[Cite as State v. Kongkeo, 2012-Ohio-356.]

 Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 96691

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

AMPHA KONGKEO 

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-472076 

BEFORE: Stewart, P.J., Celebrezze, J., and Keough, J. 

RELEASED AND JOURNALIZED: February 2, 2012 
ATTORNEY FOR APPELLANT

Philip Eichorn 

Philip Eichorn Co., LPA 

1370 W. 6th Street, Suite 202 

Cleveland, OH 44113 

ATTORNEYS FOR APPELLEES

William D. Mason 

Cuyahoga County Prosecutor 

BY: Kristen L. Sobieski 

Assistant County Prosecutor 

The Justice Center 

1200 Ontario Street, 8th Floor 

Cleveland, OH 44113 

MELODY J. STEWART, P.J.: 

{¶ 1} Defendant-appellant Ampha Kongkeo pleaded guilty to first degree 

misdemeanor counts of receiving stolen property and theft. Kongkeo, who is not a 

United States citizen (she was granted refugee status in 1989 and permanent residency in 

1992), was advised at the time of the plea that “pleading guilty may have the 

consequences of deportation or denial of naturalization to the laws of the United States.” 

She did not appeal from her conviction. More than two years later, after deportation 

proceedings were commenced against her, she filed a motion to withdraw her guilty plea 

on grounds that trial counsel “did not address her citizenship status with the Court” nor 
did trial counsel “properly inform Defendant about the immigration consequences or refer 

to an immigration attorney.” The court denied the motion to withdraw the guilty plea 

without a hearing. Kongkeo complains that the court erred by denying the motion to 

withdraw the guilty plea without first conducting a hearing and more fully developing the 

record. 

{¶ 2} A post-sentence motion to withdraw a guilty plea is governed by the 

“manifest injustice” standard. See Crim.R. 32.1. A manifest injustice has been defined 

as a “clear or openly unjust act,” State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 

208, 1998-Ohio-271, 699 N.E.2d 83, meaning that a post-sentence withdrawal motion to 

withdraw a guilty plea is allowable only in extraordinary cases. State v. Smith, 49 Ohio 

St.2d 261, 264, 361 N.E.2d 1324 (1977). Because the decision of whether an injustice 

exists requires an examination of the underlying facts asserted in the motion, we review a 

trial court’s refusal to allow a post-sentence motion to withdraw a guilty plea for an abuse 

of discretion. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992); State v. 

Bankston, 8th Dist. No. 92777, 2010-Ohio-1576, 2010 WL 1386380, ¶ 50. 

{¶ 3} Although a hearing is generally required for pre-sentence motions to 

withdraw guilty pleas, post-sentence motions to withdraw guilty pleas are treated 

differently. This is because the courts presume that guilty or no contest pleas are 

voluntarily entered in compliance with Crim.R. 11. See State v. Hall, 8th Dist. No. 

55289, 1989 WL 42253 (Apr. 27, 1989). The movant thus has the burden of showing 

why the plea was infirm, a burden that requires “a prima facie showing of merit before 
the trial court need devote considerable time to it.” Id.; State v. Wittine, 8th Dist. No. 

90747, 2008-Ohio-5745, 2008 WL 4813830, ¶ 9. Hence, “[a] hearing must only be held 

if the facts alleged by the defendant, accepted as true, would require that the defendant be 

allowed to withdraw the plea.” State v. Barrett, 10th Dist. No. 11AP-375, 

2011-Ohio-4986, 2011 WL 4489169, ¶ 9, citing State v. Williams, 10th Dist. No. 

03AP-1214, 2004-Ohio-6123, 2004 WL 2616430, ¶ 6. 

{¶ 4} Kongkeo filed an affidavit in support of her motion to withdraw the guilty 

plea, stating that she and her attorney “never spoke about the consequences of a plea 

bargain.” We have held that a trial judge need not take an affidavit at face value but 

may, in the exercise of discretion, judge the credibility of an affidavit submitted in 

support of a motion to withdraw a plea in determining whether to accept the affidavit as 

true statements of fact. State v. Mays, 174 Ohio App.3d 681, 2008-Ohio-128, 884 

N.E.2d 607 (8th Dist.), ¶ 14. This is all the more true when “the only evidence provided 

consists of affidavits from interested parties which conflict with the facts elicited at the 

plea hearing.” State v. Yearby, 8th Dist. No. 79000, 2002 WL 120530 (Jan. 24, 2002). 

{¶ 5} Kongkeo’s affidavit was contradicted by the record of the plea proceedings. 

 During the July 14, 2008 proceedings before the court in which she intially sought to 

enter a guilty plea, Kongkeo personally informed the court that she was not a United 

States citizen. This prompted the court to advise her that “the conviction of the offense 

to which you are pleading guilty may have the consequences of deportation, exclusion 

from admission to the United States, and denial on the [sic] naturalization pursuant to the 
laws of the United States.” In response to the court’s advisement, defense counsel stated, 

“[i]t’s a problem.” The court then asked whether Kongkeo might be placed back into the 

court’s diversion program (Kongkeo entered the diversion program in 2006, but was 

removed from the program due to her failure to make full restitution to the victim). The 

court then reset the plea proceedings. 

{¶ 6} The court convened on July 29, 2008 to take Kongkeo’s guilty plea. 

Defense counsel advised the court that Kongkeo was not a United States citizen. The 

court acknowledged its understanding of that fact and again advised Kongkeo that her 

guilty plea “may have the consequences of deportation or denial of naturalization to the 

laws of the United States.” Kongkeo stated that she understood there might be 

immigration and naturalization consequences to her guilty plea and then proceded to enter 

the plea. 

{¶ 7} While the record does not specifically show that defense counsel and 

Kongkeo conferred on deportation as a possible consequence of the guilty plea, the 

conclusion that they did seems inescapable. It would be irrational to find that defense 

counsel did not discuss the possibility of deportation with Kongkeo after the court 

recessed in response to defense counsel’s assertion that Kongkeo’s alienage was “a 

problem.” Defense counsel is presumed competent, Strickland v. Washington, 466 U.S. 

668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and it is beyond conception that 

defense counsel would not have further advised Kongkeo about the consequences of her 

plea at that stage of the proceedings, particularly when the court appeared to recess for 
that purpose. Our conclusion is reinforced by Kongkeo’s statement, made during the 

second plea hearing, that she understood her guilty plea might have consequences for her 

continued residency in the United States. On the record before us, the court could 

rationally have concluded that Kongkeo’s affidavit was so self-serving and contrary to the 

record that it lacked any credibility. 

{¶ 8} Kongkeo cites to the United States Supreme Court decision in Padilla v. 

Kentucky, 559 U.S. ___, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), as authority for the 

proposition that an attorney renders ineffective assistance of counsel by failing to advise a 

defendant that a guilty plea may subject the defendant to automatic deportation. Padilla

has no application here because that case involved a defense attorney who gave Padilla 

“false assurance that his conviction would not result in his removal from this country.” 

Id., 559 U.S. at ___, 130 S.Ct. at 1483. Even if Kongkeo’s affidavit was accepted at face 

value, it only shows that defense counsel did not discuss the residency consequences of 

the plea, not that defense counsel assured Kongkeo that she would not be deported if 

convicted. 

{¶ 9} Having been twice informed by the court that her guilty plea might lead to 

deportation, Kongkeo cannot colorably argue that her guilty plea was the product of a 

manifest injustice by virtue of defense counsel’s failure to advise her that she could be 

deported as a consequence of her plea. It follows that the motion to withdraw the guilty 

plea failed to set forth a prima facie case entitling her to relief, so the court did not abuse 

its discretion by denying the motion without first conducting a hearing. 
Judgment affirmed. 

It is ordered that appellee recover of appellant its 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 Cuyahoga 

County Court of Common Pleas 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. 

 

 

MELODY J. STEWART, PRESIDING JUDGE 

FRANK D. CELEBREZZE, JR., J., and 

KATHLEEN ANN KEOUGH, J., CONCUR