[Cite as State v. Diol, 2019-Ohio-2197.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO STATE OF OHIO, : APPEAL NO. C-180249 TRIAL NO. B-1700978 Plaintiff-Appellee, : O P I N I O N. vs. : MOHAMED DIOL, : Defendant-Appellant. 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 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 marijuana- possession counts of the indictment. Pursuant to the plea agreement, the possession-of-criminal-tools charge was dismissed. 2 OHIO FIRST DISTRICT COURT OF APPEALS {¶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. ...
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