State v. Kurdi
| Docket Number | 2021-L-125 |
| Decision Date | 12 December 2022 |
| Citation | 203 N.E.3d 796 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Mohammad Y. KURDI, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner and Teri R. Daniel, Assistant Prosecutors, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Maya Lugasy, Robert Brown LLC, 1468 West 9th Street, Suite 705, Cleveland, OH 44113; and Hannah Christ, Kramer Law Clinic, 10900 Euclid Avenue, Cleveland, OH 44106 (For Defendant-Appellant).
{¶1} Appellant, Mohammad Y. Kurdi, appeals the judgment of the Lake County Court of Common Pleas, denying his post-sentence motion to withdraw his guilty plea. At issue is whether appellant, a lawful, non-citizen resident of the United States, was entitled to an evidentiary hearing on his post-sentence motion to withdraw his guilty plea where the record demonstrates he has a colorable claim for ineffective assistance of counsel. We reverse the judgment of the trial court and remand the matter for further proceedings.
{¶2} Appellant, a native citizen of Jordan, has been a lawful resident of the United States since 2013. In September 2020, appellant was charged with one count of aggravated trafficking in drugs, in violation of R.C. 2925.03(A)(1), a felony of the third degree. In a separate case, appellant was charged with one count of possession of cocaine, in violation of R.C. 2925.11, a felony of the fifth degree; one count of carrying concealed weapons, in violation of R.C. 2923.12(A)(1), a misdemeanor of the first degree; and possession of dangerous drugs, in violation of R.C. 4729.51(E)(1)(c), a misdemeanor of the first degree. Upon advice of counsel, appellant entered pleas of guilty to the aggravated trafficking count and possession of cocaine count and, although the matters were unrelated, they were consolidated for purposes of sentencing. Before entering the pleas of guilty, appellant acknowledges he was informed by counsel that pleading guilty to aggravated trafficking in drugs may lead to his deportation. And, during the plea hearing, appellant concedes the trial court also advised appellant that pleading guilty may lead to his deportation or removal from the United States, pursuant to the statutory requirements of R.C. 2943.031.
{¶3} Appellant was ultimately sentenced to 137 days in the Lake County Jail on the possession of cocaine count and 29 days in jail for aggravated trafficking in drugs with two years of community control in each case. Appellant subsequently filed a post-sentence motion to withdraw his guilty plea, which was denied without a hearing. The trial court determined that appellant did not receive ineffective assistance of counsel. This appeal follows. Appellant's assignments of error provide:
{¶4} "[1.] The trial court abused its discretion when it denied appellant's motion to withdraw his guilty pleas and vacate his conviction where appellant showed that he was prejudiced by the failure of his attorney to adequately inform him of the immigration consequences of his plea.
{¶5}
{¶6} "A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct a manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." Crim.R. 32.1 ; State v. Reyes , 11th Dist. Portage No. 2013-P-0049, 2014-Ohio-1679, 2014 WL 1571396, ¶12. A manifest injustice has been described as "an obvious, unjust act or fundamental flaw in the proceedings." (Citations omitted.) State v. Bell , 11th Dist. Portage No. 2018-P-0016, 2018-Ohio-4373, 2018 WL 5442932, ¶10. A ruling on a post-sentence motion to withdraw a guilty plea is reviewed for an abuse of discretion. State v. Selvaggio , 11th Dist. Lake No. 2017-L-128, 2018-Ohio-3532, 2018 WL 4203766, ¶12.
{¶7} State v. Peete , 11th Dist. Trumbull No. 2018-T-0094, 2019-Ohio-25113, 2019 WL 2579091, ¶17.
{¶8} A plea negotiation is a critical phase of a criminal prosecution for purposes of the Sixth Amendment right to effective assistance of counsel. Hill v. Lockhart , 474 U.S. 52, 57, 106, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). A claim of ineffective assistance of counsel involves a two-prong analysis. See , e.g. , Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d.674 (1984). First, a court must determine whether counsel's performance fell below an objective standard of reasonable representation. The second prong requires the appellant to establish prejudice. Id.
{¶9} Appellant contends that he received ineffective assistance of counsel because his trial counsel failed to inform him that, by entering his plea, he would be mandatorily deported. He asserts that counsel's statement that, by entering the plea, he ran the risk of deportation was insufficient because the advice led him to believe he could challenge the deportation.
{¶10} In his motion to withdraw, appellant supported his contentions with an affidavit in which he averred that both the trial court and his attorney advised him, prior to entering his pleas, that he "may" be deported. These averments are uncontested. Shortly after his pleas were accepted, he was taken into immigration custody and was told his charges required automatic deportation. Based upon his conversations with his attorney and the trial judge, appellant averred he thought he could challenge deportation if authorities initiated proceedings. Had he known he could not so challenge deportation, he asserted he would have never entered his plea.
{¶11} Appellant's trial counsel also submitted an affidavit in which she averred that she was informed by appellant's counsel in a separate case that "there did not appear to be an immigration hold" on appellant while he was incarcerated for the underlying charges. She additionally asserted that, while she was aware of immigration concerns, she did not advise appellant that entering the plea would result in automatic deportation; after speaking with appellant's family and their immigration attorney, however, she was advised appellant would be deported as a result of his plea.
{¶12} In support of his arguments on appeal, appellant cites the United States Supreme Court's opinion in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). In Padilla , the defendant was a lawful, permanent resident of the United States for more than 40 years. Id. at 359, 130 S.Ct. 1473. He faced deportation as a result of pleading guilty to the transportation of a large amount of marijuana. Id. The defendant asserted his counsel was ineffective because she not only failed to advise him of the consequence of deportation but also advised him he need not worry about his immigration status because he had been a resident of the United States for such a lengthy duration. Id. He relied on counsel's erroneous advice when he entered the plea, which made his deportation a relative certainty. Id.
{¶13} The Supreme Court determined that the defendant's counsel was deficient for failing to "advise her client regarding the risk of deportation." Id. at 367, 130 S.Ct. 1473. The Court recognized the problems a defense attorney might encounter in properly advising a client of deportation resulting from a criminal conviction given the complexities of immigration law. Id. at 369, 130 S.Ct. 1473. The Court nevertheless underscored, however, when it is clear a defendant will be deported based upon the charges at issue, counsel has a duty to give correct advice. Id. Alternatively, where the deportation consequences are unclear or uncertain, an attorney need do no more than advise the noncitizen client that the charges may carry a risk of deportation. Id. The decision was underscored by the Court's recognition of the unique role that deportation can play in criminal punishment. Id. at 373, 130 S.Ct. 1473. As the Supreme Court explained, Id. Given the unique and extreme consequence of deportation, it is incumbent on counsel to warn their clients when a guilty plea would have such an impact. Id. "The severity of deportation – ‘the equivalent of banishment or exile,’ - only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation." (Internal citation omitted) Id. at 373-374, 130 S.Ct. 1473.
{¶14} In its judgment entry denying appellant's post-sentence motion to withdraw, the trial court focused upon trial counsel's and the court's advisement regarding the a risk of removal. The court concluded the advisement was not "incorrect or false, nor did counsel fail to give him any advice." The court therefore concluded counsel's...
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