2020 Ohio 3779
Ohio2020Background
- Emeric Bozso, a Romanian national and lawful permanent resident since 1987, was indicted in 2016 on 18 counts arising from alleged 1996 sexual offenses; he pleaded guilty in Nov. 2016 to one count of sexual battery and one count of attempted abduction and received suspended one-year sentences and probation.
- DHS initiated removal proceedings in Jan. 2017, citing the 2016 convictions and a 2001 conviction, alleging deportability under INA §§ 1227(a)(2)(A)(ii),(iii).
- Bozso moved to withdraw his pleas in June 2017, claiming plea-stage counsel misadvised him that INA § 212(c) relief might be available and that, but for that advice, he would not have pleaded guilty.
- At the evidentiary hearing plea counsel testified he consulted an immigration attorney who sent a preliminary e-mail suggesting potential § 212(c) relief but warned relief was discretionary and not assured; the trial court also gave the statutory deportation advisement under R.C. 2943.031.
- The trial court denied the motion; the Eighth District reversed finding counsel deficient and prejudice shown; the Ohio Supreme Court accepted review, assumed deficiency (state did not contest that prong on appeal), but held Bozso failed to prove prejudice and reinstated the convictions.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Bozso) | Held |
|---|---|---|---|
| Whether counsel's failure to advise about immigration consequences was deficient | Counsel consulted immigration counsel and the trial court gave statutory advisement; any error was not dispositive | Counsel (through affidavit) was misinformed about § 212(c) relief and therefore received deficient advice | State abandoned challenge; court assumed deficiency satisfied for purposes of decision |
| Whether Bozso established prejudice under Strickland/Hill (i.e., reasonable probability he would have gone to trial) | Contemporaneous evidence is lacking; plea colloquy/ statutory advisement and immigration lawyer’s caution undercut Bozso’s claim; risks of trial were high | Affidavit plus contemporaneous immigration-e-mail show deportation relief was pivotal and he would have rejected plea | Held for State: Bozso failed to show a reasonable probability he would have rejected plea and insisted on trial; prejudice not established |
| Effect of the trial court’s R.C. 2943.031 advisement on prejudice | Judicial advisement weighs against finding prejudice and helps cure counsel error | Advisement did not cure erroneous, concrete § 212(c) advice and thus is insufficient | Held for State: court’s advisement weighed against finding prejudice |
| Role of contemporaneous evidence and Lee factors (ties to U.S., importance of avoiding deportation, consequences of trial) | Lack of contemporaneous testimony, counsel invoked privilege; serious exposure at trial favored plea rationality | Bozso’s long U.S. residence, immigration e-mail, and weaknesses in prosecution made refusing the plea rational | Held for State: applying Lee/Romero factors, the totality does not show but-for causation; Bozso did not meet burden |
Key Cases Cited
- State v. Romero, 129 N.E.3d 404 (Ohio 2019) (applies Strickland/Padilla two-prong test to noncitizen plea-withdrawal claims)
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise noncitizen client when deportation risk is clear)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance framework: deficiency and prejudice)
- Hill v. Lockhart, 474 U.S. 52 (1985) (prejudice standard for guilty-plea ineffective-assistance claims—must show would have insisted on trial)
- Lee v. United States, 137 S. Ct. 1958 (2017) (identifies factors and contemporaneous-evidence guidance for assessing prejudice in immigration-related plea claims)
- INS v. St. Cyr, 533 U.S. 289 (2001) (preservation of § 212(c) relief for certain pre-repeal pleas)
- State v. Engle, 660 N.E.2d 450 (Ohio 1996) (plea must be knowing, voluntary, and intelligent)