Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Thursday, May 10, 2012

Ohio appellate court on prejudice under Padilla

Ohio v. Yahya, No. 10AP-1190 (Ohio App. Ct. Nov. 21, 2011) (unpublished)

The defendant pled guilty to theft with a restitution amount over $100,000.  This turned out to be an aggravated felony fraud conviction.  The defendant moved to withdraw her plea on Padilla grounds.  The trial court denied the motion.  The court of appeals sustained her appeal.

The court found that the attorney gave her bad advice by not telling her that she was pleading guilty to an aggravated felony.  This satisfied the first prong of Strickland.

Turning to the second prong, the court found that the defendant was prejudiced because the trial court's boilerplate warnings about possible deportation did not cure the attorney's specific advice that deportation would not result.  The court remanded for an evidentiary hearing on this point.

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