State v. Nikolic

[Cite as State v. Nikolic, 2020-Ohio-3718.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108779
v. :
PETAR NIKOLIC, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 16, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-626684-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Ronni Ducoff and Anna M. Herceg,
Assistant Prosecuting Attorneys, for appellee.
Adam Parker, for appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, Petar Nikolic, appeals his convictions following
a guilty plea. For the reasons that follow, we affirm his convictions but order that
the trial court enter a corrected journal entry, nunc pro tunc, to reflect that five years
of community control was ordered on each count.
In 2018, Nikolic was named in a four-count indictment charging him
with kidnapping, two counts of domestic violence, and obstructing official business.
Nikolic agreed to plead guilty to an amended Count 1, attempted abduction, a felony
of the fourth degree, and Count 2, domestic violence, a first-degree misdemeanor.
Counts 3 and 4 were nolled. He was sentenced to serve five years of community
control sanctions on each count.
Nikolic now appeals, raising two assignments of error.
I. Denial of Pretrial Motion to Disqualify
In his first assignment of error, Nikolic contends that the “trial court
denied [his] right to effective assistance of counsel when it failed to respond to [his]
motion to remove counsel.”
In 2018, Nikolic filed a motion to disqualify and dismiss his court-
appointed attorney alleging that counsel failed to render adequate representation
because counsel (1) failed to investigate the charges; (2) subjected Nikolic to
repeated competency evaluations, which violated his right to a speedy trial; (3) failed
to conduct discovery and obtain material and exculpatory evidence; (4) failed to
present Nikolic with discovery to help in his defense; (5) failed to hire an
independent investigator; and (6) failed to seek discovery of the victim’s medical
records. The record before this court reflects that the trial court did not rule on the
motion; accordingly, it is deemed denied for purposes of this appeal. See Savage v.
Cody-Zeigler, Inc., 4th Dist. Athens No. 06CA5, 2006-Ohio-2760, ¶ 28 (motions
that a trial court fails to explicitly rule upon are deemed denied once a court enters
final judgment).
In this case, Nikolic entered a guilty plea, which is a complete
admission of his guilt. “‘[A] guilty plea represents a break in the chain of events that
precede it in the criminal process.’” State v. Korecky, 8th Dist. Cuyahoga No.
108328, 2020-Ohio-797, ¶ 16, quoting State v. Spates, 64 Ohio St.3d 269, 272, 595
N.E.2d 351 (1992). “When a defendant enters a plea of guilty, he waives all
appealable errors that might have occurred unless the errors precluded the
defendant from entering a knowing, voluntary, and intelligent plea.” Id., citing State
v. Robinson, 8th Dist. Cuyahoga No. 107598, 2020-Ohio-98, citing State v. Kelley,
57 Ohio St.3d 127, 566 N.E.2d 658 (1991).
“A plea of guilty even waives the right to claim that a defendant was
prejudiced by ineffective assistance of counsel, except to the extent that the
ineffective assistance of counsel caused the defendant’s plea to be less than knowing,
intelligent, and voluntary.” Korecky at ¶ 19, citing State v. Williams, 8th Dist.
Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11, citing Spates at 272.
In this case, Nikolic suggests that if he had an attorney who made
reasonable efforts to communicate with him, and the court had considered his
motion to disqualify, there was a reasonable probability he may not have pleaded
guilty. He does not, however, make any assertion that he did not enter a knowing,
voluntary, or intelligent plea, and the record reflects that his plea was in fact made
in compliance with Crim.R. 11.
In support of his argument, Nikolic cites to State v. Carter, 128 Ohio
App.3d 419, 715 N.E.2d 223 (4th Dist.1998), where the court was asked to reverse a
defendant’s guilty plea after the trial court denied the defendant’s request for new
counsel. At a pretrial hearing, Carter raised concerns about his trial counsel’s
performance, saying that his counsel was dishonest, had refused to communicate
with him, and was working with the prosecution. The trial court advised Carter that
he could hire his own counsel, but that the court would not appoint new counsel or
grant him a continuance of trial. The trial court did not address the allegations
Carter made in his motion, however. Although Carter gave no indication prior to
the hearing that he would accept a plea, he pleaded guilty following the discussion
with the court, believing that his only options were to plead or proceed without
effective assistance of counsel. The record showed that Carter signed a written plea
agreement but wrote on the form that he had no confidence in his attorney. The
Fourth District reversed Carter’s convictions, finding that his allegations about
counsel’s performance were sufficiently specific to trigger the trial court’s duty to
investigate the truth of the allegations, and that Carter demonstrated with
reasonable probability that he would not have pleaded guilty had the court not
summarily rejected his motion for new counsel. Id. at 423.
Carter is readily distinguishable. First, unlike in Carter where the
motion to disqualify and appoint new counsel was considered and rejected on the
same day that the defendant pleaded guilty, Nikolic filed his motion to disqualify in
September 2018, but pleaded guilty almost eight months later in May 2019. Looking
at the record as a whole, Nikolic made his motion to disqualify at a time when he
was undergoing competency evaluations and restorative procedures.
Moreover, in March 2019, Nikolic appeared before the trial court for
pretrial discussions and a review of psychiatric reports and competency evaluations.
During that hearing, where the court accepted the reports finding Nikolic competent
to stand trial and where the state set forth the plea agreement, Nikolic did not
express any dissatisfaction with his counsel or renew his request for new counsel.
Additionally, and unlike in Carter, Nikolic did not mention at the time of his plea in
May 2019, that he was dissatisfied with his counsel or gave any indication that he
was only pleading guilty because that was his only option. In fact, during the plea
colloquy, Nikolic affirmatively stated that he was satisfied with his counsel’s
representation.
Based on the record before us, we find nothing that would indicate
that at the time of the plea, Nikolic believed that his only options were to plead guilty
or proceed without effective assistance of counsel. Therefore, Nikolic has not
demonstrated that a reasonable probability exists that he would not have pleaded
guilty, or that he did not enter a knowing, voluntary, or intelligent plea.
Accordingly, Nikolic’s first assignment of error is overruled.
II. Effective Assistance of Counsel
In his second assignment of error, Nikolic contends that he was
denied his right to effective assistance of counsel under the Sixth Amendment when
counsel failed to inform him that this guilty plea would subject him to mandatory
deportation.
“The Sixth Amendment to the United States Constitution guarantees
a defendant the effective assistance of counsel at ‘“critical stages of a criminal
proceeding,” including when he enters a guilty plea.’” State v. Romero, 156 Ohio
St.3d 468, 2019-Ohio-1839, 129 N.E.3d 404, ¶ 14, quoting Lee v. United States,
__U.S.__, 137 S.Ct. 1958, 1964, 198 L.Ed.2d 476 (2017), quoting Lafler v. Cooper,
566 U.S. 156, 165, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012); Hill v. Lockhart, 474 U.S.
52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
A plea is involuntary if it is the result of ineffective assistance of
counsel. State v. Bailey, 8th Dist. Cuyahoga No. 107216, 2019-Ohio-1242, ¶ 11,
citing State v. Banks, 9th Dist. Lorain No. 01CA007958, 2002-Ohio-4858, ¶ 16. To
prevail on this claim, Nikolic must meet the test for ineffective assistance of counsel.
State v. Xie, 62 Ohio St.3d 512, 524, 584 N.E.2d 715 (1992). This requires a
convicted defendant to prove two things — counsel’s performance was deficient and
the deficient performance prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The claim fails if the
defendant cannot satisfy either prong of the test. State v. Bradley, 42 Ohio St.3d
136, 142, 538 N.E.2d 373 (1989).
The United States Supreme Court has held that when counsel’s
noncitizen client is considering a plea, “counsel must inform her client whether his
plea carries a risk of deportation.” Padilla v. Kentucky, 559 U.S. 356, 374, 130 S.Ct.
1473, 176 L.Ed.2d 284 (2010). Given the severe consequences of deportation, an
ineffective-assistance claim is not limited to affirmative misadvice or false
information. Id. at 369-371. The failure to give any advice at all about possible
deportation consequences satisfies the first prong of Strickland. Id. “The severity
of deportation * * * only underscores how critical it is for counsel to inform her
noncitizen client that he faces a risk of deportation.” Id. at 373-374.
In this case, Nikolic contends that his counsel was ineffective for not
advising him that pleading guilty to attempted abduction and domestic violence
would subject him to mandatory deportation.
R.C. 2943.031(A) requires the trial court to provide the following
advisement prior to accepting a defendant’s guilty or no-contest plea to a felony or
misdemeanor other than a minor misdemeanor:
If you are not a citizen of the United States, you are hereby advised that
conviction of the offense to which you are pleading guilty (or no contest,
when applicable) may have the consequences of deportation, exclusion
from admission to the United States, or denial of naturalization
pursuant to the laws of the United States.
There is no dispute that the trial court complied with the mandatory notification
requirements. See tr. 25. The Ohio Supreme Court has stated, however, that “the
trial court’s advisement under R.C. 2943.031(A) does not cure an attorney’s failure
to advise his client of the immigration consequences of a guilty plea,” as Padilla
instructs. Romero at ¶ 19-20. “‘Warnings from a judge during a plea colloquy are
not a substitute for effective assistance of counsel, and therefore have no bearing on
the first Strickland prong.’” Id., quoting United States v. Kayode, 777 F.3d 719, 728
(5th Cir.2014).
During the plea colloquy, counsel stated:
I might also add that he’s a green card holder, and I have a Supreme
Court case that says that that [sic] lawyer has to notify him. I know you
do, too.
But I notified you [Nikolic] about the possible deportation. Remember
we talked about that? Didn’t we talk about that?
(Tr. 18.) Nikolic responded, “Yes.” (Tr. 19.)
Later in the colloquy after the trial court gave Nikolic the R.C.
2943.031(A) advisement, the following conversation occurred:
[Nikolic]: I do have a green card since approval back in [19]75.
The Court: Okay. Did you understand what I read to you?
[Nikolic]: That I may not be extendable.
The Court: Right, that you might be deported. You could be excluded
from admission, or denied naturalization.
[Nikolic]: Deported. What do you mean, when, now?
The Court: No. It could happen. It’s up to the immigration officials,
not up to me.
[Defense Counsel]: It might not happen.
[Nikolic]: I’m sorry.
[Defense Counsel]: It might not happen.
[Nikolic]: It might not happen?
The Court: Do you understand?
[Nikolic]: Yes.
(Tr. 25-26.) Thereafter, the trial court continued with the plea colloquy, including
a complete advisement of Nikolic’s Crim.R. 11 rights. Nikolic said he understood his
rights and the punishments involved, that he was satisfied with his attorney, and
that he did not wish to go to trial.
Despite counsel’s assertions that “it might not happen,” Nikolic is
subject to mandatory deportation. He pleaded guilty to domestic violence, a first-
degree misdemeanor. Pursuant to 8 U.S.C. 1227(a)(2)(E)(i), a person convicted of
domestic violence is deportable, i.e. subject to mandatory deportation.
Nikolic also pleaded guilty to attempted abduction, a felony of the
fourth degree, punishable by up to 18 months in prison. Pursuant to 8 U.S.C.
1227(a)(2)(A)(iii), the offense of attempted abduction is a deportable offense
because it is an aggravated felony under the statutory definition of the offense.
Under 8 U.S.C. 1101(a)(43)(F), aggravated felonies include: “a crime of violence (as
defined in section l6 of title 18, but not including a purely political offense) for which
the term of imprisonment is at least one year.” In turn, “crime of violence” is defined
as “an offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another.” l8 U.S.C. l6(a).
R.C. 2905.02, regarding abduction, states that:
(A) No person, without privilege to do so, shall knowingly do any of the
following:
(1) By force or threat, remove another from the place where the other
person is found;
(2) By force or threat, restrain the liberty of another person under
circumstances that create a risk of physical harm to the victim or place
the other person in fear.
Accordingly, abduction qualifies as a crime of violence because it
includes the use of force. Nikolic’s conviction for attempted abduction does not
change the deportability status because a crime of violence includes the attempted
use of force. Additionally, attempted abduction is a felony of the fourth degree,
making it punishable by up to l8 months in prison. R.C. 2929.14(A)(4). Therefore,
attempted abduction is an aggravated felony under 8 U.S.C. 1101(a)(43)(F), and
pleading to that offense subjects Nikolic to mandatory deportation.
Additionally, as applicable to Nikolic, attempted abduction is a
deportable offense when it is a crime of violence against a family or household
member. See 8 U.S.C. 1227(a)(2)(E) (crime of domestic violence includes any crime
of violence against a family or household member).
Under the facts and circumstances of this case, Nikolic is subject to
mandatory deportation, and his green card status is subject to revocation. The
record is unclear, however, regarding the precise nature of the prehearing
conversation between counsel and Nikolic regarding deportation; it only provides
that Nikolic and counsel “talked about that” (tr. 18.) and that “it might not happen.”
(Tr. 25-26). However, based on the dialogue between counsel and Nikolic during
the plea hearing, it appears that counsel may not have fully advised Nikolic about
the mandatory deportation consequence he faced. Much like in Padilla, where the
deportation consequence was clear just from reading the removal statute, it was
easily determined that Nikolic’s deportation was presumptively mandatory. See
Padilla 559 U.S. at 368-369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (it is not hard to find
deficiency when the consequences of a plea are easily determined from reading the
removal statute).
Accordingly, based on the record before this court, we find that
counsel was deficient in his performance by failing to advise Nikolic of the
mandatory nature of deportation. The first prong of Strickland is satisfied.
Under the second prong of Strickland, Nikolic must show that “there
is a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. 366,
88 L.Ed.2d 203. In assessing whether it would be rational for a defendant to go to
trial instead of pleading guilty, the court should consider the totality of
circumstances. Romero at ¶ 29, citing Lee, __U.S.__, 137 S.Ct. 1958, 1964, 1966,
198 L.Ed.2d 476. Some of the relevant factors to consider include, but are not
limited to, (1) the consequences of going to trial; (2) the importance that the
defendant placed on avoiding deportation; (3) the defendant’s connections to the
United States; and (4) judicial advisement of immigrations consequences. Romero
at ¶ 30-33, citing Lee at 1965-1968.
In this case, the record is silent, and Nikolic fails to explain that the
consequences of deportation would have altered his decision to accept the plea
bargain offered by the state and plead guilty to these offenses. Although Nikolic has
been in the United States since 1975 and has some familial connection here, the
victim in this case is his mother, with whom he is ordered to have no contact.
Accordingly, we find that Nikolic’s blanket statements on appeal that he would not
have pleaded guilty but for counsel’s deficiencies is merely a “‘post hoc assertion’”
that is insufficient to demonstrate prejudice See Romero at ¶ 28, quoting Lee at
1967. Moreover, Nikolic concedes that the trial court fully complied with the judicial
advisement regarding deportation as required pursuant to R.C. 2943.031.
Finally, the record is silent as to whether Nikolic is currently subject
to deportation proceedings. In fact, he has not filed any motion in the trial court to
withdraw his plea on the basis that deportation proceedings have commenced.
Based on the record before this court, Nikolic has not demonstrated that he was
prejudiced by counsel’s deficiency such that he would not have pleaded guilty had
he known that he was subject to mandatory deportation based on his convictions.
The assignment of error is overruled.
Judgment affirmed. The trial court is ordered to enter a corrected
journal entry, nunc pro tunc, to reflect that five years of community control was
ordered on each count.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court to enter a corrected journal entry, nunc pro tunc, and for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
EILEEN T. GALLAGHER, A.J., and
LARRY A. JONES, SR., J., CONCUR