Update: On July 23, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read an analysis of the oral argument here.

On March 11, 2020, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Emeric Bozso, 2018-1007. At issue in this case is whether a criminal defendant who is not a citizen of the United States may withdraw a guilty plea that was made based on incorrect information given by counsel. The case had previously been held for decision in State v. Romero, 2019-Ohio-1839 but that stay was lifted June 26, 2019. 

Case Background

Emeric Bozso is not a citizen of the United States. Bozso is a refugee from Romania who entered the United States in 1986 and has lived here since. On June 1, 2016, Bozso was indicted on eighteen counts that arose from two twenty-year-old alleged rape cases. At the suggestion of his defense counsel, who was unfamiliar with immigration law, Bozso was advised by an immigration attorney that he would be placed into deportation proceedings if he was convicted of these sex offenses. The immigration attorney also incorrectly told Bozso that he could have potential relief from deportation under Section 212(c) of the Immigration and Nationality Act. Such relief was in fact unavailable to Bozso. Relying on the immigration attorney’s advice, Bozso pleaded guilty to one count of sexual battery and one count of attempted abduction.

On December 1, 2016, Cuyahoga County Common Pleas Court Judge Stuart A. Friedman imposed a prison sentence of one year for each count. Judge Friedman suspended the sentence and ordered Bozso to serve two years of community control sanctions on each count.

In January of 2017, Bozso was detained by the Department of Homeland Security for immigration removal proceedings. While in custody, Bozso learned that he did not qualify for any relief from deportation under INA §212(c).  In June of 2017, Bozso moved to withdraw his guilty pleas based on ineffective assistance of counsel. Judge Friedman denied Bozso’s motion to withdraw his guilty pleas, finding he had given Bozso the required statutory advisements and that the immigration lawyer had made it clear to Bozso that Bozso should not have relied on the possibility of obtaining any relief from deportation. Bozso appealed the decision.

The Appeal

In a unanimous decision written by Judge Larry Jones, Sr., and joined by Judges Patricia Blackmon and Anita Laster Mays, the Eighth District Court of Appeals reversed the trial court’s decision to deny Bozso’s motion to withdraw his guilty pleas. The appeals court found that a manifest injustice occurred based on Bozso’s ineffective counsel. Bozso’s circumstances satisfied both the deficient performance and prejudice prongs of the Strickland test for ineffective assistance of counsel. While the appellate court recognized that immigration is a complex area of the law, the court found Bozso’s case to be “succinct and straightforward.” Bozso clearly did not qualify for relief from deportation under the Immigration and Nationality Act § 212(c) and his counsel’s failure to correctly inform him of this fact constituted deficient performance. The court stated that the second prong of the test was satisfied based on Bozso’s statements that he would not have pleaded guilty had he known that relief from deportation was wholly unavailable to him. Because of this, the Strickland test is satisfied and Bozso should be permitted to withdraw his guilty plea.

Votes to Accept the Case

Yes: Chief Justice O’Connor and Justices French, Fischer, DeWine, and former Justices O’Donnell and DeGenaro

No: Justice Kennedy

State’s Proposition of Law Accepted for Review

A trial court does not abuse its discretion when it denies a non-citizen defendant’s motion to withdraw his guilty plea where, prior to entering a guilty plea, the trial court had complied with Crim. R. 11 and provided the deportation advisement pursuant to R.C 2943.031, and when counsel had warned defendant that his guilty plea would place him into deportation proceedings with limited options for relief.

Key Statutes and Precedent

Crim.R. 32.1 (A court may set aside a judgment of conviction and permit a defendant to withdraw his plea in order to correct a manifest injustice.)

R.C. 2943.031(A) (Prior to accepting a plea of guilty, the court must address the defendant and advise the defendant that his plea may result in deportation from the United States. The court must determine that the defendant understands the advisement.)

Strickland v. Washington, 466 U.S. 668 (1984) (Criminal defendants have a Sixth Amendment right to reasonably effective counsel. This right is violated if (1) the counsel’s representation fell below an objective standard of reasonableness; and (2) the counsel’s subpar representation prejudiced the defendant.)

Padilla v. Kentucky, 559 U.S. 356 (2010) (The failure of counsel to provide his client with easily available advice about deportation satisfies the first prong of the Strickland analysis.) 

Lee v. United States, 137 S.Ct. 1958 (2017) (Courts should not upset a plea based on post hoc assertions from a defendant. Courts should look to contemporaneous evidence to determine whether it would have been rational for a defendant to plead guilty but for his attorney’s incorrect guidance.)

State v. Romero, 2019-Ohio-1839 (The trial court should look at a totality of the circumstances, including contemporaneous evidence, in assessing whether it would be rational for a defendant to go to trial instead of pleading guilty.)

State’s Argument

To establish his claim of ineffective assistance of counsel, Bozso was required to satisfy the Strickland test, which he failed to do. The Strickland test requires: (1) counsel’s performance fell below an objective standard of reasonable representation; and (2) prejudice. The court of appeals erred in applying the second prong of the Strickland test. The lower court based its finding of prejudice exclusively on Bozso’s post hoc assertion that he would not have pleaded guilty had he known that INA § 212(c) relief was unavailable to him. There is no evidence to suggest that Bozso was particularly concerned about avoiding deportation; rather his concern was to avoid prison. When the State attempted to gather information about the factors that went into his decision to withdraw his plea, Bozso asserted attorney-client privilege. Bozso’s post hoc statements that he was prejudiced are not sufficient to establish that, but for counsel’s inadequate representation, Bozso would not have pleaded guilty.   And finally, while a trial court’s advisement under R.C. 2943.031(A) does not cure counsel’s deficient performance under the first prong of the Strickland test, it can weigh against the necessary finding of prejudice.

There is no evidence in the record to support Bozso’s claim that he has a deep connection to the United States. He has no significant ties, familial or otherwise, to the United States. At the time of Bozso’s immigration to the United States, Bozso’s home country of Romania was riddled with political unrest that simply does not exist any longer. Bozso did not testify at the hearing on his motion about his ties to the United States, so there is no evidence in the record to support his claims. Bozso intentionally and strategically deprived the record of any evidence to formulate a full picture of his connection to the United States so that the court would be forced to rely on his statements in his post hoc affidavit. This is not sufficient to sustain a Strickland analysis.

Bozso’s Argument

Under Strickland, a defendant’s constitutional right to counsel is violated if (1) the counsel’s representation fell below an objective standard of reasonableness; and (2) the counsel’s deficient performance prejudiced the defendant. In this case, the first prong of the Strickland test is clearly satisfied. Bozso’s case was clear and unambiguous. Relief from deportation under INA § 212(c) was obviously never available to Bozso, and immigration counsel’s failure to represent this fact correctly constitutes deficient performance. The State originally attempted to argue that this area of the law is complicated, but that is not the case. The relief available under INA § 212(c) is unambiguous, leaving the advice counsel gave Bozso blatantly incorrect.

The State now argues that the appeals court erred by relying solely on Bozso’s post hoc assertions that he would not have pleaded guilty had he known that INA § 212(c) relief would be wholly unavailable to him. The State argues that this assertion alone is not sufficient to satisfy the second prong of the Strickland test. According to State v. Romero, the court should consider the totality of the circumstances “[i]n assessing whether it would be rational for a defendant to go to trial instead of pleading guilty.” The totality of the circumstances includes several factors, including the consequences of going to trial, the importance the defendant placed on avoiding deportation, the judicial advisements of immigration consequences, and the defendant’s connections to the United States.

The record is filled with evidence to demonstrate that Bozso took the threat of deportation seriously and wished to avoid it at all costs. First, Bozso sought immigration advice from a professional, who unfortunately misled him. Furthermore, the State claims that Bozso does not have any significant ties to the United States even though he has lived here as a refugee for thirty years, since the age of 21. The fact that Bozso is a refugee also shows that he had a significant interest in avoiding any deportation proceedings: a refugee is a person who has no nationality and is unable or unwilling to return to his or her home country because of a fear of persecution. All this information is contemporaneous evidence that the appeals court considered when correctly determining that Bozso was prejudiced by the ineffectiveness of his counsel.

Bozso’s Proposed Counter Proposition of Law

A trial court abuses its discretion when it denies a non-citizen defendant’s motion to withdraw his guilty plea when counsel for the defendant misstates succinct and straightforward law regarding immigration consequences and the defendant relies on that misstatement when entering a plea.

Student Contributor: Maggie Pollitt