Ohio Supreme Court Clarifies valid notice of Immigration Consequences in state court actions

© Attorney Farhad Sethna, 2019

 

The case is: State v. Romero, Slip Opinion No. 2019-Ohio-1839 (May 15, 2019 appeal from the Court of Appeals for Stark County, Ohio, Case Number 2016 CA 00201, 2017-Ohio-2950).

Justice French, writing for a majority of the Ohio Supreme Court including O’Connor, Chief Justice, and Justice Fisher, together with concurring opinions by Justices Donnelly and Stewart issued a decision interpreting the Ohio Supreme Court’s advisement under Ohio Revised Code (ORC) § 2943.031(a) and juxtaposing that revised code section’s requirement with the U.S. Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356 (2010).

 

As background, under ORC §2943.031, a defendant who is not a US citizen is required to be given a warning that pleadings to a criminal charge may have consequences of deportation (now removal) and/or a detrimental effect on the defendant’s subsequent naturalization application. ORC 2943.031 requires that such a warning be given by the state court or municipal court judge to a defendant who is not a US citizen.

 

There are numerous instances in which cases where a defendant was not given such a warning could later have his case reopened, the decision vacated, and the matter either set for new trial, or reduced to a lesser charge which might not include a deportation consequence through the agreement of the prosecutor and the defense counsel, approved by the court.

 

However, in the Romero matter, the Ohio Supreme Court went to state further:

Not only did it determine that failure to adequately give a warning under R.C.2943.031 was grounds for reopening and potentially vacating a conviction, but it went a step further and additionally held that it was counsel’s duty to advise a client of the consequences of the plea. In other words, a simple colloquy by the presiding judge in the state court proceeding of the immigration consequences was not enough: defense counsel should also be prepared to advise a client of the immigration consequences of such a guilty plea. This is very much in line with the Supreme Court’s holding in Padilla v. Kentucky, following the two-prong test for ineffective assistance of counsel as established in Strickland v. Washington, 466 U.S. 668 (1984).

 

In the Romero case, the presiding judge did give the defendant the warning under R.C.2943.031. However, Romero then sought to reopen the matter, indicating that it was a manifest injustice of the law which resulted in his guilty plea.

 

Four days before his scheduled removal hearing in Immigration Court, Romero filed an emergency motion in state court to withdraw his guilty pleas and vacate the conviction, claiming that his counsel was ineffective because counsel had failed to advise him of the immigration consequences of his guilty plea.

 

The trial court noted that it had advised Romero per R.C.2943.031, and thereby after Romero had acknowledged that he understood the consequences of his plea, and still chose to proceed, that such pleas were entered knowingly, voluntarily and intelligently and denied his motion.

 

However, the fifth District Court of Appeals for Ohio unanimously reversed the trial court’s judgment. The Court of Appeals indicated that it was necessary to apply the two-pronged analysis first set forth in Strickland and followed in Padilla: whether counsel’s performance was deficient and if so, whether counsel’s inefficacy was prejudicial to the defendant. The fifth District Court of Appeals held that the trial court erred in denying Romero’s motion without deciding whether counsel had properly advised Romero, and by deciding Romero’s motion purely on its compliance with R.C.2943.031.

 

The Supreme Court of Ohio cited Lafler v. Cooper 566 U.S. 156 (2012) which in turn drew upon Lee v. United States, _ U.S. _ (2017), which held “the sixth amendment to the United States Constitution guarantees a defendant the effective assistance of counsel at [a] ‘critical stage of a criminal proceeding’, including when he enters a guilty plea.”

 

In Lafler, the United States Supreme Court held that an inquiry into whether a defendant entered his plea knowingly and voluntarily “is not the correct means by which to address a claim of ineffective assistance of counsel.” Therefore, a court’s duty to ensure that pleas are entered knowingly and voluntarily arises from the constitutional guarantee of due process. By contrast, the Ohio Supreme Court held, a counsel’s duty to provide competent advice during plea proceedings arises from a separate constitutional guarantee – the sixth amendment right to counsel. (Quoting Missouri v. Frye, 566 U.S. 134 (2012))

 

The Ohio Supreme Court therefore held, “a knowing and voluntary plea therefore does not supersede defense counsel’s errors.”

 

In United States v. Urias-Marrufo 744 F.3d 361 (5th Cir. 2014), the circuit court held “It is counsel’s duty, not the court’s, to warn of certain immigration consequences, and counsel’s failure cannot be saved by a plea colloquy”.

 

Therefore, applying this case law, the Ohio Supreme Court held that the trial court’s advisement under R.C.2943.031 also does not cure an attorney’s failure to advise his client of the immigration consequences of a guilty plea.

 

Conclusion

 

This ruling mirrors what I have posted previously on this blog: that a criminal defense attorney, who does not know of the immigration consequences of a guilty plea must either secure alternative counsel to advise the client of the immigration consequences, or must learn enough about immigration law to properly advise his or her client of the immigration consequences of such a plea. Absent such evidence, the defense counsel leaves himself or herself exposed to a claim of ineffective assistance of counsel, and, at least in Ohio, that may be a matter for the trial court to determine once again.

 

It remains to be seen how courts in Ohio will apply the Romero standard, and how they will likewise apply the standard followed by the U.S. Supreme Court in Strickland, and as followed thereafter in Padilla.

© Farhad Sethna, Attorney, 2019

 

Farhad Sethna has practiced law for over 25 years.  He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron.  Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and used his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide.  A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330)-384-8000.  Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.