STATE OF OHIO, Plaintiff-Appellant, vs. EVGENIY KOSTYUCHENKO, Defendant-Appellee.
APPEAL NO. C-130257
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
January 31, 2014
[Cite as State v. Kostyuchchenko, 2014-Ohio-324.]
TRIAL NO. B-1007107; Criminal Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Affirmed
Suhre & Associates, LLC, аnd Joseph B. Suhre IV, for Defendant-Appellee.
Please note: we have removed this case from the accelerated calendar.
{¶1} Plaintiff-appellant the state of Ohio presents on appeal a single assignment of error, challenging the Hamilton County Common Pleas Court‘s judgment granting defendant-appellee Evgeniy Kostyuchenko‘s
{¶2} Kostyuchenko was indicted on two counts of operating a vehicle under the influence of alcohol or drugs (“OVI“) and a single count of failure to comply with the order or signal of a police officer. In exchange for the dismissal of one OVI count, Kostyuchenko entered guilty pleas to the other OVI cоunt and the failure-to-comply count. The trial court accepted both pleas and found him guilty on both counts. But the court sentenced him, and thus convicted him, on only the failure-to-comply count. For that offense, the court imposed a term of confinemеnt of one year.
{¶3} Kostyuchenko did not appeal his conviction. Instead, he moved to withdraw his plea. Following a hearing, the common pleas court granted the motion, and this appeal followed.
{¶4}
{¶5} Sixth Amendment right to accurate advice concerning deportation. The due-process protections afforded by
{¶6} For purposes of the Sixth Amendment right to the effective assistance of counsel, a plea negotiation is a critical phase of a criminal prosecution. Hill at 57. In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the United States Supreme Court held that the Sixth Amendment imposes upon counsel, in negotiating a guilty or no-contest plea, the duty to “accurate[ly]” advise a noncitizen client concerning the immigration consequences of the plea. Padilla at 364 and 374. If the consequence of deportation can be “easily determined from
{¶7} Kostyuchenko‘s motion. In his motion to withdraw his plea, Kostyuchenko cited Padilla in support of his contention that his guilty plea had been the unintelligent product of his trial counsel‘s ineffectiveness in advising him concerning the immigration consequences of his conviction. The motion was supported by Kostyuchenko‘s affidavit. He averred that after he had completed his one-year jail term, the United States Department of Homeland Security notifiеd him that his offense constituted an “aggravated felony” under federal immigration law and thus mandated his deportation, and that his one-year sentence rendered him ineligible for any form of relief from deportation. Kostyuchenko stated that neither trial counsel, in urging him to plead guilty, nor the trial court, in accepting his plea, had advised him that his failure-to-comply conviction mandated his deportation. And he asserted that if he had known that his conviction would make him deportable, he would have asked counsel to negotiate for a sentence that would preserve his eligibility for relief from deportation, or he would have insisted on a trial.
{¶8} At the hearing on the motion, Kostyuchenko‘s trial counsel testified that he had known that Kostyuchenko was not a United States citizen, and that it had bеen his “understanding * * * [b]y and large” that Kostyuchenko‘s conviction would make him “deportable.” But counsel insisted that Kostyuchenko had, throughout the plea negotiation, expressed indifference concerning the possibility of being deported and had focused solely on avoiding a prison sentence. Thus, deportation was the
{¶9} Kostyuchenko also presented at the hearing the testimony of an immigration lawyer. The lawyer stated that, for purposes of federal immigration law, the failure-to-comply offense to which Kostyuchenko had pled was a crime of violence and an offense relating to obstruction of justice and thus constituted an aggravated felony, and that it also constituted a crime involving moral turpitude. In the lawyer‘s opinion, under federal immigration law, for “a felony fleeing, it‘s pretty clear it‘s not a possibility, not a could or may, it‘s a mandatory removal or deportation.”
{¶10} In granting withdrawаl, the common pleas court stated that trial counsel‘s varying testimony had left the court uncertain about what, beyond the advisement contained in the plea form, counsel had communicated to Kostyuchenko concerning his plea‘s immigration consеquences. And because those consequences were then visited upon Kostyuchenko, the court found “substantial prejudice.” Thus, the court permitted Kostyuchenko to withdraw his guilty plea on the ground that counsel‘s violation of the duty imposed by Padilla, to accuratеly advise his noncitizen client concerning the immigration consequences of his guilty plea, had denied
{¶11} Inaccurate advice concerning deportation. Federal immigration law expressly mandates the removal of “[a]ny alien * * * convicted of an aggravated felony.”
{¶12} Kostyuchenko was convicted upon his guilty plea to the third-degree felony of failure to comply with the order or signal of a рolice officer in violation of
{¶13} From reading the immigration statutes, it is clear that Kostyuchenko‘s failure-to-comply offense was both “an offense relating to obstruction of justice” and “a crime of viоlence” and thus constituted an “aggravated felony” mandating his deportation. Therefore, trial counsel, in negotiating Kostyuchenko‘s guilty plea, had
{¶14} Prejudice. As for whether counsel‘s breach of his duty under Padilla prejudiced Kostyuchenko, we note that counsel had reviewed with Kostyuchenko, and that Kostyuchenko had executed, a plea form acknowledging his noncitizen status and affirming his “understand[ing] that * * * a conviction of the offense(s) to which [he was] pleading Guilty may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of thе United States.” Then, at the plea hearing, the trial court, as required by
{¶15} But the plea form and the
{¶16} Moreоver, Kostyuchenko provided evidence upon which the common pleas court might reasonably have concluded that his counsel‘s deficient performance had prejudiced him. Counsel testified at the hearing that Kostyuchenko
{¶17} We affirm. Thus, Kostyuchenko supported his ineffective-assistance-of-counsel claim with evidence that counsel had breached the duty under Padilla to accurately advise him concerning the immigration consequences of his guilty plea, and that there was a reasonable probability that, but for his counsel‘s deficient performance, he would not have pled guilty, but would have insisted on going to trial. Because the record supports a dеtermination that the withdrawal of Kostyuchenko‘s guilty plea was necessary to correct a manifest injustice, we hold that the common pleas court did not abuse its discretion in granting his
Judgment affirmed.
HENDON, P.J., CUNNINGHAM and FISCHER, JJ.
Please note: The court has recorded its own entry on the date of the release of this opinion.