[Cite as State v. Adames,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff - Appellee : Hon. John W . W ise, J. : Hon. Craig R. Baldwin, J. -vs- : : HUMBERTO ADAMES : Case No. 16-CA-45 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 15 CA 343

JUDGMENT: Affirmed

DATE OF JUDGMENT: February 13, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

PAULA M. SAW YERS GEORGE A. KATCHMER Assistant Prosecuting Attorney 1886 Brock Road NE 20 S. Second Street, 4th Floor Bloomingburg, Ohio 43106 Newark, Ohio 43055 [Cite as State v. Adames,

.]

Baldwin, J.

{¶1} Appellant Humberto Adames appeals a judgment of the Licking County

Common Pleas Court overruling his motion to withdraw his guilty plea to three counts of

illegal use of supplemental nutrition or W IC benefits (R.C. 2913.46(B)) and one count of

receiving stolen property (R.C. 2913.51(A)). Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On June 4, 2015, appellant was indicted with three counts of illegal use of

supplemental nutrition or W IC benefits and one count of receiving stolen property. He

entered guilty pleas to all four counts of the indictment on November 24, 2015. He was

represented by counsel and had the assistance of a Spanish interpreter at the hearing.

The trial court informed appellant that if he was not a citizen of the United States, the

conviction of the offense to which he was pleading guilty may have the consequences of

deportation, exclusion from admission to the United States, or denial of naturalization. In

addition, the written plea form, signed by appellant, included an acknowledgement that

he understood the consequences of a conviction upon him if he was not a U.S. citizen.

Appellant was convicted and sentenced to two years of community control. Appellant did

not file an appeal.

{¶3} Appellant filed a motion to withdraw his guilty plea on April 22, 2016, on the

basis that his trial counsel was ineffective. He specifically argued that counsel failed to

inform him that a plea to a felony requires a mandatory detention and nearly immediate

removal from the United States. In an affidavit attached to the motion, appellant stated

that his attorney told him to “just say ‘yes,yes’” to the judge. He averred that counsel did [Cite as State v. Adames,

.]

not say anything to him about immigration consequences of the plea, and had his attorney

told him he would face mandatory detention and deportation, he would not have pled

guilty.

{¶4} The trial court overruled the motion, finding that appellant was specifically

advised by the court during the plea colloquy that he could be deported if he was

convicted. He assigns a single error to this Court on appeal:

{¶5} “A PLEA THAT IS INVOLUNTARY, UNKNOW ING AND DUE TO THE

INEFFECTIVENESS OF COUNSEL MUST BE VACATED.”

{¶6} Appellant argues that despite the trial court informing him that he could be

deported upon conviction, his counsel was ineffective for failing to inform him that a plea

to a felony requires mandatory detention and nearly immediate removal from the United

States, and he was simply told by his attorney that he must plead guilty.

{¶7} Crim.R. 32.1 provides, “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.”

{¶8} Appellate review of a trial court's decision under Crim.R. 32.1 is limited to a

determination of whether the trial court abused its discretion. State v. Caraballo,

,

(1985). In order to find an abuse of that discretion, we must

determine the trial court's decision was unreasonable, arbitrary or unconscionable and not

merely an error of law or judgment. Blakemore v. Blakemore,

,

(1983). [Cite as State v. Adames,

.]

{¶9} Ineffective assistance of counsel can form the basis for a claim of manifest

injustice to support withdrawal of a guilty plea pursuant to Crim.R. 32.1. State v. Dalton,

, 2003–Ohio–3813, ¶18. A Crim.R. 32.1 motion is not a

collateral challenge to the validity of a conviction or sentence, and instead only focuses

on the plea. State v. Bush,

,

, 2002–Ohio–3993, ¶13.

However, under the “manifest injustice” standard, a post-sentence withdrawal motion is

granted only in extraordinary cases. State v. Aleshire, Licking App.No. 09–CA–132,

2010–Ohio–2566, ¶60.

{¶10} A properly licensed attorney is presumed competent. State v. Hamblin,

,

(1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel’s error, the result

of the proceedings would have been different. Strickland v. Washington,

,

,

(1984); State v. Bradley,

,

(1989).

{¶11} W e have previously held that a defendant cannot show prejudice from his

attorney’s failure to inform him of the deportation consequences of a plea if the trial court

informed the defendant of the potential immigration consequences during the plea

colloquy. State v. Gallegos-Martinez, 5th Dist. Delaware No. 10-CAA-06-0043, 2010-

Ohio-6463, ¶39; State v. Amagatcher, 5th Dist. Delaware No. 15 CAC 10 0081, 2016-

Ohio-5198, ¶21.

{¶12} In the instant case, appellant appeared before the court represented by

counsel and with the assistance of an interpreter. The trial court informed appellant: [Cite as State v. Adames,

.]

I’m required to advise you that if you are not a citizen of the United States

you are hereby advised that the 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.

{¶13} Judgment, June 7, 2016, Exhibit A.

{¶14} Further, while the trial court appended the page of the transcript in which he

informed appellant of the immigration consequences of the plea, appellant has not

provided this Court with a full transcript of the plea hearing, which may have demonstrated

that counsel did in fact discuss the immigration consequences with appellant prior to his

plea. In the absence of a transcript, we must presume regularity in the proceedings below.

Knapp v. Edwards Laboratories,

,

. {¶15} The assignment of error is overruled. The judgment of the Licking County

Common Pleas Court is affirmed. Costs are assessed to appellant.

By: Baldwin, J.

Delaney, P.J. and

Wise, J. concur.