[Cite as State v. Bishop , 2014-Ohio-173.]



### IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, Plaintiff-Appellant,

vs. HAROLD BISHOP, Defendant-Appellee. :

:

:

:

: APPEAL NO. C-130074 TRIAL NO. 06CRB-25910

O P I N I O N.

Criminal Appeal From: Hamilton County Municipal Court Judgment Appealed From Is: Reversed and Cause Remanded Date of Judgment Entry on Appe al: January 22, 2014

John Curp , City Solicitor, Charles Rubenstein , City Prosecutor, and Heidi Rosales , Senior Assistant City Prosecutor, for Plaintiff-Appellant, McKinny & Namei Co., LPA, and Paul W. Shonk , for Defendant-Appellee.

Please note: we have removed this case from the accelerated calendar.OHIO FIRST DISTRICT COURT OF APPEALS

2 Per Curiam. 

### {¶1} Plaintiff-appellant the state of Ohio appeals from the Hamilton County Municipal Court’s judgment granting defendant-appellee Harold Bishop’s Crim.R. 32.1 motion to withdraw his no-contest pl ea. Upon our determination that the court
abused its discretion in retroactively applying Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), to pe rmit Bishop to withdraw his plea, we reverse the court’s judgment. 

### {¶2} Bishop was convicted in 2006 upon his no-contest plea to domestic violence. He did not appeal his conviction. Instead, in 2011, he unsuccessfullysought to expunge it. And in 2012, he moved under Crim.R. 32.1 to withdraw his nocontest plea on the ground that his plea had been the unintelligent product of his
trial counsel’s ineffectiv eness in advising him concerning the immigration consequences of his conviction. Following a hearing, the common pleas court granted the motion, and this appeal followed. 

### {¶3} On appeal, the state advances a single assignment of error, challenging the granting of Bishop’s motion. The challenge is well taken. 

### {¶4} Crim.R. 32.1 authorizes the postconv iction withdrawal of a guilty or no-contest plea only “to correct manifest injustice.” State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. The defendant bears the burden of proving “manifest injustice.” The determination of whether the defendant
has sustained that burden is committed to th e sound discretion of the trial court and will not be disturbed on appeal unless the court abused its discretion. Id. at paragraph two of the syllabus.OHIO FIRST DISTRICT COURT OF APPEALS

3 

### {¶5} The due-process protections afforded by Article I, Section 16 of the
Ohio Constitution and the Fo urteenth Amendment to the United States Constitution require that a guilty or no-contest plea “represent[] a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v.
Alford , 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); State v. Engle , 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). A defendant who seeks to withdraw his plea on the ground that the plea was the unintelligent product of his counsel’s
ineffectiveness must demonstrate that coun sel’s representation was constitutionally deficient, Strickland v. Washington , 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that “there is a reasonable probability that, but for [this deficiency, the defendant] would not have pl eaded guilty and would have insisted on going to trial.” Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see State v. Xie , 62 Ohio St.3d, 521, 524, 584 N.E.2d 715 (1992); State v.
Blackwell , 1st Dist. Hamilton No. C-970150, 1998 Ohio App. LEXIS 1856 (May 1, 1998). 

### {¶6} Inaccurate advice concerning immigration
consequences. In support of his motion to with draw his no-contest plea, Bishop contended that his trial counsel’s representa tion had been constitutionally deficient because counsel had advised him that the domestic-violence conviction resulting from his no-contest plea “may” make him deportable, when his conviction mandated deportation. Bishop also insisted that if he had known that his conviction would make him deportable, he would not have entered the plea. 

### {¶7} For purposes of the Sixth Amendment right to the effective assistance of counsel, a plea negotiation is a critical phase of a criminal prosecution. Hill at 57.OHIO FIRST DISTRICT COURT OF APPEALS

4 In Padilla , the United States Supreme Court held that the Sixth Amendment imposes upon counsel in a criminal case a duty to accurately advise a noncitizen client concerning the immigration consequences of a guilty plea. Padilla , 559 U.S. at 374, 130 S.Ct. 1473, 176 L.Ed.2d 284. If the consequence of deportation can be “easily determined from reading the removal statute, ” counsel must inform his client of that fact. “When the law is not succinct and straightforward,” counsel “need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Id. at 368-369. 

### {¶8} Bishop testified at the hearing that his counsel had advised him that his conviction upon his no-contest plea to domestic violence “may” result in his deportation. But federal immigration law expressly mandates the removal of “[a]ny
alien * * * convicted of a crime of domestic violence.” 8 U.S. C. 1227(a)(2)(E)(i). Because counsel did not advise Bishop that deportation was mandatory, counsel’s representation was consti tutionally deficient. 

### {¶9} Padilla is not retroactive. But in Chaidez v. United States , ___ U.S. ___, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), the Supreme Court, applying the principles set forth in Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), held that Padilla could not be applie d retroactively to co nvictions that had become final before March 31, 2010, when the case was decided, because the case announced a “new rule” when it answered an open question concerning the reach of the Sixth Amendment in a way that alte red the law of most jurisdictions. Chaidez at
1107-1113. 

### {¶10} A conviction becomes final when all appellate remedies have been
exhausted. Teague at 295; Agee v. Russell , 92 Ohio St.3d 540, 2001-Ohio-1279, 751OHIO FIRST DISTRICT COURT OF APPEALS

5 N.E.2d 1043. Thus, Bishop’s conviction became final in 2006, when the time for perfecting a direct appeal from his conviction had expired. Because Bishop’s
conviction was final before Padilla was decided, the municipal court could not,
consistent with Chaidez , allow Bishop to withdraw his no-contest plea based on a violation of the Sixth Amendment right announced in Padilla

. 

### {¶11} We follow Chaidez

. Nevertheless, Bishop urges us to follow the lead of the Supreme Judicial Court of Massachusetts in Commonwealth v. Sylvain , 466 Mass. 422, 995 N.E.2d 760 (2013), and hold that he was entitled to relief under Crim.R. 32.1, because the rule announced in Padilla was not a “new rule” under Ohio
law. We decline to do so. 

### {¶12} In Teague , the United States Supreme Court held that a person whose conviction is final before a case is decided may avail himself of that decision in a collateral proceeding if the case applies a se ttled rule, but not if the case announces a “new rule,” unless that new rule constitutes either a rule placing “conduct beyond the power of the [government] to proscribe” or a “watershed rule[] of criminal procedure implicating the fundamental fairness and a ccuracy of the criminal proceeding.” Teague , 489 U.S. at 311, 109 S.Ct. 1060, 103 L.Ed.2d 334. The court in Teague stated that “a case announces a new rule if the result was not dictated by precedent existing at the time the defendan t’s conviction became final.” Id. at 301. And the court later declared that a holding is not dictated by existing precedent unless it would have been “apparent to all reasonable jurists.” Lambrix v. Singletary , 520 U.S. 518, 527-528, 117 S.Ct. 1517, 13 7 L.Ed.2d 771 (1997). The Court in Chaidez applied Teague and Lambrix to hold that Padilla had stated a new rule. See
Chaidez , 133 S.Ct. at 1107, 185 L.Ed.2d 149.OHIO FIRST DISTRICT COURT OF APPEALS

6 

### {¶13} In Danforth v. Minnesota , 552 U.S. 264, 282, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008), the Supreme Court held that Teague does not bar a state from giving a federal constitutional rule deemed “new” under Teague broader retroactive effect in its own state collateral proceedings. In Sylvain , the Supreme Judicial Court of Massachusetts exercised its authority under Danforth to define and determine
under state law what constitutes a “new rule” and held that the Padilla rule was not
“new” under Massachusetts law. Sylvain at 435. Massachusetts’s highest court had long ago adopted the Teague analysis for determining retroactivity. See Commonwealth v. Bray , 407 Mass. 296, 300-301, 553 N.E.2d 538 (1990). But in Sylvain , the court said that the Supreme Court since Teague had “greatly expanded the meaning of what is ‘new’ to include results not apparent to all reasonable jurists
at the time.” Sylvain at 433. Distinguishing the post- Teague precedent, the court applied what it called the “o riginal formulation” of the Teague analysis, and it
concluded that Padilla had not announced a new rule, because the Supreme Court in
Padilla had simply applied the settled law of Strickland to a specific factual situation, and because “Massachusetts precedent at the time Padilla was decided would [not] have dictated an outcome contrary to that in Padilla .” 1 Id. The court also found in the commonwealth’s constitution a right, “coextensive” with the Sixth Amendment right, to accurate advice concerning immigration consequences, and the court determined, for the same reasons, that its re cognition of that right did not constitute
a new rule. Id. at 436.

1 We note that the Supreme Court in Teague stated that “a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s convicti on became final .” (Emphasis added.) Teague , 489 U.S. at 301, 109 S.Ct. 1060, 103 L.Ed.2d 334. Sylvain’s conviction became final in 2007. But the court in Sylvain , while purporting to apply the Teague definition of a “new rule,” focused on “Massachusetts precedent at the time Padilla was decided.” Sylvain at 435.OHIO FIRST DISTRICT COURT OF APPEALS

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### {¶14} But the holding in Padilla —that the Sixth Amendment imposes upon counsel a duty to accurately advise a noncitizen client concerning the immigration consequences of a plea—cannot be said to have been dictated by Ohio precedent when, in 2006, Bishop’s conviction became final. See State v. Lei , 10th Dist. Franklin No. 05AP-288, 2006-Ohio-2608, ¶ 32 (“Though the court must inform defendants of deportation consequences prior to accepting a plea of guilty or no contest, pursuant to R.C. 2943.031, no statutory or decisional authority requires trial counsel to advise a defendant of the civil, collateral consequence of deportation for purposes of the defendant’s decision as to whether to accept a plea agreement or to exercise her constitutional right to trial”); accord State v. Sok, 170 Ohio App.3d 777, 2007-Ohio729, 869 N.E.2d 60, ¶ 16 (1st Dist.); State v. Bulgakov , 6th Dist. Wood No. WD-03- 096, 2005-Ohio-1675, ¶ 24; State v. Garcia , 3rd Dist. Defiance No. 4-98-24, 1999 Ohio App. LEXIS 1768 (Apr. 9, 1999) (holdi ng that after R.C. 2943.031 was enacted in 1989, the duty to notify defendant of immigration consequences is on the trial court, not counsel). See also State v. Arvanitis , 36 Ohio App.3d 213, 218, 522 N.E.2d 1089 (9th Dist.1986) (declaring, before R.C. 2943.031 was enacted, that it was “not disposed to announce a hard and fast rule” that counsel had violated an essential duty in failing to advise a noncitizen clie nt concerning the immigration consequences of a guilty plea). Compare State v. Hamilton , 8th Dist. Cuyahoga No. 90141, 2008- Ohio-455, ¶ 18 (following Sok , Bulgakov , and Garcia ), with State v. Creary , 8th Dist. Cuyahoga No. 82767, 2004-Ohio-858, ¶ 8 (holding that when counsel “was fully aware of [defendant’s] interest in deportation consequences, the failure to inform him concerning deportation can be held to fall below professional standards”). Therefore, even if we were to eschew Chaidez and adopt theOHIO FIRST DISTRICT COURT OF APPEALS

8 retroactivity standard applied in Sylvain , Bishop would not have been entitled to retroactive application of the rule of Padilla

. 

### {¶15} Some state courts have simply applied Chaidez to deny retroactive application of Padilla in state collateral proceedings. See Ex parte De Los Reyes , 392 S.W.3d 675 (Tex.Crim. App.2013) (following Chaidez because, as a matter of state habeas practice, the court followed Teague , and the petitioner’s case provided no reason to deviate from that standard); Miller v. State , 77 A.3d 1030, 2013 Md. LEXIS 596 (Md.2013) (following Chaidez because the state constitution had not, prior to defendant’s conviction, prov ided an independent state basis for finding counsel deficient for failing to advise a nonc itizen client concerning immigration consequences). Other state courts have, like the court in Sylvain , applied retroactivity standards formulated by th e states’ highest courts, but then have
determined that Padilla is not retroactively appl icable under state law. See State v.
Garcia , 2013 S.D. 46, 834 N.W.2d 821 (2013); People v. Andrews , 108 A.D.3d 727, 970 N.Y.S.2d 226 (N.Y. App.Div.2d Dept.2013). 

### {¶16} Ohio’s retroactivity jurisprudence contains no suggestion that the
retroactive effect of Padilla should be determined under a standard other than that
set forth in Teague . Before Teague , the United States Supreme Court had determined retroactivity base d on the factors set forth in Linkletter v. Walker , 381 U.S. 618, 636-640, 85 S.Ct. 1731, 14 L.Ed .2d 601 (1965), and the Ohio Supreme Court adopted and applied the Linkletter factors in Pinch v. Maxwell , 3 Ohio St.2d 212, 215, 210 N.E.2d 883 (1965). The Ohio Supreme Court has not yet had an opportunity to apply Teague. See Agee , 92 Ohio St.3d at 542, 2001-Ohio-1279, 751 N.E.2d 1043 (holding that Teague was inapposite in dete rmining the retroactiveOHIO FIRST DISTRICT COURT OF APPEALS

9 application of a case construing a state statute). Thus, the court has had no occasion
to consider whether Ohio law would allow retroactive effect where Teague would not. But several Ohio appellate districts have applied Teague to determine the retroactive
effect of other cases. See State v. Tucker , 8th Dist. Cuyahoga No. 88568, 2007-Ohio2123; State v. Bruggeman , 3rd Dist. Auglaize No. 2-04-26, 2005-Ohio-956; State v.
Shorter , 2d Dist. Montgomery No. 16983, 19 98 Ohio App. LEXIS 4649 (Oct. 2, 1998). And the Tenth Appellate District in State v. Spivakov , 10th Dist. Franklin Nos. 13AP-32 and 13AP-33, 2013-Ohio-3343, with no mention of Danforth , followed
Chaidez to affirm the overruling of the defe ndant’s motion to withdraw his guilty pleas, because his 2006 convictions were final before Padilla was decided. 

### {¶17} We reverse. We, therefore, follow Chaidez to hold that, because Bishop’s 2006 conviction was final before Padilla was decided, the municipal court
abused its discretion in retroactively applying Padilla to permit Bishop to withdraw his no-contest plea. Accordingly, we sustain the assignment of error, reverse the judgment granting Bishop’s Crim.R. 32.1 motion, and remand for further proceedings consiste nt with the law and this opinion. Judgment reversed and cause remanded.
C UNNINGHAM , P.J., F ISCHER and D E W INE , JJ.

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