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State v. Bozso

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 3, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
EMERIC BOZSO DEFENDANT-APPELLANT

          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 Prosecutor

          BEFORE: Jones, J., Blackmon, P.J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          LARRY A. JONES, SR., JUDGE.

         {¶1} 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.

         Factual and Procedural History

         {¶2} 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.

         {¶3} 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]"

         {¶4} 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."

         {¶5} 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 guilty plea."

         Standard of Review

         {¶6} 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 (1977).

         {¶7} 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 ...


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