“A knowing and voluntary plea therefore does not supersede defense counsel’s errors…When, as here, the defendant asserts a claim of ineffective assistance of counsel, the court must focus on counsel’s deficient performance and the prejudice arising from that deficiency.”
Justice French, plurality opinion
“I assume that Romero meant what he said at the plea hearing—that he understood that he could be deported as a result of the plea. In light of the court’s advisement and Mr. Romero’s affirmative representation that he understood that he could be deported, Romero cannot demonstrate that he was prejudiced.”
Justice DeWine, dissent
On May 15, 2019, the Supreme Court of Ohio handed down a merit decision in State v. Romero, 2019-Ohio-1839. In a plurality opinion written by Justice French, the Court held that the trial court had abused its discretion in denying Romero’s motion to withdraw his guilty plea without considering both prongs of the Strickland test for ineffective assistance of counsel, and sent the case back to the trial court to apply the proper standard. Chief Justice O’Connor and Justice Fischer joined the opinion in full. Justices Donnelly and Stewart each concurred in judgment only and each wrote separately. Justice DeWine dissented, joined by Justice Kennedy. The case was argued January 29, 2019.
Case Background
Carlos Romero is a native of Honduras and has been a lawful permanent resident of the U.S. since 1998. He has five American-born children.
In March of 2016, Romero was indicted by a grand jury on felony charges of possession of marijuana, trafficking in marijuana, and possession of cocaine. In June of 2016 Romero appeared in court with counsel to enter his plea. At the plea hearing, the trial court engaged in an extensive colloquy with Romero during which the court advised him of the possible consequences of his guilty plea, including giving him the required immigration advisement for noncitizens codified at R.C. 2943.031(A). The court made certain that Romero had had the chance to meet with his lawyer about the plea form, and that he had no unanswered questions about the form. Near the end of the plea colloquy, the court again asked Romero if he had any questions before entering his plea. The only question he had was about his continuing ability to work. He did not raise any immigration-related questions. After conferring with his lawyer, Romero pled guilty to all three counts, and was sentenced to three years of community control, 100 hours of community service, and a six-month driver’s license suspension.
According to Romero, in July 2016 he was detained by ICE and served with a notice to appear in federal immigration court for removal proceedings. The notice informed him he was subject to deportation because of his state court convictions. His hearing was scheduled for October 2016.
Four days before his scheduled removal hearing, Romero filed an emergency motion to withdraw his guilty pleas and to vacate his judgment of conviction on the grounds of ineffective assistance of counsel. Romero claimed his lawyer had failed to advise him of the immigration consequences of his plea. The trial court found that Romero had entered his pleas knowingly, voluntarily, and intelligently, and denied his motion.
On appeal, the Fifth District, in a unanimous opinion, reversed the decision of the trial court. The appeals court found that even though the trial court gave the proper advisements, that was not dispositive. The trial court abused its discretion by failing to hold an evidentiary hearing on whether Romero had been properly advised by his lawyer.
Read the oral argument preview of the case here and an analysis of the argument here.
Key Statutes and Precedent
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.)
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.)
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 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.”
State v. Smith, 49 Ohio St.2d 261 (1977) (A defendant bears the burden of establishing the existence of manifest injustice and it is within the sound discretion of the trial court to determine the credibility and weight of the defendant’s assertion in support of a motion to withdraw a plea.)
Strickland v. Washington, 466 U.S. 668 (1984) (To establish ineffective assistance of counsel, the defendant must show that defense counsel’s performance was deficient and that the defendant was prejudiced by that deficient performance.)
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 shall result.)
Missouri v. Frye, 566 U.S. 134 (2012) (Counsel’s duty to ensure that pleas are knowingly and voluntarily made arises from the Sixth Amendment right to counsel.)
Lafler v. Cooper, 566 U.S. 156 (2012). (The appropriate standard for ineffective assistance of counsel is not an inquiry into whether a defendant entered his plea knowingly and voluntarily.)
United States v. Kayode, 777 F.3d 719 (5th Cir. 2014) (A warning from a judge during a plea colloquy does not provide a substitute for effective assistance of counsel and, thus, has no bearing on the first Strickland prong.)
United States v. Urias-Marrufo, 744 F.3d 361 (5th Dist. 2014)( 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.)
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 but for counsel’s errors, the defendant would have insisted on taking the case to trial.)
Merit Decision
Analysis
Lead Opinion
Strickland and Padilla
This part is black letter law. To establish ineffective assistance of counsel arising from the plea process, the defendant must show counsel’s performance was deficient and that the defendant was prejudiced by that deficient performance. When the defendant is a noncitizen, Padilla requires counsel to inform the client whether the client’s plea carries the risk of deportation.
What the Trial Court Did and Should Have Done
Instead of analyzing Romero’s ineffective assistance claim under Strickland, the trial judge determined that since she had given Romero the required advisements for noncitizens under R.C. 2943.031(A), had engaged in a lengthy conversation with Romero about his plea form, and noted that Romero had expressed no dissatisfaction with his lawyer, Romero’s pleas were entered knowingly, voluntarily, and intelligently. Wrong take. While the trial court’s duty to determine whether pleas are entered knowingly and voluntarily is grounded in the right to due process, counsel’s duty to provide competent advice during a plea hearing comes from the Sixth Amendment right to counsel.
Just because the trial court gives the advisements under R.C. 2943.031(A) does not cure a lawyer’s failure to advise his client of the immigration consequences of a guilty plea. It has some relevance to the prejudice prong of the Strickland test, but is not a substitute for it. So the case has to back to the trial court to evaluate Romero’s ineffective assistance of counsel claim under Strickland’s two-prong test.
Strickland Prong I: Deficient Performance
The trial court has to decide whether Romero’s lawyer satisfied his duty to advise Romero of the risk of deportation. The Court acknowledges that immigration law can be complex and the deportation consequences may not always be clear, but a defense lawyer must now understand the immigration consequences of a guilty plea and convey that information to the client. This is evaluated under a rule of reasonableness.
Strickland Prong II: Prejudice
Under this prong, Romero must show that but for his lawyer’s errors he would not have pleaded guilty and would have gone to trial. That’s to be determined under a totality of the circumstances. Here are some factors the Court said should be considered, although the list is not exclusive:
- Consequences of going to trial. Here the Court notes that while a defendant with no viable defenses will rarely be able to meet this prong, that is not a per se rule, and must be viewed from the defendant’s perspective where even the smallest chance of success, given the dire immigration consequences, may be worth it.
- The importance placed by the defendant on avoiding deportation.
- The defendant’s connections to the United States
- Judicial advisements of immigration consequences (the lead opinion noted earlier that while these will not cure counsel’s deficient performance, they may weigh against a finding of prejudice.)
The trial court is to consider these and other factors on remand. The credibility and weight of the defendant’s assertions in favor of the motion to withdraw the pleas are within the trial court’s discretion.
So the case is remanded for the trial court to apply Strickland’s two-prong ineffectiveness test.
Why No Majority?
In reaching the conclusion in the lead opinion, Justice French wrote, “we affirm the judgment of the court of appeals, with a caveat.” The caveat was that the remand order from the Fifth District for a full evidentiary hearing was premature-the trial court first has to evaluate Romero’s motion and materials in accordance with the Strickland framework set out in the lead opinion.
Both Justice Donnelly and Justice Stewart say, skip the caveat, and affirm the Fifth District outright. A full evidentiary hearing is warranted immediately. For Justice Donnelly it was because of the importance of developing a full record which can be reviewed on appeal. For Justice Stewart, the facts supported Romero’s ineffectiveness claim. “Quite simply, there was no benefit to Romero in pleading guilty instead of going to trial,” she wrote, also noting that he was willing to give up a relatively lenient sentence in order to withdraw his plea. Other facts of significance to her were that a different lawyer stood in for Romero’s original lawyer at the plea hearing, Romero’s overarching concern about whether he would be able to continue working after his conviction, and the fact that he’d lived in the states as a lawful permanent resident for 20 years and still had 4 minor children here.
Justice DeWine’s Dissent
While Justice DeWine concedes that Romero’s affidavit supporting the motion to withdraw his plea alleged enough to satisfy the deficient performance prong of the Strickland test, he does not think Romero can satisfy the prejudice prong. DeWine notes that Romero does not assert anywhere in his affidavit that but for his counsel’s purported errors he would not have pleaded guilty, but would have insisted on going to trial. And more importantly, to DeWine, Romero fails to set forth operative facts to meet the prejudice prong. DeWine reviewed the plea hearing and was satisfied that the trial court gave the proper advisement, Romero understood it, had the opportunity to confer with counsel, and pled guilty. DeWine said he assumed Romero meant what he said at the plea hearing.
“Simply put, Romero’s bald assertion that his attorney never advised him about the immigration consequences of pleading guilty does not amount to prejudice, because he plainly expressed that he understood he could be deported. Romero has failed to set forth sufficient operative facts that entitle him to an evidentiary hearing,” wrote DeWine. Justice Kennedy concurred in this dissenting opinion.
Case Syllabus
None
Concluding Observations
Here’s the relevant part of what I wrote after argument:
“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… 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.
“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.
“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.”
The one thing I missed was the caveat. The blog will be especially interested to follow this case on remand.