State v. Bozso

• Decision Date: 23 July 2020
• Docket Number: No. 2018-1007,2018-1007
• Citation: 164 N.E.3d 344,162 Ohio St.3d 68
• Parties: The STATE of Ohio, Appellant, v. BOZSO, Appellee.
• Court: Ohio Supreme Court

162 Ohio St.3d 68

164 N.E.3d 344

The STATE of Ohio, Appellant,

v.BOZSO, Appellee.

No. 2018-1007

Supreme Court of Ohio.

Submitted March 11, 2020

Decided July 23, 2020

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Gregory Ochocki, Assistant Prosecuting Attorney, for appellant.

Daniel J. Misiewicz, Cleveland, for appellee.

French, J. {¶ 1} This appeal requires us to determine, once again, whether a noncitizen criminal defendant may withdraw a guilty plea on the grounds that his attorney failed to advise the defendant of the adverse immigration consequences of his plea.

{¶ 2} In State v. Romero , 156 Ohio St.3d 468, 2019-Ohio-1839, 129 N.E.3d 404, we held that when a noncitizen criminal defendant alleges ineffective assistance of counsel arising from the plea process, the defendant must meet the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and applied in the immigration context in Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Romero at ¶ 1, 3, and 14. First, the defendant must show that counsel's performance was deficient. Id. at ¶ 15. When an attorney's noncitizen client is considering a plea, counsel must inform her client whether the plea carries a risk of deportation. Id. ; Padilla at 374, 130 S.Ct. 1473. Second, the defendant must demonstrate prejudice resulting from counsel's deficient performance. Romero at ¶ 16 ; Strickland at 687, 104 S.Ct. 2052.

{¶ 3} We now consider the second part of this test to determine whether defendant-appellee, Emeric Bozso, has made the requisite showing of prejudice—specifically, that he would not have entered a guilty plea but for the erroneous advice of his plea-stage counsel. Romero at ¶ 16 ; Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Based on the record before us, we conclude that Bozso has not demonstrated prejudice arising from his counsel's deficient performance. We therefore reverse the judgment of the Eighth District Court of Appeals and reinstate Bozso's convictions.

I. FACTS AND PROCEDURAL BACKGROUND

{¶ 4} Bozso, a Romanian citizen, was admitted to the United States in 1986 as a refugee. He has been a lawful permanent resident of the United States since 1987.

{¶ 5} In June 2016, a Cuyahoga County Grand Jury returned an 18-count indictment against Bozso for the alleged rape of two victims in June 1996 and in November 1996. For the June 1996 incident, which involved a 12-year-old female victim, the indictment charged Bozso with six counts of rape (all first-degree felonies), three counts of gross sexual imposition (third- and fourth-degree felonies), six counts of complicity, and one count of kidnapping (a first-degree felony). For the November 1996 incident, which involved an adult female victim, the indictment charged Bozso with one count of rape and one count of kidnapping (both first-degree felonies). The indictment alleged that Bozso used or carried a firearm while committing both November offenses and included a one-year and three-year firearm specification for each count.

{¶ 6} After negotiations with the state, Bozso pleaded guilty in November 2016 to one count of sexual battery and one count of attempted abduction. The record before us contains no transcript of the plea hearing. We therefore do not know what the trial court actually said to Bozso as part of its required plea colloquy under Crim.R. 11. But the November 8, 2016 nunc pro tunc entry journalizing the plea notes Bozso's noncitizen status and indicates that the trial court gave Bozso an advisement in accordance with R.C. 2943.031. That statute requires trial courts to advise a noncitizen defendant prior to accepting a guilty or no-contest plea to a felony (or misdemeanor other than a minor misdemeanor) that entering the plea " ‘may have the consequences of deportation’ " from the United States. R.C. 2943.031(A).

{¶ 7} The trial court sentenced Bozso to one year of prison for each count but suspended the sentences and imposed two years of probation for each conviction.

{¶ 8} In January 2017, the United States Department of Homeland Security issued a notice initiating deportation proceedings against Bozso under Section 237(a)(2)(A)(ii) and (iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1227(a)(2)(A)(ii), (iii). These provisions authorize the removal of any noncitizen convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, id. at Section 1227(a)(2)(A)(ii), or convicted of an aggravated felony, id. at Section 1227(a)(2)(A)(iii). The notice cited Bozso's November 2016 convictions for sexual battery and attempted abduction and an additional conviction in 2001 for attempted theft as the bases for deportation.

{¶ 9} In June 2017, Bozso filed a motion to withdraw his November 2016 guilty pleas on the grounds that his counsel provided improper advice as to the potential immigration consequences of his pleas. In support of the motion, Bozso attached his own affidavit, in which he says that he was informed at the time of entering his pleas that INA Section 212(c) would provide potential relief from deportation or immigration consequences of his guilty plea. Bozso states that he later learned he had been misinformed and that Section 212(c) would not provide him any relief. Bozso also states that he would not have pleaded guilty had he known that relief was unavailable to him.

{¶ 10} Former INA Section 212(c) gave the United States Attorney General discretion, upon application, to waive deportation for certain lawful permanent residents, including those who had committed an aggravated felony. In 1996, Congress repealed Section 212(c), effective April 1, 1997. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub.L. No. 104-208, 110 Stat. 3009-546 (enacted September 30, 1996), Section 304(b). The United States Supreme Court held, however, that the repeal of Section 212(c) does not apply retroactively, and discretionary relief under Section 212(c) remains available to noncitizens "whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect."

Immigration & Naturalization Serv. v. St. Cyr , 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), superseded by statute on other grounds as stated in Nasrallah v. Barr , ––– U.S. ––––, 140 S.Ct. 1683, 207 L.Ed.2d 111 (2020). A lawful permanent resident who pleaded guilty to a deportable crime before April 1, 1997, the effective date of the provisions repealing Section 212(c), might be eligible for the waiver. But since Bozso entered his guilty plea in 2016, he was not eligible for any relief under Section 212(c).

{¶ 11} In June 2017, the trial court held a hearing on Bozso's motion to withdraw his guilty pleas. Bozso did not call any witnesses. The state called as a witness Bozso's plea-stage counsel, who testified that he consulted with an immigration attorney as to the possible immigration consequences of Bozso entering a plea agreement. Bozso's plea-stage counsel testified that on September 21, 2016, the consulting immigration attorney sent him the following e-mail:

The sex offense conviction will lead to the client being placed into deportation. As an aggravated felony, the client would be subject to mandatory detention while the case proceeds through the immigration court. As a very preliminary conclusion, I would state that if the June date is adhered to rather than the November case, that the client would have some relief available to him. Specifically, 212(c) relief. This relief is discretionary to the court and by no means should the client believe that it is assured that he would not be ordered deported as a result of a conviction for this offense.

I will supply a more comprehensive advisement for you shortly.

{¶ 12} Bozso's plea-stage counsel testified that if the immigration attorney later provided Bozso a more complete advisement, it went directly to Bozso without counsel's knowledge. Counsel also testified that the trial court judge read verbatim the required statutory advisement in R.C. 2943.031(A) advising Bozso of the possible consequences of his plea. The state attempted to elicit testimony from Bozso's counsel as to the primary concern driving Bozso's decision to enter a guilty plea. Counsel invoked attorney-client privilege and refused to answer. As a result, there is no testimony, aside from the statements in his affidavit, as to Bozso's motives for entering his guilty pleas.

{¶ 13} About a month after the hearing, the trial court denied Bozso's motion to withdraw the guilty pleas. The court concluded that the advisement from the consulting immigration attorney "makes it clear that [Bozso] should not have relied upon the possibility that he would obtain relief from deportation, and that his doing so appears to have been a case of hope over reality."

{¶ 14} The Eighth District reversed the judgment of the trial court. The court of appeals applied the Strickland two-part test to determine the deficiency of counsel's performance and the prejudice arising from that deficiency. On the first prong, the court concluded that the law is " ‘succinct and straightforward’ " that relief under INA Section 212(c) was not available to Bozso and that counsel was therefore "deficient for not definitely determining the deportation consequences" of Bozso's plea. 2018-Ohio-1750, 111 N.E.3d 786, at ¶ 20, quoting Padilla , 559 U.S. at 369, 130 S.Ct. 1473, 176 L.Ed.2d 284. The Eighth District also concluded that Bozso's affidavit was sufficient to establish that counsel's deficient performance prejudiced him, since he averred that he "would not have pled guilty * * * had he known that relief from immigration consequences pursuant to INA § 212(c) was wholly unavailable to him." Id. at ¶ 24.

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