[Cite as State v. Poppel , 2021-Ohio-2536.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

STATE OF OHIO Plaintiff-Appellee

v. MARKLEY POPPEL Defendant-Appellant : : : : : : : : : : Appellate Case No. 2020-CA-34

Trial Court Case No. 2018-CRB-476 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 23rd day of July, 2021.

. . . . . . . . . . . MARK M. FEINSTEIN, Atty. Reg. No. 0065183, Champaign County Mun icipal Prosecutor’s Office, 205 South M ain Street, Second Floor, Urban a, Ohio 43078 Attorney for Plaintiff-Appellee DEREK A. DEBROSSE, Atty. Reg. No. 0084183, and MICHAEL A. TRUMA N, Atty. Reg. No. 0092506, 503 South Front Street, Suite 240B, Columbus, Ohio 43215 Attorneys for Defendant-Appellant

. . . . . . . . . . . . .

TUCKER, P.J.-2-

{¶ 1} Defendant-appellant, Markley Poppel, appeals from the trial cou rt’s final order of November 9, 2020, in which the trial court overruled h is motion to withdraw his plea under Crim.R. 32.1. Poppel, who pleaded guilty to one cou nt of assault in violation of R.C. 2903.13(A), argues in a single assignment of error that the trial court erred by overruling his motion, because at the time he entered his plea, neither the court nor his counsel advised him that under 18 U.S.C. 922(g)(9), he would fo rfeit his right to own a firearm. We find that the trial court did not err, and its ord er is therefore affirmed. I. Facts and Procedural History {¶ 2} On May 31, 2018, an officer with the City of Urbana Police Divi sion filed a pair of complaints charging Poppel with assault, a first degree misdemeanor pursuant to R.C. 2903.13(A) and (C)(1), and domestic violence, a first degr ee misdemeanor pursuant to R.C. 2919.25(A) and (D)(2). Poppel reached a plea agreement with the State, according to which he appeared before the trial court on August 1, 2018, and entered a plea of guilty to the charge of assault. In exchange, the Stat e dismissed the charge of domestic violence. The trial court then sentenced Poppel to 18 0 days in jail and 24 months of community control, with the jail term suspended on th e condition that he complete anger management therapy. {¶ 3} Poppel claims that in “September 2019, [he] attempted to [colle ct] a firearm that he [had] won in a raffle,” but “his * * * background check [through the National Instant Criminal Background Check System] resulted in a denial,” follow ed “soon after [by] a letter from [the Bureau of Alcohol, Tobacco, Firearms and Explosives] that said that [he] was-3- under disability to own a firearm.” 1 Appellant’s Brief 4. On July 22, 2020, Poppel filed a motion under Crim.R. 32.1 to withdraw his plea, arguing that his defense attorney had failed to provide effective representation by failing to warn h im about the possible loss of his right to own a firearm, and that the trial court had likewi se failed to meet its obligation to ensure that his plea was knowing and voluntary. Defendant’s Motion to Withdraw Plea 3-9, July 22, 2020. {¶ 4} The trial court overruled Poppel’s motion without comment in it s final order of November 9, 2020. Poppel timely filed a notice of appeal on December 9, 2020. II. Analysis {¶ 5} For his one assignment of error, Poppel contends that:

THE TRIAL COURT ERRED BY NOT DECLARING THAT A MANIFEST INJUSTICE OCCURRED JUSTIFYING [sic] APPELLANT TO

WITHDRAW HIS GUILTY PLEA. {¶ 6} Poppel offers two arguments for reversal of the trial court’s o rder. First, Poppel argues that his defense counsel provided deficient repre sentation by failing to advise him that under 18 U.S.C. 922(g)(9), he would forfeit his right to own a firearm by

1 Poppel has provided almost no evidence to substantiate his cla im. He submitted an affidavit with his motion to withdraw, yet he made no reference at all to the raffle, to the nature of the firearm he purportedly was not allowed to collect , or to the date of the letter he purportedly received, of which he did not provide a copy. See Defendant’s Motion to Withdraw Plea, Ex. A, July 22, 2020; see also Transcript of Hearing on Motion to Withdraw Plea 8:22-10:20, Nov. 6, 2020. Although he asserts in his brie f that he “attempted to pick-up [sic] a firearm” in “September 2019,” even that asserti on is not supported by the record. Appellant’s Brief 4; Defendant’s Motion to Withdraw Pl ea, Ex. A; Transcript of Hearing on Motion to Withdraw Plea 10:8-10:14. The only eviden ce on record regarding the raffle and the firearm is Poppel’s own testimony that he “w on [a] firearm at a raffle, * * * went to get the firearm, and * * * was denied.” Transcri pt of Hearing on Motion to Withdraw Plea 10:10-10:13.-4- pleading guilty. Appellant’s Brief 7-12. Second, positing tha t R.C. 2943.033(C) is unconstitutional, Poppel argues that the trial court, which lik ewise failed to advise him about the implications of his plea pursuant to 18 U.S.C. 922(g) (9), did not satisfy its obligation to ensure that he entered his plea knowingly and vol untarily. Id. at 12-14. In an uncommonly terse response, the State argues only that the tr ial court’s order should be affirmed because Poppel did not timely file his motion to wi thdraw. Appellee’s Brief 1. {¶ 7} To prevail on a claim of “ineffect ive assistance of counsel, a defendant must satisfy the two-pronged test in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” State v. Cardenas , 2016-Ohio-5537, 61 N.E.3d 20, ¶ 38 (2d Dist.). The Strickland test requires a showing that: “(1) defense counsel’s performance was so deficient that [it did not fulfill the right to assistance of counsel] guaranteed under the Sixth Amendment to the United States Const itution; and (2) * * * defense counsel’s errors prejudiced the defendant.” Id. , citing Strickland at 687. Judicial “scrutiny of counsel’s performance must be highly defe rential,” so “a [reviewing] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance * * *.” Strickland at 689, citing Michel v. Louisiana , 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955). To show p rejudice, the defendant bears the burden to demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of [a given] proceeding would have been different.” Id. at 694; State v. Southern , 2d Dist. Montgomery No. 27932, 2018-Ohio-4886, ¶ 47. A failure to make either showing defeats the claim. Cardenas at ¶ 38. {¶ 8} Because a “plea of guilty is a complete admission of guilt,” a defendant who pleads guilty “waives all appealable errors, including claims o f ineffective assistance of-5- counsel, except to the extent that [any alleged] errors” preven ted the plea from being made “knowingly, intelligently, and voluntarily.” (Citations o mitted.) State v. Leonard , 2d Dist. Montgomery No. 27411, 2017-Ohio-8421, ¶ 13. Thus, to prevail on a claim of ineffective assistance of counsel after having pleaded guilty, a defendant must show that: (1) counsel’s advice “was ‘not within the range of competence d emanded of attorneys in criminal cases’ ”; and (2) “but for counsel’s errors,” there wa s “a reasonable probability” that the defendant “would not have pleaded guilty but would hav e insisted on going to

trial.” See Tollett v. Henderson , 411 U.S. 258, 266, 93 S. Ct. 1602, 36 L.Ed.2d 235 (1973), quoting McMann v. Richardson , 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Leonard at ¶ 13; State v. Huddleson , 2d Dist. Montgomery No. 20653, 2005- Ohio-4029, ¶ 9. A trial court’s ruling on a motion to withdraw under Civ.R. 32.1 is

reviewed for abuse of discretion. See, e.g. , State v. Cressel , 2d Dist. Montgomery Nos. 20337 & 20348, 2005-Ohio-2013, ¶ 10. {¶ 9} Relying largely on the opinion of the U.S. Supreme Court in Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), Poppel argues, first, that his defense counsel rendered constitutionally deficient re presentation by failing to advise him that, under 18 U.S.C. 922(g)(9), he would effectivel y forfeit his right to own a firearm by pleading guilty to assault. Appellant’s Brief 9-10. He insists that, “[a]s an avid firearms enthusiast[,] [he] never would have agreed to ple ad guilty had he known of [all] of the * * * consequences of the plea.” Id. at 10. {¶ 10} In Padilla , the Court granted certiorari “to decide whether, as a matter of federal law, [a defense attorney] ha[s] an obligation to advise ” a noncitizen client that, by pleading guilty to certain crimes, the “result [will be the cli ent’s] removal from this country.”-6- See Padilla at 360. The Court decided that in the “numerous situations in which the [immigration] consequences of a particular plea are unclear or uncertain,” a defense attorney representing a noncitizen client “need do no more than advise [the] client” that pleading guilty to the “pending criminal charges may carry a ri sk” of deportation. See id. at 369. But in a case in which a conviction is nearly certain to result in the defendant’s deportation, as was the situation in Padilla , an attorney bears the duty to “understand the * * * consequences of a guilty plea” and to “give correct advic e” on the basis of that understanding. See id. ; State v. Romero , 156 Ohio St.3d 468, 2019-Ohio-1839, 129 N.E.3d 404, ¶ 27. {¶ 11} Poppel contends that his defense counsel had an affirmative obl igation to advise him that he would lose his right to own a firearm as a r esult of pleading guilty to assault, because even “[a] quick glance” at 18 U.S.C. 922(g)(9) would have revealed as much. Appellant’s Brief 9-10. 18 U.S.C. 922(g)(9) prohibits a person “who has been convicted in any court of a misdemeanor crime of domestic viole nce” from possessing, “ship[ping] or transport[ing] in interstate or foreign commerce ” any “firearm or ammunition,” and from “receiv[ing] any firearm or ammunition wh ich has been shipped or transported in interstate or foreign commerce,” and as defined by 18 U.S.C. 921(a)(33)(A), the term “misdemeanor crime of domestic violence ” includes the crime of-7- assault under R.C. 2903.13(A). 2 Essentially, Poppel suggests that an attorney bears the duty to advise a defendant who contemplates the entry of a plea in lieu of a trial of every possible consequence that is “easily * * * determined” and “pre sumptively mandatory.”

See id. at 9. {¶ 12} The “ ‘proper measure of attorney performance,’ ” however, “ ‘r emains simply reasonableness under pre vailing professional norms.’ ” Padilla at 366, quoting

Strickland , 466 U.S. at 688, 104 S.Ct. 2052, 80 L.Ed.2d 674. Citing a se ries of sources, including the Department of Justice and the American Bar Associ ation, the Court in

Padilla found that the “weight of preva iling professional norms suppor t[ed] the view that [a defense attorney] must advise [a noncitizen] client regardin g the risk of deportation.”

See id. at 367. {¶ 13} In the instant case, Poppel has presented no evidence to establ ish the relevant, prevailing professional norms. See Appellant’s Brief 5-12; Transcript of Hearing on Motion to Withdraw Plea 8:23-12:14; Defendant’s Moti on to Withdraw Plea 2-

7. The trial court thus lacked evidence of record on which it could have based a finding that Poppel’s defense counsel provided less than reasonably pro fessional representation.

2 18 U.S.C. 921(a)(33)(A) defines “the term ‘misdemeanor crime o f violence’ [as] an offense” that “is a misdemeanor under [f]ederal, [s]tate, or [t ]ribal law” and “has, as an element, the use or attempted use of physical force, * * *, com mitted by a current or former spouse, parent, or guardian of the victim, by a person with who m the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.” See also U.S. v. Hayes, 555 U.S. 415, 420-421, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009) (holding that an offense qualifies as a misdemeanor crime of domestic violence if committed by an offender “against a spouse or other domestic victim,” regardless of whether “the statute describing the pred icate offense include[s], as a discrete element, the existence of a domestic relationship be tween [the] offender and [the] victim”).-8- Poppel, for that matter, describes himself as “a lifelong firea rms enthusiast,” yet he provided no evidence to illustrate his “avid” enthusiasm, such as ownership of one or more firearms in the past, membership in an organization for ow ners or advocates of firearms, or even general knowledge of firearms; he fails, for instance, even to specify the type of firearm that he claims to have won at a raffle. Affida vit of Markley Poppel ¶ 1-9, May 19, 2020; 3 Transcript of Hearing on Motion to Withdraw Plea 8:23-12:14; A ppellant’s

Brief 4-12. {¶ 14} Furthermore, Poppel does not allege that his defense counsel wa s aware of his interest in firearms or had any reason otherwise to inve stigate the possibility that Poppel might lose his right to own a firearm as a result of ple ading guilty. See Transcript

of Motion to Withdraw Plea 9:10-9:22. A noncitizen-defendant’s continued residency in the United States, by contrast, could be at stake in nearly any criminal proceeding, and an attorney representing a noncitizen may therefore reasonably be expected to consider

the effect that a conviction would have on the noncitizen’s res idency. Accordingly, Poppel has not demonstrated that his defense counsel failed to provide reasonably professional representation. {¶ 15} Poppel’s second argument for reversal of the trial court’s orde r is that the court did not satisfy its obligation to ensure that he entered his plea knowingly and voluntarily, given that the court failed to comply with the req uirements of R.C. 2943.033(C). See Appellant’s Brief 12-14. R.C. 2943.033(C) mandates that befor e a trial court accepts a defendant’s plea of guilty to “a misdemea nor offense of violence, the

3 Poppel attached the affidavit as Exhibit “A” to his motion to withdraw.-9- court shall inform the defendant[,] either [verbally] or in wri ting[,] that under 18 U.S.C. 922(g)(9) it may be unlawful for [him] to ship, transport, purc hase, or possess a firearm or ammunition as a result of any conviction for an offense of v iolence,” yet the statute adds that “[t]he plea may not [thereafter] be vacated based on [the court’s] failure to inform [the defendant of] the restrictions under 18 U.S.C. 922(g)(9).” {¶ 16} The transcript of Poppel’s plea colloquy shows that the trial c ourt did not, in fact, deliver the warning nominally required by R.C. 2943.033(C ). See generally Transcript of Plea Hearing, Aug. 1, 2018. Nevertheless, the fi nal clause of R.C. 2943.033(C) unambiguously indicates that the omission of the wa rning is not a valid basis for the withdrawal of a plea. {¶ 17} Poppel argues that the last clause of R.C. 2943.033(C), which s tates that a plea “may not be vacated based on a [trial court’s] failure to [warn a defendant about] the restrictions under 18 U.S.C. 922(g)(9),” is unconstitutional be cause it effectively allows a defendant to forfeit an “individual[,] fundamental” right witho ut notice. See Appellant’s Brief 13-14. That is, Poppel presupposes that the acceptance o f his plea resulted in a violation of his constitutional rights, without establishing th at a warning about 18 U.S.C. 922(g)(9) was constitutionally necessary. Although he cites U.S. v. Rehlander , 666 F.3d 45 (1st Cir.2012), in support of his contention that “due proce ss must apply [sic] in order to remove a citizen’s firearm rights,” the opinion is inapposit e because it concerned the ex parte deprivation of a person’s right to own a firearm pursu ant to 18 U.S.C. 922(g)(4).

Rehlander at 47-49; Appellant’s Brief 14. {¶ 18} In 2012, we held that a defendant knowingly and voluntarily ple aded no contest to a charge of domestic violence, even though the trial court had not informed the-10- defendant “about the federal restriction [on] possessi[on] [of] a firearm established by 18 U.S.C. 922(g)(9).” State v. Taylor , 2d Dist. Greene No. 2010-CA-46, 2012-Ohio-963, ¶ 1, 3 and 30-31. We determined that a trial court’s omission of the warning under R.C. 2943.033(C) was not grounds for the withdrawal of a plea becaus e “a trial court is not required to determine, and [to] advise a defendant of, every co llateral consequence that may result from a plea to a misdemeanor.” See id. at ¶ 35; see also King v. Dutton , 17 F.3d 151, 153 (6th Cir.1994) (stating that a “trial court is un der no constitutional obligation to inform [a] defendant of all the possible collateral conseque nces of [a] plea”); State v. Taylor , 11th Dist. Geauga No. 2002-G-2441, 2003-Ohio-6963, ¶ 27. A “ direct consequence” of a plea is a “ ‘definite, immediate and largely automatic effect on the range of [a] defendant’s punishment,’ ” whereas a result that i s “not direct [is a] collateral” consequence, meaning that it has “ ‘no effect * * * upon the le ngth or nature” of the

defendant’s sentence. George v. Black , 732 F.2d 108, 110 (8th Cir.1984), quoting Cuthrell v. Director, Patuxent Inst. , 475 F.2d 1364, 1366 (4th Cir.1973); U.S. v. Jordan , 870 F.2d 1310, 1317 (7th Cir.1989), quoting U.S. v. Long , 852 F.2d 975, 979 (7th Cir.1988), and citing U.S. v. Suter , 755 F.2d 523, 525 (7th Cir.1985); see also Suter at 525, citing George at 110; State v. Radovanic , 10th Dist. Franklin No. 13AP-193, 2013- Ohio-4157, ¶ 15, citing Jordan at 1317. Alternatively, the term “collateral consequence” has been defined as “an adverse legal consequence of a convicti on * * * that [continues] despite the [defendant]’s sentence having been * * * served.” State v. Harris , 8th Dist. Cuyahoga No. 108677, 2021-Ohio-305, ¶ 22, citing In re S.J.K. , 114 Ohio St.3d 23, 2007- Ohio-2621, 967 N.E.2d 408, ¶ 10. {¶ 19} In Padilla , the U.S. Supreme Court observed that it had “never applied a-11- distinction between direct and collateral consequences to defin e the scope of constitutionally ‘reasonable[,] professional assistance’ [of co unsel],” and the Court declined to consider whether the distinction was “appropriate” for purposes of evaluating

a claim of ineffective assistance of counsel “because of the un ique nature of deportation,” which was the consequence at issue in the opinion. Padilla , 559 U.S. at 365, 130 S.Ct. 1473, 176 L.Ed.2d 284. The Court, however, expressly “limited this observation to the context of the Sixth Amendment right to effective assistance of counsel” and “made no comment on the distinction as it relates to [a] defendant’s Fif th Amendment right [to enter a plea] ‘knowingly, voluntarily, and intelligently.’ ” (Emphasi s omitted.) U.S. v. Rodriguez-Gonzales , 543 Fed.Appx. 532, 534 (6th Cir. 2013). As such, the Court’s “ ‘unwillingness [in Padilla ] to apply the direct [versus] collateral distinction in the [c ontext of] the Sixth Amendment * * * does not [indicate that] the Cour t” has any “intention to do away with [the] distinction entirely in the [context of the] Fi fth Amendment.’ ” Id. , quoting U.S. v. Youngs , 687 F.3d 56, 62 (2d Cir.2012). {¶ 20} We hold that Poppel has not met his burden to establish, throug h argument and citation to authority, that the trial court’s failure to de liver the warning specified in R.C. 2943.033(C) has resulted either in a violation of his right to own a firearm under the Second Amendment or in a violation of his right to procedural d ue process. This court has previously determined that a trial court has no obligation to advise a defendant about the collateral consequences of entering a plea of guilty in lie u of a trial. See Taylor , 2d Dist. Greene No. 2010-CA-46, 2012-Ohio-963, ¶ 34-35. Moreover, Poppel has not established that R.C. 2943.033(C) is unconstitutional because h e has not shown that a state court has a constitutional obligation to give notice to a defendant regarding the-12- potential for a state conviction to have a collateral consequen ce under federal law. Poppel’s assignment of error is overruled. {¶ 21} In addition, we hold that the trial court did not err by entert aining Poppel’s motion. Poppel’s assertion that he “acted very quickly upon di scovering” his federal firearm disability is questionable, but considering the circums tances of the past year created by the pandemic, we are disinclined to find that the mo tion was untimely.

III. Conclusion {¶ 22} Poppel’s defense counsel was not ineffective for failing to war n him that, under 18 U.S.C. 922(g)(9), he could lose his right to own a fir earm by pleading guilty to a misdemeanor violation of R.C. 2903.13(A), and the trial court d id not fail to meet its obligations under Crim.R. 11 by omitting such a warning, becaus e Poppel’s loss of his right to own a firearm, a disability resulting from the applica tion of federal law, was a collateral consequence of Poppel’s plea, rather than a direct c onsequence. Furthermore, Poppel has not shown that R.C 2943.033(C) is uncon stitutional, on its face or as applied to him. Therefore, the trial court’s final order of November 9, 2020, is

affirmed.

. . . . . . . . . . . . . WELBAUM, J., concurs. DONOVAN, J., concurs in judgment only.

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Mark M. Feinstein Derek A. DeBrosse Michael A. Truman Hon. Gil S. Weithman