by a

defendant. State v. Mannarino, 8th Dist. Cuyahoga No. 98727,

,  9.

Under Crim.R. 11(C)(2), the court must address a defendant personally and (1) determine

that he or she understands the nature of the charges and the maximum penalty involved,

(2) inform the defendant of and determine that he or she understands the effect of a plea

of guilty or no contest and that the court may proceed with judgment and sentence; and (3) inform the defendant of, and determine that he or she understands, the constitutional

rights that are given up by entering into the plea. Crim.R. 11(C)(2)(a)-(c).

{¶20} Under R.C. 2943.031(A), trial courts, prior to accepting pleas from

noncitizens, must advise of the three collateral consequences that may occur as a result of

a conviction for a felony or misdemeanor, other than a minor misdemeanor. State v.

Tejeda, 8th Dist. Cuyahoga No. 96518,

,  7. These consequences

include deportation, exclusion from admission to the United States, or denial of

naturalization pursuant to the laws of the United States.

{¶21} The trial court properly determined that Huang’s plea was made knowingly

and voluntarily by explaining the possible immigration consequences of his no contest

plea should he be convicted of the offense. Prior to accepting Huang’s plea, the court

made the following statement to which Huang responded affirmatively.

COURT: Mr. Huang, if you are not a citizen of the United States, be

advised a conviction of the offense which you are pleading

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. Do you understand

that?

{¶22} Additionally, the court complied with Crim.R.11 when it throughly

explained to Huang the rights he was giving up by pleading no contest. Huang asserts

that his motion to withdraw his 2001 plea should have been granted because at the time of the plea, while the court stated Huang had the “right not to testify,” the court did not fully

explain his right not to be compelled to testify against himself. We find this to be a

distinction without a difference. Ohio courts have determined:

[A] trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally advise a defendant before accepting a felony plea that the plea waives (1) the right to a jury trial, (2) the right to confront one’s accusers, (3) the right to compulsory process to obtain witnesses, (4) the right to require the state to prove guilt beyond a reasonable doubt, and (5) the privilege against compulsory self-incrimination. When a trial court fails to strictly comply with this duty, the defendant’s plea is invalid.

State v. Bassett, 8th Dist. Cuyahoga No. 90887,

,  16; see State v.

Veney,

,

,

.

{¶23} Here, at the July 2001 hearing before accepting Huang’s plea, the court

made the following statement:

COURT: The Constitution of the United States and the State of Ohio guarantee to you both the right to a trial by jury in case. You also have the right to confront witnesses which the State of Ohio would present against you at trial.

You have the right to compulsory process. That means you have the right to use the subpoena power of the court to compel or force attendance at trial of any person who can offer testimony on your behalf.

You have the right to have the State of Ohio prove you guilty beyond a reasonable doubt of each and every element of the crime which you have been charged. And you have the right not to testify at trial, no one can comment on your silence.

By pleading guilty today, you’re waiving or giving up all those rights. {¶24} The court specifically told Huang that he had the right not to testify at trial

and that no one could comment on his right to remain silent. This court has held that the

right not to testify is the same as stating that a defendant cannot be compelled to testify.

See State v. Marks, 8th Dist. Cuyahoga No. 92548,

(a trial court’s

advisement that a defendant has the right not to testify could not have led to any

confusion because when a defendant is instructed that he has the “right to remain silent”

and the “right not to testify at trial,” it follows that he cannot be compelled to testify

against himself). There is no requirement that a trial court use specific language when

informing a defendant of a constitutional right for purposes of Crim.R. 11(C), only that

the defendant be sufficiently appraised of the enumerated rights. Marks at  15.

{¶25} Huang informed the court that he both understood all his rights and did not

have any questions. He also told the court that he was satisfied with the performance of

his trial counsel. Therefore, we find the trial court properly complied with Crim.R. 11.

Huang’s third and fourth assigned errors are overruled.

{¶26} Having found that Huang has not demonstrated any manifest injustice that

would have required the trial court to vacate his plea, we affirm.

It is ordered that appellee recover of appellant its costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of

Appellate Procedure.

MELODY J. STEWART, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and SEAN C. GALLAGHER, J., CONCUR