[Cite as State v. Muhire,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29164 : v. : Trial Court Case No. 2018-CRB-827 : JEAN BOSCO MUHIRE : (Criminal Appeal from Municipal Court) : Defendant-Appellant : :

...........

OPINION

Rendered on the 2nd day of September, 2022.

...........

STEPHANIE L. COOK, Atty. Reg. No. 0067101 and ANDREW D. SEXTON, Atty. Reg. No. 0070892 , Assistant Prosecuting Attorneys, City of Dayton Prosecutor’s Office, 335 West Third Street, Room 390, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee

MOHAMED Al-HAMDANI, Atty. Reg. No. 0091667, 120 West Second Street, Suite 1650, Dayton, Ohio 45402 Attorney for Defendant-Appellant

.............

WELBAUM, J. -2-

{¶ 1} Defendant-appellant, Jean Bosco Muhire, appeals from a judgment of the

Dayton Municipal Court denying his post-sentence motion to withdraw his guilty plea. In

support of his appeal, Muhire contends that the trial court should have granted his motion

because he had a limited understanding of the English language, which prevented him

from entering a knowing, intelligent, and voluntary guilty plea. Muhire also claims that

the trial court abused its discretion by failing to appoint an interpreter at his plea hearing.

In addition, Muhire contends that his trial counsel provided ineffective assistance by failing

to advise him of the potential immigration consequences of his guilty plea. For the

reasons outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} Muhire is a refugee who came to the United States from Rwanda in May

2017; his native language is Kinyarwanda. On February 15, 2018, Muhire was charged

by complaint with one first-degree-misdemeanor count of domestic violence, one fourth-

degree-misdemeanor count of domestic violence, and single first-degree-misdemeanor

counts of assault, aggravated menacing, and menacing. Muhire initially pled not guilty

to all of the charges at his arraignment, but he later accepted a plea offer requiring him to

plead guilty to one count of assault. In exchange for Muhire’s guilty plea, the State

agreed to amend the first-degree-misdemeanor count of domestic violence to assault and

to dismiss all the remaining charges.

{¶ 3} Although Muhire spoke Kinyarwanda, the trial court stamped the arraignment -3-

entry with the phrase: “Order Interpreter – Swahili.” Arraignment (Feb. 15, 2018). For

unknown reasons, no interpreter, Swahili or otherwise, ever appeared at Muhire’s March

8, 2018 plea hearing. During the plea hearing, Muhire did not request an interpreter’s

assistance nor did he express a lack of understanding as to what the trial court was saying

during the hearing. Instead, Muhire entered his guilty plea to assault pursuant to the

plea agreement. In doing so, Muhire signed a plea form that contained the following

advisement regarding the immigration consequences of his guilty plea:

The Court advised me 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 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.”

Plea of Guilty or No Contest and Waiver of Rights (Mar. 8, 2018).

{¶ 4} The trial court discussed the foregoing immigration language with Muhire and

asked if Muhire understood it. In response, Muhire indicated that he understood what

the trial court had said. The trial court thereafter accepted Muhire’s guilty plea and

proceeded to sentencing.

{¶ 5} At sentencing, the trial court ordered Muhire to serve 180 days in jail with 157

days suspended and 23 days of jail-time credit. The trial court also ordered Muhire to

complete one year of supervised probation, drug and alcohol counseling, and a batterer’s

intervention program known as the August Project. On April 12, 2018, the trial court

modified Muhire’s sentence to require him to complete the Stop the Violence program as -4-

opposed the August Project.

{¶ 6} On December 18, 2018, Muhire was discharged from supervised probation.

Almost two years later, on August 18, 2020, Muhire hired counsel and filed a motion to

withdraw his guilty plea to assault. In that motion, Muhire argued that his guilty plea had

not been knowingly, intelligently, and voluntarily entered because he had a limited

understanding of the English language and had required the assistance of an interpreter

at the plea hearing. Muhire also argued that his trial counsel had provided ineffective

assistance by failing to advise him of the immigration consequences of his guilty plea and

by not using an interpreter to speak with him.

{¶ 7} On October 21, 2020, the trial court held an evidentiary hearing on Muhire’s

motion to withdraw his guilty plea. At the hearing, Muhire testified in support of his

motion and used a Kinyarwanda interpreter 1 to translate for him during the entire

proceeding. Thereafter, the State presented testimony from the appointed attorney who

represented Muhire during his plea, Melissa Pfahler. The State also presented

testimony from Muhire’s probation officer, Stephanie Jackson. The following is a

summary of the testimony that was presented at the hearing.

Jean Bosco Muhire

{¶ 8} Muhire testified that he was born in Congo and came to the United States as

1 After the Kinyarwanda interpreter was sworn in, Muhire’s counsel briefly questioned the interpreter, and the interpreter testified that he might not understand some legal terms. See Hearing Tr. (Oct. 21, 2020), p. 5. Although there were a few instances where the interpreter had difficulty translating, the interpreter was nevertheless able to assist Muhire throughout the plea hearing. -5-

a refugee from Rwanda in May 2017. Muhire claimed that he spoke very little English

when he arrived in the United States and that Kinyarwanda was his first language.

Muhire testified that, despite taking some English grammar classes, he did not

understand everything that was being said when he conversed in English. Muhire

claimed that he conversed in English by extending the meaning of the English words he

knew in order to understand the topic of conversation.

{¶ 9} With regard to his criminal case, Muhire testified that he was appointed

counsel after he was charged with domestic violence, assault, aggravated menacing, and

menacing in February 2018. Muhire testified that his counsel had not used an interpreter

to speak with him during their meetings and that he had not understood everything his

counsel told him. Muhire also testified that he had told his counsel about the incident

that led to the aforementioned charges, but that he had not been sure how much of the

information his counsel understood.

{¶ 10} Concerning his charges, Muhire testified that his counsel had advised him

that assault and domestic violence were similar charges, but that assault was “better”

because he could be deported if he was convicted of domestic violence. Hearing Tr.,

(Oct. 21, 2020), p. 13. Muhire testified that he did not remember his counsel ever

advising him of the immigration consequences of entering a guilty plea to assault.

Muhire also testified that he signed a bunch of papers with the understanding that doing

so would allow him to get out of jail. Muhire claimed that he could not read English and

did not know what the papers said. Muhire further testified that, at the time of his plea,

he did not know the meaning of the term “plea deal.” Hearing Tr., p. 57. -6-

{¶ 11} Continuing, Muhire testified that he had recently applied for a green card

with the assistance of an attorney. According to Muhire, his application prompted an

interview with immigration services. Muhire testified that the interview had worried the

attorney who was helping him and that the attorney believed the interview had been

conducted due to his assault conviction. As a result, the attorney referred Muhire to his

current counsel, who helped him withdraw his application for a green card. Muhire

testified that his immigration status is now in limbo.

{¶ 12} On cross-examination, Muhire clarified that, despite using an interpreter, he

understood some of what was being said at the plea withdraw hearing. Muhire then

testified about a “long” conversation he had with his trial counsel while in jail and

confirmed that he had never asked his counsel for an interpreter. Hearing Tr., p. 27-33.

Muhire also confirmed that he had testified without the assistance of an interpreter on

December 13, 2018, at his wife’s trial in Dayton Municipal Court Case No. 2018-CRB-

5700. The State played an audio-recorded portion of Muhire’s trial testimony in that

case, and Muhire confirmed that the voice testifying on the recording was his own.

{¶ 13} Concerning his guilty plea to assault, Muhire testified that he remembered

the trial court judge reading him a form at the plea hearing before he entered his plea, but

had not understood what the judge was saying. Muhire testified that his counsel told him

that the text of the form was read to every immigrant and that it was of “no consequence.”

Hearing Tr., p. 51. The State then played an audio recording of the trial court judge’s

reading Muhire the portion of the plea form advising him of the immigration consequences

of his guilty plea at the plea hearing. After listening to the audio recording, Muhire -7-

testified that it would have been “possible” for him to have told the judge that he did not

understand what the judge was saying. Hearing Tr., p. 53-54, 61. Muhire, however,

indicated that he did not express his lack of understanding at the plea hearing because

his counsel told him to accept what the judge said.

Melissa Pfahler

{¶ 14} Muhire’s appointed counsel, Melissa Pfahler, testified that based on

Muhire’s being a Rwandan refugee and having been in the United States for a short period

of time, it was her first impression that Muhire would need an interpreter. However,

Pfahler’s testimony indicates that this impression changed after Pfahler met Muhire in

person. Pfahler testified that she met with Muhire four times between February 21, 2018,

and March 8, 2018. Although Pfahler did not have an independent recollection of her

meetings with Muhire, she testified that her case notes established that she had no issue

communicating with Muhire in English. Pfahler testified that her case notes were “pretty

clear” that Muhire spoke English to her and that she understood what he said. Hearing

Tr., p. 72. Pfahler also testified that, prior to meeting Muhire, her office intake specialist

interviewed Muhire and completed intake forms for his case. According to Pfahler, none

of the intake forms associated with Muhire’s case noted that Muhire needed an interpreter

to communicate with the intake specialist.

{¶ 15} Pfahler also testified that her case notes reflected that she and Muhire

discussed Muhire’s charges, possible penalties, the State’s plea offer, and the

immigration consequences listed in the plea form. Pfahler explained that there was -8-

nothing about her conversations with Muhire that led her to believe that Muhire did not

understand what she was talking about. Pfahler also testified that Muhire never asked

for an interpreter during any of their meetings. Pfahler further testified that if Muhire had

not understood her, she would have ended their meeting and called the court to request

the appointment of an interpreter.

{¶ 16} In addition, Pfahler testified that her case notes established that she spoke

to an immigration attorney regarding Muhire’s case. Pfahler testified that she determined

a guilty plea to assault provided Muhire with the best possible outcome because all of

Muhire’s other charges were either deportable offenses or not expungeable. On cross-

examination, Pfahler could not recall whether she specifically researched what effect an

assault conviction would have on Muhire’s immigration status. However, Pfahler testified

that her case notes indicated that she looked into the issue of moral turpitude. Pfahler

testified that she “probably reviewed * * * what is a crime of moral turpitude” and may

have discussed with Muhire whether assault fell under that category. Hearing Tr., p. 88-

90.

{¶ 17} Pfahler testified that, under the circumstances of this case, she would have

told Muhire that she could not make any promises about what effect a guilty plea to

assault would have on his immigration status. Pfahler also confirmed that she would

have read Muhire the immigration consequences listed in the plea form. Pfahler further

testified that Muhire never told her that he did not understand the information in the plea

form or that he did not understand what she was saying during the plea hearing.

Pfahler also did not recall Muhire ever asking for an interpreter at the plea hearing. -9-

Pfahler testified that if Muhire had told her that he did not understand what was being said

at the plea hearing, she would have asked the trial court to continue the hearing and

would have requested an interpreter.

Stephanie Jackson

{¶ 18} Muhire’s probation officer, Stephanie Jackson, testified that she first met

with Muhire on April 23, 2018, just six weeks after he entered his guilty plea to assault.

Jackson testified that she and Muhire discussed various topics during that meeting,

including the rules of probation and the situation/reasons why he was on probation.

Jackson testified that she had no difficulty communicating with Muhire and that Muhire

never asked for an interpreter or stated that he did not understand what she was saying.

According to Jackson, Muhire was able to appropriately respond to a 30-question

assessment that she conducted verbally. Jackson testified that Muhire never indicated

a lack of understanding or the need for an interpreter during any of the 30 questions.

{¶ 19} Jackson further testified that she met with Muhire once a month for the Stop

the Violence program and that she had no difficulty understanding Muhire during that

time. Jackson testified that Muhire was able to converse in a manner that corresponded

to the program topic being discussed. Jackson testified that the Stop the Violence

program was conducted in basic English and that Muhire successfully completed the

program. To complete the program, Jackson testified that Muhire had to attend 24 one-

hour classes during which Muhire would write out answers to daily questions, keep a

written journal, participate in group discussions, and verbally check in to class. Although -10-

Jackson testified that Muhire likely received some help with his written assignments, she

testified that Muhire specifically told her that he could speak and write in English.

Post-Hearing Decision

{¶ 20} After hearing the foregoing testimony, the trial court took Muhire’s motion to

withdraw his guilty plea under advisement and then issued a written decision denying the

motion. In denying the motion, the trial court found that the hearing testimony

established that Muhire had understood English and thus knowingly entered his guilty

plea to assault. Relying on Pfahler’s testimony, the trial court also rejected Muhire’s

ineffective assistance claim on grounds that Pfahler’s representation was not deficient.

{¶ 21} Muhire now appeals from the trial court’s decision denying his post-

sentence motion to withdraw his guilty plea, raising two assignments of error for review.

Standard of Review

{¶ 22} “We review a trial court’s decision on a post-sentence motion to withdraw

guilty plea * * * for an abuse of discretion.” State v. Ogletree, 2d Dist. Clark No. 2014-

CA-16,

. “ ‘Absent an abuse of discretion on the part of the trial

court in making the ruling, its decision must be affirmed.’ ”

quoting State v. Xie,

,

(1992). “A trial court abuses its discretion when it

makes a decision that is unreasonable, unconscionable, or arbitrary.” (Citation omitted.)

State v. Darmond,

,

,

. Most

instances of abuse of discretion occur when a trial court makes a decision that is -11-

unreasonable. AAAA Ents., Inc. v. River Place Community Urban Redevelopment

Corp.,

,

(1990). “A decision is unreasonable if

there is no sound reasoning process that would support that decision.”

First Assignment of Error

{¶ 23} Under his first assignment of error, Muhire contends that the trial court

should have granted his post-sentence motion to withdraw his guilty plea because his

limited understanding of the English language prevented him from entering a knowing,

intelligent, and voluntary guilty plea to assault. Muhire claims that the alleged language

barrier prevented him from understanding his plea and that the trial court’s failure to

appoint an interpreter at his plea hearing was an abuse of discretion. We disagree.

{¶ 24} “Under Crim.R. 32.1, a trial court may permit a defendant to withdraw a plea

after imposition of sentence only to correct a manifest injustice.” (Citations omitted.)

State v. Ray, 2d Dist. Champaign No. 2019-CA-31,

. The burden

to prove the existence of a manifest injustice in a post-sentence motion to withdraw a plea

rests upon the defendant. State v. Smith,

,

(1977),

paragraph one of the syllabus; State v. Turner,

,

,

(2d Dist.). A defendant may establish a manifest injustice “ ‘by

showing that he did not enter the guilty plea in a knowing, intelligent, or voluntary

manner.’ ” State v. Leifheit, 2d Dist. Clark No. 2019-CA-78,

,

quoting State v. Riley, 4th Dist. Washington No. 16CA29,

, ¶ 18. (Other

citations omitted.) A determination of whether a plea is knowing, intelligent and voluntary -12-

is based upon a review of the record. State v. Spates,

,

(1992).

{¶ 25} In this case, the transcript of Muhire’s plea hearing was not made a part of

the record on appeal. The only transcripts provided to this court were that of the hearing

on Muhire’s motion to withdraw his guilty plea and a partial transcript of Muhire’s trial

testimony in Case No. 2018-CRB-5700. Although there is no transcript of Muhire’s plea

hearing, the testimony given at the plea withdrawal hearing established that the following

facts were undisputed: (1) Muhire did not request to have an interpreter assist him at the

plea hearing; (2) an interpreter was never appointed by the trial court at the plea hearing;

(3) the trial court read the portion of the plea form advising Muhire of the immigration

consequences of his guilty plea at the plea hearing and asked if Muhire understood the

consequences; and (4) Muhire indicated an understanding of the immigration

consequences read by the trial court and never told the trial court that he did not

understand what the trial court was saying at the plea hearing. It is also undisputed that

Muhire is not a United States citizen but a refugee from Rwanda whose first language is

Kinyarwanda.

{¶ 26} “This court has previously recognized that ‘in a criminal case, the defendant

is entitled to hear the proceedings in a language that he can understand.’ ” State v.

Castro, 2d Dist. Montgomery No. 14398,

, *4 (Sept. 20, 1995), quoting

State v. Pina,

,

(2d Dist. 1975). “Moreover, R.C.

2311.14(A) requires that a trial court appoint an interpreter for legal proceedings

whenever a participant in the proceeding ‘cannot readily understand or communicate’ as -13-

a result of an impediment.”

Similarly, Sup.R. 88(A) mandates the appointment of a

foreign language interpreter, in the absence of a request, only if “the court concludes the

party or witness is limited English proficient or non-English speaking and determines the

services of the interpreter are necessary for the meaningful participation of the party or

witness.”

{¶ 27} “The trial court has broad discretion in determining whether a criminal

defendant requires the assistance of an interpreter.” Castro at *4, citing State v. Saah,

,

(8th Dist. 1990); State v. Flores, 10th Dist. Franklin

No. 19AP-405,

. “The decision regarding whether a defendant is

entitled to a court appointed language interpreter is initially based on the trial court’s

assessment of the defendant’s apparent ability to comprehend the English language and

communicate therein.” (Citations omitted.) Castro at *4. “[A]n imperfect grasp of the

English language may be sufficient as long as the defendant has the ability to understand

and communicate in English.” (Citations omitted.)

{¶ 28} Here, without a record of the plea hearing, we must presume the regularity

of that proceeding as it relates to the issue of whether an interpreter should have been

appointed by the trial court. See State v. Miller, 2d Dist. Montgomery No. 25893, 2014-

Ohio-4508, ¶ 26, quoting State v. Kreuzer, 2d Dist. Greene No. 1998-CA-100,

, *5 (Aug. 6, 1999) (“ ‘absent a transcript of the proceedings, this Court must

presume regularity in the proceedings before the trial court’ ”). Since the available record

establishes that Muhire did not request an interpreter at the plea hearing, we presume

that the trial court assessed Muhire’s ability to comprehend and communicate in English -14-

at the plea hearing and, after doing so, appropriately determined that the appointment of

an interpreter was unnecessary for Muhire to enter a knowing, intelligent, and voluntary

guilty plea. Therefore, based on the limited record before this court, we find no abuse of

discretion with regard to the trial court’s decision not to appoint a foreign language

interpreter for Muhire’s plea hearing.

{¶ 29} Our decision on this matter is supported by the testimony presented at

Muhire’s plea withdrawal hearing. For example, the testimony of Muhire’s former

counsel, Pfahler, and his probation officer, Jackson, established that Muhire was able to

understand and communicate in English at or near the time he entered his guilty plea.

The written transcript and audio-recording of the testimony Muhire gave at his wife’s trial

in Case No. 2018-CRB-5700 also established that Muhire could effectively understand

and communicate in English without an interpreter. On the audio-recording, Muhire can

be heard conversing with the trial court and counsel with relative ease while being

questioned. Although Muhire had difficulty with a few words during his testimony, he

was able to seek clarification and then supply appropriate responses to the questions

asked of him.

{¶ 30} It should also be noted that Muhire testified at his wife’s trial ten months

before he testified at his plea withdrawal hearing. This is significant because Muhire

declined the assistance of an interpreter at his wife’s trial but sought the assistance of an

interpreter at the subsequent plea withdrawal hearing. Muhire’s demonstrated ability to

understand and communicate in English during his wife’s trial leads this court to believe

that his alleged need for an interpreter at the plea withdrawal hearing was disingenuous. -15-

Therefore, we do not place much weight on the fact that Muhire used an interpreter at the

plea withdrawal hearing.

{¶ 31} Taking all of this into consideration, we also find no abuse of discretion with

regard to the trial court’s rejecting the language-barrier claim in Muhire’s motion to

withdraw his guilty plea. In this court’s view, the trial court reasonably determined from

the testimony presented at the plea withdrawal hearing that Muhire had a sufficient grasp

of the English language and that no language barrier prevented him from knowingly,

intelligently, and voluntarily entering his guilty plea to assault. In other words, it was

reasonable for the trial court to find no manifest injustice in the form of a language barrier.

Accordingly, the trial court’s denial of Muhire’s post-sentence motion to withdraw his guilty

plea was not an abuse of discretion in that regard.

{¶ 32} Muhire’s first assignment of error is overruled.

Second Assignment of Error

{¶ 33} Under his second assignment of error, Muhire contends that the trial court

should have granted his post-sentence motion to withdraw his guilty plea based on

ineffective assistance of counsel, and that the trial court’s failure to find his counsel

ineffective was against the manifest weight of the evidence. Specifically, Muhire

contends that his counsel was ineffective because she failed to advise him about the

potential immigration consequences of his guilty plea in a language that he could

understand. Muhire claims that if his counsel had appropriately warned him of the

immigration consequences of his guilty plea, he would not have pled guilty to assault but -16-

would have gone to trial.

{¶ 34} Given that we have already established that Muhire’s language-barrier

claim lacks merit, we will only focus on Muhire’s claim that his trial counsel provided

ineffective assistance by failing to advise him of the immigration consequences of his

guilty plea. Because abuse of discretion is the appropriate standard for reviewing a trial

court’s judgment on a post-sentence motion to withdraw guilty plea, Muhire’s manifest

weight claim is not well taken. Instead, we will determine whether the trial court’s

decision rejecting the ineffective assistance claim in Muhire’s motion was an abuse of

discretion.

{¶ 35} It is well established that “ ‘[i]neffective assistance of counsel can constitute

manifest injustice sufficient to allow the post-sentence withdrawal of a guilty plea.’ ”

State v. Banks, 2d Dist. Montgomery No. 25188,

, quoting State v.

Dalton,

,

,

(10th Dist.). To

establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-

pronged test in Strickland v. Washington,

,

,

(1984). Specifically, the defendant must establish: (1) his trial counsel’s

performance was deficient; and (2) the deficient performance prejudiced him. Strickland

at paragraph two of the syllabus; State v. Bradley,

,

(1989), paragraph two of the syllabus. To establish deficient performance, a defendant

must show that his trial counsel’s performance fell below an objective standard of

reasonable representation.

;

. When evaluating

counsel’s performance, a reviewing court “must indulge in a strong presumption that -17-

counsel’s conduct falls within the wide range of reasonable professional assistance.”

. To establish prejudice, a defendant must show that there is “a

reasonable probability that, but for counsel’s errors, the proceeding’s result would have

been different.” State v. Hale,

,

,

, citing Strickland at 687-688 and Bradley at paragraph two of the syllabus. The

failure to make a showing of either deficient performance or prejudice defeats a claim of

ineffective assistance of counsel.

.

{¶ 36} As relevant to this case, “[a] defense attorney has a duty to advise a

noncitizen client that ‘pending criminal charges may carry a risk of adverse immigration

consequences,’ and, if it is ‘truly clear’ what those consequences are, counsel must

correctly advise the defendant of the consequences.” State v. Galdamez, 2015-Ohio-

3681,

, ¶ 16 (10th Dist.), quoting Padilla v. Kentucky,

,

,

(2010). Accord State v. Cardenas,

,

, ¶ 39 (2d Dist.). “ ‘A defense attorney’s failure to advise [his or her] client

accordingly satisfies the first prong of Strickland, as it constitutes deficient performance.’ ”

Cardenas at ¶ 39, quoting Galdamez at ¶ 16. Accord State v. Ayesta, 8th Dist.

Cuyahoga No. 101383,

, ¶ 15, citing

(providing

misadvice about immigration consequences or failing to advise at all of potential

deportation consequences associated with a plea satisfies the first prong of Strickland).

{¶ 37} The Supreme Court of Ohio, however, has “acknowledged that immigration

law can be complex and that the deportation consequences of a particular plea will not

always be clear.” (Citations omitted.) State v. Bozso,

, 2020-Ohio- -18-

3779,

. “In cases in which the law ‘is not succinct and

straightforward,’ an attorney ‘need do no more than advise a noncitizen client that pending

criminal charges may carry a risk of adverse immigration consequences.’ ”

quoting

. Accord State v. Poppel, 2d Dist. Champaign No. 2020-CA-34, 2021-

Ohio-2536, ¶ 10. “ ‘But when the deportation consequence is truly clear, * * * the duty to

give correct advice is equally clear.’ ”

, quoting

.

{¶ 38} After reviewing the relevant portion of the Immigration and Nationality Act,

i.e., 8 U.S.C. 1227, we find that the deportation consequence of Muhire’s guilty plea to

one count of first-degree-misdemeanor assault is not straightforward or clear. This is

because assault is not specifically listed as a deportable offense under 8

U.S.C. 1227(a)(2). That statute does, however, provide that crimes “involving moral

turpitude” are deportable. 8 U.S.C. 1227(a)(2)(A)(i). Specifically, the statue states that:

“Any alien who * * * is convicted of a crime involving moral turpitude committed within five

years * * * after the date of admission, and * * * is convicted of a crime for which a sentence

of one year or longer may be imposed, is deportable.” 8 U.S.C. 1227(a)(2)(A)(i).

{¶ 39} “[C]rimes involving moral turpitude” is “a general category that covers a wide

variety of crimes.” Barton v. Barr, __ U.S. __,

,

(2020). The United States Court of Appeals for the Sixth Circuit has explained that:

“The term ‘crime involving moral turpitude’ is not defined in the

[Immigration and Nationality Act] or by agency regulations.” [Reyes v.

Lynch,

(6th Cir. 2016)] (quoting Yeremin v. Holder,

(6th Cir. 2013)). But the [Board of Immigration Appeals -19-

(“BIA”)] has held that “a criminal offense involves ‘moral turpitude’ if the

relevant statute defines the offense in such a manner that it necessarily

entails conduct on the part of the offender that is inherently base, vile, or

depraved, and contrary to accepted rules of morality and the duties owed

between persons or to society in general.” In re Kochlani,

(BIA 2007). The BIA has also held that “an offense must have

two essential elements to constitute a crime involving moral turpitude: a

culpable mental state and reprehensible conduct.” Matter of Medina,

(BIA 2013). Moreover, “[c]rimes committed intentionally

or knowingly have historically been found to involve moral turpitude.” In re

Solon,

(BIA 2007).

With regard to statutes prohibiting assault and battery, the BIA

has observed that assault “may or may not involve moral turpitude,”

In re Fualaau,

(BIA 1996), and that the inquiry must

focus on “an assessment of both the state of mind and the level of harm

required to complete the offense,” Solon, 24 I. & N. Dec. at 242. Simple

assault and battery—which typically has elements of general intent and a

mere touching—is usually not considered a crime involving moral turpitude.

Id. at 241-42. On the other hand, assault-and-battery offenses “that

necessarily involve[ ] the intentional infliction of serious bodily injury ... have

been held to involve moral turpitude because such intentionally injurious

conduct reflects a level of immorality that is greater than that associated -20-

with a simple offensive touching.” In re Sanudo,

(BIA 2006) * * *.

(Emphasis added.) Lovano v. Lynch,

(6th Cir. 2017).

{¶ 40} Because assault “may or may not involve moral turpitude,” it was unclear

whether Muhire’s guilty plea to assault would result in deportation under 8

U.S.C. 1227(a)(2)(A)(i). Such a determination would require an immigration court to

assess whether the injurious conduct at issue reflected a sufficient level of immorality so

as to qualify as a crime involving moral turpitude. Because of this lack of clarity on the

matter, Muhire’s counsel, Pfahler, was only required to advise Muhire that pleading guilty

to assault might carry the risk of adverse immigration consequences.

{¶ 41} At the plea withdrawal hearing, Muhire testified that Pfahler told him that if

he was convicted of domestic violence he would be deported, but that a conviction for

assault would not be “as difficult or problematic.” Hearing Tr. (Oct. 21, 2020), p. 53.

Muhire, however, claimed that Pfahler did not otherwise advise him of the adverse

immigration consequences of pleading guilty to assault.

{¶ 42} Pfahler, on the other hand, testified that her case notes reflected that she

and Muhire discussed Muhire’s charges, possible penalties, the State’s plea offer, and

the immigration consequences listed in the plea form prior to Muhire entering his guilty

plea. Pfahler also testified that she would have read the immigration consequences in

the plea form to Muhire. As previously discussed, the plea form stated 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 -21-

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.

Plea of Guilty or No Contest and Waiver of Rights (Mar. 8, 2018).

{¶ 43} Pfahler’s testimony, if believed, established that Pfahler satisfied her duty

to advise Muhire that pleading guilty to assault could carry the risk of adverse immigration

consequences. The trial court chose to rely on Pfahler’s testimony as opposed to

Muhire’s and thus rejected Muhire’s ineffective assistance claim on grounds that Pfahler’s

legal representation was not deficient with regard to the immigration-consequences

advisement. This decision was within the trial court’s discretion, as “[d]ecisions

regarding the credibility of witnesses are primarily for the trial court to make, given that

the trial judge, as the finder of fact at the hearing on the motion to withdraw the plea, saw

and heard the witnesses’ testimony.” (Citations omitted.) State v. Hess, 2d Dist.

Montgomery No. 24453,

.

{¶ 44} Based on Pfahler’s testimony, which the trial court found credible, we find

that the trial court’s decision to reject the ineffective assistance claim in Muhire’s post-

sentence motion to withdraw his guilty plea was reasonable. Because the trial court

reasonably determined that Muhire had failed to establish a manifest injustice in the form

of ineffective assistance of counsel, the trial court’s decision denying Muhire’s post-

sentence motion to withdraw his guilty plea was not an abuse of discretion.

{¶ 45} Muhire’s second assignment of error is overruled. -22-

Conclusion

{¶ 46} Having overruled both of Muhire’s assignments of error, the judgment of the

trial court denying Muhire’s post-sentence motion to withdraw his guilty plea is affirmed.

.............

TUCKER, P.J. and EPLEY, J., concur.

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Stephanie L. Cook Andrew D. Sexton Mohamed Al-Hamdani Hon. Daniel G. Gehres