¶1{¶ 18} Soy Sok was born in Cambodia or in a refugee camp outside Cambodia (no one seems to know) in 1974 during the rise of Pol Pot's Communist Khmer *782 Rouge. Between his birth and his resettlement in the United States in 1984, Sok spent the majority of his life in refugee camps. He was fortunate to survive Pol Pot's mass genocide, as approximately 2,000,000 people, one-quarter of Cambodia's population — who were thought not Communist enough — were exterminated between 1976 and 1979.
¶2{¶ 19} From this atrocity, Sok and his family were granted refugee status and came to the United States. As part of the United States' Cambodian Cluster Project, Cambodian refugees were settled throughout the Midwest. Sok settled with his family in Ohio.
¶4{¶ 21} But the law in 1995 was clear. "Any alien who at any time after entry is convicted … of attempting … to … possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of [t]itle 18[, United States Code]) in violation of any law is deportable."7
¶5{¶ 22} The majority today has decided that Sok's trial counsel was not ineffective for telling him that he would not be deported if he pleaded guilty. The majority reasons that the duty to notify a defendant of a potential deportation belongs to the trial court, not to counsel. I would prefer to consider the reality — Sok pleaded guilty thinking he would not be deported. He now will be deported — 12 years after the offense — to a country he probably has never even seen. That is wrong.
¶7{¶ 24} As the Ohio Eighth District Court of Appeals has said, "Even if we relieved the lawyer of the duty to inform, however, this would not address [the] claim that his lawyer actively misinformed him concerning deportation consequences. Regardless of whether a lawyer is required to inform a defendant of collateral consequences, the lawyer who gives such advice must ensure that the information is correct."10
¶8{¶ 25} This is not a case in which an attorney merely made a mistake predicting a particular outcome of a trial decision — Sok was advised to plead guilty to a deportable offense by trial counsel on the explicit assurance that he would not be deported. While there must be considerable deference given to a lawyer's judgment when advising a client, "there is no justification for misinforming a client about the state of an unambiguous law."11
¶9{¶ 26} Trial counsel in this case unequivocally stated to Sok that he would not face deportation if he pleaded guilty to attempting to carry a concealed weapon. That put Sok under a critical misperception that could not be cured by the court's later advice, which was clad merely in boilerplate language that he "might" have immigration "consequences."
¶10{¶ 27} The majority's position is that Sok's trial counsel did not have a duty to notify him that a conviction of attempting to carry a concealed weapon involved a deportable offense. The majority seeks to align itself with the Third and Sixth Appellate Districts in holding that the adoption of R.C. 2943.031 relieves trial counsel of informing a client of deportation consequences and places the burden on the trial court.12 Bat the Sixth Appellate District case did not involve a motion to withdraw a plea. And in the Third Appellate District case, the only issue was whether anyone gave the warnings — there the trial court obviously did read the statutory warnings. Just because these cases, in dicta, say that the duty is on the court does not mean that counsel does not have a duty to advise the client accurately. *784
¶11{¶ 28} That distinction is illustrated by the Eight Appellate District in State v. Creary.13 That court held that the "failure to inform … [a defendant] concerning deportation can be held to fall below professional standards."14 And regardless of whether the attorney has this duty, the attorney surely has the duty not tomisinform. That issue has yet to be decided, and the majority here blithely follows nonprecedent into grievous error.
¶13{¶ 30} Before deciding whether a postsentence motion to withdraw a guilty plea under Crim.R. 32.1 should have been granted in this case, we need to determine whether the ineffective assistance alleged by Sok led to a manifest injustice. The manifest injustice standard is not the same as the standard under R.C. 2953.21, the postconviction-relief statute. Under that statute, a finding of constitutionally ineffective assistance of counsel mandates relief. TheStrickland test of "a reasonable probability that the outcome would be different" provides a sufficient showing of prejudice to invalidate a conviction under the Ohio or United States Constitution.15
¶14{¶ 31} The manifest-injustice standard applicable to this case intended to allow withdrawal only in "extraordinary cases."16 The Ohio Supreme Court has generally defined manifest injustice as "a clear or openly unjust act."17 Even with this high standard, we and other courts have previously held that erroneous advice from counsel regarding the sentence that is to be imposed may result in manifest injustice.18*785
¶15{¶ 32} Here, the additional "sentence" of being deported to a country Sok has perhaps never seen and leaving the United States, the only home he has had since age ten, is a much weightier consequence than the six-month suspended sentence and the $50 fine he actually received in the underlying case.
¶16{¶ 33} Sok's claim of ineffective assistance of counsel satisfies the manifest-injustice standard applicable to Crim.R. 32.1 postsentence motions to withdraw guilty pleas. Sok's guilty plea could not have been voluntarily and intelligently made under Crim.R. 11 because his trial counsel provided incorrect information about an unambiguous law.
¶17{¶ 34} I would thus sustain Sok's assignment of error, reverse his conviction, and remand this cause with instructions that the trial court grant his Crim.R. 32.1 motion to withdraw his guilty plea, thus saving him from a terrible and unjust fate.
¶187 Section 1251(a)(2)(C), Title 8, U.S.Code.
¶198 See State v. Creary, 8th Dist. No. 82767,2004-Ohio-858, 2004 WL 351878, citing United States v.Couto (C.A.2, 2002), 311 F.3d 179, 187-188.
¶2211Id., citing United States ex rel. Hill v.Temullo (C.A.2, 1975), 510 F.2d 844, 847.
¶2312 See State v. Garcia (Apr. 9, 1999), 3d Dist. No. 4-98-24, 1999 WL 254288; State v. Bulgakov, 6th Dist. No. WD-03-096, 2005-Ohio-1675.
¶2413 See State v. Creary, 8th Dist. No. 82767,2004-Ohio-858, 2004 WL 351878.
¶2615 See Strickland, 466 U.S. at 694,104 S.Ct. 2052, 80 L.Ed.2d 674; R.C. 2953.21.
¶2716 See Creary, 8th Dist. No. 82767, 2004-Ohio-858,2004 WL 351878, citing State v. Smith (1977),49 Ohio St.2d 261, 264, 3 O.O.3d 402, 361 N.E.2d 1324.
¶2817Id., citing State ex rel. Schneider v. Kreiner (1998), 83 Ohio St.3d 203, 699 N.E.2d 83.
¶2918 See State v. Collins (Feb. 13, 1998), 1st Dist. No. C-970138, 1998 WL 57791; United States v. Becklean (C.A.8, 1979), 598 F.2d 1122, 1125; State v. Blatnik (1984), 17 Ohio App.3d 201, 17 OBR 391, 478 N.E.2d 1016.