[Cite as State v. Leon,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY

State of Ohio Court of Appeals No. H-18-018

Appellee Trial Court No. CRI 93 0620

v.

Josefino Alvaro Leon DECISION AND JUDGMENT

Appellant Decided: March 29, 2019

*****

James James Sitterly, Huron County Prosecuting Attorney, for appellee.

Richard H. Drucker, for appellant.

*****

OSOWIK, J.

{¶ 1} This is an accelerated appeal from a judgment of the Huron County Court of

Common Pleas which denied appellant’s motion to vacate his 1994 guilty pleas. For the

reasons set forth below, this court affirms the judgment of the trial court.

{¶ 2} Appellant set forth three assignments of error: I. The trial court erred in denying Defendant/Appellant’s Motion to

Withdraw His Guilty Plea pursuant to O.R.C. 2943.031 solely on the basis

of timeliness. The trial court conceded that no record exists in this matter

that demonstrates that the defendant/appellant was properly advised

pursuant to O.R.C. 2943.031.

II. The trial court erred in denying the Defendant/Appellant’s

Motion to Withdraw His Guilty Plea pursuant to O.R.C. 2943.031 and not

considering the holding set forth in the United States Supreme Court’s

decision in Padilla v. Kentucky which should be applied retroactively.

III. The trial court erred in denying the Defendant/Appellant’s

Motion to Withdraw His Guilty Plea pursuant to O.R.C. 2943.031 and not

considering the factors set forth in Crim.R. 32.1.

I. Statement of Facts

{¶ 3} This appeal was triggered by a trial court judgment in 2018, but stems from

events in 1993. On August 30, 1993, the Norwalk Police Department filed three criminal

complaints against appellant Josefino Alvaro Leon, a.k.a. Josefino Leon Herrera, in

Norwalk Municipal Court that were bound over to a Huron County Grand Jury. The

grand jury indicted appellant on three counts of trafficking in marijuana, each a violation

of R.C. 2925.03(A)(1) and each a felony in the fourth degree. Since September 1, 1993,

the municipal court and then the common pleas court, at appellant’s request, appointed

counsel from the Huron County Public Defender’s office and a Spanish interpreter due to

his indigency and his assertion he “knows very little or no English.”

2. {¶ 4} At the November 1, 1993 arraignment, appellant entered not guilty pleas to

all three counts. Discovery ensued, and on January 5, 1994, the trial court held a hearing

on appellant’s change of pleas from not guilty to guilty to two counts with the third count

dismissed. After 24 years the record no longer contained a transcript of the plea hearing.

However, the record contained the trial court’s January 7, 1994 journalized entry of the

plea hearing, in which the trial court identified appellant was present with his counsel, but

did not specifically identify, for example, the exact dialogue of the proceedings nor the

presence of the Spanish interpreter. The trial court’s entry stated appellant was advised

that each of the offenses to which he proposed to plead guilty were punishable by definite

prison terms from a minimum of six months to a maximum of 18 months. The entry

continued as follows:

The defendant stated that he understood and then did enter a plea of

guilty to Counts I and II, of the Indictment. The Court then personally

addressed the defendant, and: (1) Determined that he is making the plea

voluntarily, understanding the nature of the charge and the maximum

penalty involved, and that he is eligible for probation; (2) Informed him of

and determined that he understood the effect of his plea of guilty, and that

the Court upon acceptance of the plea may proceed with judgment and

sentence; (3) Informed him and determined that he understood that by his

plea of guilty, he is waiving his rights to jury a [sic] trial, to confront

witnesses against him, to have compulsory process for obtaining witnesses

in his favor, and to require the State to prove his guilt beyond a reasonable

3. doubt at trial at which he cannot be compelled to testify against himself.

The Court being satisfied from the total circumstances, found that the

defendant had KNOWINGLY, INTELLIGENTLY, VOLUNTARILY

and UNDERSTANDINGLY made and entered his plea of guilty to Counts

I and II, of the Indictment. It is therefore ORDERED, ADJUDGED, and

DECREED that the defendant’s guilty plea to the charge shall be and

hereby is accepted; that the defendant shall be and hereby is adjudicated

GUILTY, and that the defendant shall be and hereby is CONVICTED

thereof accordingly, of Trafficking in Marijuana, a violation of Ohio

Revised Code Section 2925.03(A)(1). (Emphasis sic.)

{¶ 5} Thereafter, on February 11, 1994, the trial court, in a subsequently

journalized nunc pro tunc entry, sentenced appellant to two concurrent prison sentences

for a total of one year. Appellant did not appeal his conviction and sentence. On March

31, 1994, the trial court granted appellant’s request for “shock probation” under former

R.C. 2947.061, released him from prison, and placed him on probation. Appellant was

released from probation on February 13, 1996.

{¶ 6} The trial court record was then silent for over 22 years until appellant filed

an August 13, 2018 motion. Appellant argued he was entitled to vacate his 1994 guilty

pleas for two reasons: (1) the trial court took the guilty pleas in violation of R.C.

2943.031, and (2) the guilty pleas where not knowingly, voluntarily or intelligently made

pursuant to Crim.R. 32.1 and Padilla v. Kentucky,

,

, 176

4. L.Ed.2d 284 (2010). For the first time in the trial court record, appellant alleged a

number of facts in his motion and accompanying affidavit relevant to this appeal.

{¶ 7} He was born in Mexico in 1965 and is a citizen of Mexico. He never

claimed to be a United States citizen. His wife and three children were United States

citizens living in the United States. In 1990 he became a lawful permanent resident of

the United States. In 1994 he “maintained his innocence in discussing the case with his

criminal lawyers * * * [and] contended that he was not guilty of any crimes. Believing

that he had no other option, he reluctantly pled guilty.” He did not recall being told by

the public defender or the judge there would be immigration consequences from his

convictions. His attorney “stood silent when the Court gave the R.C. 2943.031

advisement, after he pled guilty.” He believed his first offense would not “lead to

immigration issues.” He would not have pled guilty if he had known he could be

deported as a result of his convictions. Instead he would have hired an immigration

lawyer and a criminal lawyer and gone to trial. He was ordered deported from the United

States on November 14, 1994 due to his felony convictions. He was “very surprised to be

detained” and then removed from the United States on April 3, 2003. In June 2018 he

was “charged with illegal re-entry.” He consulted with immigration attorneys in 2003

and 2006/2007, but none told him he could seek to withdraw his guilty pleas. Finally in

2018 he received that legal advice.

{¶ 8} On September 10, 2018, the trial court denied appellant’s motion without a

hearing. In its journalized judgment entry, the trial court stated the following:

5. The Court finds the Motion to be untimely and therefore denies the

Motion. In this case, the transcript of the proceedings no longer exists as it

was destroyed as part of the Court’s regular schedule for disposing of

records. The plea entry does not reflect the required advisement and the

statute thus requires a presumption that it was not given in the absence of

any record. However, here the Defendant was actually ordered deported on

November 14, 1994 and thus has been aware of the immigration

consequences of his plea since that time. For the Defendant to wait nearly

twenty-four (24) years to raise the issue is clearly untimely and would

clearly prejudice the State’s ability to pursue the case. State v. Reyes, 2016-

OHIO-2771 (12th Appellate Dist. 2015) (sic.).

{¶ 9} Appellant timely appealed the trial court’s September 10, 2018 judgment

entry. Appellant filed his brief on October 30, 2018, and proffered facts primarily

explaining additional immigration-related events spanning from 1984 to 2018. We find

any additional proffers of facts from appellant’s brief that are not otherwise contained in

the trial court record are not before this court on appeal. App.R. 9(A)(1).

II. R.C. 2943.031 Remedy

{¶ 10} In support of his first assignment of error, appellant argued the trial court

abused its discretion when it denied appellant’s motion to withdraw his guilty pleas

pursuant to R.C. 2943.031(D). Appellant argued because the trial court acknowledged

appellant did not receive the mandatory advisement, it was required to set aside the

conviction and allow him to withdraw the guilty pleas, citing State v. Contreras, 6th Dist.

6. Huron No. H-10-024,

, ¶ 12-13. Appellant argued the trial court

“erroneously found that Mr. Leon was deported on November 14, 1994 (inaccurate and

not supported by anything in the record) and was aware of the immigration consequences

of his plea since that time (inaccurate and contrary to Mr. Leon’s Affidavit).” Appellant

further argued the “trial court opted to focus solely on the 24-year delay between

appellant’s original guilty plea and the motion to withdraw it. * * * [Appellee] has not

shown any prejudice in the delay. The failure to consider all the factors is contrary to the

Supreme Court’s ruling in [State v. Francis,

,

,

].”

{¶ 11} In response, appellee argued the trial court did not abuse its discretion.

Appellee argued timeliness could be a significant factor to the trial court’s exercise of

discretion, and appellant was not prejudiced by the trial court’s decision. Appellee

argued, “Nothing about the absence of the advisement suggests that the Defendant would

have behaved any differently from the way he has acted [continual illegal entry

problems] for the past twenty-four (24) years.” However, appellee would be prejudiced

by appellant’s 24-year delay to now prosecute appellant’s crimes committed in 1993.

Appellee conceded that a remand to the trial court to conduct a hearing on appellant’s

prejudice could be a remedy.

{¶ 12} We review the trial court’s denial of a motion to withdraw plea pursuant to

R.C. 2943.031 for an abuse of discretion. Francis at ¶ 32. Abuse of discretion

“‘connotes more than an error of law or judgment; it implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.’” Blakemore v. Blakemore,

. 219,

(1983), quoting State v. Adams,

,

(1980).

{¶ 13} The R.C. 2943.031(D) motion and an appeal from the denial of that motion

“provide the exclusive remedies” for an alleged violation of R.C. 2943.031(A) by the trial

court. Francis at ¶ 35, quoting State ex rel. White v. Suster,

, 2004-

Ohio-719,

, ¶ 7.

A. Crim.R. 11(C) Substantial Compliance

{¶ 14} Appellant’s burden on his motion to vacate his guilty plea due to a non-

constitutional feature of a plea, such as pursuant to R.C. 2943.031(A), was to show the

trial court failed to substantially comply with Crim.R. 11(C). Id. at ¶ 45. Substantial

compliance is not strict compliance. Id. at ¶ 46. “Substantial compliance means that

under the totality of the circumstances the defendant subjectively understands the

implications of his plea and the rights he is waiving.” Id. at ¶ 48, quoting State v. Nero,

,

(1990). “Issues regarding the defendant’s

subjective understanding of the rights he or she was relinquishing and the effects of

entering pleas under Crim.R. 11(C) are resolved through resort to both that rule and R.C.

2943.031, regarding the immigration-related consequences.” Id. at ¶ 30.

{¶ 15} A trial court’s determination of substantial compliance is generally a

question of fact that will not be reversed if it is supported by some competent, credible

evidence. Szuch v. FirstEnergy Nuclear Operating Co.,

,

, ¶

11 (6th Dist.), citing Olen Corp. v. Franklin Cty. Bd. of Elections,

,

(10th Dist. 1988) (the basic issue is whether the purpose of the statute

8. has been served). “For our purposes, the R.C. 2943.031(A) notification is similar to the

nonconstitutional notifications of Crim.R. 11(C)(2), such as the nature of the charges and

the maximum penalty involved, and, therefore, implicates the same standard.” Francis at

¶ 45. “R.C. 2943.031 requires informational warnings, consistent with the purpose of

Crim.R. 11, be personally given to the defendant before entering a guilty plea.

Specifically, the purpose is to ensure that a defendant enters a guilty plea knowingly,

intelligently, and voluntarily.” State v. Encarnacion, 12th Dist. Butler No. CA2003-09-

225,

, citing State v. Caudill,

,

(1976).

{¶ 16} We will first review under Crim.R. 11(C)(2) the totality of the

circumstances of appellant’s subjective understanding of the rights he was relinquishing

and the effects of entering two guilty pleas. Crim.R. 11(C)(2) states:

In felony cases the court may refuse to accept a plea of guilty * * *,

and shall not accept a plea of guilty * * * without first addressing the

defendant personally and doing all of the following:

(a) Determining that the defendant is making the plea voluntarily,

with understanding of the nature of the charges and of the maximum

penalty involved, and, if applicable, that the defendant is not eligible for

probation or for the imposition of community control sanctions at the

sentencing hearing.

9. (b) Informing the defendant of and determining that the defendant

understands the effect of the plea of guilty * * *, and that the court, upon

acceptance of the plea, may proceed with judgment and sentence.

(c) Informing the defendant and determining that the defendant

understands that by the plea the defendant is waiving the rights to jury trial,

to confront witnesses against him or her, to have compulsory process for

obtaining witnesses in the defendant's favor, and to require the state to

prove the defendant’s guilt beyond a reasonable doubt at a trial at which the

defendant cannot be compelled to testify against himself or herself.

{¶ 17} From our review of the record, we find appellant failed to comply with

App.R. 9(B)(5)(b) regarding the absence of a portion of the record critical to his appeal

by identifying in a statement attached to his notice of appeal the assignments of error

relying on such absence of the record and the subsequent submittal of a statement under

App.R. 9(C) or 9(D). We further find appellant failed to comply with App.R. 9(C) or

9(D). Because appellant provided no transcript to this court regarding his plea hearing,

coupled with the mandate from R.C. 2943.031(E), we are faced with the concern

expressed by the Second District that similar appellants may be encouraged to not

provide appellate courts with the portions of the record that contain the trial court’s R.C.

2943.031(A) advisement. State v. Cardenas,

,

, ¶ 24 (2d

Dist.).

{¶ 18} Nevertheless, we find the record is not completely devoid of information

regarding the events surrounding appellant’s guilty pleas. The record contained the trial

10. court’s January 7, 1994 judgment entry with which we can evaluate substantial

compliance with Crim.R. 11(C)(2). It is well-settled that a court generally speaks only

through its journal. State v. Grimes,

,

,

,

¶ 8. From our review of the entry, the trial court complied with each component of the

rule. State v. Bulgakov, 6th Dist. Wood No. WD-03-096,

.

{¶ 19} We find the trial court substantially complied with Crim.R. 11(C), and

appellant did not appeal the conviction and sentence resulting from the trial court’s

acceptance of his guilty pleas to two felonies. We find the record contained some

competent, credible evidence under the totality of the circumstances that appellant

subjectively understood the rights he was relinquishing and the effects of entering guilty

pleas under Crim.R. 11(C).

B. R.C. 2943.031 Substantial Compliance

{¶ 20} We will next review under R.C. 2943.031 the totality of the circumstances

of appellant’s subjective understanding of the immigration-related consequences at the

time of entering his guilty pleas.

{¶ 21} In reasoning why the substantial compliance standard was the correct

approach, the Ohio Supreme Court was persuaded by the argument that allowing a

defendant, years after charges were brought and after evidence had been destroyed, to

withdraw a plea he entered into knowingly, intelligently, and voluntarily, asserted form

over substance. Francis,

,

,

, at ¶ 48.

Courts must balance a case long considered to be fully adjudicated where “memories may

be dim and proof difficult” with appellants “who have their freedom to gain and

11. comparatively little to lose.” (Citation omitted.) State v. Williams,

,

,

, quoting State v. Calhoun,

,

(1999).

{¶ 22} Appellant argued two pieces of evidence showed the trial court failed to

substantially comply with R.C. 2943.031(A) at the plea hearing. First, appellant pointed

to R.C. 2343.031(E) for the lack of a record that he received the required R.C.

2943.031(A) advisement. Second, appellant pointed to his affidavit submitted with his

R.C. 2943.031(D) motion averring he did not recall receiving the required advisement.

{¶ 23} We look to the advisement required pursuant to R.C. 2943.031(A), which

reads:

Except as provided in division (B) of this section, prior to accepting

a plea of guilty * * * to an indictment * * * charging a felony * * *, the

court shall address the defendant personally, provide the following

advisement to the defendant that shall be entered in the record of the court,

and determine that the defendant understands the advisement:

“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 * * * 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.”

12. Upon request of the defendant, the court shall allow him additional

time to consider the appropriateness of the plea in light of the advisement

described in this division.

{¶ 24} As previously discussed, the record no longer contained a transcript of

appellant’s plea hearing for this court to determine the exact colloquy between appellant

and the trial court. It is generally well settled that where appellant did not include a

transcript of a plea hearing, we must assume the regularity of the hearing. Grimes,

,

,

, at ¶ 20. However, there is a statutory

presumption the foregoing advisement was not given pursuant to R.C. 2943.031(E),

which reads, “In the absence of a record that the court provided the advisement described

in division (A) of this section and if the advisement is required by that division, the

defendant shall be presumed not to have received the advisement.”

{¶ 25} To determine the effect of the statutory presumption, we must first

determine if the R.C. 2943.031(A) advisement was required to be given to appellant by

the trial court pursuant to R.C. 2943.031(E). The R.C. 2943.031(A) advisement is not

required to be given to citizens of the United States, and a trial court is not to assume a

defendant’s citizenship. R.C. 2943.031(B); Francis,

, 2004-Ohio-

6894,

, at ¶ 20. Our review of the record indicated no facts were before

the trial court at the time of accepting appellant’s guilty pleas on January 5, 1994, that it

assumed anything about appellant’s citizenship, let alone knew for certain appellant was

a non-citizen of the United States. See State v. Thompson, 2d Dist. Greene No. 90 CA

90,

, *3-4 (Mar. 21, 1991); see also State v. Manns, 2d Dist.

13. Clark No. 2000 CA 58,

, *3-4 (Nov. 30, 2001). Based on

the record before us, we are not certain the R.C. 2943.031(A) advisement was required to

be given to appellant by the trial court on January 5, 1994. If the trial court was not

required to give the advisement to appellant, the presumption in R.C. 2943.031(E) was

not triggered.

{¶ 26} Even if the R.C. 2943.031(E) presumption was triggered on January 5,

1994, the trial court may still have substantially complied with the statute. This statutory

presumption shifted the burden to appellee to produce evidence appellant received the

required advisement. See State v. Hively, 4th Dist. Gallia No. 13CA15,

,

¶ 21. Since this statutory presumption was not specifically designated to be conclusive, it

was rebuttable by evidence. State v. Myers,

,

(1971). The degree of proof required of appellee to rebut the presumption need only

counterbalance the evidence to sustain the presumption because appellant, as the movant,

had the burden of proof on his motion.

citing Kennedy v. Walcutt,

,

(1928), paragraph five of the syllabus.

{¶ 27} One item in the record to rebut the presumption was the trial court’s

January 7, 1994 judgment entry stating the trial court’s satisfaction following a colloquy

with appellant that appellant “understood the effect of his plea of guilty” among other

issues and that appellant entered his guilty pleas to two felonies “knowingly, intelligently,

voluntarily, and understandingly.” It is undisputed the judgment entry did not contain

any separate indication of the R.C. 2943.031(A) advisement of potential immigration

14. consequences. It is also undisputed the judgment entry did not indicate any awareness of

or assumption by the trial court of appellant’s citizenship status.

{¶ 28} Another item to rebut the presumption is appellant’s R.C. 2943.031(D)

motion in which he admitted to receiving the advisement, just not prior to him entering

his guilty pleas. Appellant stated:

Here, the Court did not advise Mr. Alvaro Leon that his pleas of

guilty could have the consequences of deportation or exclusion from

admission to the United States or denial of naturalization pursuant to the

laws of the United States prior to him entering his plea. It was done

afterwards in violation of the statute and after his statutory right to the

advisement was already violated. (Emphasis added.)

Appellant confirmed he received the R.C. 2943.031(A) advisement from the trial court on

January 5, 1994, because his counsel “stood silent when the Court gave the R.C.

2943.031 advisement, after he pled guilty.” Appellant’s 24-year delay to vacate his

guilty pleas with the knowledge of the R.C. 2943.031(A) advisement remained

unexplained. Bulgakov, 6th Dist. Wood No. WD-03-096,

(substantial compliance found where deportation consequences discussed at sentencing).

Appellant admitted to at least two “immigration consequences” in 1994 and 2003

subsequent to his plea hearing, making the R.C. 2943.031(A) advisement of immigration

consequences appear to have minimal effect on his decisions over the years. In addition,

appellant admitted that he only pled guilty “due to the uninformed advice of his counsel,”

not because of trial court error with the timing of the advisement.

15. {¶ 29} Another item in the record to rebut the presumption was appellant’s

affidavit filed with his R.C. 2943.031(D) motion. Nowhere in appellant’s affidavit did he

state he disclosed to the court his legal status in the United States prior to entering his

guilty pleas. See R.C. 2943.031(C). The only information provided by appellant in his

affidavit regarding his involvement at the January 5, 1994 hearing were the following

averments:

In 1994, I pled guilty to Trafficking Marijuana in Huron County

Common Pleas Court. I had a public defender represent me. To the best of

my recollection, I was not told that there would be immigration

consequences from my conviction by the public defender or the judge.

This was my first offense, so I did not think it would lead to immigration

issues.

If I had known I could be deported as a result of the conviction, I

would not have pled guilty. I would have consulted with an immigration

lawyer and hired a criminal attorney to fight the case. I had young children

at the time and would have done anything to avoid being separated from

them.

{¶ 30} The record contained the signed and notarized affidavit of indigency filed

by appellant on January 18, 1994. This document appears to contradict appellant’s

statement he would not have pled guilty on January 5, 1994, and had the means to hire

immigration and criminal attorneys “to fight the case.”

16. {¶ 31} Appellant’s affidavit raised other contradictions with the record. On

December 13, 1993, the record contained evidence of the trial court appointing a Spanish

interpreter, Blanca Rodenhauser, also because of appellant’s indigency and because

appellant spoke “very little or no English.” Appellant’s affidavit stated, “The entire

affidavit was read back to me in my [sic] Spanish, my native language.” The affidavit

did not include any recollection of the presence of or assistance by a court-appointed

Spanish interpreter, which would have been a necessity for him at the plea hearing to

form the impressions he asserted in 2018: (1) the absence of being told by his attorney

and the judge of the immigration consequences of his guilty pleas, (2) his subjective

belief that because it was his first offense, he “did not think it would lead to immigration

issues,” and (3) he would not have pled guilty if he knew he “could be deported as a

result of the conviction.” However, in his motion he admitted to receiving the R.C.

2943.031(A) advisement immediately after he pled guilty while his attorney stood next to

him facing the judge. He also admitted he pled guilty “only” because of the “uninformed

advice of his counsel,” not because the lack of receiving the statutory advisement.

Appellant’s impressions averred in 2018 contradict the trial court’s contemporaneous

entry affirming from the totality of circumstances appellant knowingly, intelligently,

voluntarily, and understandingly entered guilty pleas to two felonies. Appellant did not

submit any other evidence to support his version of the events on January 5, 1994, and

the record does not contain the 24-year old recollections, if any, from any others present

at the plea hearing.

17. {¶ 32} Even if we construed as true appellant’s averments in his affidavit, they do

not entitle him to the relief sought. Calhoun,

,

(reviewing affidavits in a post-conviction proceeding). The inconsistencies and

contradictions with the evidence in the record are factors affecting the credibility of the

affidavit, which was within the sound discretion of the trial court to determine.

. The trial court was not required to hold an evidentiary hearing where the

motion, the supporting affidavit, and the record did not demonstrate appellant set forth

sufficient operative facts to establish substantive grounds for relief.

at paragraph two

of the syllabus. Appellant’s motion identified deportation-related events 24 and 15 years

prior to filing his 2018 motion. The explanation for the lengthy delay before filing his

motion was bad legal advice from different attorneys who never told him of the option to

file the motion. Appellant’s self-serving statements with no other evidentiary support of

sufficient operative facts failed to invoke the remedy of R.C. 2943.031(D) plea

withdrawal, especially in light of at least a 15-year delay after he was aware of

immigration consequences. State v. Nardiello,

,

, ¶ 22-

23 (3d Dist.) (six-year delay found untimely).

{¶ 33} We find the record contained some competent, credible evidence to rebut

the presumption in favor of appellant with respect to R.C. 2943.031(A). We find the trial

court substantially complied with R.C. 2943.031. We further find the record contained

some competent, credible evidence under the totality of the circumstances that appellant

subjectively understood the immigration-related consequences under R.C. 2943.031 at

the time of entering his guilty pleas.

18. C. R.C. 2943.031(D) Abuse of Discretion

{¶ 34} We review for an abuse of discretion the trial court’s decision on whether

appellant established the factors to demonstrate his entitlement to withdraw his guilty

pleas separately from reviewing the trial court’s decision to deny appellant’s motion, also

for an abuse of discretion. Francis,

,

,

, at ¶ 34. “[T]he issue of whether or not the trial court provided [appellant] with the

R.C. 2943.031(A) advisement is not dispositive to the issue of whether or not he has

demonstrated he is entitled to withdraw his * * * pleas.” State v. Alonzo, 3d Dist. Seneca

No. 13-15-26,

. The R.C. 2943.031(A) advisement is not a

constitutional right, and the consequence of a trial court’s failure to give it is pursuant to

R.C. 2943.031(D). Francis at ¶ 29-30.

i. R.C. 2943.031(D) Factors

{¶ 35} Under R.C. 2943.031(D), appellant had the burden to show the presence of

all four statutory factors: (1) the trial court failed to provide appellant the R.C.

2943.031(A) advisement, (2) the advisement was required by R.C. 2943.031(A), (3)

appellant was not a citizen of the United States, and (4) his convictions for the offenses to

which he entered guilty pleas “may result in his being subject to deportation, exclusion

from admission to the United States, or denial of naturalization pursuant to the laws of

the United States.” In addition, appellant had the burden to show the factors of timeliness

and prejudice. Id. at ¶ 34. The trial court may consider additional factors. Id. at ¶ 40.

“[A] defendant seeking relief under R.C. 2943.031(D) must make his or her case before

19. the trial court under the terms of that statute, [and] the trial court must exercise its

discretion in determining whether the statutory conditions are met * * *.” Id. at ¶ 36.

{¶ 36} There is no specific requirement that the trial court was required to hold a

hearing prior to reaching its determinations under R.C. 2943.031(D). Id. at ¶ 50. Nor was

the trial court required to issue findings of fact and conclusions of law. Id. at ¶ 52. The

decision on whether to hold a hearing and on whether to explain reasons for ruling are

matters within the sound discretion of the trial court. Id. at ¶ 56.

{¶ 37} As to the first R.C. 2943.031(D) factor, we previously determined the trial

court substantially complied with R.C. 2943.031(A). As to the second and third factors,

we previously determined it is unclear the trial court was required to give appellant the

R.C. 2943.031(A) advisement. As to the fourth factor, we will not disturb the trial

court’s determination to accept as true appellant’s factual proffer in his motion that “On

November 14, 1994, he was ordered deported from the United States as a direct result of

the convictions herein.”

{¶ 38} We find the trial court did not abuse its discretion because appellant failed

to establish all of the R.C. 2943.031(D) factors. The trial court’s attitude was not

unreasonable, arbitrary or unconscionable when it reached its decision without a hearing.

We find the record contained some competent, credible evidence under the totality of the

circumstances that appellant failed to establish all R.C. 2943.031(D) factors.

ii. Timeliness and Prejudice Factors

{¶ 39} “As one of many factors underlying the trial court’s exercise of discretion

in considering the motion to withdraw [pursuant to R.C. 2943.031(D)], timeliness of the

20. motion will be of different importance in each case, depending on the specific facts.”

Francis,

,

,

, at ¶ 42. Appellant must

also demonstrate he was prejudiced by the failure to receive the R.C. 29430.31(A)

advisement. Id. at ¶ 45.

{¶ 40} The trial court’s entry identified appellant was ordered deported on

November 14, 1994. Although appellant disputed this information was in the record, it is

contained in his R.C. 2943.031(D) motion. To demonstrate the prejudice to him,

appellant’s affidavit stated had he known he’d be deported as a result of the two felony

convictions, he would not have pled guilty and then hired attorneys to go to trial.

Appellant also identified his subjective belief his first offense would not lead to

“immigration issues.” Appellant also recounted how immigration attorneys he consulted

in 2003 and 2006/2007 failed to tell him of the option to file the motion. He did not learn

of the option until June 2018. “If I had known this was an option I would have done it

long ago.”

{¶ 41} The trial court then determined the 24-year delay to be unreasonable based

on the particular facts and the prejudice to appellee’s ability to pursue the convictions

after court records were destroyed. “The more time that passes between the defendant’s

plea and the filing of the motion to withdraw it, the more probable it is that evidence will

become stale and that witnesses will be unavailable. The state has an interest in

maintaining the finality of a conviction that has been considered a closed case for a long

period of time.” Id. at ¶ 40. Thus, subsumed within timeliness is more than just the

numerical calculation of the years between entering the plea and the motion to withdraw

21. the plea, it includes the prejudice to the state to reassemble the necessary evidence for a

conviction after that time lapse. State v. Lovano, 8th Dist. Cuyahoga No. 100578, 2014-

Ohio-3418, ¶ 13.

{¶ 42} We review R.C. 2943.031 in light of the guidance to avoid unreasonable

consequences when construing statutes. “The General Assembly will not be presumed to

have intended to enact a law producing unreasonable or absurd consequences. It is the

duty of the courts, if the language of a statute fairly permits or unless restrained by the

clear language thereof, so to construe the statute as to avoid such a result.” State ex rel.

Cooper v. Savord,

,

(1950), paragraph one of the

syllabus; R.C. 1.47(C) (“In enacting a statute, it is presumed that * * * a just and

reasonable result is intended.”). A statute such as R.C. 2943.031 without any time limits

plainly stated could be construed as indefinite, which is unlikely what the General

Assembly intended. See State ex rel. Clay v. Cuyahoga Cty. Med. Exam’rs Office,

,

,

, citing

; State v.

Tabbaa,

,

,

(8th Dist.) (“a

defendant could wait until the state’s evidence against him became stale, or witnesses

died, or any other circumstances prejudicial to the state transpired, before seeking to

withdraw a guilty plea, thereby imposing, among others, an unreasonable obligation on

the state to maintain evidence and witness lists on all cases, ad infinitum”).

{¶ 43} Waiting 24 years to file his R.C. 2943.031(D) motion since entering his

guilty pleas was, while not dispositive alone as a matter of law, untimely and

unreasonable, as many courts of appeals have found with lesser delays. Lovano at ¶ 14

22. (19-year delay “exceptionally lengthy”); State v. Lein, 8th Dist. Cuyahoga No. 103954,

, ¶ 14 (20-year delay was untimely even where R.C. 2943.031(A)

advisement was presumed not given); State v. Walker,

,

, ¶

25 (10th Dist.) (“a delay of 13 years was unreasonable under the circumstances”); State v.

Akhtar, 5th Dist. Muskingum No. CT2016-0003,

, ¶ 14 (a delay under

five years was unreasonable under the circumstances); State v. Reyes, 12th Dist. Butler

Nos. CA2015-06-113, CA2015-06-114, CA2015-06-115,

(a two-

year delay after learning of immigration consequences of 10-year old plea was

unreasonable under the circumstances); Alonzo, 3d Dist. Seneca No. 13-15-26, 2016-

Ohio-160, at ¶ 19 (a 13-year delay was untimely under the circumstances); Cardenas,

,

, at ¶ 24 (a four-year delay after deportation notice was

unreasonable under the circumstances). On the other hand, this court previously

determined a 15-year delay was timely under the particular facts of that case. State v.

Contreras, 6th Dist. Huron No. H-10-024,

, ¶ 16.

{¶ 44} However, when coupled with appellant’s assertions he was ordered

deported on November 14, 1994, and was removed from the United States on April 3,

2003, because of his January 5, 1994 guilty pleas and convictions on two felonies,

appellant was on notice that his guilty pleas had immigration consequences at least 15

years prior to filing his motion. Lovano at ¶ 15 (“commencement of deportation

proceedings alone was enough to put [appellant] on notice that his * * * guilty plea had

immigration consequences and that he must act with alacrity to protect his privilege to

remain in the United States”). “It is certainly reasonable to require a criminal defendant

23. who seeks to withdraw a plea to do so in a timely fashion rather than delaying for an

unreasonable length of time.” Francis,

,

,

, at ¶ 40. Timeliness can be determined from “when the immigration-related

consequences of the plea and resulting conviction * * * became evident * * * after the

plea was entered.” Id. at ¶ 42.

{¶ 45} We find the trial court’s attitude was not unreasonable, arbitrary or

unconscionable when it determined appellant failed to establish timeliness and prejudice

to him by his 24-year delay before seeking to withdraw his guilty pleas. We find the trial

court did not abuse its discretion when it determined appellant failed to establish

entitlement to withdraw his guilty pleas pursuant to R.C. 2943.031(D).

{¶ 46} Having determined the trial court did not abuse its discretion when it

determined appellant failed to establish entitlement to relief under numerous factors with

respect to R.C. 2943.031(D), we find no abuse of discretion when it denied appellant’s

R.C. 2943.031(D) motion. We find the record contains some competent, credible

evidence under the totality of the circumstances to support the trial court’s decision.

{¶ 47} Appellant’s first assignment of error is not well-taken. We will next

address appellant’s third assignment of error.

III. Crim.R. 32.1 Remedy

{¶ 48} In support of his third assignment of error, appellant argued the trial court

abused its discretion when it failed to find a manifest injustice under Crim.R. 32.1 to

grant his motion to vacate plea. Appellant argued there was a manifest injustice because

24 years ago he received ineffective assistance of counsel pursuant to Strickland v.

24. Washington,

,

,

(1984) and Padilla,

which held erroneous deportation advice may violate the Sixth Amendment if prejudice is

proven.

{¶ 49} In response, appellee argued the trial court did not abuse its discretion

when it denied appellant’s motion to vacate his plea after 24 years. Appellee argued

appellant failed to meet the high burden of a manifest injustice pursuant to Crim.R. 32.1

because appellant’s claim of ineffective assistance of counsel was not supported by the

law or the facts. In the absence of appellant producing the plea hearing transcript,

“[T]here is nothing compelling in the Appellant’s affidavit to suggest his trial counsel fell

below his duty.”

{¶ 50} We review the trial court’s denial of a motion to withdraw plea pursuant to

Crim.R. 32.1 for an abuse of discretion. Francis,

,

,

, at ¶ 32. “A defendant has no absolute right to withdraw his guilty plea.”

State v. McNew, 6th Dist. Lucas No. L-98-1120,

, *5 (Aug.

28, 1998). Crim.R. 32.1 in its entirety states, “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.”

{¶ 51} Crim.R. 32.1 is a separate remedy from R.C. 2943.031(D). R.C.

2943.031(F); State v. Romero, 5th Dist. Stark No. 2016CA00201,

, ¶ 10-

11. “A manifest injustice has been defined as a ‘clear or openly unjust act’ and as ‘an

extraordinary and fundamental flaw in the plea proceedings.’” (Citations omitted.) State

25. v. Sheehy, 6th Dist. Lucas No. L-12-1273,

, ¶ 17. Post-sentence

withdrawal of a plea is permitted only in extraordinary circumstances.

This high

burden is necessary because we “recognize * * * that if a plea of guilty could be retracted

with ease after sentence had been imposed, ‘the accused might be encouraged to plead

guilty to test the weight of potential punishment, and withdraw the plea if the sentence

were unexpectedly severe. * * *’” (Citation omitted.) State v. Blatnik,

,

(6th Dist. 1984), quoting State v. Peterseim,

,

(8th Dist. 1980).

{¶ 52} Appellant had the burden of establishing the existence of manifest injustice.

State v. Smith,

,

(1977), paragraph one of the

syllabus. “An undue delay between the occurrence of the alleged cause for withdrawal of

a guilty plea and the filing of a motion under Crim. R. 32.1 is a factor adversely affecting

the credibility of the movant and militating against the granting of the motion.”

at

paragraph three of the syllabus. The trial court had the discretion to determine the

credibility of an affidavit attached to the motion and whether to accept the factual

statements as true. “A motion made pursuant to Crim.R. 32.1 is addressed to the sound

discretion of the trial court, and the good faith, credibility and weight of the movant’s

assertions in support of the motion are matters to be resolved by that court.”

at

paragraph two of the syllabus.

{¶ 53} Ineffective assistance of counsel can be the basis for a Crim.R. 32.1 claim

of manifest injustice, where the standard set out in Strickland will apply. State v.

Andreias, 6th Dist. Erie No. E-10-070,

, ¶ 14; State v. Patterson, 6th

26. Dist. Erie No. E-08-052,

, ¶ 14. The Strickland test can be applied to

guilty pleas.

Evidentiary hearings are not required by Crim.R. 32.1. McNew, 6th

Dist. Lucas No. L-98-1120,

, at *5. Evidentiary hearings

are held only in cases where the facts, if taken as true, require the trial court to permit

appellant to withdraw his plea.

citing State v. Kapper,

,

(1983); State v. Legree,

,

(6th

Dist. 1988).

{¶ 54} An ineffective assistance of counsel claim must overcome the strong

presumption that a properly licensed Ohio lawyer is competent. State v. Gondor,

,

,

, citing Calhoun,

,

. The record did not show appellant questioned the licensure of his

trial counsel, so her competence was presumed.

{¶ 55} To overcome this presumption of competence, appellant had the burden to

show: (1) deficient performance by his trial counsel below an objective standard of

reasonable representation, and (2) a reasonable probability of prejudice that but for his

trial counsel’s errors the outcome would have been different, i.e., he would have gone to

trial on three felony counts and not have entered guilty pleas on January 5, 1994, to two

felonies. Strickland,

,

,

. “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.”

. In making a determination of ineffective assistance of

counsel, a reviewing court considers the totality of the evidence before the judge or jury.

. Appellant must submit evidentiary documents containing sufficient operative

27. facts to demonstrate his entitlement to relief pursuant to ineffective assistance of counsel.

Gondor at ¶ 62. Until he has done so, no evidentiary hearing is required. State v.

Pankey,

,

(1981), citing State v. Jackson,

,

(1980), syllabus.

{¶ 56} Appellant argued the trial court failed to weigh the first prong of Strickland

that counsel’s performance was deficient and fell below an objective standard of

reasonableness. Appellant argued trial counsel’s performance fell below “the prevailing

professional norms at the time” because, although he maintained he was not guilty, he felt

he had no option other than to plead guilty, and his attorney failed to ensure he

understood the potential immigration consequences of his pleas. Appellant argued his

trial counsel’s duty to provide competent representation to him required “much more

specific advice than the generalized immigration warning set forth in R.C. 2943.031”

pursuant to State v. Yapp,

,

, ¶ 14-17 (8th Dist.). We

disagree and find the Eighth District in Yapp held that, depending on the circumstances, a

trial court could find prejudice under Padilla even where the R.C. 2943.031(A)

advisement was given.

{¶ 57} Appellant’s affidavit accompanying his motion made only one reference to

his trial attorney’s deficient performance: “I had a public defender represent me. To the

best of my recollection, I was not told that there would be immigration consequences

from my conviction by the public defender * **. If I had known I could be deported as a

result of the conviction, I would not have pled guilty.” These self-serving allegations of

trial counsel’s deficient performance unsupported by evidence in the record do not entitle

28. appellant to the relief sought. See Kapper,

,

; see also

Jackson,

,

. A faded memory from 24-years earlier

did not meet his burden for the first prong of Strickland. Even if we accepted appellant’s

unilateral recollections, the record shows appellant admitted to receiving the R.C.

2943.031(A) advisement from the judge on January 5, 1994, immediately after entering

his plea. Appellant had the opportunity at that time to express to his attorney his

insistence that he wished “to fight the case” and withdraw his guilty pleas. Instead, it

appears that appellant “harbored some subjective misconception of the import of the

charge” when he averred he did not think his first-time felony convictions “would lead to

immigration issues.” Smith,

,

. “[M]istaken belief

on the part of defendant * * * was not sufficient to support a claim of manifest injustice.”

Legree,

,

.

{¶ 58} Appellant further argued the trial court failed to weigh the second prong of

Strickland that he was prejudiced by his counsel’s deficient performance. Appellant

argued he maintained his innocence, and the actions of his attorney led him to believe he

had no option but to enter guilty pleas, which resulted in “certain deportation.” His

deportation separated him from his family, who were all United States citizens.

Appellant’s affidavit did not mention or insist on his innocence despite his guilty pleas.

Rather, he averred his subjective belief his first offense would not lead to “immigration

issues.” He also averred he would have avoided deportation by insisting on going to trial

“to fight the case” by hiring immigration and criminal attorneys.

29. {¶ 59} “An event is probable if there is a greater than fifty percent likelihood that

it produced the occurrence at issue.” Stinson v. England,

,

(1994), paragraph one of the syllabus. Appellant’s affidavit was the sole evidence

submitted to support his motion to withdraw his 24-year old guilty pleas. Self-serving

affidavits are generally insufficient to demonstrate manifest injustice. State v.

Passafiume,

,

(8th Dist.). Further, a record

reflecting compliance with CrimR. 11 has more probative value than appellant’s self-

serving affidavit intending to show manifest injustice because of the presumption that

appellant knowingly, intentionally, and voluntarily entered his guilty pleas.

{¶ 60} We reviewed appellant’s affidavit in light of the entire record and find it

failed to show a probability that due to the prejudice from his trial counsel’s alleged

errors, he would not have changed his three not guilty pleas to two guilty pleas after

nearly two months of discovery. Padilla,

,

,

(appellant has burden to show a decision to reject the plea bargain would have been

rational under the circumstances). Further, we find his affidavit failed to show a

probability due to the prejudice from his trial counsel’s alleged errors that the hiring of

immigration and criminal attorneys, despite his indigency, would have yielded different

outcomes for his two felony convictions. He admitted the immigration attorneys he

consulted in 2003 and 2006/2007 failed to give him satisfactory advice. His self-serving

claim of his innocence as the sole basis to “fight the case” fails to produce the requisite

probability. Moreover, we find his affidavit failed to show a probability due to the

30. prejudice from his trial counsel’s alleged errors he would have avoided “certain

deportation.”

{¶ 61} Appellant did not meet his burden under Strickland. Having previously

found the trial court substantially complied with Crim.R. 11(C) and R.C. 2943.031, and

having determined appellant failed to meet his burden for a claim of ineffective

assistance of counsel, we find appellant’s evidence failed to meet his burden to show a

manifest injustice pursuant to Crim.R. 32.1. Although appellee conceded a remand to the

trial court to conduct a hearing on appellant’s prejudice claims could be a remedy, we do

not find it is necessary in this matter because of the contradictions between the Crim.R.

32.1 allegations and the record. State v. Johnson, 6th Dist. Lucas No. L-16-1280, 2018-

Ohio-1656, ¶ 12.

{¶ 62} We conclude that no manifest injustice is presented under these facts by the

trial court’s denial of appellant’s motion to vacate his guilty pleas based upon claimed

ineffective assistance of counsel. We conclude that the trial court did not abuse its

discretion in overruling the motion to withdraw appellant’s guilty pleas based upon

claimed ineffective assistance of counsel.

{¶ 63} Appellant’s third assignment of error is not well-taken.

IV. Retroactive Application of Padilla v. Kentucky

{¶ 64} In support of his second assignment of error, appellant argued the trial

court abused its discretion when it denied appellant’s motion to withdraw his guilty pleas

in violation of Padilla. Appellant argued this court should apply Padilla, decided in

2010, retroactively to 1994 because “state courts may choose to broaden the scope of

31. retroactive relief,” and the Eighth District in State v. Creary, 8th Dist. Cuyahoga No.

82767,

applied the ineffective assistance of counsel framework to a

Crim.R. 32.1 motion prior to Padilla.

{¶ 65} In response, appellee argued the trial court did not abuse its discretion

because Ohio does not recognize applying Padilla retroactively.

{¶ 66} We find the record shows appellant was convicted of two felonies on

January 5, 1994. He did not appeal those convictions and subsequent sentences, which

became final long before Padilla was decided in 2010. Crim.R. 32(C); State v.

Thompson,

,

,

. As a

consequence, many courts of appeals have repeatedly recognized Padilla’s “new rule”

cannot be applied retroactively under Ohio law. State v. Bishop,

,

, ¶ 9-16 (1st Dist.), citing Chaidez v. United States,

,

,

(2013); State v. Husbands, 1st Dist. Hamilton No. C-

170165,

, *2-3 (Mar. 28, 2018); State v. Brooks, 7th Dist.

Jefferson No. 14 JE 3,

, ¶ 17-18; Passafiume,

,

; State v. Bravo,

,

, ¶ 12 (9th Dist.);

State v. Spivakov, 10th Dist. Franklin Nos. 13AP-32, 13AP-33,

, ¶ 15;

State v. Tovar, 10th Dist. Franklin No. 11AP-1106,

, ¶ 12.

{¶ 67} Even if we could retroactively apply Padilla in Ohio, appellant would still

not prevail because he could not prevail under both prongs of the Strickland tests. See

Tovar at ¶ 13-14; see also State v. Tran, 10th Dist. Franklin No. 11AP-146, 2012-Ohio-

32. 1072, ¶ 20; see also

; Bravo at ¶ 12; see also Spivakov at ¶ 13-15; see

also Andreias, 6th Dist. Erie No. E-10-070,

, at ¶ 21.

{¶ 68} We conclude that the trial court did not abuse its discretion in overruling

the motion to withdraw appellant’s guilty pleas based upon claimed retroactive

application of Padilla.

{¶ 69} Appellant’s second assignment of error is not well-taken.

V. Conclusion

{¶ 70} On consideration whereof, we find that substantial justice has been done in

this matter and the judgment of the trial court to be lawful. The judgment of the Huron

County Court of Common Pleas is affirmed. Appellant is ordered to pay costs of this

appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Christine E. Mayle, P.J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

33.