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Is Your Attorney Committing Malpractice by Not Properly Advising You?


On May 15, 2019, the Ohio Supreme Court ruled that a trial court’s advisement of possible deportation for a defendant who pled guilty to certain drug offenses was not sufficient to cure the defense counsel’s failure to advise their client of such penalties. The decision came after the trial court denied a defendant’s motion to withdraw his guilty plea, claiming his lawyer provided ineffective assistance.

Background of the Case

A grand jury indicted the defendant, Mr. Romero, on three counts: possession of marijuana, trafficking marijuana, and possession of cocaine. Romero has been a permanent resident of the U.S. since 1998 and has five American-born children. During his original trial, the judge advised him, under R.C. 2943.031(A), that a guilty plea may result in deportation for a non-citizen. He responded affirmatively when she asked if he understood the consequences of a conviction, and he pled guilty on all three counts.

A month after Romero was sentenced, U.S. Immigration and Customs Enforcement took him into custody, and he was ordered to appear for a removal hearing on October 18, 2016 because of the trafficking charge he pled guilty to.

Emergency Motion to Withdraw Pleas Filed

Romero filed a motion to withdraw his guilty pleas, alleging his attorney did not specifically tell him that he would be deported for a drug trafficking conviction. The trial court denied his motion, stating that the judge advised him of the consequences, and he “entered his pleas knowingly, voluntarily, and intelligently.”

Trial Court’s Decision Reversed

Romero appealed the decision to the Fifth District Court of Appeals, which decided unanimously that the trial court’s advisement did not relieve Romero’s attorney of providing specific information about the consequences of a conviction. The appeals court sent the matter back to the trial court to conduct a full-fledged evidentiary hearing to determine if defense counsel failed to provide adequate advisement during the plea hearing.

Two-Prong Test of Ineffectiveness Ordered

The prosecution appealed the Fifth District Court’s ruling. The Ohio Supreme Court stated that the trial court’s decision to deny Romero’s claim was flawed in that it did not base its determination on the effectiveness of the defendant’s counsel, but rather on the judge’s advisement. The information the court provides to the defendant falls under an individual’s right to due process, which is different from their Sixth Amendment right to effective legal counsel for criminal proceedings. The Court explained that the trial court’s “generalized warning does not replace counsel’s duty to advise his client of the consequences of his guilty plea.”

The Court further stated that to withdraw their plea based on ineffective counsel, the defendant must satisfy two burdens:

  1. That the performance of their attorney was deficient
  2. That their attorney was prejudicial in their advisement

Proving that the defense counsel failed to advise a defendant of the specific deportation consequences upon conviction would satisfy the first burden. The second burden would be met by demonstrating that the defendant would not have entered a guilty plea and would have gone to trial if not for their attorney’s inadequate advisement.

The Ohio Supreme Court agreed with the Fifth District Court of Appeals’ decision to reverse the trial court’s denial, and it sent the matter back to the trial court for analysis of the motion based on the two-prong test of ineffective counsel.

Click here to view the full State v. Romero slip opinion.

Interesting Aspects of the Case

What is interesting about the case is that the plurality decided that the Fifth District Court of Appeals erred in sending Romero’s case back to the trial court for an evidentiary hearing for the motion to withdraw the plea. However, two of the five justices decided in judgment only and wrote separately that they would have remanded for a hearing. On remand in the trial court, to set up for another appeal, it could be argued that there is no constitutionally adequate judgment as to the remand order without a majority. The Fifth District’s remand was affirmed by default under Ohio Constitution Article IV(A): “a majority of the Supreme Court shall be necessary to constitute a quorum or to render a judgment.”

Call The Meranda Law Firm LTD for a Free Consultation

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