Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-16-606734-B
ATTORNEY FOR APPELLANT Daniel J. Misiewicz
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BY: Amy Venesile Assistant County
BEFORE: Jones, J., Blackmon, P.J., and Laster Mays, J.
JOURNAL ENTRY AND OPINION
A. JONES, SR., JUDGE.
Defendant-appellant Emeric Bozso ("Bozso") appeals
from the trial court's July 25, 2017 judgment denying his
motion to withdraw his guilty plea. For the reasons that
follow, we reverse.
and Procedural History
In June 2016, Bozso was charged in a 30-count indictment of
1996 for crimes pertaining to sexual assault against two
victims. In November 2016, after negotiations with the state,
Bozso pleaded guilty to one count of sexual battery and one
count of attempted abduction. The trial court sentenced him
to one year of prison for each count, but suspended the
sentences, and ordered him to two years of community control
sanctions for each conviction.
In January 2017, Bozso, who is not a citizen of the United
States, was detained by the Department of Homeland Security
for immigration removal proceedings. In June 2017, he filed a
motion to withdraw his guilty plea. In his motion, Bozso
contended that his trial counsel was ineffective because he
informed him that he "would be able to obtain potential
relief from immigration or deportation issues and
consequences resulting from the plea pursuant to §212(c)
of the Immigration and Nationality Act. [INA]"
In an affidavit in support of his motion, Bozso averred that
he had been "misinformed about the applicability of INA
§212(c) and that he [would] not be entitled to any
potential relief under the statute despite advisements given
to him prior to entering a guilty plea in [this case]."
Bozso further averred that he "would not have pled
guilty [in this case] had he known that relief from
immigration consequences pursuant to INA §212(c) was
wholly unavailable to him."
After a hearing on the motion, the trial court denied it.
Bozso now appeals, presenting the following assignment of
error for our review: "The trial court erred by denying
appellant's motion to withdraw his previously entered
Generally, a Crim.R. 32.1 postsentence motion to withdraw a
guilty plea is subject to a manifest injustice standard,
State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715
(1992), and an appellate court will not reverse a trial
court's denial of a motion to withdraw a plea absent an
abuse of discretion. State v. Caver, 8th Dist.
Cuyahoga Nos. 90945 and 90946, 2008-Ohio-6155, citing
State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324
Although the standard of review for a postsentence motion
under Crim.R. 32.1 is generally subject to the manifest
injustice standard, this standard does not apply to plea
withdrawal motions filed pursuant to R.C. 2943.031(D), which
governs "advice as to possible deportation in guilty and
no contest ...