[Cite as State v. Vialva, 2017-Ohio-1279.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 104199

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

JOHNSON VIALVA 

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-15-599397-A 

BEFORE: Keough, A.J., Stewart, J., and Boyle, J. 

RELEASED AND JOURNALIZED: April 6, 2017 
ATTORNEY FOR APPELLANT

Jonathan N. Garver 

The Brownhoist Building 

4403 St. Clair Avenue 

Cleveland, Ohio 44103 

820 West Superior Avenue, Suite 800 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

By: Daniel Van 

Assistant Prosecuting Attorney 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
KATHLEEN ANN KEOUGH, A.J.: 

{¶1} Defendant-appellant, Johnson Vialva, challenges his guilty plea and the 

effectiveness of his trial counsel. For the reasons that follow, we affirm. 

{¶2} In October 2015, Vialva was named in a 24-count indictment charging him 

with 12 counts of rape, with furthermore clauses alleging that the victim was under ten 

years of age and sexually violent predator specifications; ten counts of gross sexual 

imposition, with sexually violent predator specifications; and two counts of kidnapping, 

with sexual motivation and sexually violent offender specifications. 

{¶3} In February 2016, Vialva pleaded guilty to ten amended counts of rape, ten 

amended counts of gross sexual imposition, and two amended counts of kidnapping. 

The parties agreed to a 20 year to life prison sentence, which the trial court ultimately 

imposed. 

{¶4} Vialva now appeals, raising four assignments of error, which will be 

addressed together where appropriate. 

I. Plea — Nature of the Charges and Right to Testify 

{¶5} In his first and second assignments of error, Vialva contends that the trial 

court committed prejudicial error and denied him due process of law by accepting his 

guilty pleas without (1) determining that he understood the nature of the charges to which 

he was pleading, and (2) advising him that he had the right to testify if the case proceeded 

to trial and that he would be waiving that right if he pleaded guilty. 
{¶6} Under Crim.R. 11(C)(2), in a felony case, a trial court shall not accept a 

guilty plea without first addressing the defendant personally and (1) determining that the 

defendant is making the plea voluntarily, with an understanding of the nature of the 

charges and of the maximum penalty involved, (2) informing the defendant of and 

determining that the defendant understands the effect of the guilty plea and that the court, 

upon accepting the plea, may proceed with judgment and sentence, and (3) informing the 

defendant and determining that the defendant understands that by the plea, the defendant 

is waiving the rights to a jury trial, to confront witnesses against him, to have compulsory 

process for obtaining witnesses in the defendant’s favor, and to require the state to prove 

the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot 

be compelled to testify against himself. 

{¶7} A trial court must strictly comply with the Crim.R. 11(C)(2) requirements 

regarding the waiver of constitutional rights, which means that the court must actually 

inform the defendant of the constitutional rights he is waiving and make sure the 

defendant understands them. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 

N.E.2d 621, ¶ 18. For nonconstitutional rights, such as the right to be informed of the 

nature of the charges, we review for substantial compliance with the rule. Id. at ¶ 14, 

citing State v. Stewart, 51 Ohio St.2d 86, 92, 364 N.E.2d 1163 (1977). Substantial 

compliance means that under the totality of the circumstances the defendant understands 

the implications of his plea and the rights he is waiving. State v. Carter, 60 Ohio St.2d 

34, 38, 396 N.E.2d 757 (1979). 
{¶8} In this case, the record reflects that the trial court advised Vialva at the plea 

hearing that he was charged with rape, gross sexual imposition, and kidnapping with a 

date range of January 1, 2011 through December 21, 2012. (Tr. 3.) Thereafter, the 

prosecutor set forth the plea agreement on the record, which defense counsel stated was 

his understanding of the plea, including the agreed sentence of 20 years to life in prison. 

The trial court then explained to Vialva the offenses and maximum sentences, including 

the specifications that were deleted from the counts that would have resulted, if 

convicted, in a sentence of life without parole. (Tr. 13-15.) Moreover, prior to Vialva 

actually entering his guilty pleas on the record on each count, the trial court stated the 

offense, including any specifications, the code section under which he was charged, and 

the degree of the offense. (Tr. 20-24.) Although the trial court did not read the statutory 

definitions of the offenses to Vialva, the record demonstrates that the trial court more than 

substantially complied with Crim.R. 11(C)(2)(a) in advising Vialva of the nature of the 

charges. 

{¶9} Despite Vialva’s argument that the trial court should have inquired as to 

whether he understood the nature of the offenses or whether someone had explained the 

nature of the offenses to him, this court has repeatedly held that “courts are not required 

to explain the elements of each offense, or even to specifically ask the defendant whether 

he understands the charges, unless the totality of the circumstances shows that the 

defendant does not understand the charge.” State v. Kaminski, 8th Dist. Cuyahoga No. 

93744, 2010-Ohio-4669, ¶ 8, State v. Carpenter, 8th Dist. Cuyahoga No. 81571, 
2003-Ohio-3019. “In the absence of evidence to the contrary or anything in the record 

that indicates confusion, it is typically presumed that the defendant actually understood 

the nature of the charges against him.” See, e.g., State v. Martin, 8th Dist. Cuyahoga 

Nos. 92600 and 92601, 2010-Ohio-244, ¶ 13. In this case, the charges were stated to 

Vialva, and there is nothing in the record evincing that he was confused, coerced, or did 

not understand the proceedings or his plea. The record reflects that Vialva understood 

the charges to which he pled. 

{¶10} In his second assignment of error, Vialva contends that the trial court failed 

to advise him of his right to testify at trial. 

{¶11} A criminal defendant’s right to testify, although a constitutional right, is not 

one of the rights enumerated in Crim.R. 11 that a trial court must advise a defendant of 

before the court can accept the defendant’s guilty plea. This court has held that the 

advisement of a defendant’s right to testify is not necessary to ensure the validity of a 

defendant’s plea. See State v. Vaughn, 8th Dist. Cuyahoga No. 87245, 2006-Ohio-6577, 

¶ 33. Rather, the relevant inquiry is whether the defendant is advised that he has the 

right to remain silent, right not to testify, and the right not to have the prosecution 

comment on that right. Crim.R. 11(C)(2)(c). 

{¶12} In this case, the record reflects that the trial court advised Vialva of his 

constitutional right that “at all times you have the absolute right to remain silent. If you 

chose to take this case to trial, and if you chose not to testify, the [s]tate of Ohio could not 
attempt to use your silence against you in an effort to prove you guilty.” (Tr. 18.) This 

advisement strictly complies with Crim.R. 11(C)(2)(c). 

{¶13} Even assuming any error by the trial court, Vialva has made no showing of 

prejudice relating to his plea, much less any argument that he would not have pled guilty 

had the trial court more fully explained the nature and circumstances of the charges 

against him or if he was told he had a right to testify at trial. Accordingly, we find that 

Vialva entered a knowing, voluntary, and intelligent plea and that the trial court complied 

with the requirements of Crim.R. 11(C) prior to accepting the plea. His first and second 

assignments of error are overruled. 

II. Plea — Deportation Consequences 

{¶14} In his third assignment of error, Vialva contends that he did not enter a 

knowing, voluntary, and intelligent plea, resulting in a denial of due process of law, 

because the trial court failed to fully and accurately advise him of the consequences of his 

guilty pleas when it advised him only that his guilty pleas “may” result in deportation 

when, in fact, he was facing mandatory deportation for the offenses involved. 

{¶15} Vialva is not a citizen of the United States. Accordingly, R.C. 

2943.031(A) required the trial court to personally address Vialva and advise him on the 

record of the following notification: 

If you are not a citizen of the United States you are hereby advised that 

conviction of the offense to which you are pleading guilty (or no contest, 

when applicable) may have the consequences of deportation, exclusion 
from admission to the United States, or denial of naturalization pursuant to 

the laws of the United States. 

{¶16} In this case, the trial court complied with R.C. 2943.031(A) by reading the 

statutory advisement and inquiring whether Vialva wished to have additional time to 

consider this advisement and the opportunity to contact the embassy of his home nation 

before entering his guilty plea. (Tr. 8-9.) Vialva stated he understood the advisement, 

did not wish to have additional time to consider the advisement, and did not wish to 

contact his home nation. 

{¶17} Nevertheless, Vialva contends on appeal that because he was not advised 

that deportation was essentially mandatory in his case, he was not properly advised of the 

consequences of his guilty plea, and thus his guilty plea should be vacated. In support, 

he cites this court’s decision in State v. Ayesta, 8th Dist. Cuyahoga No. 101383, 

2015-Ohio-1695. 

{¶18} As a preliminary matter, the federal deportation statute of 8 U.S.C. 

1227(a)(2)(A)(iii) provides that any alien who is convicted of a crime involving an 

aggravated felony is deportable. “Aggravated felony,” pursuant to 8 U.S.C. 1101 

(a)(43)(A) includes rape or sexual abuse of a minor. As this court explained in Ayesta, 

although 8 U.S.C. 1227 does not use the phrase “mandatory deportation,” “courts have 

been describing the level of certainty of deportation for deportable offenses as ‘virtually 

automatic’ and ‘unavoidable,’ United States v. Couto, 311 F.3d 179, 184 (2d Cir.2002), 

‘certain,’ INS v. St. Cyr, 533 U.S. 289, 325, 121 S.Ct. 2271, 150 L.Ed.2d 247 (2001), and 
‘presumptively mandatory,’ Hernandez v. State, 124 So.3d 757, 763 (Fla.2012).” Ayesta

at ¶ 7. Therefore, Vialva’s convictions would presumably subject him to mandatory 

deportation. Despite this “mandatory” deportation consequence, the General Assembly 

has not required a court to advise a defendant of the exact deportation consequence. See

R.C. 2943.031(A) (“may have the consequences of * * *”). 

{¶19} In Ayesta, a non-United States-citizen defendant pleaded guilty to assault 

and domestic violence. Prior to his plea, the trial court advised Ayesta pursuant to R.C. 

2943.031(A) that there “may” be immigration consequences as a result of his plea. 

Subsequently, the federal government initiated immigration removal proceedings against 

Ayesta because of his domestic violence conviction. Ayesta moved to withdraw his 

guilty plea, contending through his own affidavit that he was never advised by counsel of 

the immigration consequences prior to his plea. Id. at ¶ 17. When his motion was 

denied without a hearing, Ayesta appealed. Id. at ¶ 3, 4. 

{¶20} Ayesta’s argument in his motion to withdraw and on appeal was that had he 

known of the mandatory deportation consequences, he would not have pleaded guilty to 

the charge but would have asked his attorney to attempt to negotiate a plea arrangement 

that did not involve his pleading guilty to a mandatory deportable offense, or that he 

would have taken his chances at trial. Id. at 6. Essentially, Ayesta claimed his counsel 

was ineffective under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 

284 (2010) for failing to advise him, a non-citizen defendant, of potential deportation 

consequences. 
{¶21} In Ayesta, this court concluded that although the trial court correctly advised 

the defendant pursuant to R.C. 2943.031(A) that there “may” be immigration 

consequences associated with his plea, such advisement did not cure the prejudice 

associated with defense counsel’s alleged failure to advise the defendant of the 

“mandatory” deportation consequences of his plea. Based on the allegations contained 

in Ayesta’s motion to withdraw, the statements contained in his affidavit, and the plea 

transcript, this court found that Ayesta presented prima facie evidence of ineffective 

assistance of counsel, thus warranting a hearing on his motion to withdraw his plea. Id. 

at ¶ 20. 

{¶22} This court reversed the trial court’s decision and remanded the case, not 

because the trial court’s advisement that there “may” be immigration consequences was 

defective or incomplete — but rather, because there was evidence to show that Ayesta’s 

attorney did not actually explain those consequences to him prior to the plea hearing. 

{¶23} The facts and procedural nature of Ayesta are clearly distinguishable from 

the facts in this case. Here, Vialva has not filed a motion to vacate his plea alleging that 

his counsel was ineffective for failing to advise him prior to the plea hearing of the 

deportation consequences. Moreover, the record is clear that Vialva’s counsel discussed 

the consequences of the plea in terms of possible deportation prior to the plea hearing — 

counsel stated on the record that he “discussed with [Vialva] the consequences of the plea 

in terms of the possible deportation consequences.” (Tr. 7.) Finally, Vialva has made 
no allegation that had he known about the mandatory nature of deportation, he would not 

have pleaded guilty. 

{¶24} Accordingly, based on the record before this court, we find that the trial 

court properly complied with the statutory mandate, and that Vialva entered a knowing, 

voluntary, and intelligent plea after being advised of the possible deportation 

consequences. Vialva’s third assignment of error is overruled. 

III. Effective Assistance of Counsel 

{¶25} Vialva contends in his fourth assignment of error that he was not afforded 

effective assistance of counsel because his trial counsel failed to correct the trial court at 

his plea hearing when the court advised him that he “may” face deportation as a result of 

his guilty pleas that he was, in fact, facing mandatory deportation for the offenses 

involved. 

{¶26} To establish ineffective assistance of counsel, a defendant must demonstrate 

(1) that counsel’s performance fell below an objective standard of reasonable 

representation, and (2) that he was prejudiced by that performance. Strickland v. 

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice 

is established when the defendant demonstrates “a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different. 

A reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Id. at 694. 
{¶27} The failure to prove either prong of the Strickland two-part test makes it 

unnecessary for a court to consider the other prong. State v. Madrigal, 87 Ohio St.3d 

378, 388-389, 721 N.E.2d 52 (2000), citing Strickland at 697. “In particular, a court 

need not determine whether counsel’s performance was deficient before examining the 

prejudice suffered by the defendant as a result of the alleged deficiencies. * * * If it is 

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice 

* * * that course should be followed.” Strickland at id. 

{¶28} In this case, Vialva does not assert that his counsel did not advise him of the 

deportation consequences prior to the plea hearing; rather, he contends that his counsel 

was ineffective for failing to correct the trial court when it gave the R.C. 2943.031(A) 

statutory advisement that Vialva “may” have deportation consequences. We have 

previously determined that the trial court’s advisement was proper and did not result in a 

defective plea. 

{¶29} Unlike in Ayesta, where the defendant moved to withdraw his plea and filed 

an affidavit stating that his counsel did not advise him of the mandatory nature of 

deportation, Vialva has not filed any affidavit and the record clearly reflects that counsel 

for Vialva “discussed with [Vialva] the consequences of the plea in terms of the possible 

deportation consequences.” (Tr. 7.) Absent any showing or argument to the contrary, 

the record demonstrates that defense counsel discussed with Vialva the deportation 

consequences prior to the court’s statutory advisement. What that discussion did or did 

not include is not in the record before this court. 
{¶30} Even assuming that Vialva’s trial counsel failed to inform him of any 

mandatory deportation consequences — thus, constituting possible deficient performance 

under Ayesta — to prevail on an effective assistance of counsel claim, Vialva needs to 

establish that he was materially prejudiced by such deficient performance. Vialva has 

not made any argument on appeal that he would not have pleaded guilty had he known he 

was subject to mandatory deportation. The record reflects that Vialva faced life in 

prison without parole for admittedly sexually abusing a minor child. This is not the case 

where the defendant denies the facts or claims actual innocence; Vialva admitted to the 

sexual abuse throughout the police investigation. The plea and agreed sentence afforded 

him the opportunity of parole after serving twenty years in prison. No prejudice has 

been shown. 

{¶31} Accordingly, Vialva has failed to demonstrate that he was denied effective 

assistance of trial counsel. His final assignment of error is overruled. 

{¶32} Judgment affirmed. 

It is ordered that appellee recover from appellant 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 common 

pleas court to carry this judgment into execution. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE 

MELODY J. STEWART, J., and 

MARY J. BOYLE, J., CONCUR