[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. 

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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 Appeal: 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 

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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 plea. 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 permit 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 unsuccessfully 

sought 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 ineffectiveness 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 postconviction 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 the 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 

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{¶5} The due-process protections afforded by Article I, Section 16 of the 

Ohio Constitution and the Fourteenth 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 counsel’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 pleaded 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 withdraw his no-contest plea, Bishop 

contended that his trial counsel’s representation 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 

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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 constitutionally 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 applied retroactively to convictions 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 altered 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, 751 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 settled 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 accuracy 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 defendant’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, 137 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 

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{¶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 “original 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 recognition 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 conviction 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) (holding 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 client 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 the 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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, provided an independent state basis for finding counsel 

deficient for failing to advise a noncitizen client concerning immigration 

consequences). Other state courts have, like the court in Sylvain, applied 

retroactivity standards formulated by the states’ highest courts, but then have 

determined that Padilla is not retroactively applicable 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 based 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 determining the retroactive 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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, 1998 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 defendant’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 consistent with the law and this opinion. 

Judgment reversed and cause remanded.

CUNNINGHAM, P.J., FISCHER and DEWINE, JJ. 

Please note: 

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