Update: On May 15, 2019, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

“Other than ruling in favor of the state, what rule are you asking us to write today? What do you want us to say? That the advisement is always sufficient, that the advisement is sufficient as long as there is not affirmative misadvice?”

Justice DeWine, to the prosecutor

“If the judge would have said, Mr. Romero you will be deported because of this guilty plea, would we be here?”

Chief Justice O’Connor, to defense counsel

On January 29, 2019, the Supreme Court of Ohio heard oral argument in State of Ohio v. Carlos Romero, 2017-0915. The specific issue in the case is whether the trial court abused its discretion in refusing to allow the defendant to withdraw his guilty plea because of the failure of his lawyer to advise him of the immigration consequences of that plea.

Case Background

Carlos Romero married a United States citizen in 1995. Three years later, in 1998, Romero obtained permanent resident or “green card” status. He has lived in the U.S. as a lawful permanent resident for 20 years, and has 5 American children.

In March of 2016, a grand jury returned an indictment against Romero on three counts: possession of marijuana, trafficking in marijuana, and possession of cocaine. At the plea hearing, at which Romero was represented by counsel, the trial court engaged in an extensive colloquy with Romero in which the court advised him of the possible consequences of his guilty plea, including giving him the immigration advisement for noncitizens codified at R.C. 2943.031(A). Romero indicated to the court that he understood the deportation consequences and was ready to proceed with his plea. Romero pled guilty to all charges, and on June 29, 2016 was sentenced to three years of intensive supervised probation, ordered to perform one hundred hours of community service, and had his driver’s license suspended for six months.

Shortly after his sentencing hearing, Romero was taken into custody by ICE, and placed in removal proceedings.  While in custody, Romero received notice to appear in Federal Immigration Court on October 18, 2016, because of the trafficking conviction, which made him subject to removal.

On October 14, 2016, Romero filed an emergency motion to withdraw his guilty plea and vacate judgment in his state case, claiming that his attorney failed to advise him of the mandatory immigration consequences that would result from his guilty plea. The trial court overruled Romero’s motion, finding that Romero’s plea was entered knowingly, voluntarily, and intelligently.

On appeal, the Fifth District, in a unanimous opinion by Judge Scott Gwin, joined by Judges Craig Baldwin and Earle Wise, reversed the decision of the trial court. The appeals court found that even though the trial court gave the proper advisements, the court abused its discretion by failing to hold an evidentiary hearing on whether Romero’s attorney failed to tell him that deportation was mandatory for the drug offenses to which he was pleading guilty.

Read the oral argument preview of the case here.

Key Precedent

Crim.R. 11 (A defendant may enter a plea of not guilty, not guilty by reason of insanity, guilty, or no contest.)

Crim.R. 32.1 (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.)

United States Constitution, Amendment VI (In all criminal prosecutions the defendant shall be entitled to have the assistance of counsel for his or her defense.)

R.C. 2943.031(A) (The court shall address the defendant and notify him or her 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, when applicable) 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.”

Strickland v. Washington, 466 U.S. 668 (1984) (The appropriate standard for ineffective assistance of counsel requires both that the defense attorney was objectively deficient and that there was a reasonable probability that advice from a competent attorney would have led to a different outcome.)

State v. Francis, 2004-Ohio-6894 (An appellate court reviews a trial court’s decision on a motion to withdraw a plea under an abuse-of-discretion standard.)

Padilla v. Kentucky, 559 U.S. 356 (2010) (Defense attorneys must communicate with non-citizen clients about immigration consequences of a conviction, including advising them when deportation may result and when it will result.)

Hernandez v. State, 124 So.3d 757 (Fla. 2012) (Notice of possible deportation given by judicial instruction does not eliminate defense counsel’s obligation to affirmatively warn a client of the actual immigration consequences of a guilty plea.)

State v. Arrunategui, 2013-Ohio-1525 (9th Dist.) (A trial court abuses its discretion if it grants or denies a motion to withdraw a plea without holding a hearing to determine whether a defendant was prejudiced by counsel’s performance.)

Lee v. United States, 137 S.Ct. 1958 (2017) (When a defendant claims ineffective assistance of counsel, prejudice can be shown by demonstrating a reasonable probability that the defendant, but for counsel’s errors, would have insisted on taking the case to trial.)

State’s Proposition of Law Accepted for Review

A trial court does not abuse its discretion in overruling a motion to withdraw guilty plea pursuant to Crim.R. 32.1 when the trial court has fully complied with the colloquy requirements of Crim.R. 11 and with the advisement requirements of R.C. 2943.031 regarding the consequences of a guilty plea on a defendant’s immigration status.

At Oral Argument

Arguing Counsel

Jessica L. Logothetides, Assistant Prosecuting Attorney, Stark County, for Appellant State of Ohio

Stephen P. Hardwick, Assistant Public Defender, Office of the Ohio Public Defender, Columbus, for Appellee Carlos Romero

State’s Argument

The plea form signed by Mr. Romero indicated that he had been advised by his lawyer of the immigration consequences of his plea. In order to withdraw his guilty plea, Mr. Romero must meet the manifest injustice standard.  His self-serving affidavit, coupled with the trial court’s compliance with Crim. R.11 and R.C. 2943.031, was insufficient to establish that manifest injustice standard.

In order to make out an ineffective assistance of counsel claim, a defendant must submit evidentiary documents containing sufficient operative facts to be entitled to an evidentiary hearing. Mr. Romero must show that he would have gone to trial, or that there was a plea negotiation he would have taken.  That did not happen here.  Self-serving affidavits like the one submitted in this case are insufficient. To hold otherwise would open the floodgates to hearings in every instance.

A threshold must be met to filter out the meritorious claims, and that threshold was clearly not met in this case with Mr. Romero’s totally self-serving affidavit, with nothing to back up his assertions. The state has raised the deficiency of the affidavit in this case from the very beginning, at the trial court level. The court of appeals simply improperly substituted its judgment for that of the trial court, which was not arbitrary, unreasonable, or unconscionable.

It’s unworkable to conclude that the immigration advisements and compliance with Crim. R.11 are just a pointless ritual. Defendants  must submit an affidavit that contains sufficient operative facts to entitle them to an evidentiary hearing. The burden is on the defendants to prove their counsel is ineffective. That just did not happen in this case.

Romero’s Argument

Even though the state contests it, there is no reasonable argument in this case that counsel was not deficient. The trial attorney failed to advise Mr. Romero that his deportation was certain; was mandatory. Under Padilla, if counsel doesn’t advise his client of that, then counsel’s performance is deficient. A trial judge’s warning that deportation may happen cannot cure trial counsel’s duty to say that deportation will happen.

The second prong required to prove ineffective assistance is whether Mr. Romero was prejudiced by his counsel’s deficient performance, and he unquestionably was. If the trial judge had accurately told Mr. Romero from the bench that he would be deported, then there would not be prejudice, because Mr. Romero could not then claim he didn’t know that. But that did not happen either, so there was prejudice here. While the trial court can’t interfere in the discussions between the lawyer and his client outside of court, the court can, in open court, on the record, press counsel about the specific immigration consequences and press to see if the defendant understands those specific consequences.

Mr. Romero did say in his affidavit, in his own words, that he thought the evidence was insufficient, and he thought he had viable defenses. Granted he didn’t use the magic words, saying that he otherwise would have gone to trial. But the state did not challenge the content of the affidavit in the appeals court, as it does now, and the defense asserts that argument was forfeited.  Nor was it raised in the state’s jurisdictional memorandum. There’s not one word in the state’s appellate brief or jurisdictional memo that tells this Court that there was any problem with the substance of Mr. Romero’s affidavit other than the fact that he’s the one who signed it.

Mr. Romero gave specific reasons for his position—he said he had viable defenses, the evidence was insufficient. There is no point in saying that unless he were going to go to trial. His affidavit is also supported by the police reports that are in the record. The only evidence tying him to these drugs was that they were in his house, but he wasn’t there at the time. His girlfriend claimed they were his, not hers. There is no evidence in the record that contradicts his claim that he had a viable defense. And even if he wins his motion, Mr. Romero is rolling the dice. He’s going to get a hearing where he has to prove the case, and if he proves that, then he goes back to the trial court where if he’s wrong he could end up going to prison.

The defense sees no floodgates opening up, as the state contends. That has not happened elsewhere. Perhaps there will be more hearings, but without evidence, defendants will lose.

What Was On Their Minds

Padilla and Duties of Defense Counsel

What are the requirements, if any, under Padilla, asked Justice Stewart? Isn’t it more than just a risk of deportation? Must the attorney’s advisements include the language “swift, certain and severe?” Could the Court still rule in Mr. Romero’s favor without using those words? If defense counsel had had clients in similar circumstances, all of whom were deported, wouldn’t it be incumbent on that lawyer to tell Mr. Romero that the lawyer had had other clients in this exact scenario, and they were all deported? Does a lawyer neglect his or her responsibility, having that kind of knowledge and information, and not relay it to the client, particularly in this case where there is a plea bargain that didn’t seem to have any plea bargaining aspect to it? She commented that the appeals court seemed particularly troubled by that.

Isn’t this the same statute that was at issue in Padilla, where the Court said that basically, deportation was virtually mandatory, asked Justice DeWine? Didn’t the Court say essentially that where a statute is clear, deportation will be a consequence and that a defense attorney must advise a client of that, not just that there is a risk of deportation? During the defense argument, he noted that Padilla addressed whether counsel’s performance was deficient, but did not get to the second part of the ineffectiveness test, which was whether there is prejudice, and whether the advisement cured that deficiency by counsel.  He commented that he saw the issue in the case as not whether counsel was deficient, but whether there was prejudice as a result of the advisement that was given to the defendant, and that prejudice was a matter left to the states to determine.

Isn’t Padilla dealing with what defense counsel has to say and this case is dealing with what the trial court has to say, asked Justice Fischer? Wasn’t that the issue this Court accepted?

If a defendant claims his counsel didn’t do something the lawyer actually did do, can’t the lawyer come forward with that, asked Justice Donnelly?

Immigration Consequences

Does federal law always use the word “deportable,” asked Justice French? Is that the same thing as saying somebody is subject to mandatory deportation? Is there any doubt that Mr. Romero was subject to deportation, under federal law?

Is the only uncertainty whether or not the deportation will be successful, as opposed to whether or not the DOJ will bring deportation actions, asked Chief Justice O’Connor?

What should the Court do about different statutes than those discussed in Padilla, asked Justice DeWine?  Does “deportable” mean it is automatically going to happen? A lawyer would ordinarily look at that and think there’s a possibility of deportation from that statute, but what about other statutes?  How many years can we be certain that the Justice Department or Immigration is going to follow the same standards as they were at the time of Padilla? Some cases have immigration experts testify, but not here, he noted.

 Advisements, The Plea Form, and the Guilty Plea

From whom did Mr. Romero receive information about the consequences of his guilty plea, asked Chief Justice O’Connor? Does it matter how the defendant hears the certainty of his deportation, from the court or his lawyer, as long as he hears and understands it before he pleads guilty? But here, the defense is claiming neither? There is no indication that the defense attorney said with certainty that Mr. Romero was going to be deported, and we know from the record that the judge merely said there’s a possibility of deportation? (defense counsel agreed). The state isn’t saying his attorney sat him down and went over step by step the consequences for his immigration status, but rather is saying that Mr. Romero signed the plea form and received all that information from the court. Coupled together, is that sufficient?

Was there an attempt to negotiate a plea in this case, asked Justice Donnelly? (answer: no) What was the factual basis for the trafficking charge? Did the police go in with a warrant? So, the defense just came in and said they were going to withdraw their previously entered plea of not guilty and enter a guilty plea to the indictment? In a key question of the day, he asked whether it would have been better for transparency purposes to have a hearing and explore whether the client was advised of the actual immigration consequences, even where, as here, the trial court did everything correct in the colloquy? He went on to ask if it wouldn’t have been better from the state’s perspective if the trial court had set a hearing and allowed the state to address the allegations in Romero’s emergency motion?  A reasonable prosecutor might look at the situation and say these collateral consequences are so great we’re prepared to negotiate a plea to allow someone who has been here legally for 30 years, with children here, to remain here, rather than be mandatorily deported, he commented. Wouldn’t that have been a better scenario? The prosecutor insisted that would be “an injustice to the criminal justice system.” Later, Justice Donnelly asked whether the trafficking charge Mr. Romero pled to was the lynchpin?  If defense counsel had researched this issue, found out what the collateral consequences were about to be, asked the state to drop the trafficking charge in exchange for the possession, and the other count, could that have resolved this matter without the consequences taking place? What position did the state take at sentencing? He commented that if the Court were to put the onus on the defense bar to do its due diligence, to check into this, future hearings could be avoided if defense lawyers just provide written signed documentation that they researched it and it looks like it is going to result in mandatory deportation. Is that what defense counsel is asking the Court to do? Put the onus on the defense bar to do its job, before pleading out something that has such major collateral consequences, to check it out to see if it is going to be mandatory?

Why did Mr. Romero plead guilty, instead to going to trial, asked Justice Stewart, adding that there is usually a quid-pro-quo for doing that, but that in this case there seemed like nothing to be gained and everything to lose by Mr. Romero pleading guilty in this situation. She added that what was discussed with him leading up to his plea was unknown.

Prejudice

If defense counsel failed to advise Mr. Romero of the immigration consequences of his plea, wouldn’t he be prejudiced, asked Justice Stewart? How is it clear from this record that defense counsel did not advise his client of the exact immigration consequences of his plea? Does defense counsel have an obligation to advise a client that deportation is swift, certain, and exact? (just certain, answered defense counsel).

Romero’s Affidavit and Waiver

In his affidavit, should Mr. Romero have said “I would not have pled guilty if I had known in all likelihood that I would be deported,” asked Justice Stewart? Doesn’t his language convey that?  On the flip side, once deportation proceeding begin, can’t any defendant run back and tell the court he wasn’t advised of this?

Did the state raise below the issue about the detail required in the affidavit, asked Justice French?

Mr. Romero didn’t say in his affidavit that that he would have gone to trial, did he, asked Justice DeWine?  That seems a pretty big part of the affidavit—had I known this, I would not have pled guilty—he does not say that anywhere, he commented.  Should Mr. Romero at least have said that? The state may not have pointed out the deficiency in the affidavit, but it did say in its briefs that there was no prejudice here because of the warnings –I think that’s a fair inference from the state’s briefs, he commented.

Couldn’t Mr. Romero have written in his own words, “I wouldn’t have pled guilty”, asked Justice Fischer?

Theoretically, didn’t Mr. Romero have a colorable defense to the trafficking charge if he went to trial, asked Justice Donnelly, after defense counsel reviewed the facts of the drug bust.

Relief Sought

Is the state asking the Court to write any rule beyond the facts of this case, saying the affidavit wasn’t enough, asked Justice DeWine?

Is there no new standard to be established here, asked Chief Justice O’Connor?  Just the application of a standard already in place?

If the case is reversed, does the state want the case remanded, asked Justice Fischer? (answer: no).

Parade of Horribles

So, is the state’s concern that if someone is convicted, after having been advised, and then they are not deported, they would come back to court and want to withdraw their plea, asked Chief Justice O’Connor?

How It Looks From The Bleachers

To Professor Emerita Bettman

Very long argument, very hot bench, very long post.  The Court’s newest justices, Stewart and Donnelly were particularly active questioners. I agree with my student contributor Paul Taske that despite the lengthy argument and intensive questioning, this was a surprisingly hard one to call.

I think in the end, given the dire immigration consequences in these kinds of cases, a majority is going to allow Romero an evidentiary hearing and have things sorted out there. And I don’t think this will open Pandora’s proverbial box.

In terms of presentation, the prosecutor was stolid and rather wooden, while defense counsel was very impassioned and seemed more familiar with the nuances of Padilla. But the prosecutor stayed on message, and I think may capture a couple votes. Still, I think a majority will find that even though the trial court gave the proper advisements (which no one disputes) that alone isn’t enough to cure the failure of trial counsel to inform his client of the immigration consequences of his plea, and that an evidentiary hearing is necessary in this case to determine what Romero’s trial lawyer actually did advise him about the immigration consequences for the drug offenses to which he was pleading guilty. (Both sides agreed there was no plea bargain, here, and that was an error by the appeals court, but not determinative).

Justice Donnelly, in particular, suggested this resolution in a long line of questioning. He asked what I think will be the ultimate outcome here when he asked whether it wouldn’t have been better for transparency purposes to have a hearing and explore whether Mr. Romero was actually advised of the actual immigration consequences of the offense he was pleading to, even where, as here, the trial court did everything correct in the colloquy.  I think Justice Stewart and the Chief are with him, and probably Justice French. This does not mean Romero is going to prevail in the end, but he will get a chance.

I think Justices Fisher and DeWine may get hung up on the adequacy of the affidavit. Justice Fischer particularly seemed concerned with the fact that the proposition of law the Court accepted dealt with what the trial court, not defense counsel, had to say to Mr. Romero. But frankly, I don’t see how the two can be separated in this situation, and as defense counsel pointed out, the state’s proposition of law doesn’t really speak to the crux of the appellate decision. Justice DeWine seemed persuaded that the deficient performance prong was met here, but expressed concern about the prejudice prong, and Romero’s failure to include language that he would have gone to trial if he had been properly advised.

To Student Contributor Paul Taske

Very interesting argument. I thought Romero’s counsel was more effective than the State’s. That might make all the difference here.

From where I sit, this case looks like a tentative win for Romero.

The Court seemed genuinely divided about most points raised during argument. From the application of Padilla to the accuracy of the record and of the lower court’s opinion. This confusion—or lack of consensus—is, I think, what gives Romero the slight edge. The Court appeared reluctant to adopt any strong position without first getting a handle on the facts before them. So, while I don’t think Romero will receive a remand with everything he wants, I do think the Court will remand the case for further development. Particularly, I think the Court will require additional findings about the plea Romero entered and whether it was negotiated or not.

Alternatively, the Court may decide that the factual information is sufficient and further development is unnecessary. In that case, I think enough of the Court will be persuaded to permit Romero to withdraw his plea and take his case to court. The ambiguity in the record coupled with Romero’s remarks about wanting to continue working likely provide an adequate basis to grant his request because these indicate that Romero was not fully informed of the consequences of his choice.