author: MARY EILEEN KILBANE, P.J.:

text:
    Kathleen Marie KOBAL, Plaintiff-Appellee v. John Edward KOBAL, Defendant-Appellant
    No. 105921
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: May 3, 2018
    John E. Kobal, pro se, Inmate No. 523753, Southeastern Correctional Facility, Hocking Campus, P.O. Box 59, Nelsonville, Ohio 45764, APPELLANT
    Darren W. DeHaven, Law Office of Darren DeHaven, 3500 Massillon Road-Suite 410, Uniontown, Ohio 44685, ATTORNEY FOR APPELLEE
    BEFORE: Kilbane, P.J., S. Gallagher, J., Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   MARY EILEEN KILBANE, P.J.:

{¶ 1} Defendant-appellant, John E. Kobal ("John"), brings this pro se appeal challenging the trial court's order adopting the magistrate's decision regarding divorce proceedings instituted by plaintiff-appellee, Kathleen M. Kobal ("Kathleen"). For the reasons set forth below, we affirm.

{¶ 2} John and Kathleen were married in November 1976. Two sons were born of their marriage, both of whom were emancipated at the time of the divorce proceedings. In December 2015, Kathleen filed a complaint for divorce. In December 2016, a contested trial was held before a magistrate judge.

{¶ 3} The following was adduced at trial. Six years before the Kobals were married, John purchased a home on Velma Avenue in Parma, Ohio ("the Velma Avenue home" or "the home"). The Kobals lived in the home together after they were married. In October 1993, John transferred his sole interest in the home to Kathleen by quitclaim deed. At trial, John explained that he transferred the property to Kathleen to insulate the property from attachment by his business creditors.

{¶ 4} In the late 1990s, the marriage began to deteriorate and Kathleen began to handle her own finances. Kathleen explained that John controlled all the finances early in their marriage, and he "was very guarded with his finances and his business" throughout the marriage. Kathleen testified that she lived modestly during the marriage, and that the family was often in debt.

{¶ 5} At one point during the marriage, Kathleen realized that over $100,000 had "disappeared" from a joint savings account the couple opened for the purpose of saving to purchase a larger home. When Kathleen asked John about the withdrawal, he had no explanation "other than [the money] was going to be used and we were going to get the house." Kathleen also realized that John had numerous bank accounts and investments that she had not been aware of early in their marriage. Kathleen later became aware that John had loaned money to numerous individuals. She presented loan agreements as well as cognovit and promissory notes that reflected that John had made various loans to a number of individuals and entities in amounts ranging from $10,000 to $64,000.

{¶ 6} John acknowledged that a few of these individuals still owed him money. The magistrate questioned John as to where the returns on his loans and investments went. John did not directly answer the question, but instead claimed that Kathleen spent "150 to 300 thousand dollars over the course of the marriage on clothes and gifts for other people."

{¶ 7} In 2001, Kathleen filed for divorce, but later voluntarily dismissed her complaint. John purchased his own home in 2004.

{¶ 8} In October 2006, John was arrested for criminal charges involving a minor. That same month, he executed a general power of attorney, naming Kathleen his attorney-in-fact. The three-page-long power of attorney provided Kathleen with various powers over John's estate and affairs. Notably, the document permitted Kathleen "[t]o make gifts to members of my family and to charitable organizations within discretion of my attorney-in-fact notwithstanding the fact that my attorney-in-fact may be making gifts to [herself.]" The power of attorney also permitted Kathleen to "bargain, sell and convey in fee simple by deed * * * the whole or any part of any lands, tenements or hereditaments owned by me, or any interest therein[.]"

{¶ 9} In November 2006, John, along with two of his business partners, helped Kathleen set up KMK Consulting, L.L.C.

("KMK Consulting"). John purported to help Kathleen set up KMK Consulting to allow her to pursue her dream of owning and operating a catering business. Kathleen also testified that John expressed concern to her about his potential civil liability related to the criminal charges he faced. She explained that he used KMK Consulting as a vehicle "to protect the family from financial ruin." Kathleen further explained that John used KMK Consulting to channel his own personal investments, explaining "John had agreements with [his business partners]. [John] had invested money and out of those accounts, KMK Consulting and KMK Title, John was going to reap interest. Didn't happen." Two months after KMK Consulting was established, Kathleen, on behalf of the entity, entered into an investment agreement with Brian A. Cole and Associates ("Cole and Associates"), an eponymous entity owned by one of John's business partners. Kathleen introduced a letter from John to their son in which John explained in part "KMK Consulting was created to replace my involvement in the investments with [Cole]." Kathleen testified that she had no real involvement in the investment agreement with Cole and Associates, but that "John set [the investment] up with [Cole.]" She explained that she attempted to collect from Cole on behalf of KMK Consulting without success.

{¶ 10} Additionally, before John was incarcerated in April 2007, he transferred a number of his interests to KMK Consulting, including an Edwards Jones investment account and an RBC Wealth management account.

{¶ 11} John testified that his mother left him money when she died in 2002, which he invested in the account with Edward Jones. He estimated that at the time he was incarcerated in April 2007, the account was worth approximately $160,000. At the time of trial, the account had a value of $165,795.90. At trial, John initially claimed to have no memory of transferring the money, claiming "[Kathleen] moved the money from my [Edward Jones] account into KMK Consulting." On cross-examination, Kathleen's counsel presented John with a receipt of the transfer authorization with his signature. John then admitted to authorizing the transfer, explaining that he transferred the account to KMK Consulting to insulate this asset from attachment in any potential civil action related to the criminal charges he faced. John further testified that he and Kathleen had "a verbal understanding that [the funds were] not to be touched," because it was his "inheritance money." He admitted there was no written agreement providing Kathleen could not use or retain the funds. John further admitted he had transferred the Edward Jones and RBC Wealth Management accounts to KMK Consulting to protect these assets.

{¶ 12} In July 2010, Kathleen was diagnosed with stage 4 non-Hodgkin lymphoma and transferred her interest in the Velma Avenue home to her and John's two sons by quitclaim deed. At the time of trial, Kathleen lived in the home with the parties' youngest son.

{¶ 13} In January 2017, the magistrate issued a decision. The magistrate determined the Velma Avenue home was not subject to a division of property because Kathleen had transferred it to the parties' sons. The magistrate further determined that three separate bank accounts in Kathleen's name were marital property and ordered Kathleen to pay John half the funds on deposit in these accounts. The magistrate also found John was entitled to one-half of the marital portion of Kathleen's benefits through the Ohio Public Employees Retirement System.

{¶ 14} The magistrate determined the Edward Jones and RBC Wealth Management accounts were Kathleen's separate property by virtue of her ownership of KMK Consulting. The trial court ordered that John would retain any claims that Kathleen or KMK Consulting may have against Cole or any other entities or individuals with whom John had invested money.

{¶ 15} In May 2017, the trial court adopted the magistrate's decision without modification over John's objection, granting Kathleen a divorce and ordering a division of marital property.

{¶ 16} It is from this order that John now appeals, raising the following four assignments of error for our review:

Assignment of Error One
The trial court abused its discretion in failing to utilize a defacto [sic] termination date of the marriage and/or a defacto [sic] date for recognized separation.
Assignment of Error Two
The court erred in failing to utilize a defacto [sic] termination date in assigning value of the marital estate.
Assignment of Error Three
The trial court committed prejudicial error when it failed to properly recognize the separate property[,] including [John's] pre-marital owned home on Velma Avenue and previously held property in [John's] Edward Jones account which is his and his alone as a matter of inheritance.
Assignment of Error Four
A trial court is bound to determine if a magistrate's decision and final judgment and decree of divorce reached an equitable settlement.

Standard of Review

{¶ 17} As discussed above, John appeals from the trial court's order adopting the magistrate's decision. We review an appeal from a trial court's decision adopting a magistrate's decision for an abuse of discretion. Butcher v. Butcher , 8th Dist. Cuyahoga No. 95758, 2011-Ohio-2550, 2011 WL 2112729, ¶ 7, citing O'Brien v. O'Brien , 8th Dist. Cuyahoga No. 89615, 2008-Ohio-1098, 2008 WL 667427, ¶ 11.

Termination Date of the Marriage

{¶ 18} In the first two assignments of error, John argues the trial court abused its discretion by failing to find a de facto termination date of the marriage earlier than the date of the final hearing in December 2016. He argues his marriage with Kathleen was effectively terminated as early as 1998.

{¶ 19} The date of the final hearing in a divorce proceeding is presumed to be the termination date of the marriage, unless the court determines that the use of that date would be inequitable in determining marital property. R.C. 3105.171(A)(2). If the court determines that a de facto termination of the marriage occurred earlier in time, and that using the date of the final hearing as the termination date would be inequitable, the court may, in its discretion, select a date it considers equitable. Saks v. Riga , 8th Dist. Cuyahoga No. 101091, 2014-Ohio-4930, 2014 WL 5762843, at ¶ 8, citing Berish v. Berish , 69 Ohio St.2d 318, 321, 432 N.E.2d 183 (1982).

{¶ 20} Generally, a trial court uses a de facto date for termination of marriage "only in cases where the parties have separated; have made no attempts to reconcile; and have continually maintained separate residences, separate business activities, and separate bank accounts." Id. , citing Gullia v. Gullia , 93 Ohio App.3d 653, 666, 639 N.E.2d 822 (8th Dist. 1994). This court "has cautioned that a de facto date should not be used unless the 'evidence clearly and bilaterally shows that it is appropriate based upon the totality of the circumstances.' " Brown v. Brown , 2014-Ohio-2402, 14 N.E.3d 404, ¶ 9 (8th Dist.), quoting O'Brien, 8th Dist. Cuyahoga No. 89615, 2008-Ohio-1098, 2008 WL 667427, at ¶ 41. The trial court has broad discretion in choosing the appropriate marriage termination date and this decision should not be disturbed on appeal absent an abuse of that discretion. Berish at 321, 432 N.E.2d 183.

{¶ 21} Here, the magistrate's decision addressed the court's inability to determine a de facto termination date of the marriage because of the parties' conflicting testimony and the lack of evidence as to assets and liabilities as of the earlier dates for which each party advocated.

{¶ 22} The magistrate's decision noted that, Kathleen

pressed the court to use 1998 as the [date of termination] while [John] initially pressed for 2001, the date [Kathleen] filed for divorce [the first time.] * * * In his closing argument, [John] essentially asked the Court to ignore his earlier testimony and, instead, use the date of trial as the end date for determining the duration of the marriage.

The magistrate further explained that

the parties' testimony is too conflicted to choose either 1998 or 2001 as the de facto date of termination of the marriage. In addition, * * * neither party offered any evidence with regard to what assets they owned on either of those dates or what the assets were worth as well as what debts they were responsible for.

{¶ 23} Our review of the record confirms the trial court's estimation of the lack of evidence of assets and liabilities as of the de facto termination dates advocated by each party. We agree with the trial court that

although there are reasons based upon the parties' testimony to consider both dates [for which each party advocated] as the de facto termination of the marriage, the parties * * * failed to present any evidence concerning [their] assets and debts on either date. The court, therefore, cannot divide their assets as required by statute [on either of those dates].

This court has held that "the presence or absence of reliable data concerning the value of the parties' assets is probably the most significant factor the court must consider when selecting a de facto termination date." Saks , 8th Dist. Cuyahoga No. 101091, 2014-Ohio-4930, 2014 WL 5762843, at ¶ 10.

{¶ 24} Therefore, we do not find that the trial court abused its discretion in using the date of the final hearing as the termination date of the marriage. Accordingly, the first two assignments of error are overruled.

Distribution of Assets

{¶ 25} In the third assignment of error, John argues the trial court erred in determining that the Velma Avenue home and the funds in the Edward Jones investment account were not his separate property. As discussed above, the trial court found the home was not subject to a division of property order because Kathleen transferred it to the parties' sons five years before she filed for divorce in the present matter. The trial court also determined that the Edward Jones investment account was Kathleen's by virtue of her ownership of KMK Consulting because John transferred the account to KMK Consulting without restriction.

{¶ 26} A party asserting that an asset is separate property has the burden of proving that claim by a preponderance of the evidence. Saks at ¶ 35, citing Rossi v. Rossi , 8th Dist. Cuyahoga Nos. 100133 and 100144, 2014-Ohio-1832, 2014 WL 1775891, ¶ 43. "If separate property has been commingled with marital property, i.e., put together into a common fund, the party seeking to have an asset treated as separate property must also prove by a preponderance of the evidence that the property can be traced to its prior separate identity." Rossi at ¶ 43.

{¶ 27} A trial court's characterization of property as marital or separate property is a mixed question of law and fact that will not be reversed unless it is against the manifest weight of the evidence. Saks, 8th Dist. Cuyahoga No. 101091, 2014-Ohio-4930, 2014 WL 5762843, at ¶ 35, citing Williams v. Williams, 8th Dist. Cuyahoga No. 95346, 2011-Ohio-939, 2011 WL 742560, ¶ 8. This court will not disturb the trial court's distribution of separate property absent an abuse of discretion. Id.

{¶ 28} Under R.C. 3105.171(A)(3)(a)(i), marital property includes, in relevant part, "[a]ll real and personal property that currently is owned by either or both of the spouses * * * that was acquired by either or both of the spouses during the marriage." Conversely,

"[s]eparate property" means all real and personal property and any interest in real or personal property that is found by the court to be * * * [a]n inheritance by one spouse * * * during the course of the marriage [or] [a]ny real or personal property or interest in real or personal property that was acquired by one spouse prior to the date of the marriage.

R.C. 3105.171(A)(6)(a)(i)-(ii).

{¶ 29} John, relying on R.C. 3105.171(A)(6)(a)(ii), argues that the trial court erred in determining that the Velma Avenue home was not his separate property because he acquired the home prior to the marriage. John's argument ignores his own testimony that he transferred his interest in the home to Kathleen by quitclaim deed in 1993, more than 20 years before the present divorce filing. In 2010, Kathleen transferred her interest in the property to her and John's two sons.

{¶ 30} John argues that Kathleen's transfer of the home to their children constituted fiduciary misconduct because it was not in his best interest. As the trial court aptly noted, as a result of John's transfer of his interest in the property to Kathleen "she was free to do as she pleased with [the home]." Moreover, as discussed above, John's broad power of attorney specifically allowed Kathleen to make gifts to members of his family at her discretion.

{¶ 31} John further argues the trial court erred in determining the Edward Jones account belonged to KMK Consulting _ he claims the funds in the account are "his and his alone as a matter of inheritance." However, John admitted that he transferred the funds to KMK Consulting in 2007 without restriction. The magistrate's decision explained:

[I]n voluntarily transferring the Edward Jones account to KMK Consulting [John] voluntarily transferred his interest in a premarital asset [his inheritance] to [Kathleen,] who was the owner of the corporation. The obvious purpose of the transaction was to hide or at least insulate the money from attachment by the [minor victim's parents related to John's criminal conviction.] There is no evidence that [Kathleen] was aware of [John's] purpose when he authorized Edward Jones to make the transfer.
And while [John] may not have intended to make a gift of the Edward Jones account to [Kathleen], the effect of authorizing Edward Jones to transfer his account to KMK Consulting had the same effect; it divested [John] of any and all interest that he had in the account. In simple terms, he effectively gave away the account to [Kathleen].
When he did, the account became her property through her ownership of KMK Consulting. There is no writing memorializing any agreement that would require [Kathleen] to turn the account over to [John] in the future once the worry of legal action by the [minor victim's] parents passed. There was not even mention of any such oral understanding [by Kathleen]. [John] simply transferred the Edward Jones account to [Kathleen] with no strings attached.

{¶ 32} Based on the foregoing, we find that the trial court did not abuse its discretion in determining that the Velma Avenue home and the Edward Jones account are no longer John's property because these findings were supported by competent, credible evidence, including his own admissions.

{¶ 33} Accordingly, the third assignment of error is overruled.

Equitable Settlement

{¶ 34} In the fourth assignment of error, John argues that the trial court erred in adopting the magistrate's decision because the "magistrate's findings and award of equity from the marriage did not reach a fair and reasonable division of the assets."

{¶ 35} The trial court is vested with broad discretion in determining the appropriate scope of property awards in a divorce action. Wojanowski v. Wojanowski , 8th Dist. Cuyahoga No. 99751, 2014-Ohio-697, 2014 WL 811785, ¶ 9, citing Berish v. Berish , 69 Ohio St.2d 318, 319, 432 N.E.2d 183 (1982). "Although this discretion is not unlimited, the trial court has authority to do what is equitable, and its judgment should not be reversed unless it has abused its discretion." Id. , citing Cherry v. Cherry , 66 Ohio St.2d 348, 355, 421 N.E.2d 1293 (1981). Broad discretion is vested in the trial court to determine an equitable property division because "the different facts and circumstances which each divorce case presents to a trial court requires that a trial judge be given wide latitude in dividing property between the parties." Id. , quoting Koegel v. Koegel , 69 Ohio St.2d 355, 357, 432 N.E.2d 206 (1982).

{¶ 36} Here, John argues the division of property was inequitable because "there is no logical explanation for giving [Kathleen] all the money and his pre-marital home [on Velma Avenue] and [awarding John with] all the noncollectable [sic] debt." This argument ignores the trial court's order that Kathleen pay John half the funds on deposit in three separate bank accounts and its finding that John is entitled to one-half of the marital portion of Kathleen's benefits through Ohio Public Employees Retirement System.

{¶ 37} John specifically takes issue with the trial court's order that Kathleen retain as her sole property the funds in the Edward Jones and RBC Wealth Management accounts by virtue of her ownership of KMK Consulting. However, as discussed above, the trial court heard John acknowledge he transferred these accounts to KMK Consulting without restriction for the purpose of insulating the assets from collection as proceeds in potential legal action against him.

{¶ 38} John also contends the trial court's division of property is inequitable because it ordered that he receive, what he terms, "noncollectable debt" from his business partners. However, the record reflects that John created the investments giving rise to these claims for his own profit, of which Kathleen had little or no knowledge. The trial court found "[s]ince [John] is the author of these transactions and is familiar with the people involved they should be his." Upon careful review of the record, we do not find this order inequitable.

{¶ 39} In fact, we find John's argument to be extremely disingenuous. He admits to using KMK Consulting as a shield for his assets and investments and further admits to transferring property to his wife for that same purpose. The record clearly demonstrates that John kept Kathleen in the dark as to their finances and his business dealings, and that she and her children suffered as a result. The trial court's order was not, as he argues, "retributive justice," but an equitable order to prevent John from further taking advantage of Kathleen. John initiated and orchestrated every financial move and transfer, including transferring the Velma Avenue home to Kathleen and his assets to KMK Consulting.

{¶ 40} Based on the foregoing, we do not find the trial court abused its discretion in adopting the magistrate's decision, nor do we find an abuse of discretion in the trial court's division of marital property and determination of separate property. Accordingly, the fourth assignment of error is overruled.

{¶ 41} Judgment affirmed.

SEAN C. GALLAGHER, J., and ANITA LASTER MAYS, J., CONCUR

      John appeared by video conference because he was incarcerated at the time of trial.


source: Caselaw Access Project

author: FRANK D. CELEBREZZE, JR., J.:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Mohammad KHOSHKNABI, Defendant-Appellant
    No. 106117
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: May 3, 2018
    Jonathan A. Bartell, Margaret W. Wong, Scott E. Bratton, Margaret Wong & Associates, 3150 Chester Avenue, Cleveland, Ohio 44114, ATTORNEYS FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Gregory J. Ochocki, Assistant Prosecuting Attorney, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Keough, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Defendant-appellant, Mohammad Khoshknabi ("appellant"), brings this appeal challenging his convictions for passing bad checks and theft. Specifically, appellant argues that the trial court erred by denying his motion to withdraw his guilty plea. After a thorough review of the record and law, this court reverses the trial court's judgment, vacates appellant's guilty plea, and remands the matter for further proceedings consistent with this opinion.

I. Factual and Procedural History

{¶ 2} Appellant was born in Iran. He entered the United States in 1983 with a student visa. He obtained permanent residence status in 1990. Appellant has been married to a United States citizen for more than ten years.

A. Prior Criminal History and Removal Proceedings

{¶ 3} Appellant was charged in 1994 with three counts of passing bad checks in Franklin County Municipal Court. Appellant pled no contest to one count of passing bad checks, a first-degree misdemeanor. In February 1997, appellant pled guilty to three third-degree misdemeanor counts of sexual imposition in the Cuyahoga County Court of Common Pleas. State v. Khoshknabi , Cuyahoga C.P. No. CR-96-343821-ZA.

{¶ 4} The federal government commenced removal proceedings against appellant in 2005. Thereafter, in March 2006, appellant filed a motion to withdraw his no-contest plea and vacate his conviction for passing bad checks in Franklin County, alleging that the trial court failed to provide him with the R.C. 2943.031 advisement regarding the immigration consequences associated with his plea. Appellant's motion to withdraw and vacate his conviction was granted, and the case was subsequently dismissed in April 2006. In February 2007, the removal proceedings were terminated.

B. Cuyahoga C.P. No. CR-16-611508-A

{¶ 5} The instant criminal proceedings arose from a dispute between appellant and a roofing contractor over payment for work that the contractor performed on a building that appellant purchased in Cleveland Heights, Ohio. On November 16, 2016, the Cuyahoga County Grand Jury returned a two-count indictment charging appellant with passing bad checks, a fifth-degree felony in violation of R.C. 2913.11(B), and theft, a fifth-degree felony in violation of R.C. 2913.02(A)(3). Count 1 alleged that appellant issued the check for the payment of $1,000 or more but less than $7,500. Count 2 alleged that the property or services stolen was valued at $1,000 or more and less than $7,500. Appellant was arraigned on December 2, 2016. He pled not guilty to the indictment.

{¶ 6} The parties reached a plea agreement. The state amended the dollar amount for which the check was issued and the value of the property or services stolen to less than $1,000, reducing the charges from fifth-degree felonies to first-degree misdemeanors. On March 8, 2017, appellant pled guilty to the amended passing bad checks and theft charges. The trial court proceeded immediately to sentencing. The trial court sentenced appellant to community control sanctions for a term of one year on each count.

{¶ 7} As a result of appellant's 2017 convictions for passing bad checks and theft, and his 1997 convictions for sexual imposition, the federal government commenced removal proceedings against appellant. On June 6, 2017, appellant was detained by the Department of Homeland Security ("DHS"). Appellant is still in the custody of DHS.

{¶ 8} On June 22, 2017, appellant filed a motion to withdraw his guilty plea pursuant to Crim.R. 32.1. Therein, appellant argued that he was denied effective assistance of counsel before he entered his guilty plea. Appellant submitted an affidavit in support of his motion to withdraw in which he averred, in relevant part,

5. My lawyer knew that my immigration status was a serious issue for me. I needed assurance that any plea would not have any impact on my immigration case.
6. My lawyer told me on no less than three occasions that if I entered guilty pleas to the two misdemeanors (passing bad checks and theft), that I would not have any immigration issues. He said because they were misdemeanors, I would not get deported.
7. I relied on this advice and decided to enter guilty pleas to the two misdemeanors. I only entered the guilty pleas based on my lawyer's advice. I was strongly considering fighting my case but decided to proceed with guilty pleas based on his advice.
8. At the plea hearing, I did hear the judge mention that my plea may result in deportation. I did not believe that this applied to me because my attorney specifically told me that I would not face deportation under this plea agreement because I was pleading guilty to two misdemeanors.
* * *
12. I would not have entered a plea had my attorney told me that this plea would result in me being placed in deportation proceedings. I am now facing deportation. I had a case to defend, but chose to enter the plea solely upon the advice of my lawyer.

{¶ 9} The state opposed appellant's motion to withdraw on July 12, 2017. Appellant filed a supplemental motion to withdraw his guilty plea on July 17, 2017. Therein, he requested relief pursuant to R.C. 2953.21.

{¶ 10} The trial court held a hearing on appellant's motion to withdraw on July 26, 2017. Appellant's counsel and appellant testified during the hearing.

{¶ 11} Appellant's counsel testified that he practices criminal law and does not consider himself to be an immigration lawyer. When an immigration-related issue arises during the course of his representation of a client, he generally consults an immigration attorney.

{¶ 12} During his representation of appellant, appellant maintained that he was not guilty of the passing bad checks and theft charges. Appellant asserted that he had a defense to the charges in that he paid the victim in cash. Counsel explained that he knew appellant was not a United States citizen; however, he did not know that removal proceedings had been commenced against appellant in 2005 until after appellant was detained by DHS in June 2017.

{¶ 13} Appellant's counsel testified that he was aware that if appellant was convicted of two crimes involving moral turpitude, including misdemeanors, he would be removable from the United States. Counsel acknowledged that he was aware that passing bad checks, theft, and sexual imposition were crimes involving moral turpitude. Counsel stated that he believed that if appellant pled guilty to passing bad checks and theft, these convictions would be counted as one crime involving moral turpitude for deportation purposes. He asserted that he did not believe appellant's previous sexual imposition convictions would be counted as a second crime involving moral turpitude for deportation purposes because appellant had not been "touched" for his prior offenses. Counsel testified that he did not believe the misdemeanor convictions for passing bad checks and theft would raise any immigration concerns.

{¶ 14} Counsel confirmed that appellant did ask for his opinion as to whether he would be removed from the United States as a result of pleading guilty. Counsel asserted that he advised appellant that he did not think appellant would be sentenced to jail and that he did not think it was likely that appellant would be deported because the passing bad checks and theft offenses to which he would be pleading guilty were misdemeanors. Counsel explained, however, that he never gave appellant a "guarantee" that he would not be deported.

{¶ 15} Counsel opined that at the time appellant entered the plea, he was relying on his advice that he did not believe appellant would be deported as a result of the plea. Counsel felt that he gave appellant bad advice on the issue of deportation. (Tr. 56.) He explained that had be been aware of the 2005 removal proceedings, he "probably might have called [an immigration attorney], because my feeling was well, they hadn't touched [appellant] up to this point, and [the passing bad checks and theft charges] were misdemeanors." (Tr. 52.) Furthermore, he asserted that had he been aware of the 2005 removal proceedings, he "would have probably changed [his] whole tactic." (Tr. 57.) Counsel acknowledged that he should have looked into the immigration issue more and that he was ineffective with regard to the issue of immigration and for not following up on the Franklin County Municipal Court case involving passing bad checks, which, in part, resulted in the commencement of removal proceedings against appellant in 2005. Counsel confirmed that during all times throughout the course of the representation, appellant's position was that he was not guilty of passing bad checks and theft offenses.

{¶ 16} On cross-examination, counsel testified that appellant never told him about the 2005 removal proceedings. Counsel explained that he believed appellant would not be "bothered" for the misdemeanor passing bad checks and theft offenses because he had not been "bothered" for his prior sexual imposition convictions.

{¶ 17} Counsel testified that appellant wanted to fight the charges at trial; however, he advised against proceeding to trial because the second check that appellant gave to the contractor was "not good," and appellant did not have any receipt or proof of payment confirming that he paid the contractor in cash. Counsel asserted that appellant was concerned about his immigration status, but appellant did not say that he did not want to enter a plea agreement. Counsel explained that the driving force behind his representation of appellant was keeping him out of jail, rather than immigration and/or deportation.

{¶ 18} Regarding appellant's assertion in his affidavit that counsel told him on no less than three occasions that he would not be deported if he pled guilty, counsel testified that appellant's assertion was not accurate. He stated that he was not sure how many times he discussed immigration and/or deportation with appellant. Furthermore, he asserted that he would not guarantee anything to appellant in terms of sentencing or a plea. Counsel explained that although he would not guarantee anything to appellant regarding deportation, he would have advised appellant that he did not believe appellant would be deported as a result of pleading guilty.

{¶ 19} Appellant testified that he wanted to go to trial because he had evidence that he paid the contractor for the work performed. Appellant confirmed that counsel did not guarantee him anything regarding immigration or deportation. Nevertheless, appellant asserted that counsel told him with "high confidency" or a "degree in confidency" that he will not have any immigration issues if he pled guilty to the passing bad checks and theft offenses. (Tr. 72.)

{¶ 20} Appellant testified that he would absolutely not have pled guilty had he known that the guilty plea would have caused him to be removable from the United States, subject to mandatory detention, and placed in removal proceedings. Appellant acknowledged that removal proceedings had been commenced against him in 2005. He explained that the prior removal proceedings were terminated when his Franklin County conviction for passing bad checks was vacated. Despite his prior experience with removal proceedings, appellant asserted that he did not think his 2017 guilty plea would result in removal proceedings based on his lawyer's advice that he relied upon. Appellant acknowledged that he did not ask any questions during the change of plea hearing regarding immigration or deportation. He explained that he did not raise the issue or ask any question because his attorney told him that the plea was the best course of action for not having any immigration issues.

{¶ 21} Although he asserted in his affidavit that counsel told him that he would not be deported as a result of pleading guilty, appellant explained that counsel told him that it was "extremely unlikely" that the guilty plea would affect his immigration status. Based on the advice he received from counsel, appellant's understanding was that he would not be deported if he pled guilty.

{¶ 22} During closing arguments, the state argued that the driving force behind counsel's representation was appellant proving that he was not guilty of the passing bad checks and theft offenses, rather than the issue of immigration. The state argued that Lee v. United States , 582 U.S. ----, 137 S.Ct. 1958, 198 L.Ed.2d 476 (2017), is distinguishable from the present case because appellant's counsel did not "flat out say [appellant] will not be deported if [he] plead guilty to these misdemeanors," and appellant did not ask the trial court or his counsel any questions regarding the immigration issue during the change of plea hearing. (Tr. 108.) The state argued that appellant was not prejudiced by counsel's advice regarding deportation because (1) he knew that there could be immigration consequences associated with his guilty plea based on the fact that he faced removal proceedings in 2005 after pleading no contest to passing bad checks in Franklin County and (2) appellant did not have any questions about immigration after the trial court provided the R.C. 2943.031(A) advisement to him during the change of plea hearing.

{¶ 23} During defense counsel's closing argument, counsel argued that the trial court's R.C. 2943.031(A) advisement did not cure the defective advice regarding deportation that counsel provided to appellant. At the close of the hearing, the trial court took the matter under advisement.

{¶ 24} On August 3, 2017, the trial court denied appellant's motion to withdraw his guilty plea. The trial court concluded that (1) appellant's concern at the time he entered the plea agreement focused on the amount of restitution owed to the victim and his reputation in the community rather than immigration and/or deportation consequences associated with the plea; (2) appellant's concern at the time of sentencing was his reputation in the community and the conditions of his probation rather than immigration and/or deportation; (3) at no point during either the plea or sentencing hearings did appellant express concern regarding immigration and/or deportation consequences associated with his plea; (4) Lee was distinguishable from the present case because appellant's counsel did not assure appellant that he would not be deported as a result of pleading guilty nor did appellant make a statement or inquire about the effect that his plea would have on his immigration status; and (5) appellant faced removal proceedings on a prior occasion after pleading no contest to passing bad checks in Franklin County, and thus, he was well aware that his guilty plea in the present matter had immigration consequences. Accordingly, the trial court concluded that appellant failed to demonstrate a reasonable probability that he would not have entered the guilty plea had he known that it would result in mandatory deportation.

{¶ 25} It is from this judgment that appellant filed the instant appeal on August 14, 2017. He assigns one error for review:

I. The trial court abused its discretion when it denied [appellant's] motion to withdraw his guilty pleas and vacate convictions where [appellant] showed that he was prejudiced by his attorney's incorrect statements regarding deportation.

II. Law and Analysis

A. Motion to Withdraw Guilty Plea

{¶ 26} In his sole assignment of error, appellant argues that the trial court abused its discretion in denying his motion to withdraw his guilty plea.

{¶ 27} Crim.R. 32.1, governing motions to withdraw guilty pleas, provides that "[a] motion to withdraw a plea of guilty may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." Thus, a defendant that seeks to withdraw his or her guilty plea after the imposition of sentence must demonstrate a "manifest injustice." State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus.

Manifest injustice is a "clear or openly unjust act," State ex rel. Schneider v. Kreiner , 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998), that is "evidenced by 'an extraordinary and fundamental flaw in the plea proceeding,' " State v. McElroy , 8th Dist. Cuyahoga Nos. 104639, 104640 and 104641, 2017-Ohio-1049 [2017 WL 1091642], ¶ 30, quoting State v. Hamilton , 8th Dist. Cuyahoga No. 90141, 2008-Ohio-455 [2008 WL 324791], ¶ 8 ; see also State v. Stovall , 8th Dist. Cuyahoga No. 104787, 2017-Ohio-2661 [2017 WL 1742998], ¶ 17 (" 'Manifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process.' "), quoting State v. Williams , 10th Dist. Franklin No. 03AP-1214, 2004-Ohio-6123 [2004 WL 2616430], ¶ 5. The determination of whether the defendant has demonstrated manifest injustice is within the sound discretion of the trial court. State v. Vinson , 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 42 (8th Dist.), citing Smith at paragraph two of the syllabus. We will not reverse a trial court's ruling on a postsentence motion to withdraw a guilty plea unless the court abused its discretion. Id. To constitute an abuse of discretion, the trial court's decision must be unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

State v. Hodges , 8th Dist. Cuyahoga No. 105789, 2017-Ohio-9025, 2017 WL 6389153, ¶ 13.

{¶ 28} Ineffective assistance of counsel can, under certain circumstances, constitute a manifest injustice warranting withdrawal of a guilty plea. See, e.g. , State v. Montgomery , 8th Dist. Cuyahoga No. 103398, 2016-Ohio-2943, 2016 WL 2757703, ¶ 4. In order to establish a claim of ineffective assistance of counsel, the defendant must show (1) his trial counsel's performance was deficient in some aspect of his representation, i.e., the performance fell below an objective standard of reasonable representation, and (2) this deficiency prejudiced his defense, i.e., there is a reasonable probability that but for counsel's errors, the outcome of the proceedings would have been different. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus.

{¶ 29} A defendant that enters a guilty plea waives a claim of ineffective assistance of counsel except to the extent that the ineffective assistance of counsel caused the defendant's plea to be less than knowing, intelligent, and voluntary. Vinson at ¶ 30 ; State v. Williams , 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415, 2014 WL 3866137, ¶ 11. A defendant who has entered a guilty plea can only prevail on a claim of ineffective assistance of counsel by demonstrating (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, that caused the defendant's guilty plea to be less than knowing, intelligent and voluntary and (2) that there is a reasonable probability that, but for counsel's deficient performance, the defendant would not have pled guilty to the offenses at issue and would have insisted on going to trial. Williams at ¶ 11, citing State v. Xie , 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992), and Hill v. Lockhart , 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). A "reasonable probability" is a "probability sufficient to undermine confidence in the outcome." Strickland at 694, 466 U.S. 668, 104 S.Ct. 2052. The defendant must convince the court that the decision to reject the plea " 'would have been rational under the circumstances.' " State v. Ayesta, 8th Dist. Cuyahoga No. 101383, 2015-Ohio-1695, 2015 WL 2091679, ¶ 14, quoting Padilla v. Kentucky, 559 U.S. 356, 372, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Additionally, the defendant must demonstrate that he would have prevailed at trial. State v. Preciado , 8th Dist. Cuyahoga No. 101257, 2015-Ohio-19, 2015 WL 114734, ¶ 17 ; State v. Huang , 8th Dist. Cuyahoga No. 99945, 2014-Ohio-1511, 2014 WL 1408122, ¶ 14.

{¶ 30} In this case, we initially note that because appellant is not a citizen of the United States, the trial court was required to personally address appellant and advise him, on the record, of the possible deportation consequences associated with his guilty plea pursuant to R.C. 2943.031(A). Appellant concedes that the trial court complied with R.C. 2943.031(A) and provided him with the statutory advisement. During the change of plea hearing, the trial court advised appellant as follows:

I want to advise you again that 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 to 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. Do you understand that?

(Tr. 10.) Appellant confirmed that he understood the trial court's advisement.

{¶ 31} The federal deportation statute of 8 U.S.C. 1227(a)(2)(A)(ii) provides that any alien who is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal conduct, regardless of whether the alien is confined for the crimes and regardless of whether the convictions were in a single trial, is deportable. In Ayesta , this court acknowledged that the language of the deportation statute does not state that a conviction for an enumerated offense results in mandatory deportation. Id. at ¶ 7. However, this court explained, "[w]hile the word 'deportable,' in its most literal interpretation, means 'able to be deported,' as the United States Supreme Court has recognized, the practical result of such a conviction is that the alien almost always will be deported ." (Emphasis sic.) Id. , citing Padilla at 360-364, 130 S.Ct. 1473.

[A]lthough 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 [347] (2001), and 'presumptively mandatory,' Hernandez v. State , 124 So.3d 757, 763 (Fla.2012)."

State v. Vialva , 8th Dist. Cuyahoga No. 104199, 2017-Ohio-1279, 2017 WL 1282828, ¶ 18, quoting Ayesta at ¶ 7. Accordingly, appellant's convictions for passing bad checks and theft, in conjunction with his 1997 convictions for sexual imposition, would presumably subject him to mandatory deportation. See Vialva at Id. "Despite this 'mandatory' deportation consequence, the General Assembly has not required a court to advise a defendant of the exact deportation consequence." Id. , citing R.C. 2943.031(A).

{¶ 32} In his motion to withdraw his guilty plea, appellant argued that his trial counsel provided ineffective assistance of counsel pursuant to Padilla , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284. In Padilla , the United States Supreme Court held that a defendant's counsel has a duty to advise the defendant of certain immigration-related collateral consequences of a guilty plea-particularly the possibility of deportation. Id. at 374, 130 S.Ct. 1473. In Ayesta , this court explained counsel's duty in light of the Padilla holding:

[t]rial counsel has a duty to accurately advise his [or her] client of the advantages and disadvantages of a plea agreement. Padilla at 370 [130 S.Ct. 1473]. This includes advising noncitizen defendants of the deportation consequences associated with a plea. Id. Counsel breaches this duty by either providing affirmative misadvice about immigration consequences, or by not providing any advice at all when advice is warranted. Id. at 370-371 [130 S.Ct. 1473] (stating, "there is no relevant difference between an act of commission and an act of omission in this context" (internal quotations omitted) ). Thus, failing to advise a noncitizen defendant of potential deportation consequences associated with a plea satisfies the first prong of the Strickland test by establishing that counsel's performance fell below an objective standard of reasonableness. See [ Padilla ] at 373-374.

Ayesta, 8th Dist. Cuyahoga No. 101383, 2015-Ohio-1695, 2015 WL 2091679, at ¶ 15.

{¶ 33} In support of his motion to withdraw, appellant argued that his trial counsel provided ineffective assistance with respect to the issue of deportation. Regarding the first Strickland prong, appellant alleged that counsel's performance was deficient because (1) counsel mistakenly believed that appellant could avoid deportation by pleading guilty to the amended passing bad checks and theft counts, (2) counsel advised appellant that he could avoid deportation by pleading guilty, and (3) counsel failed to adequately investigate the deportation issue and appellant's immigration history. In other words, appellant alleged that trial counsel provided affirmative misadvice, rather than failing to give advice or giving incomplete advice, about the immigration consequences of the plea agreement. Appellant emphasizes that counsel acknowledged that his performance was deficient during the hearing on the motion to withdraw.

{¶ 34} As noted above, appellant's counsel testified that (1) he knew that multiple convictions for crimes involving moral turpitude would lead to deportation and (2)

sexual imposition, theft, and passing bad checks were crimes involving moral turpitude. However, counsel explained that he advised appellant that he did not believe he would be deported as a result of pleading guilty because the offenses had been amended from fifth-degree felonies to first-degree misdemeanors.

{¶ 35} After reviewing the record, we find that appellant's counsel failed to properly advise appellant about the immigration consequences of his plea agreement. The deportation consequences of appellant's plea were clear-by pleading guilty to passing bad checks and theft, both crimes involving moral turpitude, and having previously been convicted of sexual imposition, also a crime involving moral turpitude, appellant was subjecting himself to mandatory deportation. Appellant's counsel, however, advised appellant that it was unlikely that he would face deportation if he pled guilty to the misdemeanor offenses. Because appellant's counsel failed to properly advise appellant about the deportation consequences of the plea agreement, the first Strickland prong is satisfied. See Ayesta, 8th Dist. Cuyahoga No. 101383, 2015-Ohio-1695, 2015 WL 2091679, at ¶ 15, citing Padilla , 559 U.S. at 373-374, 130 S.Ct. 1473, 176 L.Ed.2d 284.

{¶ 36} Regarding the second Strickland prong, appellant asserted that he was prejudiced by counsel's deficient performance because he relied on counsel's erroneous advice and entered the guilty plea. He insists that but for counsel's erroneous advice, and had he known of the mandatory deportation consequences associated with the guilty plea, he would not have pled guilty.

{¶ 37} The state argues that appellant cannot demonstrate that he was prejudiced by counsel's performance. In support of its position, the state contends that (1) there is no contemporaneous evidence supporting appellant's assertion that he would not have pled guilty but for counsel's deficient performance; (2) appellant's primary concerns at the time he entered the plea were avoiding jail, restitution, and probation, not immigration; (3) the trial court complied with R.C. 2943.031(A) and advised appellant that there were potential immigration consequences associated with the plea; (4) appellant did not ask any questions regarding the trial court's R.C. 2943.031(A) advisement; and (5) based on his involvement in the 2005 removal proceedings, appellant was aware that his misdemeanor convictions could subject him to removal proceedings.

{¶ 38} The United States Supreme Court recently explained that "[c]ourts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences." Lee , 582 U.S. ----, 137 S.Ct. at 1967, 198 L.E.2d 476. The court held that Lee adequately demonstrated a reasonable probability that he would not have pled guilty had he known that it would lead to mandatory deportation. Id. The factors upon which the court reached this conclusion included (1) deportation was the "determinative issue" in Lee's decision to plead guilty, (2) both Lee and his counsel testified that Lee would have gone to trial if he had known about the deportation consequences associated with his plea, (3) Lee had strong connections to the United States and he did not have strong connections to another country, (4) it would not have been irrational for Lee to reject the plea agreement and proceed to trial, and (5) the consequences of taking a chance at trial were not markedly harsher than the consequences of pleading guilty. Id. at 1967-1969.

{¶ 39} In the instant matter, appellant insists that he wanted to contest the passing bad checks and theft charges at trial. Appellant testified in his affidavit and during the trial court's hearing on his motion to withdraw that he wanted to proceed to trial. Furthermore, appellant's counsel testified that appellant maintained that he was not guilty of the passing bad checks and theft charges, appellant wanted to fight the charges at trial, and appellant believed that he could defend against the charges on the basis that he paid the victim in cash.

{¶ 40} We cannot say that it would be irrational for a defendant in appellant's position to reject the plea agreement and take his chances at trial. Appellant, like Lee , had strong connections to the United States and to no other country. See Lee at 1968. If appellant's guilty plea automatically subjected him to deportation, it may be rational for him to reject the plea agreement and insist on going to trial. Appellant was born in Iran in 1964. He has lived in the United States for more than 30 years. Appellant has been married to a United States citizen for more than ten years and they have a child who is a United States citizen. Under these circumstances, appellant may decide to take his chances at trial rather than pleading guilty and subjecting himself to mandatory deportation. See State v. Yahya , 10th Dist. Franklin No. 10AP-1190, 2011-Ohio-6090, 2011 WL 5868794, ¶ 22.

{¶ 41} Regarding the "determinative issue" factor discussed in Lee , appellant averred in his affidavit that his counsel "knew that [his] immigration status was a serious issue for [him]. [He] needed assurance that any plea would not have any impact on [his] immigration case." Counsel, on the other hand, testified that the "driving force" behind his representation of appellant was avoiding a prison sentence rather than appellant's immigration status.

{¶ 42} The record reflects that appellant and counsel discussed the issue of immigration prior to the change of plea hearing. During the change of plea hearing, counsel explained that appellant was not a U.S. citizen; counsel asserted that he "had that checked out," and that "everything is copacetic from our end[.]" (Tr. 6.) Although counsel opined that immigration was not the "driving force" behind his representation of appellant, counsel's statements during the sentencing hearing-which was held on the same day as the change of plea hearing-indicate that the immigration issue was, in fact, a serious concern for appellant. During his statement in mitigation of sentencing, counsel stated,

[Appellant] is 52. He's married. [His wife is] a medical research doctor at the Cleveland Clinic. * * * They live in South Euclid. [Appellant] immigrated from Iran. He doesn't want to go back there , so I thank you Madam prosecutor for the amendment to the misdemeanor. That would be devastating . He got away [from Iran] in '78 and in '83 was finally granted a student visa[.]

(Emphasis added.) (Tr. 17-18.) Accordingly, we find that deportation was a serious issue for appellant in plea discussions. Although appellant wanted to proceed to trial, appellant's counsel advised him that he could avoid deportation by pleading guilty to the amended misdemeanor offenses. Relying on counsel's advice, albeit it erroneous advice, appellant elected to enter the guilty plea rather than proceeding to trial.

{¶ 43} Additionally, we find that the consequences of taking a chance at trial were not markedly harsher than pleading guilty. See Lee , 582 U.S. ----, 137 S.Ct. at 1969, 198 L.Ed.2d 476. Appellant was charged with two fifth-degree felonies. R.C. 2929.14(A)(5) provides that the maximum prison term for a felony of the fifth degree is one year. Pursuant to the plea agreement, the passing bad checks and theft offenses were amended to first-degree misdemeanors. R.C. 2929.24(A)(1) provides that the maximum jail term for a first-degree misdemeanor is six months.

{¶ 44} The timing of appellant's motion to withdraw his guilty plea supports his claim that he would not have pled guilty if he had been properly advised of the immigration consequences of his plea. "An undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the movant and militating against the granting of the motion." Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324, at paragraph three of the syllabus. In this case, appellant pled guilty on March 8, 2017. The federal government commenced removal proceedings against appellant in June 2017. Appellant filed his motion to withdraw his guilty plea on June 22, 2017, and his supplemental motion to withdraw on July 17, 2017. Thus, there was not an undue delay between the commencement of removal proceedings and the filing of appellant's motion to withdraw his plea. See Yahya, 10th Dist. Franklin No. 10AP-1190, 2011-Ohio-6090, 2011 WL 5868794, at ¶ 21 (finding that the timing of appellant's motion to withdraw her guilty plea-filed less than six months after she pled guilty-may support her claim that she would not have pled guilty if she had been properly advised of the immigration consequences of the plea).

{¶ 45} Appellant acknowledges that he did not raise the immigration issue or ask any questions during the change of plea hearing after the trial court gave the R.C. 2943.031(A) advisement. He asserts, however, that he relied on counsel's belief that he could avoid deportation by pleading guilty and he believed that counsel had taken care of the immigration issue. As such, he did not believe that there was any need to raise the issue or ask any questions.

{¶ 46} As noted above, appellant concedes that the trial court complied with R.C. 2943.031(A) and advised him that there may be immigration consequences associated with his plea. However, appellant argues that he relied on counsel's advisement that there was a good chance that he would not be deported if he pled guilty to the misdemeanor offenses over the trial court's general statutory advisement. Furthermore, appellant asserts that the trial court's statutory advisement neither precludes a finding of prejudice nor cures the erroneous advice that counsel provided to him.

This court has previously adhered to the concept that "[a] trial court's R.C. 2943.031(A) advisement that the defendant may be deported as a result of his plea, is sufficient to overcome any prejudice caused by counsel's failure to properly advise the defendant." State v. McCubbin , 8th Dist. Cuyahoga No. 100944, 2014-Ohio-4216 [2014 WL 4748523], ¶ 16, citing State v. Lababidi , 2012-Ohio-267, 969 N.E.2d 335 (8th Dist.) ; State v. Velazquez , 8th Dist. Cuyahoga No. 95978, 2011-Ohio-4818 [2011 WL 4389926]. This proposition of law was born from our decision in State v. Bains , 8th Dist. Cuyahoga No. 94330, 2010-Ohio-5143 [2010 WL 4286167], where we upheld a trial court's decision denying a motion to withdraw because, among other things, the trial court properly advised the defendant under R.C. 2943.031(A) that he may be subject to deportation and other immigration consequences.

State v. Yapp , 2015-Ohio-1654, 32 N.E.3d 996, ¶ 14 (8th Dist.). In Yapp , this court clarified that "a trial court's R.C. 2943.031(A) advisement does not necessarily foreclose the possibility of finding prejudice under Padilla ." Id. at ¶ 16. In Ayesta , this court concluded,

to the extent that the Bains progeny of cases suggest that a trial court's advisement under R.C. 2943.031(A)"cures" any prejudice or that it precludes a finding of prejudice, we correct and clarify those cases and uphold the proposition of law manifested in Bains , which is that a trial court's proper advisement under R.C. 2943.031(A)may preclude a finding of prejudice.

(Emphasis sic.) Ayesta , 8th Dist. Cuyahoga No. 101383, 2015-Ohio-1695, 2015 WL 2091679, at ¶ 20.

[A] defendant is entitled to rely on advice from counsel and to trust that the advice is competent and accurate. See, e.g. , Abdalla v. Olexia (1996), 113 Ohio App.3d 756, 759, 682 N.E.2d 18 ("A layman untrained in the law is entitled to and, in fact, to some extent required to rely upon advice of his legal counsel."); State v. Benson (July 18, 1997), 2d Dist. No. 09-CA-29, [1997 WL 435688], 1997 Ohio App. LEXIS 3410 ("A criminal defendant facing serious potential sanctions can be expected to rely upon the advice of his counsel."). This is particularly true for an immigrant, who faces not only potential criminal sanctions but also deportation.

Yahya at ¶ 17.

{¶ 47} In the instant matter, the record reflects that appellant's counsel advised appellant, before the change of plea hearing, that it was unlikely that he would be deported if he pled guilty to the misdemeanor passing bad checks and theft offenses. When the trial court subsequently provided the R.C. 2943.031(A) warning to appellant during the change of plea hearing, advising appellant that there may be immigration consequences associated with the plea, appellant reasonably relied on counsel's advice that he could avoid deportation by pleading guilty. Under these circumstances, the trial court's delivery of the general statutory advisement did not cure his attorney's specific misadvice regarding the mandatory deportation consequences of the guilty plea.

{¶ 48} Accordingly, we find that appellant established that he was prejudiced by counsel's deficient performance and demonstrated a reasonable probability that (1) but for counsel's erroneous advice regarding deportation and (2) had he known that he was subject to mandatory deportation as a result of pleading guilty, he would not have entered the guilty plea and would have insisted on proceeding to trial. As such, the second Strickland prong is satisfied.

{¶ 49} For all of the foregoing reasons. Appellant's sole assignment of error is sustained.

III. Conclusion

{¶ 50} After thoroughly reviewing the record, we find that the trial court abused its discretion in denying appellant's motion to withdraw his guilty plea. Counsel's failure to properly advise appellant about the deportation consequences of his guilty plea constituted deficient performance. Appellant demonstrated a reasonable probability that but for counsel's erroneous advice, and had he known about the mandatory deportation consequences of the guilty plea, he would not have pled guilty and would have insisted on going to trial. Accordingly, appellant was prejudiced by counsel's erroneous advice.

{¶ 51} The trial court's judgment denying appellant's motion to withdraw is reversed. Appellant's guilty plea is vacated. This matter is remanded to the trial court for further proceedings consistent with this opinion.

EILEEN T. GALLAGHER, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR

      Columbus v. Khoshknabi , Franklin M.C. No. 1994 CRB 007384.


author: PIETRYKOWSKI, J.

text:
    Ian BRYANT, Appellant v. INDUSTRIAL POWER SYSTEMS, INC., et al., Appellees
    No. L-17-1202
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided: May 4, 2018
    Robert L. Gresham, Columbus, Michael L. Wright, Dayton, and Kesha Q. Brooks, for appellant.
    Paul R. Bonfiglio, Holland, for appellees.
    DECISION AND JUDGMENT
   PIETRYKOWSKI, J.

{¶ 1} This is an appeal from the judgment of the Lucas County Court of Common Pleas, granting summary judgment in favor of defendants-appellees, Industrial Power Systems, Inc., and Kevin Grey, on plaintiff-appellant's, Ian Bryant, complaint for injuries suffered as a result of his fall on appellees' property. For the reasons that follow, we affirm.

I. Facts and Procedural Background

{¶ 2} The underlying facts in this case are undisputed. In the late morning of March 15, 2015, appellant arrived at appellees' place of business to pick up a trailer that was stored outside. Pictures taken on the day of the accident revealed that there were patches of snow and ice throughout the lot of the storage facility. Appellant typed in his code to enter the gate to the facility, then drove to where his trailer was parked, and backed his truck up to the trailer. Appellant testified in his deposition that when he stepped out of his truck, he slipped and fell, seriously injuring his knee. Notably, the storage facility was an open, uncovered lot, and there were no trees or shrubs blocking appellant's view.

{¶ 3} On January 8, 2016, appellant filed his complaint, in which he alleged that he fell on an ice formation that was caused by a clogged drain. Appellant asserted one claim of premises liability in that appellees negligently failed to maintain the premises or warn him of the clogged drain and resulting ice formation, and one claim of negligence per se for violating R.C. 723.011 by failing to maintain the gutters in reasonable repair.

{¶ 4} Following discovery, appellees moved for summary judgment, arguing that they owed no duty to appellant because the snow and ice were an open and obvious winter condition. Alternatively, they argued that appellant's claims must fail because he was unable to articulate what condition caused him to fall and where it was located, and because appellant's negligence in failing to take proper precautions in winter conditions outweighed any negligence by appellees as a matter of law.

{¶ 5} Appellant responded by arguing that the accumulation of snow and ice was unnatural, and was caused by a deficiently designed, constructed, and maintained gutter and drainage system. With his opposition, appellant submitted an affidavit and report from Richard Zimmerman, a licensed professional architect. Zimmerman opined that the drainage system did not allow the water to flow away freely. Thus, the water backed up and pooled at the location of the drain, and then froze in the cold weather. Alternatively, appellant argued that a genuine issue of material fact existed regarding whether the ice on which he fell was an open and obvious danger, and whether he was negligent as he was stepping out of his vehicle.

{¶ 6} On July 18, 2017, the trial court granted appellees' motion for summary judgment.

II. Assignments of Error

{¶ 7} Appellant has timely appealed the trial court's July 18, 2017 judgment, and now presents five assignments of error for our review:

1. The trial court erred in finding that there was no question of fact as to whether Defendant-Appellee's inadequate drainage created an unnatural accumulation of snow and ice.
2. The trial court misapplied the "active negligence" and notice requirements in a case involving a claimed unnatural accumulation of snow and ice that contributed to the Plaintiff-Appellant's fall at Defendants-Appellees' property, thereby sustaining Defendant-Appellee's Motion for Summary Judgment.
3. The trial court erred in considering the open and obvious doctrine in a case involving an unnatural accumulation of snow and ice.
4. The trial court erred in finding that the open and obvious doctrine applies as a matter of law under the facts of this case.
5. The trial court erred by failing to find that Appellees are liable for failing to keep common areas free of ice and snow.

III. Analysis

{¶ 8} We review the grant or denial of a motion for summary judgment de novo, applying the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts. , 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989) ; Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is appropriate where (1) no genuine issue as to any material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

{¶ 9} On a motion for summary judgment, the moving party has the burden of demonstrating that no genuine issue of material fact exists. Dresher v. Burt , 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). In doing so, the moving party must point to some evidence in the record in the form of "pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action." Civ.R. 56(C) ; Dresher at 292-293, 662 N.E.2d 264. The burden then shifts to the nonmoving party to provide evidence showing that a genuine issue of material fact does exist. Dresher at 293, 662 N.E.2d 264.

{¶ 10} To establish a cause of action for negligence, a plaintiff must show "the existence of a duty, a breach of the duty, and an injury proximately resulting therefrom." Texler v. D.O. Summers Cleaners & Shirt Laundry Co. , 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998). In general, a landowner owes business invitees, such as appellant, "a duty of ordinary care in maintaining the premises in a reasonably safe condition so that its customers are not unnecessarily and unreasonably exposed to danger." Paschal v. Rite Aid Pharmacy, Inc. , 18 Ohio St.3d 203, 480 N.E.2d 474 (1985).

A. Unnatural Accumulation of Ice and Snow

{¶ 11} Because appellant's first four assignments of error address whether the accumulation of ice and snow was unnatural, thereby giving rise to a duty on the part of appellees to remedy the danger or warn appellant, we will consider the assignments of error together.

{¶ 12} It is well established that an owner or occupier of land ordinarily owes no duty to business invitees to remove natural accumulations of ice and snow, or to warn the invitee of the dangers associated with such natural accumulations of ice and snow. Brinkman v. Ross , 68 Ohio St.3d 82, 83, 623 N.E.2d 1175 (1993). This is known as the "no-duty winter rule." Miller v. Tractor Supply Co. , 6th Dist. Huron No. H-11-001, 2011-Ohio-5906, 2011 WL 5561935, ¶ 8. The underlying rationale of the rule is that living in Ohio during the winter has its inherent dangers. Thus, "everyone is assumed to appreciate the risks associated with natural accumulations of ice and snow and, therefore, everyone is responsible to protect himself or herself against the inherent risks presented by natural accumulations of ice and snow." Brinkman at 84, 623 N.E.2d 1175.

{¶ 13} Ohio courts, however, recognize an exception to the "no-duty winter rule" where the landowner is actively negligent in permitting or causing an unnatural accumulation of ice or snow. Rudnicki v. Andersons, Inc. , 6th Dist. Lucas No. L-16-1078, 2016-Ohio-8004, 2016 WL 7106507, ¶ 14, citing Lopatkovich v. Tiffin , 28 Ohio St.3d 204, 207, 503 N.E.2d 154 (1986). " 'Unnatural' accumulation must refer to causes and factors other than the inclement weather conditions of low temperature, strong winds and drifting snow, i.e., to causes other than the meteorological forces of nature. By definition, then, the 'unnatural' is the manmade, the man-caused." (Emphasis sic.) Porter v. Miller , 13 Ohio App.3d 93, 95, 468 N.E.2d 134 (6th Dist.1983).

{¶ 14} Here, for purposes of our analysis, we will assume that the ice upon which appellant slipped was an unnatural accumulation caused by a defective drainage system. Nonetheless, we hold that appellees did not owe a duty to appellant because they were not actively negligent in permitting or causing the unnatural accumulation.

{¶ 15} In this case, there is no evidence in the record that appellees actively caused the unnatural accumulation of ice. Rather, appellant alleges that appellees were actively negligent in not maintaining the gutters and drainage system, thereby permitting the water to pool and freeze. However, to be found actively negligent for permitting an unnatural accumulation of snow and ice, appellees must have been shown to have had knowledge of the condition. Compare Tyrrell v. Invest. Assocs., Inc. , 16 Ohio App.3d 47, 474 N.E.2d 621 (8th Dist.1984) (directed verdict for business reversed where there was evidence that the business's employees knew about the hazard from a dripping canopy which periodically created an icy patch where the plaintiff fell) with Sleeper v. Casto Mgmt. Servs. , 10th Dist. Franklin No. 12AP-566, 2013-Ohio-3336, 2013 WL 3963459, ¶ 39 ("In the absence of some evidence indicating that [the owner] had knowledge of the leaky gutter, we cannot find that [the owner] was actively negligent in creating or permitting the ice to exist in the parking lot.").

{¶ 16} Here, the record contains no evidence that appellees were aware of the condition that caused the unnatural accumulation of ice. Appellees' representative, Jordan Pingle, testified that appellees were not aware of any issue with improper drainage causing ice, and that no one had ever issued a complaint about improper drainage or unnatural ice accumulation. Further, appellant, himself, testified that he had never noticed ice by the drain or complained about any problems with the drain, and that he did not know of anyone else who had fallen near the drain or complained about the condition of the drain. Therefore, we hold that appellees were not actively negligent in permitting the unnatural accumulation of ice. See Rudnicki , 6th Dist. Lucas No. L-16-1078, 2016-Ohio-8004, 2016 WL 7106507, at ¶ 15 (business not actively negligent in permitting an unnatural accumulation of ice where the record contains no evidence that it was aware of the presence of ice on the walkway caused by runoff from the overhang); Daley v. Fryer , 2015-Ohio-930, 30 N.E.3d 213, ¶ 23 (3d Dist.) (no active negligence where there is no evidence the defendants had knowledge that the roof and drainage system were defective or that the gutter had a tendency to form icy patches on the sidewalk below); Kaeppner v. Leading Mgmt. , 10th Dist. Franklin No. 05AP-1324, 2006-Ohio-3588, 2006 WL 1932327, ¶ 20 (defendant not actively negligent where the record contains no evidence that it knew or should have known of a hazard from the allegedly leaking canopy). Thus, appellant has not shown that appellees owed him a duty, and his claims for negligence must fail on this basis.

{¶ 17} Accordingly, appellant's first, second, third, and fourth assignments of error are not well-taken.

B. Duty by Implied Contract

{¶ 18} In his fifth assignment of error, appellant argues that appellees owed him a duty pursuant to an implied contract to keep the common approaches free of ice and snow. In support, appellant cites Oswald v. Jeraj , 146 Ohio St. 676, 67 N.E.2d 779 (1946), paragraph one of the syllabus, in which the Ohio Supreme Court held, "The owner of an apartment building who reserves possession and control of the common approaches which provide ingress to and egress from such building to and from the public sidewalk and who assumes the duty of keeping such approaches clean and free from ice and snow is required to exercise ordinary care to render such common approaches reasonably safe for use by the tenants."

{¶ 19} Although never expressly overruled, the Ohio Supreme Court has limited the application of Oswald . In Sidle v. Humphrey , 13 Ohio St.2d 45, 49, 233 N.E.2d 589 (1968), the court commented that "[e]ach paragraph of the syllabus of the Oswald case is either limited to an action by the tenant against the landlord or to the duty owed by the landlord to the tenant." Further, it was apparent that "the duty of the landlord to the tenant as to removal of snow and ice was there based upon an implied agreement between them." Id. The court then held that a landlord owes no greater duty to a business invitee of a tenant than the common-law duty that any other occupier of premises would owe to his business invitee. Id. Thus, the common-law "no-duty winter rule" and the exceptions thereto apply in this matter, and as discussed above, appellant has not demonstrated that appellees owed him a duty under that framework.

{¶ 20} Accordingly, appellant's fifth assignment of error is not well-taken.

IV. Conclusion

{¶ 21} For the foregoing reasons, we find that substantial justice has been done the party complaining, and the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

Thomas J. Osowik, J.

James D. Jensen, J.

CONCUR.