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Court News Ohio
Court News Ohio

Immigrant Charged with Sex Crimes Cannot Withdraw Plea Based on Faulty Legal Advice

A Romanian national failed to prove that had he been given accurate information about the potential of being deported by pleading guilty, he would have instead chosen a trial to fight the charges against him, the Ohio Supreme Court ruled today.

In a 5-2 decision, the Supreme Court affirmed a Cuyahoga County trial court’s decision to reject Emeric Bozso’s attempt to withdraw his guilty pleas after he claimed his attorneys wrongly advised him there was a potential he would not be deported. Bozso was admitted to the United States as refugee in 1986 when he was 21 and had been a lawful permanent U.S. resident until his 2016 conviction.

Writing for the Court majority, Justice Judith L. French stated that Bozso was clearly advised that deportation proceedings would be initiated if he pleaded guilty to the sex offenses charged, but was inaccurately informed there was a probability authorities could allow him to stay.

The majority opinion stated the Court and the parties in Bozso’s case agree the attorney’s advice was wrong. The issue the Court needed to determine was whether that advice actually impacted Bozso’s decision to plead guilty, and the Court concluded that Bozso did not meet his burden of proof.

The Court’s decision reversed the Eighth District Court of Appeals. Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Patrick F. Fischer, and R. Patrick DeWine joined Justice French’s opinion.

In a dissenting opinion, Justice Michael P. Donnelly wrote the state’s almost 20-year delay in bringing the charges, the weakness of the evidence, and the prosecutor’s unbelievably generous plea deal all indicated that Bozso had a chance of prevailing at trial or having the charges dismissed . Bozso demonstrated he would have chosen a trial if given the right advice about deportation, Justice Donnelly stated.

Justice Melody J. Stewart joined Justice Donnelly’s opinion.

Sex Offenses Lead to Deportation Proceedings
Cuyahoga County commenced an effort to eliminate the backlog of untested rape kits. The rape kits of two females who identified Bozso as their assailant were tested in 2013 and 2016. In 2016, a grand jury indicted Bozso on 18 counts for the alleged rape of two victims in June and November 1996. He faced 16 counts, including six rape charges, for an incident involving a 12-year-old girl, and a rape and kidnapping charge involving an adult woman.

About five months after he was charged, Bozso agreed to plead guilty to one count of sexual battery and one count of attempted abduction. At his plea hearing, the trial judge provided a notice, required by R.C. 2943.031, that noncitizens be advised that pleading guilty to felony crimes and certain misdemeanors “may have the consequences of deportation.”

Bozso was sentenced to one year in prison for each count. The trial court suspended the prison sentences and imposed two years of probation.

Three months later, the U.S. Department of Homeland Security initiated deportation proceedings against Bozso based on the 2016 convictions and an additional 2001 attempted theft conviction.

Attorney Advice Based on Date of Crimes
In June 2017, Bozso sought to withdraw his guilty pleas on the grounds that his lawyer provided improper advice about the potential immigration consequences of his plea.

At the time of his pleas, Bozso’s attorney was uncertain of the potential consequences and consulted with an immigration attorney. The immigration attorney sent an email stating the “sex offense conviction will lead to the client being placed in deportation.” The attorney went on to say that after a “very preliminary conclusion,” there might be “212(c) relief.” The attorney stated the relief is discretionary and “by no means should the client believe that it is assured that he would not be ordered deported as a result of a conviction for this offense.”

The relief cited by the attorney referred to Section 212(c) of the Immigration and Nationality Act (INA). The law was in effect in 1996 when Bozso was accused of committing the offenses, but  Section 212(c) was repealed in 1997. In 2001, a U.S. Supreme Court decision determined that relief from deportation under INA Section 212(c) might be available to lawful permanent residents who pleaded guilty prior to April  1997. Because Bozso pleaded guilty in 2016, he was not eligible for Section 212(c) relief, the trial court ruled.

Limited Testimony Provided at Hearing
Bozso was in federal detention in Butler County at the time of his hearing to withdraw his guilty pleas. He provided an affidavit swearing that had he been given the correct advice about his deportation status and he would have gone to trial rather than plead guilty. Bozso was not at the hearing, and his attorney did not call any witnesses.

Cuyahoga County prosecutors attempted to question the attorney who represented Bozso at the time he pleaded guilty to the charges. Bozso had not arranged in advance of the withdrawal hearing to waive attorney-client privilege with lawyer who handled the plea deal. On the witness stand, the attorney presented the email from the immigration attorney. The lawyer noted the immigration attorney stated that further advisement would be provided, but if there had been more information provided, it went to Bozso without the attorney’s knowledge.

The prosecutors asked the attorney to testify about the primary concern driving Bozso to plead guilty, but the attorney refused to answer because attorney-client privilege prevented it.

The trial court denied the request to withdraw the pleas, and Bozso appealed to the Eighth District Court of Appeals. The Eighth District concluded that the advice to Bozso was clearly incorrect, and Bozso’s sworn statement was sufficient to establish that his attorney’s deficient performance prejudiced him and led him to accept a plea deal.

The prosecutors appealed the decision to the Supreme Court, which agreed to hear the case.

Court Examines Consequence of Advice
Justice French explained the Court established in its 2019 State v. Romero decision how it would determine whether the faulty advice of an attorney regarding immigration status would allow for the withdrawal of a guilty plea. The Court ruled that the defendant must prove the advice was wrong, and the advice led to the harmful consequences the defendant faced.

The Court noted there was no trial transcript of the hearing in which Bozso pleaded guilty. Bozso was not present at his hearing to withdraw his pleas, and the attorney who arranged the guilty pleas was not authorized to testify about what he and Bozso discussed about the pleas.

With scant testimony from the proceedings, the majority opinion stated there was limited evidence to prove Bozso would have chosen to go to trial. Based on Romero, the Court considered four factors to determine whether Bozso was harmed by the bad advice.

The Court determined that Bozso’s connections to the United States made it “reasonably probable” to find he would not have pleaded guilty had he known the plea would lead to deportation. But that is not the only factor to consider, the opinion stated.

The Court also had to determine the importance Bozso placed on avoiding deportation. The Court found he did not present any evidence at or around the time of his plea that it was a factor in his decision-making. And it noted the third factor -- that the trial court advised him of the potential consequences and Bozso’s grasp of that warning. This indicated he understood he could be deported if he went to trial, the opinion stated.

The last factor is the consequence of going to trial, and the Court found that given the seriousness of the charges, it was rational for Bozso to plead guilty. The Court noted he faced multiple charges carrying life sentences in prison for rape and kidnapping, and by pleading guilty he significantly reduced his potential prison time.

“Given that he ultimately succeeded in avoiding a prison sentence altogether, Bozso’s decision to enter a plea rather than take his chances at trial does not seem irrational,” the opinion stated.

Withdrawal Should Be Granted, Dissent Maintained
When reviewing a motion to withdraw a guilty plea, the court is supposed to determine whether a fully informed defendant could have rationally decided not to enter a plea, not whether a misinformed defendant’s decision to enter a plea was rational, Justice Donnelly wrote. Bozso presented reasonable probability that had he not been given bad advice, he would have gone to trial, the dissent concluded.

The dissent noted Bozso was charged with the crimes just days before the 20-year statute of limitations expired, despite the fact that the accusers had immediately reported their allegations to the police in 1996, both identified Bozso as their assailant, and police quickly contacted Bozso in both instances. Bozso might have been successful in getting the charges dismissed due to the unnecessary and unfair delay, the dissent stated.

The dissent noted that although there were rape kits from both victims, the DNA from the rape kits did not factor into Bozso’s case. When the rape kits were tested, the DNA matched other people and excluded Bozso as a contributor of DNA.  It was also unclear if the victims even planned to participate if the case had gone to trial.  

The dissent stated there was a distinct possibility Bozso would have been acquitted had he gone to trial. An offer of probation to a defendant facing life in prison “is the kind of plea offer the state provides when it is confident that it will lose and wants to see if it can cut its losses by making a coercively lenient offer,” the dissent stated.

The standard set in Romero only required Bozso demonstrate there was a reasonable probability the outcome would have been different had he received the correct immigration advice, the dissent noted.

“Our role in this aspect of the inquiry is to determine whether rejecting a guilty plea would have been a rational choice, not whether it was the only rational choice or the best possible choice,” the dissent concluded.

2018-1007. State v. Bozso, Slip Opinion No. 2020-Ohio-3779.

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