[Cite as State v. Diol, 2019-Ohio-2197.]

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-180249 

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: June 5, 2019 

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

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

Sarah C. Larcade, for Defendant-Appellant. 
OHIO FIRST DISTRICT COURT OF APPEALS 

2

CROUSE, Judge.

Introduction 

{¶1} In this case, an alleged non-United States citizen defendant, who 

pleaded guilty to felony drug trafficking and possession, was advised by defense 

counsel on the record at the plea hearing that deportation was “at worst” “possibly” 

discretionary when, in fact, it is presumptively mandatory (and the record reflects 

much confusion between lawyer and client on the citizenship question). 

{¶2} In two assignments of error, Mohamed Diol argues that the trial court 

erred by denying his “Emergency Motion to Vacate Guilty Plea Under Padilla v. 

Kentucky and Lee v. United States,” and that the trial court erred by failing to hold 

an evidentiary hearing on his motion to vacate despite his clear and unequivocal 

request. We combine his assignments of error, and hold that the trial court did err, 

and that this cause must be remanded for the court to hold an evidentiary hearing. 

Facts and Procedural Background 

{¶3} Diol was indicted for one count of trafficking in marijuana in violation 

of R.C. 2925.03(A)(2), a felony of the fifth degree, one count of possession of 

marijuana in violation of R.C. 2925.11(A), a misdemeanor of the fourth degree, and 

one count of possessing criminal tools in violation of R.C. 2923.24(A), a felony of the 

fifth degree. The charges in this case arose from a search of Diol’s vehicle conducted 

after a traffic stop. 

{¶4} Diol pleaded guilty to the marijuana-trafficking and the marijuanapossession counts of the indictment. Pursuant to the plea agreement, the 

possession-of-criminal-tools charge was dismissed. 
OHIO FIRST DISTRICT COURT OF APPEALS 

3 

{¶5} During the Crim.R. 11 plea colloquy, the trial court asked Diol if he was 

a United States citizen. Diol replied that he was. The court asked Diol if his attorney 

explained everything to him and answered all of his questions. Diol replied, “No.” At 

that point, Diol’s attorney stated, “Judge, if I may, as far as the U.S. citizen part, I 

believe we need to elaborate on that a bit more on the record just to make sure I 

cover everything as required under Padilla versus Kentucky.” 

{¶6} The court responded that in an “overabundance of caution” it advised 

Diol if he was not a citizen of the United States, then 

conviction of the offense to which you’re pleading guilty 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. A broad range of crimes are deportable offenses under federal 

law. Deportation and other immigration consequences are the subject 

of a separate proceeding. No one, including defense counsel or this 

Court, can predict to a certainty the effect of this conviction on your 

immigration status. 

{¶7} With this advisement, the court asked Diol, “Do you wish to go forward 

with your guilty plea, regardless of any immigration consequences, even if it means 

automatic removal from the United States and you’re never able to return?” 

{¶8} Before Diol could answer this question, his attorney stated, 

 Just to be clear, I don’t believe this would lead to automatic 

deportation. I believe at worst it possibly could make it discretionary. 

He tells me he’s a U.S. citizen. He did show me his card, which tells 

me he was here for asylum purposes. 
OHIO FIRST DISTRICT COURT OF APPEALS 

4

Diol’s attorney then turned to Diol and asked, “Is that correct?” Diol replied, “Yes.” 

{¶9} The court then addressed Diol for a second time, 

So I’m not giving you legal advice. My question is, I’ve now advised 

you that if for some reason you’re not a U.S. citizen – if you are a U.S. 

citizen I wouldn’t think it’s applicable. 

If you’re not, my question still remains that if you aren’t a U.S. citizen 

everything I’ve advised you of applies; and my question to you, again, 

is do you wish to go forward with your guilty plea regardless of any 

immigration consequences even if it means automatic removal from 

the United States and you are never able to return? 

{¶10} After this question, the following exchange occurred: 

Diol: I mean, when I go overseas I have to have my passport. 

They give me a passport so I can go overseas. I guess I’m a U.S. 

citizen. 

The Court: Guessing aside, I just want to make sure – 

Diol: I’m a U.S. citizen when I get out of the country -- 

The Court: My question is, if for some reason you are not a U.S. 

citizen, you could suffer these consequences that I’ve just advised you 

of. If you’re a U.S. citizen it doesn’t matter. If you happen to not be a 

U.S. citizen, then all of this stuff that I just told you about applies; and 

my question is, I want to make sure that before you go forward with 

your guilty plea, you understand that if you’re not a U.S. citizen you 

could be excluded from the U.S. My question is do you wish to go 

forward with your guilty plea regardless of any immigration 
OHIO FIRST DISTRICT COURT OF APPEALS 

5

consequence even it if means automatic removal from the United 

States and you’re never able to return? 

Diol: Yes. 

{¶11} The court continued with the Crim.R. 11 colloquy, accepted Diol’s 

guilty pleas, and found Diol guilty of the marijuana trafficking and possession 

offenses. Diol was sentenced to three years of community control on each count. 

{¶12} Approximately six months after he was sentenced, Diol, through new 

counsel, filed an “Emergency Motion to Vacate Guilty Plea under Padilla v. Kentucky

and Lee v. United States,” which requested an evidentiary hearing. In the motion, 

Diol argued that he should be permitted to withdraw his guilty pleas because his 

attorney rendered ineffective assistance of counsel when he erroneously advised him 

that his pleas to marijuana trafficking and possession would not result in mandatory 

deportation, but rather that deportation was discretionary. Diol claimed that his 

pleas to drug trafficking and possession result in mandatory deportation under the 

law. He attached his affidavit as an exhibit to the motion. In his affidavit, Diol stated 

that he was a citizen of Mauritania, his attorney advised him that deportation would 

not be mandatory, and that had he been correctly advised, he would not have 

pleaded guilty. Diol also attached the plea-hearing transcript as an exhibit to the 

motion. The state did not file a response. 

{¶13} The trial court denied Diol’s motion without explanation. Three days 

later, Diol filed a “Motion for Findings of Fact and Conclusions of Law.” 

Approximately one and a half months after Diol filed a timely notice of appeal, the 

trial court issued an “Entry Denying Motion to Vacate Guilty Plea and Findings of 

Fact and Conclusions of Law,” and attached a copy of the plea-hearing transcript to 
OHIO FIRST DISTRICT COURT OF APPEALS 

6

it.1 Citing the transcript, the trial court concluded, “Defendant’s claim of ineffective 

assistance of counsel for counsel’s alleged failure to advise him of his deportation 

risk fails because Defendant maintained he was a United States citizen.” The trial 

court further found that Diol did not establish grounds for relief because the court 

reviewed the potential immigration consequences with him repeatedly. 

The Plea-Hearing Transcript 

{¶14} As an initial matter, the dissent believes we should overrule the 

assignments of error because Diol’s plea-hearing transcript was not before the trial 

court when it ruled on Diol’s motion. 

{¶15} However, while Diol did not file a certified copy of the plea-hearing 

transcript with the trial court at the time his motion was pending, he filed an 

uncertified copy of the transcript because it was attached as an exhibit to his motion. 

Subsequently, he filed a certified version of the transcript (which exactly matches the 

uncertified version), and we know the trial court reviewed and relied on the 

transcript because it cited to the transcript in its findings of fact and conclusions of 

law and attached a copy of the (certified) transcript to its findings of fact and 

conclusions of law. Neither the trial court, nor the state ever raised any concern 

about the accuracy of the uncertified transcript or any of this process. Accordingly, 

we find that it is appropriate for us to consider the plea-hearing transcript in this 

 

1 We note that Crim.R. 32.1 does not require a court to issue findings of fact and conclusions of 

law when ruling on a motion to withdraw a guilty plea. See State ex rel. Chavis v. Griffin, 91 Ohio 

St.3d 50, 50, 741 N.E.2d 130 (2001). Although the findings of fact and conclusions of law were 

issued after the notice of appeal was filed, we can still consider them. See Langsam v. Tindera, 

64 Ohio App.3d 228, 229, 580 N.E.2d 1157 (8th Dist.1990) (the trial court retained jurisdiction to 

make findings of fact and conclusions of law mandated by Civ.R. 52 even though the appeal had 

already been filed); see also State v. Greer, 9th Dist. Summit No. 15217, 1992 WL 316350, *2 (Oct. 

28, 1992) (“A court's findings and conclusions, unlike a motion for a new trial, Civ.R. 59, or a 

motion to vacate, Civ.R. 60(B), does not disrupt the judgment of the court, but explains it.”). 
OHIO FIRST DISTRICT COURT OF APPEALS 

7

case because it was part of the trial court proceedings, all of which is consistent with 

State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), and its progeny. 

Ineffective Assistance of Counsel 

{¶16} Diol argues that the trial court erred by denying his emergency motion 

to vacate his guilty pleas without holding an evidentiary hearing. Specifically, Diol 

contends that the trial court’s advisement that he may be deported did not cure the 

prejudice from the incorrect advice given by his attorney. Diol further argues that 

his statement during the plea colloquy that he was a United States citizen does not 

defeat his claim of ineffective assistance of counsel because the record shows that he 

was extremely confused about his immigration status. Diol contends that his 

attorney must have known he was not a citizen because he requested the trial court 

to advise Diol that he may be deported as the result of his pleas. 

{¶17} Diol’s motion is titled, “Emergency Motion to Vacate Guilty Plea 

Under Padilla v. Kentucky and Lee v. United States,” and does not cite any rule of 

criminal procedure under which he is seeking relief. Nevertheless, like the trial 

court, we will treat his motion to vacate as a motion to withdraw his guilty pleas 

pursuant to Crim.R. 32.1. See State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 

882 N.E.2d 431, ¶ 12 (“Courts may recast irregular motions into whatever category 

necessary to identify and establish the criteria by which the motion should be 

judged.”); see also State v. Valdez, 1st Dist. Hamilton No. C-160437, 2017-Ohio4260, ¶ 4 (citing Schlee and recasting Valdez’s motion as a motion to withdraw his 

guilty plea pursuant to Crim.R. 32.1). 

{¶18} Crim.R. 32.1 authorizes the postconviction withdrawal of a guilty plea 

only “to correct manifest injustice.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 
OHIO FIRST DISTRICT COURT OF APPEALS 

8 

1324 (1977), paragraph one of the syllabus. The defendant bears the burden of 

proving “manifest injustice.” Id. 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; see State v. Kostyuchenko, 2014-Ohio-324, 8 N.E.3d 353, ¶ 4 

(1st Dist.). 

{¶19} It is well-established that the negotiation and entry of a guilty plea is a 

“critical stage” of the criminal proceedings and a defendant is entitled to effective 

assistance of counsel during this critical time. See, e.g., Lee v. United States, __ U.S. 

__, 137 S.Ct. 1958, 1964, 198 L.Ed.2d 476 (2017); Missouri v. Frye, 566 U.S. 134, 

140, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Padilla v. Kentucky, 559 U.S. 356, 373, 

130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). It is further well-established that 

deportation is a “particularly severe penalty” which may be of greater concern to a 

non-United States citizen facing criminal charges than “any potential jail sentence.” 

Session v. Dimaya, __U.S. __, 138 S.Ct. 1204, 1213, 200 L.Ed.2d 549 (2018), citing 

Jae Lee v. United States, __ U.S. __, 137 S.Ct. 1958, 1968, 198 L.Ed.2d 476 (2017); 

see Padilla at 366. 

{¶20} 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 
OHIO FIRST DISTRICT COURT OF APPEALS 

9

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 [that 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); 

see also Kostyuchenko at ¶ 5. 

{¶21} In Padilla, the United States Supreme Court held that defense 

counsel’s representation is constitutionally deficient under Strickland when it can be 

easily determined from reading the removal statute that deportation is 

presumptively mandatory for the offense to which his client pleaded guilty and 

counsel provided incorrect advice in this regard. Padilla at 368-369. The Court said, 

[w]hen the law is not succinct and straightforward * * *, a criminal 

defense attorney need do no more than advise a noncitizen client that 

pending criminal charges may carry a risk of adverse immigration 

consequences. But when the deportation consequence is truly clear * * 

* the duty to give correct advice is equally clear. 

Id. at 369. The Court did not determine whether Padilla was prejudiced, but rather 

left it to the lower courts to decide whether Padilla’s “decision to reject the plea 

bargain would have been rational under the circumstances.” Id. at 372, citing Roe v. 

Flores-Ortega, 528 U.S. 470, 480 and 486, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). 

{¶22} Lee, __ U.S. __, 137 S.Ct. 1958, 198 L.Ed.2d 476, dealt with the 

prejudice analysis after a court determines that defense counsel has rendered 

deficient performance under Padilla. At an evidentiary hearing on Lee’s motion to 
OHIO FIRST DISTRICT COURT OF APPEALS 

10

vacate his conviction, both Lee and his counsel testified that “deportation was the 

determinative issue in Lee’s decision whether to accept the plea.” Lee at 1963. Lee’s 

attorney acknowledged that if he had known that Lee was facing mandatory 

deportation, he would have advised him to go to trial. Id. 

{¶23} In Lee, the government argued that it would have been irrational for 

Lee to have rejected the plea offer and proceed to trial because he had no viable 

defense. Id. at 1966 and 1968. The government asserted that going to trial would 

only result in a longer sentence before the inevitable consequence of deportation. Id. 

at 1968. The United States Supreme Court disagreed, and held that “[n]ot everyone 

in Lee’s position would make the choice to reject the plea. But we cannot say it would 

be irrational to do so.” Id. at 1969. The Court stated that because deportation is 

always a particularly severe penalty, preserving the client’s right to remain in the 

United States may be more important to the client than any potential jail sentence. 

Id. at 1968, quoting Padilla at 368. Lee claimed that if he had been properly advised 

that deportation was mandatory, he would have rejected the plea offer “in favor of 

throwing a ‘Hail Mary’ at trial.” Lee at 1967. The Court found that “[i]n the unusual 

circumstances of this case, we conclude that Lee has adequately demonstrated a 

reasonable probability that he would have rejected the plea had he known that it 

would lead to mandatory deportation.” Id. at 1967. 

{¶24} Diol claims that the law is clear that deportation is mandatory in his 

case. He points to Section 237(a) of the Immigration and Nationality Act, which 

states that certain classes of aliens “shall, upon the order of the Attorney General, be 

removed * * *.” 8 U.S.C. 1227(a). The statute states that 
OHIO FIRST DISTRICT COURT OF APPEALS 

11

[a]ny alien who * * * has been convicted of a violation of * * * any law * 

* * relating to a controlled substance * * * other than a single offense 

involving possession for one’s own use of 30 grams or less of 

marijuana, is deportable. 

8 U.S.C. 1227(a)(2)(B). 

{¶25} The state takes issue with Diol’s assertion that deportation is 

mandatory and argues that the Attorney General has the authority to “cancel” Diol’s 

removal pursuant to 8 U.S.C. 1229(b). However, at oral argument, the state 

admitted it was not sure if deportation was mandatory, or whether Diol even 

qualified for cancelation of removal. 

{¶26} In Padilla, the United States Supreme Court held that 8 U.S.C. 

1227(a)(2)(B) “specifically commands removal for all controlled substances 

convictions except for the most trivial of marijuana possession offenses.” Padilla,

559 U.S. at 368, 130 S.Ct. 1473, 176 L.Ed.2d 284. The Court found that “Padilla’s 

counsel could have easily determined that his plea would make him eligible for 

deportation simply from reading the text of the statute * * *.” Id. Thus, we hold that 

there is no question that deportation is presumptively mandatory in Diol’s case. 

{¶27} It is also clear from the record that Diol’s attorney gave him incorrect 

advice when he advised him during the plea hearing, “I don’t believe this would lead 

to automatic deportation. I believe at worst it possibly could make it discretionary.” 

{¶28} The state contends that because Diol represented to the trial court 

during the plea colloquy that he was a United States citizen, he cannot show that his 

attorney had any duty to advise him of the immigration consequences of his guilty 

plea. However, the record is clear that his attorney had some doubt if Diol was a 
OHIO FIRST DISTRICT COURT OF APPEALS 

12

United States citizen, because he asked the trial court to give him the statutory 

warning required by R.C. 2943.031, which requires courts to advise defendants on 

the possibility of deportation, exclusion, or denial of naturalization prior to accepting 

pleas. The record is also clear that Diol was confused about whether he was a United 

States citizen. Accordingly, we find that Diol’s attorney had a duty to determine 

whether he was or was not a United States citizen, and if he was not, advise him of 

the immigration consequences of his guilty pleas. 

{¶29} The state contends that even if Diol’s attorney had a duty to advise him 

of the immigration consequences of his guilty pleas, the trial court’s advisement 

pursuant to R.C. 2943.031 cured any possible prejudice that may have resulted from 

trial counsel’s deficiency. R.C. 2943.031(A) requires a trial court, prior to accepting a 

guilty plea from a noncitizen defendant, to provide the following advisement: 

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. 

{¶30} Because the statutory advisement states only that the defendant may

be deported, this advisement does not cure any deficient performance by counsel, as 

recently confirmed by the Ohi0 Supreme Court. See State v. Romero, Slip Opinion 

No. 2019-Ohio-1839, ¶ 20 (“The advisement in R.C. 2943.031(A) warns defendants 

that ‘pleading guilty may have the consequence[] of deportation.’ But that 

generalized warning does not replace counsel’s duty to advise his client of the 

consequences of his guilty plea, as Padilla instructs.” (Emphasis added.)). 
OHIO FIRST DISTRICT COURT OF APPEALS 

13

{¶31} The state argues that because the trial court went beyond the statutory 

advisement and asked Diol if he wished to plead guilty “even if it meant automatic 

removal from the United States and you’re never able to return,” the court effectively 

warned Diol that deportation was mandatory in this case. But, the issue we must 

determine is whether the trial court’s admonishment in this case corrected the 

deficient performance of counsel. See United States v. Akinsade, 686 F.3d 248, 255 

(2012). In Akinsade, the United States Court of Appeals for the Fourth Circuit held 

that “in order for a [trial court’s] admonishment to be curative, it should address the 

particular issue underlying the affirmative misadvice.” Id. 

{¶32} In Diol’s case, the trial court did not state unequivocally that Diol 

would be deported. Asking Diol if he still wished to plead guilty “even if” it meant 

automatic deportation did not correct the misadvice given by Diol’s counsel that 

deportation was discretionary. The trial court’s admonishment “did not provide the 

degree of accuracy concerning immigration consequences that Padilla demands 

when, as here, federal immigration law plainly mandates deportation.” 

Kostyuchenko, 2014-Ohio-324, 8 N.E.3d 353, at ¶ 15, citing Padilla, 559 U.S. at 364, 

130 S.Ct. 1473, 176 L.Ed.2d 284. 

Evidentiary Hearing 

{¶33} The state contends that Diol is not entitled to an evidentiary hearing 

because he did not make a prima facie showing of merit. 

{¶34} The state claims that although Diol stated in his affidavit that he was a 

citizen of Mauritania, he failed to state that he is not a United States citizen. The 

state also claims that because Diol did not include an affidavit from trial counsel, 
OHIO FIRST DISTRICT COURT OF APPEALS 

14 

there are many unanswered questions regarding counsel’s knowledge of Diol’s 

immigration status, and discussions Diol and his counsel may have had regarding the 

immigration consequences of his guilty pleas. 

{¶35} A trial court is not automatically required to hold an evidentiary 

hearing regarding a defendant’s motion to withdraw a guilty plea, and a trial court’s 

decision not to hold an evidentiary hearing will be reversed only upon a finding of an 

abuse of discretion. State v. Williams, 10th Dist. Franklin No. 03AP-1214, 2004-

Ohio-6123, ¶ 6. An abuse of discretion requires more than an error of law or 

judgment, but that the court acted unreasonably, arbitrarily, or unconscionably. Id. 

But, a hearing is required “if the facts as alleged by the defendant and accepted as 

true would require the court to permit the guilty plea to be withdrawn.” Id. 

{¶36} It is indisputable that deportation is presumptively mandatory in this 

case if Diol is not a United States citizen. Although the record indicates that both 

Diol and his defense counsel were confused as to the status of Diol’s citizenship 

during the plea hearing, Diol’s affidavit, which was attached to his motion to 

withdraw his pleas, clearly states that he is a citizen of Mauritania. At oral argument, 

the state contended that because Diol did not state in his affidavit that he was not a 

United States citizen, he might be a dual citizen of both the United States and

Mauritania. While Diol’s affidavit could be clearer, it can certainly be read to allege 

that he is not a United States citizen. 

{¶37} In his affidavit, Diol asserted that his defense counsel failed to inform 

him of the immigration consequences for pleading guilty on the drug charges, and 

that if he had known that deportation was a mandatory consequence of such pleas, 

he would not have pleaded guilty. The state claims that this affidavit is “self-
OHIO FIRST DISTRICT COURT OF APPEALS 

15

serving,” and, standing alone, is insufficient evidence to trigger an evidentiary 

hearing. 

{¶38} But, Diol’s affidavit does not stand alone. The transcript of the plea 

hearing not only indicates that defense counsel was uncertain of Diol’s immigration 

status and the immigration consequences flowing from the guilty pleas, but he also 

misadvised Diol about the immigration consequences for guilty pleas to the drugtrafficking and possession charges. 

{¶39} Defense counsel attempted to cure the deficiency with the statutory 

warning by the court. Nevertheless, as we have held, the trial court’s statutory 

warning did not correct the misadvice given by Diol’s counsel that deportation was 

discretionary. 

{¶40} In sum, Diol has alleged facts, which if accepted as true, would require 

the court to permit the guilty pleas to be withdrawn. The trial court thus abused its 

discretion in failing to hold an evidentiary hearing in this case. 

{¶41} The fact that trial counsel misadvised Diol about the deportation 

consequences of convictions to marijuana trafficking and possession is clear from the 

record, and satisfies the first prong of Strickland. However, the evidentiary hearing 

can 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. 

{¶42} The recent Ohio Supreme Court case, Romero, Slip Opinion No. 2019-

Ohio-1839, holds that “In assessing whether it would be rational for a defendant to 

go to trial instead of pleading guilty, the court should consider the totality of the 

circumstances.” The Romero case lays out certain factors that trial courts should 

consider in evaluating prejudice such as the consequences of going to trial, the 
OHIO FIRST DISTRICT COURT OF APPEALS 

16 

importance that the defendant placed on avoiding deportation, the defendant’s 

connections to the United States, and the judicial advisement of immigration 

consequences. Id. at ¶ 30-32. As the court stated in Romero, “From these and other 

factors in a given case, the trial court will determine whether the totality of 

circumstances supports a finding that counsel’s performance was deficient, and if so, 

whether the deficient performance was prejudicial to the defendant.” Id. at ¶ 34. 

Given that neither the trial court nor counsel had the benefit of Romero at the time 

the motion was pending, these considerations are also worthy of exploration at the 

evidentiary hearing. 

Conclusion

{¶43} For the foregoing reasons, Diol’s assignments of error are sustained, 

and the judgment of the trial court denying his motion to withdraw his pleas is 

reversed. The cause is remanded to the trial court to conduct an evidentiary hearing 

on Diol’s motion to withdraw his guilty pleas consistent with this opinion. 

Judgment reversed and cause remanded. 

BERGERON, P.J., concurs. 

WINKLER, J., dissents.

WINKLER, J., dissenting.

{¶44} I respectfully dissent. I would overrule the assignments of error and 

affirm the common pleas court’s decision overruling Diol’s Crim.R. 32.1 motion to 

withdraw his guilty pleas. 

{¶45} On that motion, Diol bore the burden of demonstrating that counsel 

had been constitutionally deficient in advising him concerning the removal 

consequences of his convictions upon his pleas, and that this deficiency in counsel’s 
OHIO FIRST DISTRICT COURT OF APPEALS 

17 

performance had prejudiced him, that is, that “a decision to reject the plea bargain 

would have been rational under the circumstances.” See Padilla v. Kentucky, 559 

U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The prejudice prong of that 

analysis thus required an inquiry into the circumstances surrounding Diol’s decision 

to plead. Those circumstances necessarily included matters that transpired at the 

hearing where his pleas had been entered and accepted. See State v. Valdez, 1st Dist. 

Hamilton No. C-160437, 2017-Ohio-4260, ¶ 18. 

{¶46} A photocopy of the plea-hearing transcript was attached to the motion. 

That attachment, lacking proper certification, was not self-authenticating for 

purposes of the common pleas court’s decision on the motion. See Evid.R. 902(4). 

Nor was the attachment, as App.R. 9(B) requires for this court’s decision in the 

appeal, bound, certified as correct with an original signature of the transcriber, and 

filed with the common pleas court clerk under App.R. 10(A). 

{¶47} On March 26, 2018, the common pleas court entered judgment 

overruling the motion. From that entry, Diol filed this appeal, and on April 27, 2018, he 

caused to be filed with this court an App.R. 9(B)-compliant transcript of the plea 

hearing. 

{¶48} On June 11, 2018, the common pleas court issued a second “Entry 

Denying Motion to Vacate Guilty Plea * * *,” and this time the court, although not 

required to do so, included findings of fact and conclusions of law. But the March 2018 

entry overruling the motion was, without findings of fact and conclusions of law, a final 

appealable order. And the March 2018 entry, along with this appeal from that entry, 

divested the common pleas court of jurisdiction to decide the motion and vested 

jurisdiction in this court to review the common pleas court’s decision. Thus, the June 
OHIO FIRST DISTRICT COURT OF APPEALS 

18

2018 entry, issued by the common pleas court after it had lost jurisdiction over the 

motion, constituted a legal nullity. See, e.g., Farris v. State, 1 Ohio St. 188, 189 (1853) 

(applying the fundamental principle that a judgment of a court acting without 

jurisdiction is a “nullity”); Lambda Research v. Jacobs, 170 Ohio App.3d 750, 2007-

Ohio-309, 869 N.E.2d 39, 45 (1st Dist. 2007) (holding that an entry concerning 

issues directly related to the subject of an appeal, entered after that appeal had 

divested the trial court of jurisdiction, constituted a “legal nullity”); Perez Bar & Grill 

v. Schneider, 9th Dist. Lorain No. 09CA009573, 2010-Ohio-1352, ¶ 9 (holding that 

supplemental findings of fact and conclusions of law filed after the notice of appeal 

from a final appealable order constituted a nullity, because the notice of appeal 

deprived the trial court of jurisdiction to act on the motion for findings). 

{¶49} The App.R. 9(B)-compliant plea-hearing transcript filed in this appeal 

was not before the common pleas court during the proceedings resulting in the March 

2018 entry overruling Diol’s Crim.R. 32.1 motion. Nevertheless, the majority asserts 

that this court, in deciding this appeal from the March 2018 entry, may “consider” that 

transcript, because the June 2018 entry was demonstrably the product of the common 

pleas court’s “review[] [of] and reli[ance] on [that] transcript.” 

{¶50} But the Ohio Supreme Court has declared, as “a bedrock principle of 

appellate practice in Ohio,” that an appeals court is limited to the record of the 

proceedings resulting in the judgment appealed. Morgan v. Eads, 104 Ohio St.3d 

142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13; see Valdez, 1st Dist. Hamilton No. C160437, 2017-Ohio-4260, at ¶ 20. And upon that principle, the court has long held 

that “[a] reviewing court cannot add matter to the record before it, which [matter] 

was not a part of the trial court’s proceedings, and then decide the appeal on the 
OHIO FIRST DISTRICT COURT OF APPEALS 

19 

basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 

(1978), paragraph one of the syllabus. See, e.g., Valdez at ¶ 20 (following Ishmail in 

declining to consider a plea-hearing transcript filed with the court of appeals after 

appellant had appealed the judgment overruling his motion to vacate his plea); State 

v. Tekulve, 188 Ohio App.3d 792, 2010-Ohio-3604, 936 N.E.2d 1030 (1st Dist.2010) 

(following Ishmail in declining to consider a plea-hearing transcript attached to 

appellant's brief that was not before the municipal court in deciding appellant’s 

Crim.R. 32.1 motion); Metzcar v. Metzcar, 1st Dist. Hamilton No. C-850801, 1986 

WL 12741, *1 (Nov. 12, 1986) (following Ishmail in declining to consider a transcript 

of proceedings before a domestic-relations magistrate that had been filed with the 

court of appeals, but had not yet been prepared when the domestic-relations court 

overruled objections and adopted the magistrate’s report). 

{¶51} The App.R. 9(B)-compliant plea-hearing transcript filed in this appeal 

was not before the common pleas court during the proceedings resulting in the March 

2018 entry from which the appeal was taken. Under the rule of Ishmail, along with 

our long line of decisions following Ishmail, this court may not consider that 

transcript in deciding this appeal. In the absence of that transcript, the common 

pleas court cannot be said to have abused its discretion in overruling Diol’s Crim.R. 

32.1 motion to withdraw his guilty pleas. Accordingly, I would overrule the 

assignments of error and affirm the court’s decision.

Please note: 

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