State v. Kostyuchenko

• Decision Date: 31 January 2014
• Docket Number: No. C–130257.,C–130257.
• Parties: STATE of Ohio, Plaintiff–Appellant, v. Evgeniy KOSTYUCHENKO, Defendant–Appellee.
• Court: Ohio Court of Appeals

8 N.E.3d 353

STATE of Ohio, Plaintiff–Appellant,

v.Evgeniy KOSTYUCHENKO, Defendant–Appellee.

No. C–130257.

Court of Appeals of Ohio,

First District, Hamilton County.

Jan. 31, 2014.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff–Appellant.

Suhre & Associates, LLC, and Joseph B. Suhre IV, Cincinnati, for Defendant–Appellee.

OPINION

PER CURIAM.

{¶ 1} Plaintiff-appellant the state of Ohio presents on appeal a single assignment of error, challenging the Hamilton County Common Pleas Court's judgment granting defendant-appellee Evgeniy Kostyuchenko's Crim.R. 32.1 motion to withdraw his guilty plea. The court granted the motion upon its determination that Kostyuchenko's trial counsel had been ineffective in failing to accurately advise Kostyuchenko concerning the immigration consequences of his plea. Upon our determination that the court did not abuse its discretion in permitting Kostyuchenko to withdraw his plea on that basis, we affirm the court's judgment.

{¶ 2} Kostyuchenko was indicted on two counts of operating a vehicle under the influence of alcohol or drugs (“OVI”) and a single count of failure to comply with the order or signal of a police officer. In exchange for the dismissal of one OVI count, Kostyuchenko entered guilty pleas to the other OVI count and the failure-to-comply count. The trial court accepted both pleas and found him guilty on both counts. But the court sentenced him, and thus convicted him, on only the failure-to-comply count. For that offense, the court imposed a term of confinement of one year.

{¶ 3} Kostyuchenko did not appeal his conviction. Instead, he moved to withdraw his plea. Following a hearing, the common pleas court granted the motion, and this appeal followed.

{¶ 4} Crim.R. 32.1 authorizes the postconviction withdrawal of a guilty plea only “to correct manifest injustice.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. The defendant bears the burden of proving “manifest injustice.” The determination of whether the defendant has sustained that burden is committed to the sound discretion of the trial court and will not be disturbed on appeal unless the court abused its discretion. Id. at paragraph two of the syllabus.

{¶ 5} Sixth Amendment right to accurate advice concerning deportation. The due-process protections afforded by Article I, Section 16 of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution require that a guilty or no-contest plea “represent[ ] a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). A defendant who seeks to withdraw his plea on the ground that the plea was the unintelligent product of his counsel's ineffectiveness must demonstrate that counsel's representation was constitutionally deficient, Strickland v. Washington, 466 U.S. 668, 687–688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that “there is a reasonable probability that, but for [that deficiency, the defendant] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); seeState v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992); State v. Blackwell, 1st Dist. Hamilton No. C–970150, 1998 WL 212753 (May 1, 1998).

{¶ 6} For purposes of the Sixth Amendment right to the effective assistance of counsel, a plea negotiation is a critical phase of a criminal prosecution. Hill at 57, 106 S.Ct. 366. In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the United States Supreme Court held that the Sixth Amendment imposes upon counsel, in negotiating a guilty or no-contest plea, the duty to “accurate[ly]” advise a noncitizen client concerning the immigration consequences of the plea. Padilla at 364 and 374, 130 S.Ct. 1473. If the consequence of deportation can be “easily determined from reading the removal statute,” counsel must inform his client of that fact. “When the law is not succinct and straightforward,” counsel “need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Id. at 368–369, 130 S.Ct. 1473.

{¶ 7} Kostyuchenko's motion. In his motion to withdraw his plea, Kostyuchenko cited Padilla in support of his contention that his guilty plea had been the unintelligent product of his trial counsel's ineffectiveness in advising him concerning the immigration consequences of his conviction. The motion was supported by Kostyuchenko's affidavit. He averred that after he had completed his one-year jail term, the United States Department of Homeland Security notified him that his offense constituted an “aggravated felony” under federal immigration law and thus mandated his deportation, and that his one-year sentence rendered him ineligible for any form of relief from deportation. Kostyuchenko stated that neither trial counsel, in urging him to plead guilty, nor the trial court, in accepting his plea, had advised him that his failure-to-comply conviction mandated his deportation. And he asserted that if he had known that his conviction would make him deportable, he would have asked counsel to negotiate for a sentence that would preserve his eligibility for relief from deportation, or he would have insisted on a trial.

{¶ 8} At the hearing on the motion, Kostyuchenko's trial counsel testified that he had known that Kostyuchenko was not a United States citizen, and that it had been his “understanding * * * [b]y and large” that Kostyuchenko's conviction would make him “deportable.” But counsel insisted that Kostyuchenko had, throughout the plea negotiation, expressed indifference concerning the possibility of being deported and had focused solely on avoiding a prison sentence. Thus, deportation was the subject of “a very brief conversation” between counsel and Kostyuchenko, during which counsel advised Kostyuchenko that a felony conviction “could get [him] deported” and did not discuss with him any available forms of relief from deportation. Counsel also stated that he had reviewed with Kostyuchenko his plea form, which memorialized his “understand[ing]” that his conviction “may have the consequence of deportation.” When the common pleas court asked counsel to confirm whether he had said “possibly, probably or [had] just read” the form, counsel responded, “Well, I probably said both, but I know I told him these were the kinds of offenses that you get deported for.”

{¶ 9} Kostyuchenko also presented at the hearing the testimony of an immigration lawyer. The lawyer stated that, for purposes of federal immigration law, the failure-to-comply offense to which Kostyuchenko had pled was a crime of violence and an offense relating to obstruction of justice and thus constituted an aggravated felony, and that it also constituted a crime involving moral turpitude. In the lawyer's opinion, under federal immigration law, for “a felony fleeing, it's pretty clear it's not a possibility, not a could or may, it's a mandatory removal or deportation.”

{¶ 10} In granting withdrawal, the common pleas court stated that trial counsel's varying testimony had left the court uncertain about what, beyond the advisement contained in the plea form, counsel had communicated to Kostyuchenko concerning his plea's immigration consequences. And because those consequences were then visited upon Kostyuchenko, the court found “substantial prejudice.” Thus, the court permitted Kostyuchenko to withdraw his guilty plea on the ground that counsel's violation of the duty imposed by Padilla, to accurately advise his noncitizen client concerning the immigration consequences of his guilty plea, had denied Kostyuchenko his Sixth Amendment right to the effective assistance of counsel. We hold that the court did not abuse its discretion in granting the motion.

{¶ 11} Inaccurate advice concerning deportation. Federal immigration law expressly mandates the removal of “[a]ny alien * * * convicted of an aggravated felony.” 8 U.S.C. 1227(a)(2)(A)(iii). An “aggravated felony” is defined to include “an offense relating to obstruction of justice * * * for which the term of imprisonment is at least one year.” 8 U.S.C. 1101(a)(43)(S). An “aggravated felony” is also defined to include “a crime of violence (as defined in section 16 of title 18, United States Code * * *) for which the term of imprisonment [is] at least one year.” 8 U.S.C. 1101(a)(43)(F). A “crime of violence” is, in turn, defined to include an “offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. 16(b).

{¶ 12} Kostyuchenko was convicted upon his guilty plea to the third-degree felony of failure to comply with the order or signal of a police officer in violation of R.C. 2921.331(B). Specifically, he was found guilty of, and was sentenced to a year in jail for, “causing a substantial risk of serious physical harm to persons or property” by “willfully elud[ing] or flee[ing]” the signal of a police officer. SeeR.C. 2921.331(C)(5)(a)(ii). R.C. Chapter 2921 proscribes “OFFENSES AGAINST JUSTICE,” and the failure-to-comply statute is grouped with those statutes proscribing “OBSTRUCTING AND ESCAPE.”

{¶ 13} From reading the immigration statutes, it is clear that Kostyuchenko's failure-to-comply offense was both “an offense relating to obstruction of justice” and “a crime of violence” and thus constituted an “aggravated felony” mandating his deportation. Therefore, trial counsel, in negotiating Kostyuchenko's guilty plea, had a duty under Padilla to ascertain from the immigration statutes, and to accurately advise him, that his...