“Bozso has not presented any contemporaneous evidence that avoiding deportation motivated his decisionmaking process at or around the time he entered his guilty pleas.”
Justice French, Majority Opinion
“Because there is a reasonable probability that Bozso would not have pleaded guilty but for the erroneous advice he received regarding the possibility of relief from deportation, his plea-withdrawal motion should have been granted.”
Justice Donnelly, Dissenting Opinion
On July 23, 2020, the Supreme Court of Ohio handed down a merit decision in State v. Bozso, 2020-Ohio-3779. In a 5-2 opinion written by Justice French, the Court held the noncitizen criminal defendant in this case could not withdraw his guilty pleas on the basis of ineffective assistance of counsel because he failed to show he was prejudiced by his counsel’s performance. Justice Donnelly dissented, joined by Justice Stewart. The case was argued March 11, 2020.
Case Background
Emeric Bozso came to the United States as a refugee from Romania in 1986 and has been a lawful permanent resident since 1987. In June of 2016, he was indicted in a case from 1996 by a Cuyahoga County Grand Jury on 18 counts plus firearm specifications, arising from the alleged rape of a then 12-year-old girl and an adult woman. In November of 2016, Bozso agreed to plead guilty to one count of sexual battery and one count of abduction. There is no transcript of the plea hearing in the record of this case, which means the Court could not review exactly what the trial court said to Bozso during the plea colloquy. A subsequent nunc pro tunc entry shows that the trial court gave Bozso the statutory advisement for noncitizens required by R.C. 2943.031, including the fact that a guilty plea had deportation consequences. Bozso was given a two-year suspended sentence for each count and placed on probation for each conviction.
In January of 2017, Bozso received notification from the Department of Homeland Security that deportation proceedings were being initiated against him under the Immigration and Nationality Act (“INA”). The pertinent provisions of the INA authorize removal of any noncitizen convicted of various offenses, which included Bozso’s November 2016 convictions.
In June of 2017, Bozso filed a motion to withdraw his November 2016 guilty pleas on the grounds that his lawyer gave him bad advice about the potential immigration consequences of his pleas. In support of his motion, Bozso attached his own affidavit averring that he had been advised at the time of entering his pleas that Section 212(c) of the INA would provide potential relief from the deportation consequences of his guilty pleas. That section formerly gave the U.S. Attorney General the discretion to waive deportation for certain lawful permanent residents, including those who had committed an aggravated felony. But that section was repealed effective April 1, 1997. In 2001, the U.S. Supreme Court held that the repeal of Section 212(c) did not apply retroactively, and discretionary relief under that provision remained available to noncitizens who pleaded guilty to a deportable crime before April 1, 1997. But since Bozso pleaded guilty in 2016, he was not eligible for relief under that section.
In June of 2017, the trial court held a hearing on Bozso’s motion to withdraw his guilty pleas. Bozso (who, according to both lawyers at oral argument, was not there because he was in detention in INS custody, although the Court doesn’t mention this in the opinion) called no witnesses. The state called Bozso’s plea-stage counsel, who testified that he had consulted with an immigration lawyer as to the possible immigration consequences of Bozso entering a guilty plea, and was informed by email that discretionary relief could be available to Bozso under Section 212(c), and that the immigration lawyer would provide a more comprehensive advisement “shortly.” Plea-stage counsel testified he never received a more complete advisement and did not know whether Bozso himself had. Bozso’s lawyer also testified that the trial court judge had read the required statutory advisement to Bozso verbatim. The state tried to find out the primary reason behind Bozso’s decision to enter a guilty plea but could not because Bozso’s plea-stage lawyer invoked attorney-client privilege. Ultimately the trial court denied the motion to withdraw the guilty pleas, finding that the advisement Bozso got from the immigration lawyer made it clear that Bozso should not have relied on the possibility of getting relief from deportation and that doing so “appears to have been a case of hope over reality.”
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 pleas. The appeals court applied the two-part Strickland test for ineffective assistance of counsel. On the first prong, the court found counsel deficient for not definitively determining the deportation consequences of Bozso’s pleas. On the second prong, the court held that Bozso’s affidavit was sufficient to show prejudice, since in it, he alleged he would not have pleaded guilty had he known that any relief from immigration consequences under INA Section 212 (c) was not available to him.
Read the oral argument preview here and an analysis of the argument here.
Key Precedent
8 U.S.C. 1227(a)(2)(A)(ii)-(iii) (An alien convicted of an aggravated felony or multiple crimes involving moral turpitude may be deported.)
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 retroactively to lawful permanent residents who pleaded guilty to a crime before April 1, 1997.)
R.C. 2943.031(A) (Prior to accepting a plea of guilty from a noncitizen defendant, the trial 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 the 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 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.
Does the Court Adopt the State’s Proposition of Law?
Yes
Merit Decision
Analysis
Short Tutorial on Strickland
In order to prove ineffective assistance of counsel, which is the reason Bozso was seeking to withdraw his guilty pleas, a defendant must show that counsel’s performance was deficient, and, if proven, whether the defendant was prejudiced by counsel’s erroneous advice.
- Deficient Performance Prong
The appeals court found that counsel’s performance was deficient because the law was clear and straightforward that relief on the basis of Section 212(c) was not available to Bozso. The state does not challenge this finding.
- Prejudice Prong
To establish prejudice, French quotes from the Court’s decision in State v. Romero, (briefing in this case was initially held until the decision in Romero was released) which would require Bozso to show there is “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” The majority then goes on to consider the various factors from Lee v. United States,approved and followed in Romero, which the U.S. Supreme Court said should be considered to determine whether a defendant has shown prejudice from counsel’s erroneous advice in this context.
Lee and Romero Factors
1. Defendant’s connections to the United States
Bozso has been in this country since he was 21, and has lived here for over thirty years, nearly his entire adult life. If this were the only factor, it would weigh in his favor.
2. The importance defendant placed on avoiding deportation
Ahhh, but we don’t know this, says the majority. All we have in this case are Bozso’s after-the-fact conclusory assertions in his affidavit. He presented no contemporaneous evidence that avoiding deportation motivated his decision-making process at the time he entered his guilty pleas. And Bozso did not waive attorney-client privilege, so his plea-stage lawyer couldn’t testify about his motivations at the time. So, the majority finds, on this factor, Bozso forfeited his chance to present the evidence that would support this claim. And even though the immigration lawyer may have been wrong about the possibility of relief from deportation under Section 212(c), Bozso was warned at the time that such relief was discretionary and by no means a sure thing. Bozso offered no contemporaneous evidence that but for his counsel’s erroneous advice, he would have made a different decision. Justice French uses Lee to show, by contrast, what examples of contemporaneous evidence would look like. In this case, this factor weighs against a finding of prejudice.
3. Judicial advisement of immigration consequences
Considering only the November 8, 2016 nunc pro tunc entry because the transcript of the plea hearing is not in the record, and the testimony of plea-stage counsel, the Court concludes that the trial court gave Bozso the necessary advisement verbatim from R.C. 2943.031, warning Bozso of the possible immigration consequences of a guilty plea, and making sure he understood what the statutory language meant. Unlike in Lee, nothing in the record suggests that Bozso did not understand the court’s advisement. This factor weighs against a finding of prejudice in this case.
4.The consequences of going to trial
Some of the charges Bozso originally faced carried the possibility of life sentences. By accepting a plea to one count of sexual battery and one count of attempted abduction, Bozso significantly reduced the potential prison time he faced, and in fact, avoided any prison time. So, his decision to enter a plea rather than taking his chances at trial seem reasonable. And Bozso presented no evidence supporting his post hoc assertion that had he gone to trial, he would have been successful. Nor did his lawyer present any of these arguments to the trial court in the evidentiary hearing to withdraw Bozso’s pleas. This factor weighs against a finding of prejudice.
Bottom Line, Majority Opinion
Bozso did not meet his burden of establishing the prejudice prong of Strickland— that but for his counsel’s erroneous immigration advice, he would not have pleaded guilty. The trial court did not abuse its discretion in denying Bozso’s motion to withdraw his guilty pleas.
Justice Donnelly’s Dissent
Justice Donnelly views several of the Lee/Romero factors totally differently than the majority does. He would find that when Bozso pleaded guilty there was a solid chance that the case against him would have ended in dismissal or acquittal, and that the email exchange showed that the risk of deportation was uppermost on his mind. He humanizes Bozso more than the majority does, mentioning the fact Bozso has had the same partner for 27 years, has five children, and some serious health issues.
Donnelly also criticizes the majority on two key points. The standard for proving the prejudice prong in Strickland requires the defendant to show there is a reasonable probability that but for counsel’s errors he would have gone to trial rather than plead guilty. He chides the majority for omitting those words of “reasonable probability,” and instead requiring substantial evidence and strict but-for causation in this context. He also criticizes the majority for analyzing the rationality of Bozso’s decision to accept the plea bargain rather than, as the language in Padilla suggests, analyzing whether the decision to reject the plea bargain was reasonable under the circumstances, noting that if a defendant has been misinformed about the facts critical to his decision to plead guilty, then the plea is not knowingly, voluntarily, intelligently, or rationally made. In his view, Bozso has presented enough evidence to show there was a reasonable probability that he would not have pleaded guilty but for the erroneous advice he received.
The Lee and Romero Factors from the Dissent Perspective
Where the majority found only the first factor weighed in Bozso’s favor, Donnelly finds three do, and one is neutral.
1. Connections to the United States
Donnelly has no disagreement with the majority over this one. All agree Romero has substantial ties to the United States.
2. The importance placed on avoiding deportation
Again, Donnelly agrees with the majority that post hoc assertions aren’t good enough to back up a claim that a noncitizen defendant would not have pleaded guilty but for erroneous deportation advice. But a noncitizen defendant can’t be expected to have airtight contemporaneous evidence, either. Circumstantial contemporaneous evidence supporting the conclusion that a defendant placed special importance on deportation-relief eligibility when deciding whether to plead guilty is good enough. And Donnelly finds Bozso provided that, particularly in the immigration lawyer’s failure to follow up on his email promise to supply a more comprehensive advisement. Donnelly believes that what Boszo presented was stronger than what Lee presented in his case. So, on this factor, Donnelly would find that given the advice Bozso received, however tenuous, plus the fact that Bozso asked for immigration advice in the first place, weigh in his favor on this factor.
3. Judicial advisement of immigration consequences
The trial court gave the required statutory advisement verbatim. But that could not cure counsel’s erroneous advice. Donnelly finds this factor doesn’t weigh for or against Bozso.
4. The consequences of going to trial
Unlike the majority, which looks only at the consequences of being convicted, Donnelly takes a broader view of the consequences of going to trial. He emphasizes the fact that this case was brought only a few days short of the then-applicable 20-year statute of limitations. Even though both victims identified Boszo as the assailant at the time, the state chose not to prosecute the cases for almost twenty years, nor was it clear from this record whether the victims would have been willing to testify now. Neither responded to the state’s request for victim-impact statements. To Donnelly, there was a distinct possibility that the charges in Bozso’s case would have been dismissed or that Bozso would have been acquitted. The plea bargain the state offered shows the state’s uncertainty with its own case. So, to Donnelly, because Bozso had a chance of prevailing in his case, this fourth factor weighs strongly in his favor.
Bottom Line , Dissent
Donnelly would find that there is a reasonable probability that Bozso would not have pleaded guilty but for the erroneous advice he received about the possibility of relief from deportation, and that his motion to withdraw his guilty pleas should have been granted. Alternatively, he thinks the case should have been dismissed as improvidently accepted, because the appeals court applied exactly the factors the Court required in State v. Romero, but the majority just didn’t like the way the appeals court applied them, and has simply engaged in erroneous error correction.
Justice Stewart concurred in this dissent.
Case Disposition
The judgment of the appeals court is reversed, and the trial court’s judgment of conviction is reinstated.
Trial Court Judge (affirmed)
Cuyahoga County Common Pleas Court Judge Stuart A. Friedman
Eighth District Panel (reversed)
Judge Larry Jones, Sr., (authoring judge) joined by Judges Patricia Blackmon and Anita Laster Mays
Concluding Observations
Here’s what I wrote after argument:
“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.”
Student Contributor Maggie Pollitt also correctly called this for the state. Here’s what she wrote after the argument:
“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.”