[Cite as State v. Velazquez, 2011-Ohio-4818.]

 Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA

 JOURNAL ENTRY AND OPINION 

 No. 95978 

STATE OF OHIO

 

PLAINTIFF-APPELLEE

vs.

NELSON VELAZQUEZ

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-455936 

BEFORE: Kilbane, A.J., Jones, J., and Keough, J. 
RELEASED AND JOURNALIZED: September 22, 2011 

ATTORNEY FOR APPELLANT

Margaret W. Wong 

Scott Eric Bratton 

Jason Lorenzon 

Margaret Wong & Associates Co. 

3150 Chester Avenue 

Cleveland, Ohio 44114 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

Kristen L. Sobieski 

Assistant County Prosecutor 

The Justice Center - 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 

MARY EILEEN KILBANE, A.J.: 

{¶ 1} Defendant-appellant, Nelson Velazquez, appeals from the denial of his motion 

to vacate his guilty plea. For the reasons set forth below, we affirm. 

{¶ 2} On August 26, 2004, defendant was indicted for felonious assault and 

intimidation of a witness. On October 28, 2004, he pled guilty to attempted felonious assault 
and the intimidation charge was nolled. The supplemental record provided to this court 

indicates the following colloquy at the time of the plea: 

{¶ 3} “THE COURT: Okay, are you a citizen of the United States, * * * Mr. 

Velazquez? 

{¶ 4} “THE DEFENDANT: No. 

{¶ 5} “THE COURT: Where were you born, sir? 

{¶ 6} “DEFENDANT: Nicaragua. 

{¶ 7} “THE COURT: Mr. Velazquez, how are you here in the United States? On 

a green card? 

{¶ 8} “THE DEFENDANT: Yes. 

{¶ 9} “THE COURT: Mr. Velazquez, be advised that in view of the fact that you 

are not a citizen of the United States, the conviction to the offense to which you are going to 

enter a guilty plea may have the consequences of deportation, exclusion from admission to the 

United States of America or denial of naturalization. All of that is up to the United States 

government and the immigration and naturalization services. 

{¶ 10} “Do you understand that, sir? 

{¶ 11} “THE DEFENDANT: Yes.”

{¶ 12} On December 1, 2004, defendant was sentenced to two years of community 

control sanctions. As part of his community control sanctions, the trial court imposed 
numerous conditions, including 90 days of work release and 300 hours of community work 

service, completion of a GED program, inpatient drug treatment1

, and 90 days of house arrest. 

 Defendant was also ordered to make restitution in the amount of $1,200. 

{¶ 13} On May 25, 2005, defendant, represented by new counsel, filed a motion to 

withdraw his guilty plea to “correct a manifest injustice.” In support of this motion, 

defendant asserted that English is not his first language, that he had no idea that the plea would 

have an affect upon his immigration status, that his trial counsel conducted only limited 

discovery and never discussed any immigration consequences as a result of the plea. He 

acknowledged that he first learned of the these consequences from the court at the plea 

hearing, but he stated that he pled guilty due to fear and confusion. 

{¶ 14} On September 28, 2005, the trial court held a hearing on the motion. At this 

time, defense counsel conceded that the trial court properly advised defendant, a citizen of 

Nicaragua, of the immigration consequences of the guilty plea, but a manifest injustice 

occurred in the matter since defendant has only a limited understanding of English and entered 

the plea to avoid a more severe sentence. 

{¶ 15} Defense counsel then questioned defendant under oath. At that time, 

defendant stated, in English, that he was 19 years old when he was charged with the instant 

offenses, his previous attorney held only limited meetings with him, and that he informed his 

 1

The drug treatment component of the sentence was later modified to outpatient treatment. 
attorney that he was present when the felonious assault occurred but his friend was the actual 

assailant. Defendant also stated that he filed a police report after the incident, and his 

attorney assured him that he would receive probation if he pled guilty. He did not 

understand that he could have the matter tried to a jury. 

{¶ 16} On cross-examination, defendant admitted that he was originally charged with 

felonious assault, a second degree felony, which carried the presumption of imprisonment, 

plus intimidation, a felony of the third degree, which carried a potential penalty of one to five 

years of imprisonment. Under the plea, however, there was no presumption of imprisonment. 

 In addition, the State argued that defendant offered no new exculpatory evidence. 

{¶ 17} On October 3, 2005, the trial court concluded that defendant failed to 

demonstrate a manifest injustice that would require withdrawal of the guilty plea, and denied 

the motion to withdraw his guilty plea. Defendant filed a notice of appeal on November 2, 

2005, which was designated App. No. 87230. On January 11, 2006, however, this court 

dismissed the appeal for failure to file the record. 

{¶ 18} On October 1, 2010, defendant, with new counsel, filed a second motion to 

withdraw his guilty plea, to “correct a manifest injustice.” In support of this motion, 

defendant asserted that his counsel was prejudicially ineffective for failing to advise him of the 

possibility of deportation. 
{¶ 19} On October 7, 2010, the trial court issued a journal entry in which it noted that 

prior to the plea proceedings, the court had advised defendant of the possibility of deportation 

and that a previous motion to withdraw the guilty plea had been denied following a full 

hearing. 

{¶ 20} Defendant now appeals and assigns the following errors for our review: 

“The trial court erred when it did not permit the defendant’s guilty 

plea to be vacated pursuant to Ohio Criminal Rule 32.1 as his criminal 

attorney’s conduct constitutes ineffective assistance of counsel under 

the two-prong Strickland [v. Washington (1984), 466 U.S. 688, 104 

S.Ct. 2052, 80 L. Ed. 2d 674] test.” 

“The trial court erred by failing to hold an evidentiary hearing on Appellant’s 

motion to withdraw his guilty plea and vacate his conviction pursuant to Ohio 

Criminal Rule 32.1 despite Appellant’s clear and unequivocal request.” 

 

{¶ 21} Crim.R. 32.1 provides that “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.”

{¶ 22} “A motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion 

of the trial court, and the good faith, credibility and weight of the movant’s assertions in 

support of the motion are matters to be resolved by that court.” State v. Smith (1977), 49 

Ohio St.2d 261, 361 N.E.2d 1324, paragraph two of the syllabus. Thus, one who seeks to 

withdraw a plea after sentencing must establish the existence of manifest injustice. See 

Smith at paragraph one of the syllabus. 
{¶ 23} However, under the standards of R.C. 2943.032(D), a noncitizen criminal 

defendant is not required to show “manifest injustice” when seeking to withdraw a guilty plea. 

State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355. R.C. 2943.031(D) 

provides: 

“Upon motion of the defendant, the court shall set aside the judgment and 

permit the defendant to withdraw a plea of guilty * * *, if, after the 

effective date of this section, the court fails to provide the defendant the 

advisement described in division (A) of this section, the advisement is 

required by that division, and the defendant shows that he is not a citizen of 

the United States and that the conviction of the offense to which he pleaded 

guilty or no contest may result in his being subject to deportation, exclusion 

from admission to the United States, or denial of naturalization pursuant to the 

laws of the United States.”

{¶ 24} An appellate court reviews a trial court’s decision on a motion to withdraw a 

plea under R.C. 2943.031 under the abuse of discretion standard. Francis. That is, trial 

courts are vested with discretion to determine whether the trial court that accepted the plea 

substantially complied with R.C. 2943.031(A). Id. Further, the timeliness of the motion 

may be considered in determining whether to grant the motion. Id. 

{¶ 25} Defendant maintains that his plea must be vacated because his trial counsel did 

not properly advise him of the deportation consequences of his guilty plea and conviction. 

{¶ 26} To establish a claim of ineffective assistance of counsel, a defendant must 

demonstrate that (1) the performance of defense counsel was seriously flawed and deficient, 

and (2) the result of defendant’s trial or legal proceeding would have been different had 
defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 

668, 104 S.Ct. 2052, 80 L.Ed.2d 674. 

{¶ 27} With regard to the first prong of the Strickland analysis, we note that in Padilla 

v. Kentucky (2010), 559 U.S. ___, 130 S.Ct. 1473, 176 L.Ed.2d 284, the United States 

Supreme Court reiterated that before deciding whether to plead guilty, a defendant is entitled 

to “the effective assistance of competent counsel.” Id., citing McMann v. Richardson (1970), 

397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763. With this principle in mind, the Padilla

court held that “it is critical for counsel to inform her noncitizen client that he faces a risk of 

deportation” and that “[t]o satisfy this responsibility, counsel must inform her client whether 

his plea carries a risk of deportation,” so the failure to do so can satisfy the first prong of the 

Strickland analysis. If the defendant meets this first prong of the Strickland analysis, he must 

still demonstrate prejudice as a result thereof before being entitled to relief. Id. 

{¶ 28} In this matter, we find no abuse of discretion. Although defendant averred that 

counsel failed to advise him of the immigration consequences of the plea, the transcript from 

the plea clearly indicates that the trial court fully advised defendant that by entering a guilty 

plea to the offense of attempted felonious assault, he may be subject to deportation, exclusion 

from admission to the United States, or denial of naturalization, as determined by the United 

States and the immigration and naturalization services. Moreover, the defense conceded 

during the September 28, 2005 hearing, that in taking the guilty plea, the trial court “did 
comply with the mandatory nature of the statutory warnings articulated in the statute and the 

Supreme Court mandated in [Francis].” Further, the instant motion to vacate was filed 

almost six years after the plea. Therefore, the trial court appropriately exercised its discretion 

in denying defendant’s motion based on the record and based upon the untimeliness of the 

motion. Accord State v. Bains, Cuyahoga App. No. 94330, 2010-Ohio-5143. 

{¶ 29} Further, as to the contention that defendant’s trial counsel was ineffective at the 

time of the plea, we note that defendant was represented by highly competent counsel during 

the plea proceedings. Moreover, in Bains, this court rejected a similar claim and stated: 

“Even if we accept the averments of defendant’s affidavit as true; namely, 

that his attorney quietly told him not to worry, the trial court clearly advised 

defendant on several occasions that his conviction would subject him to 

deportation — a fact his attorney corroborated at least by October 2003. 

Defendant did not attempt to withdraw his guilty plea until 2009. For these 

reasons, defendant cannot establish the requisite prejudice necessary to entitle 

him to relief. Accord Flores v. State [of Florida] (Fla. 4th DCA 2010), [57 

So.3d 218] (holding ‘the court’s warning that Flores may be deported based 

on his plea cured any prejudice that might have flowed from counsel’s alleged 

misadvice’).” 

{¶ 30} In accordance with the foregoing, the trial court acted within its discretion in 

denying defendant’s motion to vacate his guilty plea. The assignments of error are without 

merit. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 
It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

 

 

MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE 

LARRY A. JONES, J., and 

KATHLEEN ANN KEOUGH, J., CONCUR