State v. Diol

Citations

• 2019 Ohio 2197

Syllabus

APPELLATE REVIEW/CRIMINAL – PLEAS – CRIM.R. 32.1 – PROCEDURE/RULES – IMMIGRATION CONSEQUENCES –COUNSEL: The common pleas court abused its discretion in overruling defendant's Crim.R. 32.1 motion to withdraw his guilty pleas to drug trafficking and drug possession without first conducting an evidentiary hearing on defendant's claim of ineffective assistance of counsel where trial counsel misadvised defendant, who was not a citizen of the United States, during the plea hearing that deportation for his felony drug offenses was \at worst\ \possibly\ discretionary, when, in fact, it is presumptively mandatory the common pleas court's statutory advisement that defendant may be deported could not correct counsel's incorrect advice and, in his affidavit attached to his motion to withdraw his pleas, defendant asserted that his counsel had failed to inform him of the immigration consequences of pleading guilty to the drug charges, and that if he had known that deportation was a mandatory consequence of the pleas, he would not have pleaded guilty. Where defendant attached an uncertified copy of the plea-hearing transcript to his motion to withdraw his pleas, and later, filed a certified copy, which matches the uncertified copy and which the record shows the trial court reviewed, it is appropriate for the appellate court to consider the plea-hearing transcript. [But see DISSENT: Pursuant to State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), the appellate court is barred from considering the plea-hearing transcript because it was not properly before the common pleas court where defendant attached to his motion to withdraw his pleas an uncertified photocopy of the plea-hearing transcript, which was not self-authenticating and was not, as required by App.R. 9(B), bound and certified as correct with an original signature of the transcriber and filed with the common pleas court clerk: no App.R. 9(B)-compliant plea-hearing transcript was before the trial court during the pro