2022 Ohio 4459
Ohio Ct. App.2022Background:
- Mohammad Kurdi, a lawful permanent resident of Jordan in the U.S. since 2013, pleaded guilty (on counsel’s advice) to aggravated drug trafficking (felony 3) and possession of cocaine (felony 5); unrelated cases were consolidated for sentencing.
- Before plea, both defense counsel and the trial court warned Kurdi he “may” be deported; shortly after plea he was taken into immigration custody and told his drug conviction triggered mandatory deportation.
- Kurdi filed a post‑sentence motion to withdraw his guilty pleas, alleging ineffective assistance of counsel for failing to advise that deportation was mandatory; he supported the motion with his affidavit and an affidavit from trial counsel.
- The trial court denied the motion without an evidentiary hearing, finding no deficient performance or prejudice; Kurdi appealed.
- The appellate majority reversed and remanded, holding the record showed a colorable Padilla claim requiring a hearing; the dissent would have affirmed, finding the “may” advisement sufficient and no manifest injustice.
Issues:
| Issue | State's Argument | Kurdi's Argument | Held |
|---|---|---|---|
| Whether counsel rendered ineffective assistance by advising only that deportation "may" result | Advisement that deportation was possible satisfied Padilla; counsel gave required warning | Counsel failed to inform Kurdi that the convictions made deportation effectively mandatory, so advice was deficient and misleading | Court: Counsel’s performance was deficient under Padilla because mandatory deportation was ascertainable from federal law (aggravated‑felony drug convictions) |
| Whether the trial court abused discretion by denying Kurdi’s post‑sentence motion to withdraw plea without an evidentiary hearing | No abuse: Kurdi knew ICE had a hold, did not seek pre‑sentence withdrawal or consult immigration counsel, and record supported rationality of pleading | A hearing was required because Kurdi’s affidavits (and counsel’s) alleged facts that, if true, show prejudice and would justify withdrawal under Lee | Court: Reversed and remanded for an evidentiary hearing to resolve prejudice and credibility (reasonable probability Kurdi would have rejected plea if properly advised) |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must give correct immigration advice when deportation consequences are clear; otherwise must warn of a risk)
- Lee v. United States, 137 S. Ct. 1958 (2017) (prejudice shown if reasonably probable the defendant would have rejected plea because deportation consequences were determinative; focus on defendant’s perspective)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong test for ineffective assistance: deficient performance and prejudice)
- Hill v. Lockhart, 474 U.S. 52 (1985) (ineffective‑assistance standard applied to plea negotiations)
- State v. Xie, 62 Ohio St.3d 521 (1992) (post‑sentence plea‑withdrawal standard; hearing not required if record conclusively refutes motion)