[Cite as State v. Diol, 2021-Ohio-3120.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

MOHAMED DIOL, 

 Defendant-Appellant. 

: 

: 

: 

: 

APPEAL NO. C-200285 

TRIAL NO. B-1700978 

 O P I N I O N.

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Reversed and Cause Remanded 

Date of Judgment Entry on Appeal: September 10, 2021 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

McKinney & Namei Co., LPA, Sarah C. Larcade and Firooz T. Namei, for 

Defendant-Appellant. 
OHIO FIRST DISTRICT COURT OF APPEALS 

2

WINKLER, Judge.

{¶1} Defendant-appellant Mohamed Diol appeals the Hamilton County 

Common Pleas Court’s judgment denying his “Emergency Motion to Vacate Guilty 

Plea under Padilla v. Kentucky and Lee v. United States.” We reverse the court’s 

judgment. 

Procedural Posture

{¶2} Diol was indicted in February 2017 for marijuana trafficking and 

possession and possessing criminal tools. In June, pursuant to a plea agreement, he 

withdrew his motion to suppress, withdrew his not-guilty pleas, and entered guilty 

pleas to marijuana trafficking and possession, in exchange for dismissal of the 

criminal-tools charge. In July 2017, following a hearing, the trial court accepted the 

pleas, found Diol guilty, and imposed for each offense one day of confinement, three 

years of intensive-supervision community control, a six-months driver’s-license 

suspension, and 100 hours of community service. Diol did not appeal those 

convictions. 

{¶3} Six months later, Diol filed with the common pleas court his 

“Emergency Motion to Vacate Guilty Plea under Padilla v. Kentucky and Lee v. 

United States.” In that motion, Diol sought relief from his convictions on the ground 

that his guilty pleas had been the involuntary, unknowing, and unintelligent product 

of his trial counsel’s ineffectiveness in failing to advise him that his convictions upon 

his guilty pleas to those drug offenses subjected him to mandatory deportation and 

exclusion from the United States. Diol supported the motion with his own affidavit. 

He averred that he was a citizen of Mauritania, that trial counsel had advised him 

that his convictions “would not result in automatic deportation [but] that at most it 

possibly could make it discretionary,” and that if he had known that his pleas would 

“lead to automatic deportation,” he would not have pled guilty. 
OHIO FIRST DISTRICT COURT OF APPEALS 

3 

{¶4} The common pleas court denied the motion. This court reversed that 

judgment and remanded for an evidentiary hearing on the motion. State v. Diol, 1st 

Dist. Hamilton No. C-180249, 2019-Ohio-2197. 

The Hearing 

{¶5} At the hearing on the motion, Diol and his trial counsel testified. 

Counsel stated that deportation had been discussed on a number of occasions during 

the plea process, including the completion of the plea form. On that form, counsel 

had indicated that Diol was not a United States citizen by placing an X on the line 

provided. When Diol then, with his initials, indicated on the form that he was a 

citizen, counsel scratched out the X. Asked whether deportation was the 

determinative issue for Diol in deciding to plead guilty, counsel responded that he 

did not remember, but that Diol had insisted that he was a United States citizen and 

could not be deported. 

{¶6} Diol testified that he was a citizen of Mauritania, not the United States. 

He had come to the United States at the age of 16 to be with his father, who was a 

“political refugee,” and his current status was “refugee asylum * * * indefinite.” He 

stated that because his father had been a citizen when Diol came to the United 

States, he had read the term “indefinite” to mean that his status would not expire. 

And when he traveled to and from the United States, he used a travel document 

issued by the immigration service that, to him, looked like a United States passport. 

Consequently, throughout the plea process, he believed, and represented to the 

court, that he was a United States citizen and thus could not be deported. Diol 

further testified that he had shown his documentation to trial counsel, who neither 

disabused him of the notion that he was a United States citizen, nor discussed with 

him the immigration consequences of his guilty pleas if he was not. And Diol stated 

that if he had understood that his convictions mandated his removal, he would not 

have pled guilty and would have insisted on a trial. 
OHIO FIRST DISTRICT COURT OF APPEALS 

4

{¶7} Following the hearing, the common pleas court again denied the 

motion. In this appeal, Diol presents a single assignment of error, challenging the 

denial of the motion. The challenge is well taken.

A Manifest Injustice 

{¶8} Diol’s “Emergency Motion to Vacate Guilty Plea under Padilla v. 

Kentucky and Lee v. United States” was reviewable by the common pleas court under 

the standards provided by Crim.R. 32.1. See Diol, 1st Dist. Hamilton No. C-180249, 

2019-Ohio-2197, at ¶ 17. That rule confers upon a court the discretion to permit 

withdrawal of a guilty or no-contest plea after sentencing “to correct manifest 

injustice.” See State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraphs 

one and two of the syllabus; State v. Brown, 1st Dist. Hamilton No. C-010755, 2002-

Ohio-5813. 

{¶9} In State v. Romero, 156 Ohio St.3d 468, 2019-Ohio-1839, 129 N.E.3d 

404, the Supreme Court of Ohio held that when a noncitizen criminal defendant 

alleges ineffective assistance of counsel arising from the plea process, the defendant 

must meet the two-prong test established in Strickland v. Washington, 466 U.S. 

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and applied in the immigration context 

in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). 

Romero at ¶ 1, 3, and 14. The defendant must show that counsel’s performance was 

deficient, that is, that counsel did not accurately inform the defendant of the 

immigration consequences of his guilty plea. Id. at ¶ 15; Padilla at 374. And the 

defendant must demonstrate prejudice resulting from counsel’s deficient 

performance, that is, that there is “a reasonable probability that, but for counsel’s 

errors, [the defendant] would not have pleaded guilty and would have insisted on 

going to trial.” Romero at ¶ 16, quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 

366, 88 L.Ed.2d 203 (1985). 
OHIO FIRST DISTRICT COURT OF APPEALS 

5

{¶10} Thus, on his Crim.R. 32.1 motion, Diol bore the burden of 

demonstrating a prejudicial deficiency in his trial counsel’s advice concerning the 

removal consequence of his guilty pleas. And the common pleas court’s 

determination that Diol had failed to sustain that burden may be disturbed on appeal 

only if the court abused its discretion. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324, at 

paragraph two of the syllabus. The phrase “abuse of discretion” connotes more than 

an error of law or judgment; it implies that the court’s attitude was arbitrary or 

unconscionable, or that the court’s decision was the product of an unsound 

reasoning process. See State v. Hill, 12 Ohio St.2d 88, 232 N.E.2d 394 (1967), 

paragraph two of the syllabus; State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 

972 N.E.2d 528, ¶ 14. 

{¶11} Counsel’s advice was deficient. In our 2019 decision, we 

remanded for an evidentiary hearing to “clarify whether Diol is a United States 

citizen and whether but for his attorney’s misadvice, he would have pleaded not 

guilty and insisted on going to trial.” Diol, 1st Dist. Hamilton No. C-180249, 2019-

Ohio-2197, at ¶ 41. We declared that counsel had had a duty to determine whether 

Diol was a United States citizen and, if he was not, to advise him of the immigration 

consequences of his guilty pleas. The law was clear that the consequence of Diol’s 

drug convictions was his removal from the United States. And we found it “clear” 

from the record that counsel had given Diol “incorrect advice” during the plea 

hearing, when counsel stated, “I don’t believe this would lead to automatic 

deportation. I believe at worst it possibly could make it discretionary.” We also 

found that counsel’s deficient performance was not “cured” by the statutory 

advisement provided by the trial court. Nor was that deficiency cured when, during 

the trial court’s colloquy with Diol beyond that advisement, Diol responded 

affirmatively to the trial court’s question whether he wanted to plead guilty “even if it 

means automatic removal from the United States and you’re never able to return?” 
OHIO FIRST DISTRICT COURT OF APPEALS 

6

We concluded that, in the absence of an unequivocal statement by the trial court that 

Diol would be deported, the trial court’s admonition did not provide the degree of 

accuracy concerning immigration consequences that Padilla demands. 

{¶12} In the wake of our 2019 decision, the determination whether Diol’s 

trial counsel’s advice concerning the immigration consequences of his guilty pleas 

had been constitutionally deficient turned solely upon the question whether Diol was 

a United States citizen. Because the evidence adduced at the hearing on remand 

showed conclusively that he was not, our 2019 decision compels the conclusions here 

that counsel’s advisement was constitutionally deficient, and that that deficiency was 

not cured by the trial court’s statutory advisement or its advisement beyond the 

statutory advisement during its colloquy with Diol. 

{¶13} Counsel’s misadvice was prejudicial. In assessing here the 

common pleas court’s exercise of its discretion in denying Diol’s motion, the 

determinative question is whether Diol, at the hearing on his motion, sustained his 

burden of demonstrating that there was a reasonable probability that, but for his trial 

counsel’s misadvice concerning the removal consequence of his guilty pleas, he 

would not have pleaded guilty and would have insisted on going to trial. We 

conclude that he sustained that burden, and that the common pleas court’s 

determination to the contrary constituted an abuse of discretion. 

{¶14} Determining the prejudice prong of the analysis entails an 

examination of the totality of the circumstances and consideration of various factors. 

Those factors include the defendant’s connections to the United States; the 

importance the defendant placed on avoiding deportation, as substantiated by 

contemporaneous evidence, if any; the court’s advisement concerning immigration 

consequences; and the consequences of going to trial. See State v. Bozso, 162 Ohio 

St.3d 68, 2020-Ohio-3779, 164 N.E.3d 344, ¶ 19-36, citing Lee v. United States, ___ 
OHIO FIRST DISTRICT COURT OF APPEALS 

7

U.S. ___, 137 S.Ct. 1958, 1965-1969, 198 L.Ed.2d 476 (2017), and Romero, 156 Ohio 

St.3d 468, 2019-Ohio-1839, 129 N.E.3d 404, at ¶ 29-33. 

{¶15} The evidence adduced at the hearing was uncontroverted. In 2004, at 

the age of 16, Diol came to the United States to live with his father. His father had 

come to the United States as a political refugee and was a United States citizen when 

Diol joined him here. Thus, Diol’s connections to the United States were substantial. 

{¶16} At the hearing on the motion, Diol testified that, throughout the plea 

process, he had believed that he was a United States citizen and thus not subject to 

removal. He offered a reasonable explanation for that belief. And there is nothing in 

the record to suggest that that belief was other than sincere. 

{¶17} In remanding for a hearing on the motion, we concluded that trial 

counsel had misadvised Diol concerning the removal consequence of his guilty pleas, 

and that the trial court’s statutory and extra-statutory advisements did not cure trial 

counsel’s misadvice, because those advisements did not provide the degree of 

accuracy concerning immigration consequences that Padilla demands. At the 

hearing, Diol testified that because he believed that he was a United States citizen, 

and was thus not subject to removal, the discussions that occurred over the course of 

the plea process concerning the immigration consequences of his guilty pleas did not 

prompt him to contemporaneously express to his trial counsel or the trial court the 

importance he placed on avoiding removal. 

{¶18} As for the consequences of going to trial, Diol was charged with fifthdegree-felony marijuana trafficking, fourth-degree-misdemeanor marijuana 

possession, and fifth-degree-felony possession of criminal tools. He pled to drug 

trafficking and drug possession, as charged, and his plea arrangement did not 

include an agreed sentence. If found guilty at a trial of those charges, he faced 

potential terms of confinement of less than a year on each offense, but incarceration 

was not mandated. The trial court called for and reviewed the report of a 
OHIO FIRST DISTRICT COURT OF APPEALS 

8 

presentence investigation and determined that the appropriate sentence was 

community control. Comparatively speaking, the mandatory consequence of Diol’s 

guilty pleas—removal from the United States—was severe. Diol testified at the 

hearing that, if he had then understood that he was not a citizen and that the 

consequence of his guilty pleas was his removal, he would not have accepted the plea 

offer, but would have gone to trial. Under the circumstances, the common pleas 

court could not reasonably have discredited that testimony. 

Reversed and Remanded 

{¶19} The record shows that Diol, at the hearing on his Crim.R. 32.1 motion 

to withdraw his guilty pleas, sustained his burden of demonstrating a prejudicial 

deficiency in his trial counsel’s advice concerning the removal consequence of his 

guilty pleas. Thus, withdrawal of his guilty pleas was necessary to correct a manifest 

injustice. We, therefore, hold that the common pleas court abused its discretion in 

denying the motion. Accordingly, we sustain the assignment of error, reverse the 

common pleas court’s judgment denying the motion, and remand for further 

proceedings consistent with the law and this opinion. 

Judgment reversed and cause remanded. 

MYERS, P.J., and BOCK, J., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.