Another round on Padilla
Back in 2010, the Supreme Court ruled in Padilla v. Kentucky (discussed here) that an attorney's failure to properly advise a non-citizen client of the potential ramifications of a guilty plea on his immigration status constituted ineffective assistance of counsel. Prior to Padilla, the 8th District had been very good at vacating pleas of non-citizens. Oddly enough, after Padilla, the 8th became much less lenient in that regard.
Last week, in State v. Ayesta, the 8th took another shot at the issue. As is the case with so much of life, there's good news and bad news.
Let's start with the facts. Ayesta was charged with two counts of felonious assault and one of domestic violence involving his sister. His attorney worked out a deal where he'd plead guilty to two misdemeanor counts, the domestic violence and a count of simple assault. The judge gave him one year probation.
Not a bad deal, except that three years later the Feds instituted proceedings to deport Ayesta; a conviction for domestic violence makes deportation mandatory. Five months later, Ayesta filed a motion to vacate his plea to the domestic violence charge only, but the judge denied it without a hearing.
Now, the good news: Ayesta clears up much of the bad law that's been promulgated by the 8th on this subject. Just last month, in State v. Preciado, the court found that Preciado's motion to vacate a plea he'd entered 20 years earlier was untimely. There were grounds to find untimeliness -- the Feds had instituted deportation proceedings three years before Preciado got around to filing the motion -- but the court mentioned only the 20-year period. I said at the time that only the three-year period should have been considered, and that's how Ayesta comes out: the judge had denied the motion because of the four-year delay in filing it, but the panel concludes that the six-month period between the institution of deportation proceedings and the filing "is the more appropriate measure in this case."
Second, in previous decisions the court has held that the judge's advisement of potential immigration consequences, as required by RC 2943.031, cures any Padilla problems. It doesn't; having a judge tell the defendant that there may be immigration consequences doesn't solve the problem of the lawyer telling him there won't be, or not telling him that there definitely will be. Ayesta resolves that, too, overruling the prior cases "to the extent that they seem to suggest that a trial court's proper advisement under R.C. 2943.031(A) 'cures' any prejudice."
But then things get... complicated.
Ayesta's motion included an affidavit from him that his counsel hadn't advised him of the immigration consequences of his plea. The panel determines that the "self-serving" affidavit wasn't sufficient to require a hearing, citing a 1983 Ohio Supreme Court case which held that a defendant's affidavit in a post-conviction relief hearing that his plea had been coerced didn't require an evidentiary hearing when the transcript of the plea colloquy indicated the defendant professed that no threats or promises had been made to get him to plead. The Ayesta panel concludes that his claim not to have been advised of the immigration consequences must similarly be discounted, because he acknowledged at the plea hearing that he was aware of the consequences.
Ayesta's own statements during the plea colloquy served as evidence that his attorney did properly advise him of the deportation consequences -- because he stated that he was indeed aware of the consequences of his plea.
There's logic in that position, depending upon what Ayesta's affidavit said. If it contained nothing more than a bare assertion that counsel hadn't explained the immigration consequences, then the panel's right. On the other hand, if it asserted that the lawyer had failed to inform Ayesta that domestic violence mandated deportation, rather that deportation might be a consequence, then I think a decent argument could be made that the advisement by the judge didn't conclusively negate Ayesta's claim.
The court then notes that even if the lawyer's performance was deficient, Ayesta still has to prove prejudice, in this situation, that had he been properly advised, he would've insisted on going to trial. This is indeed the weakest aspect of Ayesta's argument; it's difficult to believe that he would have spurned a misdemeanor plea and chosen to go to trial on a second-degree felony.
The opinion concludes by noting that this is a post-sentence motion to vacate a plea, which requires a showing of manifest injustice, rather than a petition for post-conviction relief. Under a petition, the panel notes, a showing of ineffective assistance would mandate relief, but Ayesta has failed to establish a manifest injustice.
That distinction appears to be unnecessary. The panel cites the same factors for not finding a manifest injustice as it did for not finding prejudice, especially the good deal that Ayesta got. The failure to establish prejudice is what killed Ayesta's ineffective assistance claim, and the court should have left it there. If Ayesta had indeed satisfied the prejudice prong of an ineffective assistance claim, that should have mandated relief on a motion to vacate the plea. Proving that your lawyer rendered ineffective assistance would seem to create the "manifest injustice" necessary to get your plea vacated.
Ayesta does raise an interesting possibility, however: can post-conviction relief be used instead of a motion to vacate the plea? The statute requires a petition to be filed within 180 days after the transcript in the appeal was filed, or, if there wasn't an appeal, within 180 days after one could have been filed. But there's an exception to that: if subsequent to the expiration of the 180-day period, "the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based on that right." At least for pleas made before Padilla was handed down, this offers the possibility of relief.
To be sure, the Supreme Court held two years ago in Chaidez v. US that Padilla didn't apply retroactively, but that's limited to Federal habeas corpus claims. The Ohio courts haven't directly ruled on the retroactivity of Padilla, but certainly seem to have applied it retroactively: there's little question that a court would vacate a plea if the lawyer acknowledged in an affidavit that he'd incorrectly told a client that he didn't have to worry about being deported when deportation was mandatory. So give it a shot.