Update: On July 23, 2020, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
“Why isn’t it enough to say I would not have pled guilty if I knew I was going to be deported?”
Justice Stewart to the Assistant Prosecutor
“Is there anything that you have that was attested to at the time he (Bozso) made the plea, I am doing this because I am assured that I have an avenue to stay in this country in spite of what I am pleading to?”
Chief Justice O’Connor, to counsel for Emeric Bozso
On March 11, 2020, the Supreme Court of Ohio heard 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 immigration 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 plea-stage 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, Bozso was sentenced to a one year prison term on each count. The trial court 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. The trial court held a hearing, at which Bozso was not present, and denied Bozso’s motion to withdraw his guilty pleas. The trial judge found 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, the Eighth District Court of Appeals reversed the trial court’s judgment denying Bozso’s motion to withdraw his guilty plea. The appeals court found that Bozso’s circumstances satisfied both the deficient performance and prejudice prongs of the Strickland test for ineffective assistance of counsel. While recognizing that immigration is a complex area of the law, the appeals 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 found that the prejudice prong 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 was satisfied and Bozso should have been permitted to withdraw his guilty plea.
Read the oral argument preview of the case here.
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)( Advisement for Non-Citizens) (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.)
*INA § 212(c) (Relief from immigration deportation proceedings may be available to aliens who enter a plea agreement prior to April 1, 1997.) (Repealed April 1, 1997, but repeal does not apply to lawful permanent residents who pleaded guilty to a crime before April 1, 1997.)
*INA § 212(h) (The Attorney General may waive a bar on admissibility if removal would “result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.”)
*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.)
*These statutes and cases were relied on by counsel during argument.
At Oral Argument
Arguing Counsel
Gregory Ochocki, Assistant Cuyahoga County Prosecutor, for Appellant State of Ohio
Daniel J. Misiewicz, Cleveland, for Appellee Emeric Bozso
State’s Argument
In State v. Romero this court held that Strickland’s two-part test must be applied where a non-citizen moves to withdraw his or her guilty plea based on allegations of ineffective assistance of plea-stage counsel regarding immigration consequences. The prejudice prong of the Strickland test requires more than just post hoc assertions by the defendant about how he would have pleaded but for his attorney’s alleged deficiencies. Rather the court should look to contemporaneous evidence that substantiates the defendant’s claim.
In this case there is nothing more than the defendant’s post hoc assertions. The only contemporaneous evidence in this record is that the trial court gave the requisite statutory advisement under R.C. 2843.031(A) and went beyond that advisement to make sure that the defendant understood the immigration consequences of his plea. It was Mr. Bozso’s burden to prove with contemporaneous evidence that but for his counsel’s alleged deficient advice he would not have pled guilty. But the record in this case contains nothing of that contemporaneous evidence.
By way of background, in June of 2016, Mr. Bozso, who is not a U.S. citizen, was indicted on 18 counts relating to two separate allegations of sexual assault. The first incident occurred in June 1996. The victim was a 13-year-old girl. The second incident was in November 1996 and the victim was an adult female. Mr. Bozso’s immigration attorney told him that because these were sex offenses, he would be placed in deportation proceedings, but that he might have an out under Section 212(c) of the Immigration and Naturalization Act. Immigration counsel also told Mr. Bozso that he would supply a more comprehensive advisement for Mr. Bozso shortly, but there is no evidence as to what that more comprehensive advisement was, whether it was ever provided, or whether Mr. Bozso ever waited for that more comprehensive advisement, although he head plenty of time to do so. None of this is in the record. The information regarding potential relief under INA Section 212 (c) was not correct, which may satisfy the first prong of Strickland, but Mr. Bozso’s post hoc assertions will not satisfy the prejudice prong.
Mr. Bozso did not appear at the motion to withdraw plea hearing. He was in detention. There is no evidence in the record that anyone asked to transport Mr. Bozso to the hearing, or to appear by video conference. There is just a post hoc assertion in an affidavit, which of course cannot be cross examined. There is no contemporaneous evidence that substantiates his claim, which is what this Court held in Romero we must look for. In examining defense counsel, one of the issues the state wanted to get into was what was the determinative factor in Mr. Bozso’s decision to enter a plea? Was it lessening the exposure to prison, and facing deportation? The prosecution was precluded from finding this out because Mr. Bozso asserted attorney client privilege. And there is simply nothing in this record that supports Mr. Bozso’s post hoc assertions. He made this record with no contemporaneous evidence and then he used the attorney client privilege as both a sword and a shield.
In the Lee case, which this Court cites extensively in Romero, the U.S. Supreme Court looked to contemporaneous evidence from the plea colloquy, which is not in the record here, and for contemporaneous evidence not only from the defendant’s testimony but also from plea-stage counsel’s testimony. But here, the state was completely precluded from getting any of that testimony.
Bozso’s Argument
Mr. Bozso came to this country was he was 21. He has been here for over 3 decades and has no ties to Romania. He came here as a refugee and his status has not changed.
The record in this case is full of compelling contemporaneous evidence supporting Mr. Bozso’s motion to withdraw his guilty plea. The paperwork from immigration and customs was attached as an exhibit to the plea-withdrawal motion. Mr. Bozso’s affidavit was attached. In his affidavit in support of the motion, Mr. Bozso indicates that he is here as a refugee. The definition of refugee is someone who cannot return to his country because of persecution. He is still a refugee. There is nothing to suggest that his status as a refugee has changed or that his country of origin has changed.
The inducement for the plea for Mr. Bozso was potential relief under INA section 212 (c). He was told that section grants very broad discretion to waive deportation even with an aggravated felony like the one in this case. But he was not eligible for relief under that section, nor was he successful under subsection (h).
There is nothing in the record to say that Mr. Bozso was absolutely assured that he would stay in the country. But he was advised by an immigration attorney that he had potential for relief under 212(c) which is very generous. There is an email from trial counsel which says “I referred this cold case rape noncitizen defendant to you as to what I could plead him to…what can we plead him to and keep him in the country? I really need to know.” This is contemporaneous evidence that deportation was a very important consideration to Mr. Bozso.
Mr. Bozso got advice from immigration counsel that he relied on, and as a result of that he was told he had potential for relief under 212 (c), although the relief was only potential, and not guaranteed. But that statute only applied if the date of conviction was before April 1, 1997. It’s clear from the emails that the reason there was an error was because the lawyers were looking at the date of the indictment.
This is not a situation where post plea the defendant is attacking a trial strategy by the trial lawyer. This is a situation where the defendant has made an assertion that but for this wrong advice in an area that was succinct and straightforward just like Padilla, he would not have pled. There was no reason Mr. Boszo had to waive privilege here. He’s not attacking a strategy that the trial attorney made. He got wrong advice, he relied on that advice, and that is what induced the plea.
We do know what Mr. Bozso wanted here. He swore in his affidavit that but for that erroneous statement, he would not have pled. And in addition to the contemporaneous evidence, one of the other factors Romero says we must look at is the consequence of going to trial. Here, the facts were so uncompelling that Mr. Bozso got probation. The state dismissed 28 of 30 counts.
Mr. Bozso was not present for the hearing on the motion to withdraw the plea because he was in INS custody and he was in jail. The state, which wanted Mr. Bozso at the hearing, did not try and get him there.
What Was On Their Minds
A lot!
The Initial Plea
Based on the testimony of trial counsel, wasn’t the sole focus of Mr. Bozso’s consideration about entering this plea to avoid immigration consequences, asked Justice Donnelly? Was there some kind of procedural hurdle from the state’s perspective that made the state believe the only alternative was to offer him that plea? Or was the fact that he was going to be deported part of the state’s consideration? On the morning of the plea, the defense lawyer is saying I need to know the correct advice because the judge wants to know how we are resolving this case. And it is undisputed that the information in that communication is incorrect, right? So, the proper advice would be to continue the hearing, not walk the defendant into the courtroom and enter the plea. Once the plea was entered, how soon did the switching of the attorneys in the motion to vacate occur?
Was the plea offer either plead to these lesser offenses and the state will recommend community control, or did the state ask for prison time, asked Chief Justice O’Connor?
Ineffective Assistance of Counsel
Isn’t Mr. Bozso alleging ineffective assistance of counsel for failure to tell him of what appears to be mandatory deportation consequences or at least some ill-advised, equivocal potential, asked Justice Stewart? Wasn’t the information he received from counsel incorrect? So why isn’t that ineffective assistance of counsel? The fact that there was a potential wasn’t true, was it? So, wasn’t he improperly advised by his counsel? Doesn’t the fact that he was not properly advised about the “out” under 212(c) substantiate his claim?
Within the communication between trial counsel and immigration counsel, didn’t Mr. Bozso receive incorrect information that he had a possibility of relief, asked Justice Donnelly?
As an attorney, when someone tells you something is a very preliminary conclusion and later says I’ll supply a more comprehensive advisement for you shortly, wouldn’t you expect someone to follow up on that, asked Justice DeWine? We don’t know if there was any further advice supplied, do we?
Didn’t the immigration lawyer say his advice was just preliminary and not written in stone, that he would get back with more concrete advice, asked Chief Justice O’Connor? Then what was given, and to whom? Trial counsel is talking to his client, and says here’s the potential, but the operative word is potential. We’ll get more advice from whomever the immigration lawyer is. This is a potential; this isn’t a certainty. He couldn’t say this was a certainty because even if the advice was correct and Mr. Bozso was eligible under 212(c), which he wasn’t, he’d still have to go for a hearing and the hearing would be a gamble, right?
Refugee Status
Was Mr. Bozso’s status as a refugee established through any other source than his own words, asked Chief Justice O’Connor?
Is there evidence that today Mr. Bozso couldn’t return to his country, asked Justice DeWine? Hasn’t the political situation in Romania changed pretty dramatically since 1986? There is nothing to suggest that the situation is still the same today, that he could not return there today? I don’t see that he can’t return to the country today. He was granted that status in 1986, right? I’m old enough to remember that I watched the dictator of Romania be deposed on Christmas Day, so it’s changed dramatically since 1986.
Contemporaneous Evidence/Post Hoc Assertions
Didn’t Mr. Bozso say had he gotten the proper advice, he wouldn’t have pled guilty, asked Justice Stewart? Wasn’t there a hearing? Isn’t saying I would not have pled guilty sufficient? Why isn’t it enough to say I would not have pled guilty if I knew I was going to be deported? My only avenue of not being deported is to take my chances at trial and be acquitted?
What contemporaneous evidence was the state looking for, asked Justice French? Did the state try to get the defendant’s testimony?
Mr. Bozso’s affidavit is not contemporaneous evidence, is it, asked Justice DeWine? We don’t know what Mr. Bozso wanted, do we? I’ve heard speculation about what Mr. Bozso might have been thinking, but there’s no testimony about that. We haven’t seen any testimony about that. So, tell me what was the contemporaneous evidence?
Is there anything in the record that says, at the time I entered this plea, I only did it contingent upon the fact that I would not be deported, asked Chief Justice O’Connor? Is there any statement from Mr. Bozso’s attorney, or the attorney he consulted with for the deportation matters that would show contemporaneous with the plea, in his mind, the only reason he did it was an assurance that he would not be deported? Is there anything that the defense has that was attested to at the time Mr. Bozso entered his plea, I am doing this because I am assured that I have an avenue to stay in this country in spite of what I am pleading to? Later, she observed that Mr. Misiewicz, Mr. Bozso’s appellate counsel, admitted that Bozso’s after-the-fact affidavit was not contemporaneous evidence. So, what we are left with is we don’t know what the attorney said to him, or what he said back. Can we presume he knew the lawyer’s advice in that email? How can we presume that? We don’t know what he was thinking contemporaneously with the decision to make the plea. We don’t have that from the lawyer, or from the client, and we don’t have a transcript of anything that happened at that stage.
Mr. Bozso’s Absence from the the Motion to Withdraw Plea Hearing
Since Mr. Bozso wasn’t at the hearing, he was never cross examined, so there was no opportunity to ask him questions about what was in the affidavit, noted Justice DeWine. Were there any efforts made to get him there? Anything in the record that there was a request or a subpoena? Was is it the state’s burden to get him there? What did defense counsel do to try and get him there?
Wouldn’t it have been a better option to have Mr. Bozso at the hearing, asked Chief Justice O’Connor? Did defense counsel go through any proceedings to have Mr. Bozso at the hearing? Make application to have him transported to Cleveland?
Romero
Doesn’t Romero say that you can’t have post hoc assertions of how you would have pled, you need contemporaneous evidence to support that, asked Justice DeWine? So ae we to overrule Romero today? And yet, the defendant’s position is that he put in an affidavit about how he would have pleaded which is exactly what Romero says is not sufficient. Romero listed four things—what did the defense put forth to meet those?
Deportation
Hadn’t Mr. Bozso in essence reached a dead end in trying to avoid deportation consequences, asked Chief Justice O’Connor? No matter what he pled to, or if he went to trial and got convicted, he could not have been successful in avoiding deportation? No way of getting around that? Didn’t Mr. Bozso pursue an action with regard to deportation under 212 (h)? Unsuccessfully? Post plea? But he wasn’t eligible for that? So section (c) didn’t help him out, because he wasn’t eligible, and Section (h) didn’t help him out because he did have a hearing there and tried to prove things and they weren’t buying it?
What’s in the Record
Is it the state’s position that the only thing in the record is that the trial court properly gave the advisement about the potential consequences of deportation, asked Justice Stewart?
The immigration advice Mr. Bozso got was a very preliminary statement, noted Justice DeWine. Is there any evidence in the record about how he followed up with that, or if he did? I’m looking for some evidence in the record that there was a follow up on that. If there was no follow-up, why not?
The transcripts of the sentencing hearing might have been helpful, noted Justice French. Why don’t we have that? My concern is an evidentiary concern, she added. I recognize Mr. Bozso doesn’t want to testify—ok, we’ll give him that. But the lawyer also could have explained what he was thinking at the time. But nobody is waiving attorney/client privilege, although Mr. Bozso could have, we don’t have the transcripts, it’s the defendant’s burden to prove. That’s where I’m having trouble.
Attorney/Client Privilege
Mr. Bozso had the option of waiving attorney/client privilege, didn’t he, asked Justice Fischer? I know he didn’t, but he could have. It’s his burden. As a matter of law, he could waive privilege and let everyone know what was going on. Why didn’t the defense waive privilege and put everything on the record? Wouldn’t we know what was the contemporaneous activity, discussions, evidence, if he had waived privilege?
The Cold Case State Crimes
Were these cold case rapes asked Justice Donnelly? Were they stranger rapes or was the defendant a known suspect at the time of the reported incident? During the pendency of the case did defense counsel file a motion for preindictment delay?
How It Looks from the Bleachers
To Professor Emerita Marianna Bettman
This was one of the most intense oral arguments I’ve heard in some time. I predict a 5-2 win for the state, with only Justices Stewart and Donnelly favoring Bozso. The two of them seemed to accept at face value Bozso’s affidavit statement that he would not have pleaded guilty had he known he would be deported. The rest of the justices seemed to find the affidavit contained nothing more than unacceptable post hoc assertions.
It was very heavy sledding for Mr. Misiewicz, Bozso’s appellate counsel, even though it was pretty much a given that the immigration lawyer gave Bozso incorrect advice about the possibility for relief under Section 212(c) of the INA. In his opinion the trial judge described Bozso’s reliance on that possibility as “a case of hope over reality.”
Justice DeWine pounded Misiewicz relentlessly about the lack of any contemporaneous evidence about why Bozso had entered his plea, forcing an admission that Bozso’ statement in the affidavit about why he had entered his plea was a post hoc assertion rather than contemporaneous evidence.
I think a majority is going to find the case governed by Lee and Romero. In Romero, quoting Lee, the Supreme Court of Ohio found that a non-citizen “must do more than present ‘post hoc assertions * * * about how he would have pleaded but for his attorney’s deficiencies.’” I think in this case the majority will find Boszo didn’t do more than present post-hoc assertions. While there is plenty of lawyering blame to go around on Bozso’s side, it didn’t help an already bad situation that no effort was made by the defense to get Bozso to the plea withdrawal hearing, and Bozso’s refusal to waive attorney-client privilege which might have shed light on the missing contemporaneous reasons for his plea.
Bottom line: a classic case of post hoc assertions over contemporaneous evidence. I give all the justices credit for digging so deeply here, given the dire consequences for Bozso, who has lived in this country since the age of 21.But Justice DeWine was particularly harsh in appearing to challenge Bozso’s current status as a refugee.
To Student Contributor Maggie Pollitt
I think the Court will rule for the State. This was an intense oral argument, and the justices were none too pleased with Bozso’s counsel.
Justice DeWine was not sympathetic to Bozso’s refugee status, asserting that there’s no reason Bozso couldn’t return to Romania today, despite being in the United States since he was 21 and having no family or relational ties to his home country.
None of the other justices questioned the legitimacy of Bozso’s refugee status, but were instead frustrated that Bozso did not waive attorney-client privilege to fill the record with more contemporaneous evidence. The State even implied that Bozso intentionally deprived the record of this evidence to skew the evidence toward Bozso’s desired result. Bozso’s counsel asserted that additional evidence was unnecessary – this argument fell flat for most the bench.
Only Justices Stewart and Donnelly seemed persuaded by Bozso’s argument that Bozso received incorrect advice on a clear subsection of immigration law and relied on that advice to his detriment. Because of the bench’s apparent hostility towards Bozso’s argument, I think the State will win.