Court of Appeals of Ohio, Eighth District, Cuyahoga
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
BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Keough, J.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., JUDGE.
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.
Factual and Procedural History
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
Appellant was charged in 1994 with three counts of passing
bad checks in Franklin County Municipal Court. 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.
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.
Cuyahoga C.P. No. CR-16-611508-A
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
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.
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.
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
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
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.
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.
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.
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.
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.
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