         [Cite as State v. Kostyuchchenko, 2014-Ohio-324.]




                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :          APPEAL NO. C-130257
                                                             TRIAL NO. B-1007107
        Plaintiff-Appellant,                      :

  vs.                                             :             O P I N I O N.

EVGENIY KOSTYUCHENKO,                             :

    Defendant-Appellee.                           :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: January 31, 2014



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Suhre & Associates, LLC, and Joseph B. Suhre IV, for Defendant-Appellee.




Please note: we have removed this case from the accelerated calendar.
                  OHIO FIRST DISTRICT COURT OF APPEALS



Per Curiam.

       {¶1}   Plaintiff-appellant the state of Ohio presents on appeal a single

assignment of error, challenging the Hamilton County Common Pleas Court’s

judgment granting defendant-appellee Evgeniy Kostyuchenko’s Crim.R. 32.1 motion

to withdraw his guilty plea. The court granted the motion upon its determination

that Kostyuchenko’s trial counsel had been ineffective in failing to accurately advise

Kostyuchenko concerning the immigration consequences of his plea.            Upon our

determination that the court did not abuse its discretion in permitting Kostyuchenko

to withdraw his plea on that basis, we affirm the court’s judgment.

       {¶2}   Kostyuchenko was indicted on two counts of operating a vehicle under

the influence of alcohol or drugs (“OVI”) and a single count of failure to comply with

the order or signal of a police officer. In exchange for the dismissal of one OVI count,

Kostyuchenko entered guilty pleas to the other OVI count and the failure-to-comply

count. The trial court accepted both pleas and found him guilty on both counts. But

the court sentenced him, and thus convicted him, on only the failure-to-comply

count. For that offense, the court imposed a term of confinement of one year.

       {¶3}   Kostyuchenko did not appeal his conviction. Instead, he moved to

withdraw his plea. Following a hearing, the common pleas court granted the motion,

and this appeal followed.

       {¶4}   Crim.R. 32.1 authorizes the postconviction withdrawal of a guilty plea

only “to correct manifest injustice.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d

1324 (1977), paragraph one of the syllabus. The defendant bears the burden of

proving “manifest injustice.”    The determination of whether the defendant has

sustained that burden is committed to the sound discretion of the trial court and will




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not be disturbed on appeal unless the court abused its discretion. Id. at paragraph

two of the syllabus.

         {¶5}   Sixth Amendment right to accurate advice concerning

deportation. The due-process protections afforded by Article I, Section 16 of the

Ohio Constitution and the Fourteenth Amendment to the United States Constitution

require that a guilty or no-contest plea “represent[] a voluntary and intelligent choice

among the alternative courses of action open to the defendant.” North Carolina v.

Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); State v. Engle, 74 Ohio

St.3d 525, 527, 660 N.E.2d 450 (1996). A defendant who seeks to withdraw his plea

on the ground that the plea was the unintelligent product of his counsel’s

ineffectiveness must demonstrate that counsel’s representation was constitutionally

deficient, Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984), and that “there is a reasonable probability that, but for [that

deficiency, the defendant] would not have pleaded guilty and would have insisted on

going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203

(1985); see State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992); State v.

Blackwell, 1st Dist. Hamilton No. C-970150, 1998 Ohio App. LEXIS 1856 (May 1,

1998).

         {¶6}   For purposes of the Sixth Amendment right to the effective assistance

of counsel, a plea negotiation is a critical phase of a criminal prosecution. Hill at 57.

In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the

United States Supreme Court held that the Sixth Amendment imposes upon counsel,

in negotiating a guilty or no-contest plea, the duty to “accurate[ly]” advise a

noncitizen client concerning the immigration consequences of the plea. Padilla at

364 and 374. If the consequence of deportation can be “easily determined from




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reading the removal statute,” counsel must inform his client of that fact. “When the

law is not succinct and straightforward,” counsel “need do no more than advise a

noncitizen client that pending criminal charges may carry a risk of adverse

immigration consequences.” Id. at 368-369.

         {¶7}   Kostyuchenko’s motion. In his motion to withdraw his plea,

Kostyuchenko cited Padilla in support of his contention that his guilty plea had been

the unintelligent product of his trial counsel’s ineffectiveness in advising him

concerning the immigration consequences of his conviction.            The motion was

supported by Kostyuchenko’s affidavit. He averred that after he had completed his

one-year jail term, the United States Department of Homeland Security notified him

that his offense constituted an “aggravated felony” under federal immigration law

and thus mandated his deportation, and that his one-year sentence rendered him

ineligible for any form of relief from deportation. Kostyuchenko stated that neither

trial counsel, in urging him to plead guilty, nor the trial court, in accepting his plea,

had advised him that his failure-to-comply conviction mandated his deportation.

And he asserted that if he had known that his conviction would make him

deportable, he would have asked counsel to negotiate for a sentence that would

preserve his eligibility for relief from deportation, or he would have insisted on a

trial.

         {¶8}   At the hearing on the motion, Kostyuchenko’s trial counsel testified

that he had known that Kostyuchenko was not a United States citizen, and that it had

been his “understanding * * * [b]y and large” that Kostyuchenko’s conviction would

make him “deportable.” But counsel insisted that Kostyuchenko had, throughout the

plea negotiation, expressed indifference concerning the possibility of being deported

and had focused solely on avoiding a prison sentence. Thus, deportation was the




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subject of “a very brief conversation” between counsel and Kostyuchenko, during

which counsel advised Kostyuchenko that a felony conviction “could get [him]

deported” and did not discuss with him any available forms of relief from

deportation. Counsel also stated that he had reviewed with Kostyuchenko his plea

form, which memorialized his “understand[ing]” that his conviction “may have the

consequence of deportation.”     When the common pleas court asked counsel to

confirm whether he had said “possibly, probably or [had] just read” the form,

counsel responded, “Well, I probably said both, but I know I told him these were the

kinds of offenses that you get deported for.”

       {¶9}     Kostyuchenko also presented at the hearing the testimony of an

immigration lawyer. The lawyer stated that, for purposes of federal immigration law,

the failure-to-comply offense to which Kostyuchenko had pled was a crime of

violence and an offense relating to obstruction of justice and thus constituted an

aggravated felony, and that it also constituted a crime involving moral turpitude. In

the lawyer’s opinion, under federal immigration law, for “a felony fleeing, it’s pretty

clear it’s not a possibility, not a could or may, it’s a mandatory removal or

deportation.”

       {¶10} In granting withdrawal, the common pleas court stated that trial

counsel’s varying testimony had left the court uncertain about what, beyond the

advisement contained in the plea form, counsel had communicated to Kostyuchenko

concerning his plea’s immigration consequences. And because those consequences

were then visited upon Kostyuchenko, the court found “substantial prejudice.” Thus,

the court permitted Kostyuchenko to withdraw his guilty plea on the ground that

counsel’s violation of the duty imposed by Padilla, to accurately advise his noncitizen

client concerning the immigration consequences of his guilty plea, had denied




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Kostyuchenko his Sixth Amendment right to the effective assistance of counsel. We

hold that the court did not abuse its discretion in granting the motion.

       {¶11} Inaccurate        advice     concerning       deportation.         Federal

immigration law expressly mandates the removal of “[a]ny alien * * * convicted of an

aggravated felony.” 8 U.S.C. 1227(a)(2)(A)(iii). An “aggravated felony” is defined to

include “an offense relating to obstruction of justice * * * for which the term of

imprisonment is at least one year.” 8 U.S.C. 1101(a)(43)(S). An “aggravated felony”

is also defined to include “a crime of violence (as defined in section 16 of title 18,

United States Code * * *) for which the term of imprisonment [is] at least one year.”

8 U.S.C. 1101(a)(43)(F). A “crime of violence” is, in turn, defined to include an

“offense that is a felony and that, by its nature, involves a substantial risk that

physical force against the person or property of another may be used in the course of

committing the offense.” 18 U.S.C. 16(b).

       {¶12} Kostyuchenko was convicted upon his guilty plea to the third-degree

felony of failure to comply with the order or signal of a police officer in violation of

R.C. 2921.331(B). Specifically, he was found guilty of, and was sentenced to a year in

jail for, “causing a substantial risk of serious physical harm to persons or property”

by “willfully elud[ing] or flee[ing]” the signal of a police officer.         See R.C.

2921.331(C)(5)(a)(ii).    R.C. Chapter 2921 proscribes “OFFENSES AGAINST

JUSTICE,” and the failure-to-comply statute is grouped with those statutes

proscribing “OBSTRUCTING AND ESCAPE.”

       {¶13} From reading the immigration statutes, it is clear that Kostyuchenko’s

failure-to-comply offense was both “an offense relating to obstruction of justice” and

“a crime of violence” and thus constituted an “aggravated felony” mandating his

deportation. Therefore, trial counsel, in negotiating Kostyuchenko’s guilty plea, had




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                 OHIO FIRST DISTRICT COURT OF APPEALS



a duty under Padilla to ascertain from the immigration statutes, and to accurately

advise him, that his conviction mandated his deportation. And the record supports

the common pleas court’s conclusion that counsel breached that duty.

       {¶14} Prejudice. As for whether counsel’s breach of his duty under Padilla

prejudiced Kostyuchenko, we note that counsel had reviewed with Kostyuchenko,

and that Kostyuchenko had executed, a plea form acknowledging his noncitizen

status and affirming his “understand[ing] that * * * a conviction of the offense(s) to

which [he was] pleading Guilty may have the consequence of deportation, exclusion

from admission to the United States, or denial of naturalization pursuant to the laws

of the United States.” Then, at the plea hearing, the trial court, as required by R.C.

2943.031, advised Kostyuchenko that “there may be a consequence for [his

conviction] which would be possibly deportation, denial of your admission to the

United States, or exclusion from admission, or denial of your naturalization * * *

pursuant to * * * the laws of the United States.” (Emphasis added.)

       {¶15} But the plea form and the R.C. 2943.031 advisement, because they

informed Kostyuchenko only that he “may” be deported, did not provide the degree

of “accura[cy]” concerning immigration consequences that Padilla demands when,

as here, federal immigration law plainly mandates deportation. See Padilla, 559 U.S.

at 364, 130 S.Ct. 1473, 176 L.Ed.2d 284. Therefore, neither counsel’s review of the

plea form with Kostyuchenko, nor the trial court’s compliance with R.C. 2943.031,

effectively precluded a finding that Kostyuchenko had been prejudiced by counsel’s

violation of his duty under Padilla to advise him that he would be deported.      See

State v. Arrunategui, 9th Dist. Summit No. 26547, 2013-Ohio-1525, ¶ 15 (rejecting

the state’s argument that compliance with R.C. 2943.031(A) “in and of itself

prevent[ed]” a showing of prejudice when deportation was mandatory); State v.




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                 OHIO FIRST DISTRICT COURT OF APPEALS



Yahya, 10th Dist. Franklin No. 10AP-1190, 2011-Ohio-6090, ¶ 17 (holding that the

R.C. 2943.031 advisement “would not necessarily cure [counsel’s] error” in advising

defendant that she would not be deported); see also State v. Hrnjak, 9th Dist.

Summit No. 26553, 2013-Ohio-5726, ¶ 13-14 (finding no Padilla violation when

counsel and the court went beyond the statutory advisement to warn “that

deportation was all but certain”); State v. Guerrero, 12th Dist. Butler No. CA2010-

09-231, 2011-Ohio-6530, ¶ 18-20 (finding no prejudice, when the court gave the R.C.

2943.031 advisement plus “strong warnings that deportation would be sought”);

State v. Andreias, 6th Dist. Erie No. E-10-070, 2011-Ohio-5030, ¶ 21 (holding that

“the court cured any prejudice with a thorough and clear explanation to appellant of

all potential ramifications”). Compare State v. Bains, 8th Dist. Cuyahoga No. 94330,

2010-Ohio-5143, ¶ 29 (finding no prejudice when the court gave the statutory

advisement and then “clearly advised defendant on several occasions that his

conviction would subject him to deportation”), with State v. Lababidi, 8th Dist.

Cuyahoga No. 96755, 2012-Ohio-267, ¶ 15 (citing Bains to hold that the “court’s

advisement of potential deportation cured” counsel’s failure to advise that

deportation was “automatic”), and ¶ 20-21 (Gallagher, J., concurring) (distinguishing

Bains as involving “a clear advisement that went beyond the mandate of R.C.

2943.031(A),” and stating that the “statutory warning that a person ‘may’ be

deported does not necessarily cure the prejudice created by an attorney’s advisement

that a defendant ‘may’ be deported when the defendant is, in effect, presumptively

deportable”).

       {¶16} Moreover, Kostyuchenko provided evidence upon which the common

pleas court might reasonably have concluded that his counsel’s deficient

performance had prejudiced him. Counsel testified at the hearing that Kostyuchenko




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had been unconcerned during plea negotiations with being deported.                  But

Kostyuchenko averred in his affidavit, to the contrary, that if he had known that his

failure-to-comply conviction mandated his deportation, he would not have pled to

that offense and would have insisted either on a trial or on a sentence that preserved

his eligibility for relief from deportation.

       {¶17} We affirm.            Thus, Kostyuchenko supported his ineffective-

assistance-of-counsel claim with evidence that counsel had breached the duty under

Padilla to accurately advise him concerning the immigration consequences of his

guilty plea, and that there was a reasonable probability that, but for his counsel’s

deficient performance, he would not have pled guilty, but would have insisted on

going to trial. Because the record supports a determination that the withdrawal of

Kostyuchenko’s guilty plea was necessary to correct a manifest injustice, we hold that

the common pleas court did not abuse its discretion in granting his Crim.R. 32.1

motion. Accordingly, we overrule the assignment of error and affirm the judgment of

the common pleas court.

                                                                   Judgment affirmed.

HENDON, P.J., CUNNINGHAM and FISCHER, JJ.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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