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State v. Khoshknabi

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 3, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MOHAMMAD KHOSHKNABI DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-611508-A

          ATTORNEYS FOR APPELLANT Jonathan A. Bartell Margaret W. Wong Scott E. Bratton Margaret Wong & Associates

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Gregory J. Ochocki Assistant Prosecuting Attorney

          BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Keough, J.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., JUDGE.

         {¶1} Defendant-appellant, Mohammad Khoshknabi ("appellant"), brings this appeal challenging his convictions for passing bad checks and theft. Specifically, appellant argues that the trial court erred by denying his motion to withdraw his guilty plea. After a thorough review of the record and law, this court reverses the trial court's judgment, vacates appellant's guilty plea, and remands the matter for further proceedings consistent with this opinion.

         I. Factual and Procedural History

         {¶2} Appellant was born in Iran. He entered the United States in 1983 with a student visa. He obtained permanent residence status in 1990. Appellant has been married to a United States citizen for more than ten years.

          A. Prior Criminal History and Removal Proceedings

         {¶3} Appellant was charged in 1994 with three counts of passing bad checks in Franklin County Municipal Court.[1] Appellant pled no contest to one count of passing bad checks, a first-degree misdemeanor. In February 1997, appellant pled guilty to three third-degree misdemeanor counts of sexual imposition in the Cuyahoga County Court of Common Pleas. State v. Khoshknabi, Cuyahoga C.P. No. CR-96-343821-ZA.

         {¶4} The federal government commenced removal proceedings against appellant in 2005. Thereafter, in March 2006, appellant filed a motion to withdraw his no-contest plea and vacate his conviction for passing bad checks in Franklin County, alleging that the trial court failed to provide him with the R.C. 2943.031 advisement regarding the immigration consequences associated with his plea. Appellant's motion to withdraw and vacate his conviction was granted, and the case was subsequently dismissed in April 2006. In February 2007, the removal proceedings were terminated.

         B. Cuyahoga C.P. No. CR-16-611508-A

         {¶5} The instant criminal proceedings arose from a dispute between appellant and a roofing contractor over payment for work that the contractor performed on a building that appellant purchased in Cleveland Heights, Ohio. On November 16, 2016, the Cuyahoga County Grand Jury returned a two-count indictment charging appellant with passing bad checks, a fifth-degree felony in violation of R.C. 2913.11(B), and theft, a fifth-degree felony in violation of R.C. 2913.02(A)(3). Count 1 alleged that appellant issued the check for the payment of $1, 000 or more but less than $7, 500. Count 2 alleged that the property or services stolen was valued at $1, 000 or more and less than $7, 500. Appellant was arraigned on December 2, 2016. He pled not guilty to the indictment.

         {¶6} The parties reached a plea agreement. The state amended the dollar amount for which the check was issued and the value of the property or services stolen to less than $1, 000, reducing the charges from fifth-degree felonies to first-degree misdemeanors. On March 8, 2017, appellant pled guilty to the amended passing bad checks and theft charges. The trial court proceeded immediately to sentencing. The trial court sentenced appellant to community control sanctions for a term of one year on each count.

         {¶7} As a result of appellant's 2017 convictions for passing bad checks and theft, and his 1997 convictions for sexual imposition, the federal government commenced removal proceedings against appellant. On June 6, 2017, appellant was detained by the Department of Homeland Security ("DHS"). Appellant is still in the custody of DHS.

         {¶8} On June 22, 2017, appellant filed a motion to withdraw his guilty plea pursuant to Crim.R. 32.1. Therein, appellant argued that he was denied effective assistance of counsel before he entered his guilty plea. Appellant submitted an affidavit in support of his motion to withdraw in which he averred, in relevant part,

5. My lawyer knew that my immigration status was a serious issue for me. I needed assurance that any plea would not have any impact on my immigration case.
6. My lawyer told me on no less than three occasions that if I entered guilty pleas to the two misdemeanors (passing bad checks and theft), that I would not have any immigration issues. He said because they were misdemeanors, I would not get deported.
7. I relied on this advice and decided to enter guilty pleas to the two misdemeanors. I only entered the guilty pleas based on my lawyer's advice. I was strongly considering fighting my case but decided to proceed with guilty pleas based on his advice.
8. At the plea hearing, I did hear the judge mention that my plea may result in deportation. I did not believe that this applied to me because my attorney specifically told me that I would not face deportation under this plea agreement because I was pleading guilty to two misdemeanors.
* * *
12. I would not have entered a plea had my attorney told me that this plea would result in me being placed in deportation proceedings. I am now facing deportation. I had a case to defend, but chose to enter the plea solely upon the advice of my lawyer.

         {¶9} The state opposed appellant's motion to withdraw on July 12, 2017. Appellant filed a supplemental motion to withdraw his guilty plea on July 17, 2017. Therein, he requested relief pursuant to R.C. 2953.21.

         {¶10} The trial court held a hearing on appellant's motion to withdraw on July 26, 2017. Appellant's counsel and appellant testified during the hearing.

         {¶11} Appellant's counsel testified that he practices criminal law and does not consider himself to be an immigration lawyer. When an immigration-related issue arises during the course of his representation of a client, he generally consults an immigration attorney.

         {¶12} During his representation of appellant, appellant maintained that he was not guilty of the passing bad checks and theft charges. Appellant asserted that he had a defense to the charges in that he paid the victim in cash. Counsel explained that he knew appellant was not a United States citizen; however, he did not know that removal proceedings had been commenced against appellant in 2005 until after appellant was detained by DHS in June 2017.

         {¶13} Appellant's counsel testified that he was aware that if appellant was convicted of two crimes involving moral turpitude, including misdemeanors, he would be removable from the United States. Counsel acknowledged that he was aware that passing bad checks, theft, and sexual imposition were crimes involving moral turpitude. Counsel stated that he believed that if appellant pled guilty to passing bad checks and theft, these convictions would be counted as one crime involving moral turpitude for deportation purposes. He asserted that he did not believe appellant's previous sexual imposition convictions would be counted as a second crime involving moral turpitude for deportation purposes because appellant had not been "touched" for his prior offenses. Counsel testified that he did not believe the misdemeanor convictions for passing bad checks and theft would raise any immigration concerns.

         {¶14} Counsel confirmed that appellant did ask for his opinion as to whether he would be removed from the United States as a result of pleading guilty. Counsel asserted that he advised appellant that he did not think appellant would be sentenced to jail and that he did not think it was likely that appellant would be deported because the passing bad checks and theft offenses to which he would be pleading guilty were ...


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