[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State v. Bozso , Slip Opinion No. 2020-Ohio-3779.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2020-O HIO -3779
T HE S TATE OF O HIO , A PPELLANT , v. B OZSO , A PPELLEE . [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as State v. Bozso , Slip Opinion No. 2020-Ohio-3779.] Criminal law—Motion to withdraw a guilty plea—Ineffective assistance of counsel arising from counsel’s alleged failure to advise a noncitizen client of immigration consequences of enteri ng a guilty plea—Defendant must show that counsel’s performance was defic ient and must demonstrate prejudice resulting from counsel’s deficie nt performance—Prejudice not demonstrated—Court of appe als’ judgment reversed. (No. 2018-1007—Submitted March 11, 2020—Decided July 23, 2020.)
A PPEAL from the Court of Appeals for Cuyahoga County, No. 106149,
2018-Ohio-1750.

_____________________ F RENCH , J.S UPREME C OURT OF O HIO

2 {¶ 1} This appeal requires us to determine, once again, whether a non citizen criminal defendant may withdraw a guilty plea on the grounds th at his attorney failed to advise the defendant of the adverse immigration conse quences of his plea. {¶ 2} In State v. Romero , 156 Ohio St.3d 468, 2019-Ohio-1839, 129 N.E.3d 404, we held that when a noncitizen criminal defendant alleges ineffective assistance of counsel arising fro m the plea process, the defend ant must meet the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and applied in the immigration con text in Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Romero at ¶ 1, 3, and 14. First, the defendant must show that counsel’s perfo rmance was deficient.
Id. at ¶ 15. When an attorney’s noncitizen client is considering a plea, counsel must inform her client whether the p lea carries a risk of deportatio n. Id. ; Padilla at 374. Second, the defendant must dem onstrate prejudice resulting from counsel’s deficient performance. Romero at ¶ 16; Strickland at 687. {¶ 3} We now consider the second part of this test to determine wheth er defendant-appellee, Emeric Bozso, has met the requisite showing of prejudice— specifically, that he would not have entered a guilty plea but for the erroneous advice of his plea-stage counsel. Romero at ¶ 16; Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Based on the record befo re us, we conclude that Bozso has not demonstrated prejudice arising from his coun sel’s deficient performance. We therefore reverse the judgment of the Eighth D istrict Court of Appeals and reinstate Bozso’s convictions.
I. FACTS AND PROCEDURAL BACKGROUND {¶ 4} Bozso, a Romanian citizen, was admitted to the United States in 1986 as a refugee. He has been a lawful permanent resident of the U nited States since
1987. {¶ 5} In June 2016, a Cuyahoga County Grand Jury returned an 18-count indictment against Bozso for the alleged rape of two victims in June 1996 and inJanuary Term, 2020

3 November 1996. For the June 1996 incident, which involved a 12 -year-old female victim, the indictment charged B ozso with six counts of rape (a ll first-degree felonies), three counts of gross sexual imposition (third- and fourth-degree felonies), six counts of complicity, and one count of kidnappin g (a first-degree felony). For the November 1996 incident, which involved an adu lt female victim, the indictment charged Bozso with one count of rape and one cou nt of kidnapping (both first-degree felonies). T he indictment alleged that Bozs o used or carried a firearm while committing both November offenses and included a one-year and three-year firearm specification for each count. {¶ 6} After negotiations with the state, Bozso pleaded guilty in Nove mber
2016 to one count of sexual batte ry and one count of attempted abduction. The record before us contains no transcript of the plea hearing. W e therefore do not
know what the trial c ourt actually said to Bozso as part of its required plea colloquy
under Crim.R.11. But the November 8, 2016 nunc pro tunc entry journalizing the plea notes Bozso’s noncitizen status and indicates that the tri al court gave Bozso an advisement in accordance with R.C. 2943.031. That statute requ ires trial courts to advise a noncitizen defendant prior to accepting a guilty or no -contest plea to a felony (or misdemeanor other than a minor misdemeanor) that ent ering the plea “ ‘may have the consequences of deportation’ ” from the United States. R.C. 2943.031(A). {¶ 7} The trial court sentenced Bozso to one year of prison for each count but suspended the sentences and imposed two years of probation for each
conviction. {¶ 8} In January 2017, the United States Department of Homeland Secur ity issued a notice initiating deportation proceedings against Bozs o under Section 237(a)(2)(A)(ii) and (iii) of the Immigration and Nationality A ct (“INA”). 8 U.S.C. 1227(a)(2)(A)(ii), (iii). These p rovisions authorize the remov al of any noncitizen
convicted of two or more crimes involving moral turpitude, not arising out of aS UPREME C OURT OF O HIO

4 single scheme of criminal misconduct, id. at Section 1227(a)(2)(A)(ii), or convicted of an aggravated felony, id . at Section 1227 (a)(2)(A)(iii). The notice cited Bozso’s
November 2016 convictions for sex ual battery and attempted abdu ction and an
additional convicti on in 2001 for attempted the ft as the bases for deportation. {¶ 9} In June 2017, Bozso filed a moti on to withdraw his November 201 6 guilty pleas on the grounds that his counsel provided improper advice as to the potential immigration consequences of his pleas. In support of the motion, Bozso attached his own affidavit, in which he says that he was inform ed at the time of entering his pleas that INA Sec tion 212(c) would provide potent ial relief from deportation or immigration consequences of his guilty plea. Bo zso states that he later learned he had been misinformed and that Section 212(c) w ould not provide him any relief. Bozso also states that he would not have plead ed guilty had he
known that relief was unavailable to him. {¶ 10} Former INA Section 212(c) gave th e United States Attorney Gener al discretion, upon application, to w aive deportation for certain lawful permanent residents, including those who had committed an aggravated felo ny. In 1996, Congress repealed Section 212(c), effective April 1, 1997. Ill egal Immigration Reform and Immigrant Responsibilit y Act of 1996, Division C of Pub. L. No. 104- 208, 110 Stat. 3009-546 (enacted September 30, 1996), Section 3 04(b). The United States Supreme Court held, however, that the repeal of Section 212(c) does not apply retroactively, and discre tionary relief under Section 212 (c) remains available to noncitizens “whose convictions were obtained through plea ag reements and who, notwithstanding those convictions , would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.” Immigration & Naturalization Serv. v. St. Cyr , 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), superseded by statute on other grounds as stated in Nasrallah v. Barr , ___ U.S. ___, 140 S.Ct. 1683, 207 L.Ed.2d 111 (2020). A lawful permanen t resident who pleaded guilty to a deportable crime before April 1, 1997, the effective date of theJanuary Term, 2020

5 provisions repealing Section 212(c), might be eligible for the waiver. But since Bozso entered his guilty plea in 2016, he was not eligible for any relief under Section 212(c). {¶ 11} In June 2017, the trial court held a hearing on Bozso’s motion to withdraw his guilty pleas. Bozso did not call any witnesses. The state called as a witness Bozso’s plea-stage counsel , who testified that he consu lted with an immigration attorney as to the possible immigration consequence s of Bozso entering a plea agreement. Bozso’s plea-stage counsel testifie d that on September 21, 2016, the consulting immigration attorney sent him the foll owing e-mail:

The sex offense conviction w ill lead to the client being placed into deportation. As an agg ravated felony, the client w ould be subject to mandatory detention while the case proceeds throu gh the immigration court. As a very preliminary conclusion, I wou ld
state that if the June date is adhered to rather than the Novem ber case, that the client would have some relief available to him. Specifically, 212(c) relief. This relief is discretionary to t he court and by no means should the client believe that it is assured th at he would not be ordered deported as a result of a conviction for t his
offense. I will supply a more comprehensive advisement for you shortly.

{¶ 12} Bozso’s plea-stage counsel testified that if the immigration at torney later provided Bozso a more compl ete advisement, it went direct ly to Bozso without counsel’s knowledge. Counsel also testified that the trial cou rt judge read verbatim the required statutory adviseme nt in R.C. 2943.031(A) advising Bozso of the possible consequences of his pl ea. The state attempted to elic it testimony fromS UPREME C OURT OF O HIO

6 Bozso’s counsel as to the primary concern driving Bozso’s decis ion to enter a guilty plea. Counsel invoked attorney-client privilege and refused to answer. As a result, there is no testimony, aside from the statements in his affidav it, as to Bozso’s motives for entering his guilty pleas. {¶ 13} About a month after the hearing, the trial court denied Bozso’s motion to withdraw the guilty ple as. The court concluded that the advisement from the consulting immigration attorney “makes it clear that [Bozso ] should not have relied upon the possibility that he would obtain relief from de portation, and that his doing so appears to have been a case of hope over reality.” {¶ 14} The Eighth District reversed the judgment of the trial court. The court of appeals applied the Strickland two-part test to determine the deficiency of counsel’s performance and the pr ejudice arising from that defic iency. On the first prong, the court concluded that the law is “ ‘succinct and stra ightforward’ ” that relief under INA Section 212(c) was not available to Bozso and that counsel was therefore “deficient for not definitely determining the deporta tion consequences” of Bozso’s plea. 2018-Ohio-1750 at ¶ 20, citing Padilla , 559 U.S. at 369, 130 S.Ct. 1473, 176 L.Ed.2d 284. The Eighth District also concluded that Bozso’s affidavit was sufficient to establish that counsel’s deficient performanc e prejudiced him,
since he averred that he “ would not have pled guilty * * * had he known that relief from immigration consequences pursuant to INA § 212(c) was whol ly unavailable
to him.” Id . at ¶ 24. {¶ 15} This court accepted the state’s d iscretionary appeal, held the matter for our decision in State v

. Romero , and stayed briefing. 2018-Ohio-4092. After
the release of our decision in Romero , we lifted the stay and ordered briefing. 2019- Ohio-2496. The state’s appeal pr esents one proposition of law:

A trial court does not abuse its d iscretion when it denies a no ncitizen defendant’s motion to withdraw his guilty plea where, p riorJanuary Term, 2020

7 to entering a guilty plea, the trial court had complied with Cr im.R. 11 and provided the deportation advisement pursuant to R.C. 2943.031, and when counsel had warned defendant that his guilty plea would place him into deportation proceedings with limited options for relief.

II. ANALYSIS {¶ 16} As we summarized earlier in this opinion, the two-prong test ap plied
in Romero , 156 Ohio St.3d 468, 2019-Ohio-1839, 129 N.E.3d 404, governs w hether a noncitizen criminal defendant may withdraw a guilty plea on t he grounds that his attorney failed to advise him of the adverse immigration conseq uences of his plea.
Id. at ¶ 3. A. The deficient-p erformance prong {¶ 17} First, the defendant must show t hat counsel’s performance was
deficient. Id. at ¶ 15, citing Strickland , 466 U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. When an attorney’s noncitizen client is considering a ple a, counsel must advise the client whether the plea carries a risk of deportatio n. Id. , citing Padilla , 559 U.S. at 374, 130 S.Ct. 1473, 176 L.Ed.2d 284. We have ackn owledged that immigration law can be complex and that the deportation consequ ences of a particular plea will not always be clear. Id . at ¶ 26, citing Padilla at 369. In cases when the law “is not succinct and straightforward,” an attorney “need do no more
than advise a noncitizen client t hat pending criminal charges m ay carry a risk of adverse immigration consequences.” Padilla at 369

. “But when the deportation consequence is truly clear, * * * the duty to give correct advi ce is equally clear.”
Id. {¶ 18} The Eighth District concluded that counsel’s performance was deficient because the law was “succinct and straightforward” th at relief under INA Section 212(c) was not available to Bozso. In its jurisdiction al memorandum, theS UPREME C OURT OF O HIO

8 state argued that the Eighth District erred because the law was not clear as to Bozso’s eligibility for relief under Section 212. The state, h owever, has abandoned that argument in its merit brie f and addresses only the second prong under
Strickland . We therefore assume that the state no longer challenges the Eighth District’s finding that Bozso satisfied the first prong. See E. Liverpool v. Columbiana Cty. Budget Comm. , 116 Ohio St.3d 1201, 2007-Ohio-5505, 876 N.E.2d 575, ¶ 3 (argument not raised in party’s brief is deemed abandoned). We therefore turn to the question whether Bozso has satisfied the second prong of his
ineffective-assistance claim. B. The prejudice prong {¶ 19} To establish prejudice under the second prong of Romero , Bozso must show that there is “ ‘a reasonable probability that, but f or counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” Romero , 156 Ohio St.3d 468, 2019-Ohio-1839, 129 N.E.3d 404, at ¶ 16, qu oting Hill , 474 U.S. at 59, 106 S.C t. 366, 88 L. Ed.2d 203 . As set out in Lee v. United States , ___ U.S. ___, 137 S.Ct. 1958, 1965-1969, 198 L.Ed.2d 476 (2017), an d in Romero at ¶ 29-33, courts should consider v arious factors to determine wh ether a defendant has demonstrated prejudice resulting from counsel’s erroneous a dvice. When considering those factors, we fi nd that the evidence here does not support a finding of prejudice. 1. The defendant’s connections to the United States {¶ 20} Bozso was admitted to the United States as a refugee from Roman ia in 1986 when he was 21 years old. He has resided in this count ry for over 30 years and for nearly all of his adult life. If Bozso’s connections t o the United States were the only factor, it would be rea sonably probable to find that B ozso would not have pleaded guilty had he known it would lead to deportation.January Term, 2020

9 2. The importance that the defe ndant placed on avoiding deportation

{¶ 21} Next, we consider evidence of the importance that Bozso placed on avoiding deportation as the motive for pleading guilty. See Romero at ¶ 31, citing
Lee at ___, 137 S.Ct. at 1967-1968. In his affidavit in support of his motion to withdraw his guilty pleas, Bozso states that he would not have pleaded guilty had he known that relief from deportation was not available to him under INA Section 212(c). Courts, however, “should not upset a plea solely becau se of post hoc
assertions from a defendant about how he would have pleaded but for his attorney’s
deficiencies.” Lee at ___, 137 S.Ct. at 1967; accord Romero at ¶ 28. We must look to contemporaneous evidence that substantiates Bozso’s statemen t. Lee at ___, 137 S.Ct. at 1967; accord Romero at ¶ 28. And we find that evidence lacking here. {¶ 22} In Lee , the record contained at least three sources of contemporaneous evidence showing that deportation was the deter minative issue in
the defendant’s decision whether to enter a guilty plea. First , Lee himself testified at the evidentiary hearing on his motion to withdraw his plea. Id. , ___ U.S. at ___, 137 S.Ct. at 1963, 198 L.Ed.2d 476. Lee’s testimony establishe d that he repeatedly asked his attorney whether there was any risk of deportation an d that his attorney became upset when Lee repeatedly inquired about his immigration status. Id

. According to Lee, his attorney assured him that there was nothi ng to worry about and incorrectly advised him that if deportation was not in the plea agreement, the government could not deport him. Id

. {¶ 23} Second, Lee’s plea-stage counsel a lso testified at the hearing and acknowledged that if he had known Lee would be deported upon pl eading guilty, he would have advised him to go to trial. Id. {¶ 24} And finally, the record of Lee’s plea colloquy demonstrated tha t he
did not understand the trial cour t’s advisement that pleading g uilty could result in deportation. Id . at 1968. When the trial court judge asked how the advisement affected his decision, Lee responded, “ ‘I don’t understand.’ ” Id. When Lee turnedS UPREME C OURT OF O HIO

10 to his counsel for advice, the attorney assured him the judge’s statement was only a standard warning. Id. The court concluded that the record contained “substantial and uncontroverted evidence” that but for his counsel’s errors, Lee would not have pleaded guilty. Id . at ___, 137 S.Ct. at 1969. {¶ 25} We point to Lee not to demand, as the dissent contends, that Bozso must present evidence just as g ood as the “substantial and unco ntroverted” evidence that supported Lee’s motion to withdraw his guilty plea. Rathe r, Lee presents examples of the types of contem poraneous evidence that would su pport a defendant’s statement t hat he would have rejected a plea offer but for counsel’s deficient performance. {¶ 26} Bozso has not presented any contemporaneous evidence that avoiding deportation motivated h is decisionmaking process at or around the time he entered his guilty pleas. Unlike the defendant in Lee , Bozso did not appear at the hearing on his motion to withdraw his guilty plea. Nor did he call any witnesses. According to Bozso’s appellate counsel, who also represented hi m at the hearing on his motion to withdraw the guilty pleas, Bozso was detained by immigration officials at the time of his hearing. But counsel also concede s that he did not seek leave to transport Bozso to the hearing, and he affirmatively w aived Bozso’s presence at the hearing. {¶ 27} At the evidentiary hearing, the state attempted to elicit testi mony from Bozso’s plea-stage counsel as to the primary concern drivi ng Bozso’s decision to enter a guilty plea. Counsel declined to answer on the grou nds of attorney-client privilege. Bozso was not present at the hearing, but he had no t waived the attorneyclient privilege beforehand. As a result, Bozso forfeited the opportunity to present the evidence most likely to suppor t (or contradict) his claim—t he discussions he had with counsel leading to his decision to accept the plea agr eement instead of going to trial.January Term, 2020

11 {¶ 28} After negotiations with the state, Bozso pleaded guilty to one count of sexual battery and one count o f attempted abduction. Bozso decided to plead guilty to sexual battery even t hough the immigration lawyer con sulting with Bozso’s plea-stage counsel advise d them that a “sex offense con viction” constitutes a conviction for an aggravated f elony that will “subject [Bozso ] to mandatory
detention.” While the immigration attorney may have been mista ken about the possibility of relief from depor tation under INA Section 212(c) , he advised Bozso that he was offering a “very preliminary conclusion” that requi red a “more comprehensive advisement.” In no uncertain terms, the attorney also advised Bozso that relief under Section 212(c) is “discretionary” and “ by no means should
the client believe that it is assured that he would not be orde red deported as a result of a conviction for this offense.” Despite these unequivocal a nd specific warnings, Bozso still decided to enter a guilty plea for a deportable cri minal offense. {¶ 29} When a defendant claims that he would not have entered a guilty plea but for the ineffective a ssistance of counsel, the prejudi ce inquiry “focuses on a defendant’s decisionmaking.” Lee , ___ U.S. at ___, 137 S.Ct. at 1966, 198 L.Ed.2d 476, citing Hill , 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203. Bozso presents no contemporaneous evide nce that but for his counsel’s erroneous advice,
he would have made a different decision. 3. Judicial advisement of immigration consequences {¶ 30} We also conclude that the tria l court’s advise ment about the immigration consequences of the defendant’s plea weighs against a finding of prejudice. Romero , 156 Ohio St.3d 468, 2019-Ohio-1839, 129 N.E.3d 404, at ¶ 33. We do not know what actually happened at Bozso’s plea hearing b ecause we do not have a transcript. But the November 8, 2016 nunc pro tunc entry journalizing his plea indicates that the trial court gave Bozso the required advisement in R.C. 2943.031 warning Bozso of the possible immigration consequences of entering a guilty plea. Bozso’s plea-stage counsel also testified at the hearing on the motionS UPREME C OURT OF O HIO

12 to withdraw the pleas that the trial court read “verbatim” the required statutory
advisement and was “careful” t o inquire if Bozso “really unders tood the import of what that statutory language meant.” In contrast to Lee , there is nothing in the record to suggest that Bozso did not understand the trial court ’s advisement that entering a guilty plea could result in deportation. 4. The consequences of going to trial {¶ 31} We also consider the consequences that Bozso would have faced i f he had gone to trial. See Romero at ¶ 30. And we conclude t hat this factor weighs against a finding of prejudice. G iven the seriousness of the c harges against Bozso, the consequences of taking a chance at trial were “markedly har sher than pleading.”
Lee , __U.S. ___, 137 S.Ct. at 1969, 198 L.Ed. 2d 476. Bozso faced 18 counts including first-degree-felony rape, gross sexual imposition, co mplicity, and firstdegree-felony kidnapping. Some of the charges carried the poss ibility of life sentences with additional prison time for firearms specificatio ns for the rape and kidnapping of Jane Doe 2. By pleading guilty to one count of s exual battery and one count of attempted abduction, Bozso significantly reduced h is exposure to prison time. Given that he ultima tely succeeded in avoiding a prison sentence altogether, Bozso’s decision to e nter a plea rather than take h is chances at trial does
not seem irrational. {¶ 32} While Bozso argues in passing in his motion for withdrawing his guilty pleas that he would have been successful at trial, he di d not present any evidence or testimony supporting that conclusory statement. Th e dissent speculates that the trial court might have dismissed Bozso’s charges in re sponse to one of Bozso’s three motions to dismiss arguing preindictment delay or that a jury could have acquitted Bozso because DNA tests excluded Bozso as a cont ributor in one of his cases. The record suggests, however, that Bozso may not ha ve been entirely confident about his likelihood of success. After filing each o f his three motions toJanuary Term, 2020

13 dismiss, Bozso sought continuances to pursue plea negotiations with the state; the
court’s entries reflect at least seven continuances at the requ est of the defendant. {¶ 33} But more importantly, none of these arguments is properly befor e us. Aside from a passing reference to the exclusion of Bozso’s DNA in one of the cases, counsel did not present any of these arguments to the tr ial court in the evidentiary hearing on Bozso’s motion to withdraw his pleas. T his is the extent of what counsel argued would likely have happened if Bozso had gon e to trial instead of pleading guilty:

As far as the evidence in these cases, there were two alleged victims. I have not seen all the discovery. In the one matter his DNA was not involved. There were conflicting state— [Interjections by opposing counsel and the court.] Conflicting statements in the matter. There were issues surrounding the other alleged victim, your Honor. * * * It mi ght be rational for someone who is absolutely going to be deported, is going to have no possibility of r elief, to reject a plea agreem ent and
take his chances at trial.

{¶ 34} Given our limited role as a reviewing court, “[w]e are not obli gated
to search the record or formulate legal arguments on behalf of the parties.” State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 19. And we can hardly find that the trial court abused its discretion in d enying Bozso’s motion to withdraw his pleas based on grounds that his counsel never p resented to the trial

court. See Romero , 156 Ohio St.3d 468, 2019-Ohio-1839, 129 N.E.3d 404, at ¶ 13 (a trial court’s decision on a mo tion to withdraw a plea is rev iewed under an abuseof-discretion standard).S UPREME C OURT OF O HIO

14 {¶ 35} Since counsel did not present a ny supporting contemporaneous evidence at the hearing, we can only speculate as to the factor s that went into Bozso’s decisionmaking process. Accordingly, we conclude that Bozso has not met his burden of demonstrating that but for his counsel’s erro neous advice as to the possibility of relief from deportation under INA Section 21 2(c), he would not have pleaded guilty and would ha ve insisted on going to trial. The Eighth District erred in concluding otherwise.
III. CONCLUSION {¶ 36} Based on the record before us, we conclude that Bozso has not m et his burden of establishing that h e would not have entered a gui lty plea but for the erroneous advice of his plea-stage counsel. We therefore rever se the Eighth District’s judgment and reinstat e the trial court’s judgment of conviction.

Judgment reversed.
O’C ONNOR , C.J., and K ENNEDY , F ISCHER , and D E W INE , JJ., concur.
D ONNELLY , J., dissents, with an opinion joined by S TEWART , J.

_________________ D ONNELLY , J., dissenting. {¶ 37} Respectfully, I dissent. When defendant-appellee, Emeric Bozso , was advised to plead guilty to criminal charges in 2016, there was a solid chance that the case against him would have ended in dismissal or acqu ittal. An e-mail exchange that was contemporaneous with Bozso’s guilty plea demo nstrated that Bozso’s risk of deportation was a central concern. Bozso was e rroneously led to believe that he had the possibility of discretionary relief fro m deportation under Section 212(c) of the Immigrati on and Nationality Act (“INA”), 8 U.S.C. 1182(c) (repealed Sept. 30, 1996), which historically was “one of the p rincipal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial,” Immigration & Naturalization Serv. v. St. Cyr , 533 U.S. 289, 323, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), superseded by statute on other grounds asJanuary Term, 2020

15 stated in Nasrallah v. Barr , ___ U.S. ___, 140 S.Ct. 1683, 207 L.Ed.2d 111 (2020). Deportation not only would cause B ozso to lose his permanent-re sidency status, but it also would separate him from his partner of 27 years, hi s five children, his friends, and his home, and from ad equate medical care for his s erious health conditions. Given the foregoing, it would have been abundantly rational for Bozso to choose to go to trial instead of pleading guilty. Because t here is a reasonable probability that Bozso would not have pleaded guilty but for th e erroneous advice he received regarding the possibility of relief from deportatio n, his plea-withdrawal motion should have been granted. We should affirm the judgment of the Eighth District Court of Appeals. {¶ 38} If not through outright affirm ance, this case should be resolve d through dismissal as having been improvidently allowed. Now th at we have fully examined the merits of this case, it is clear that its consider ation by this court should
have ended after we released our decision in State v. Romero , 156 Ohio St.3d 468, 2019-Ohio-1839, 129 N.E.3d 404. In Romero , we provided valuable guidance regarding the standards that apply when a noncitizen criminal d efendant seeks to withdraw a guilty plea based on the claim that defense counsel misinformed the defendant about the immigration c onsequences of the plea. In t his case, the Eighth District Court of Appeals applied the very standards that we la ter promoted in
Romero : it rejected the notion that a trial court can automatically c ure the prejudice arising from defense counsel’s misinformation with a general ad visement pursuant to R.C. 2943.031(A) and correctly noted that the reasonableness of a defendant’s decision to reject a plea deal is assessed by looking at the ci rcumstances of the
defendant’s case. See Romero at ¶ 19, 29. But the majority does not like how the Eighth District applied those standards to the specific facts o f Bozso’s case and has taken upon itself to provide error correction. In doing so, th e majority commits rather than corrects any errors.S UPREME C OURT OF O HIO

16 I. Prejudice prong—analytical standards {¶ 39} The prejudice prong for challenges to guilty pleas based on cla ims
of ineffective assistance of c ounsel requires a defendant to “s how that there is a reasonable probability that, but for counsel’s error s, he would not have pleaded guilty and would have insisted on going to trial.” (Emphasis a dded.) Hill v.
Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The m ajority subtly moves away from the correct prejudice standard by repeat edly omitting the essential words “reasonable pr obability” throughout its analysi s and by emphasizing that Bozso’s evidence is not as good as the “ ‘subs tantial and
uncontroverted’ ” evidence that supported the withdrawal of a g uilty plea in Lee v.
United States , ___ U.S. ___, 137 S.Ct. 1958, 198 L.Ed.2d 476 (2017). Majori ty at ¶ [page 14, line 12], quoting Lee at ___, 137 S.Ct. at 1969. A reasonable probability is simply one that is “sufficient to undermine confidence in th e outcome.” Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The reasonable-probability standard is a lower standar d than preponderance of the evidence. See Williams v. Taylor , 529 U.S. 362, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Nix v. Whiteside , 475 U.S. 157, 175, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986). Neither substantial evidence nor s tringent but-for causation are required to satis fy the prejudice prong of Strickland

. {¶ 40} Additionally, in the context of guilty pleas, the prejudice inq uiry
often centers on whether “a decision to reject the plea bargain would have been rational under the circumstances,” (emphasis added) Lee at ___, 137 S.Ct. at 1968, quoting Padilla v. Kentucky , 559 U.S. 356, 372, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The majority flips this inquiry on its head by examini ng the rationality of
Bozso’s decision to accept a plea bargain. It looks like he got a pretty good deal,
so what does it matter if he did not understand that he had zer o chance of staying in the country? It matters quite a bit. If a defendant has be en misinformed about facts that are critical to his decision to plead guilty, then h is plea is not knowing,January Term, 2020

17 voluntary, or intelligent, let alone rational. See State v. Engle , 74 Ohio St.3d 525, 528, 660 N.E.2d 450 (1996). It does not comport with due proce ss to conclude that there was no prejudice—despite the fact that the defendant was misinformed about a critical issue—just because some of the plea terms unrelated to that issue were favorable to the defendant. Our role in this aspect of the inq uiry is to determine whether rejecting a guilty plea would have been a rational choi ce, not whether it
was the only rational choice or the best possible choice. {¶ 41} Considering the foregoing standards, as well as the factors des cribed
in Lee at ___, 137 S.Ct. at 1965-1969, and Romero , 156 Ohio St.3d 468, 2019- Ohio-1839, 129 N.E.3d 404, at ¶ 29-33, Bozso’s decision to reje ct the plea bargain offered by the state would have been rational under the totalit y of the specific circumstances of his case. Bozso presented enough evidence to undermine confidence in his guilty plea, and thus he has shown that there is a reasonable probability that he would not have entered a guilty plea but fo r the erroneous advice
he received.
II. Factors under Lee and Romero {¶ 42} As the majority has already described, there are circumstances that are particularly important to c onsider when determining whether a noncitizen defendant has demonstrated pre judice resulting from counsel’s e rroneous advice about the immigration consequences of a guilty plea. The facto rs that should be considered among the totality of the circumstances are the defe ndant’s ties to the United States, the importance that the defendant placed on avoi ding deportation, judicial advisement of immigration consequences, and the conseq uences of going
to trial. Romero at ¶ 29-33; see also Lee , ___ U.S. at ___, 137 S.Ct. at 1965-1969, 198 L.Ed.2d 476. The totality of the se factors weighs strongly in Bozso’s favor.
A. Connections to the United States {¶ 43} The majority aptly notes the strong ties that Bozso has with th e United States. He was admitted to the United States as a refug ee from Romania inS UPREME C OURT OF O HIO

18 1986 when he was 21 years old, and he has lived in the United S tates almost all of his adult life. He has many ties to the United States that he lacks in Romania, including his partner of 27 years, his five children, and frien ds. I have no quarrel with the majority regarding this first factor, but I disagree t hat it is the only factor that weighs in Bozso’s favor. B. The importance placed on avoiding deportation {¶ 44} When a noncitizen defendant cla ims that he would not have enter ed a guilty plea but for the errone ous deportation information tha t he received, that claim must be backed up by more than a bald, post hoc assertion

. See Lee at ___,
137 S.Ct. at 1967. B ut a defendant cannot be expected to make a record of the fact
that he has been misinformed about a crucial issue at the time he is operating under that misinformation. Thus, Bozso’s post hoc claim does not nec essarily need to be substantiated with direct, airtight evidence that was placed on the record contemporaneously with his plea proceeding, which in and of its elf proves that the erroneous deportation in formation was the determinative factor in his plea. Instead, it must be possible for Bozso to make a showing of prejudice ba sed on circumstantial contemporaneous e vidence that tends to support t he conclusion that he placed special importance on deportation-relief eligibility when deciding whether to plead guilty. See Lee at ___, 137 S.Ct. at 1965-1966, discussing Hill , 474 U.S. at 60, 106 S.Ct. 366, 88 L.Ed.2d 203. {¶ 45} In support of his motion to withdraw his guilty plea, Bozso pre sented evidence that was contemporaneous with his 2016 criminal procee dings and that demonstrated that his chances of relief from deportation were o f utmost concern. On September 21, 2016, the morning of what was intended to be t he final pretrial for Bozso’s case, his defense counsel e-mailed the immigration attorney with whom
Bozso had consulted. That e-mail read, in part:January Term, 2020

19 I referred this cold case rape non-citizen defendant to you for your opinion as to what I could plead him to and keep him in the cou ntry. I know you met with him and we have a final pretrial today and I thought I would get your opinion but have heard nothing. * * * Can you please call me on my cell or text me or ema il me ASAP.

{¶ 46} The immigration attorney responded that the offenses would definitely cause Bozso to be placed in deportation proceedings. But the immigration attorney’s conclusion, albeit “very preliminary,” w as that “the client would have some relief available to him. Specifically, [INA Se ction] 212(c) relief,” based on the dates on which the offenses were allegedly committ ed. The attorney cautioned that relief from depor tation was not guaranteed under INA Section 212(c) and instead was at the discretion of the court. The immigratio n attorney’s e-mail concludes by stating, “I will s upply a more comprehensive advis ement for you shortly.” But he never provided the promised comprehensive adv isement to Bozso’s defense attorney. {¶ 47} The majority indicates that the foregoing e-mail exchange does not constitute adequate contemporaneous evidence when compared to Lee and emphasizes that the evidence in Lee was “backed by substantial and uncontroverted evidence,” id ., ___ U.S. at ___, 137 S.Ct. at 1969, 198 L.Ed.2d 476. But th e object
of Lee was not to set a standard amount of contemporaneous evidence th at would be enough to establish a noncitizen defendant’s claim that immi gration consequences were important to a defendant. Rather, Lee disabused us of the notion that a claim fails per se if the defendant has almost no chance of prevailing at the criminal trial and clarified that plea-withdrawal motions by no ncitizen defendants are decided on a case-by-case basis, by looking at the totality of the circumstances and by focusing on the individual defendant’s decisionmaking pr ocess. Lee at ___,S UPREME C OURT OF O HIO

20 137 S.Ct. at 1966. Even so, the contemporaneous evidence in Bo zso’s case is in fact stronger than the evidence in Lee. {¶ 48} Although there was plenty of ad hoc testimony supporting Lee’s motion to withdraw his guilty plea, only one piece of evidence was actually created contemporaneously with the criminal proceeding leading up to Le e’s convictions: the plea colloquy, during which Lee said he did not understand the judge’s explanation that there were pot ential deportation consequences of pleading guilty.
See id . at ___, 137 S.Ct. at 1968. The fact that a defendant does no t understand part of a plea colloquy in no way proves that the misunderstood port ion was actually important to the defendant, let alone important enough to be th e decisive factor in the defendant’s agreement to a plea deal. In Bozso’s case, by contrast, his contemporaneous evidence directly addressed the fact that the p ossibility of avoiding deportation was a key fa ctor that Bozso considered lea ding up to his decision to agree to a plea deal . It does not seem too far a s tretch to imagine that immigration consequences would be a pivotal factor in any nonci tizen’s decision to plead guilty to a criminal offense, given that “[d]eportatio n can be the equivalent of banishment or exile,” Delgadillo v. Carmichael , 332 U.S. 388, 391, 68 S.Ct. 10, 92 L.Ed. 17 (1947). {¶ 49} The majority is able to dismiss Bozso’s contemporaneous evidenc e regarding the importance he pl aced on immigration consequences by shifting the focus to the uncertainty of the immigration attorney’s advice i n response to Bozso’s concerns. And in focusing on that response, the majority indic ates that Bozso could not possibly rely on the mere cha nce of “discretionary” relief from deportation as a reason to enter a plea deal. But if we are “asking what an ind ividual defendant would have done, the possibility of even a highly improbable re sult may be pertinent to the extent it would have affected his decisionmaki ng.” Lee at ___, 137 S.Ct. at 1967. It has already been established that there is a substantive difference between “facing possible depor tation and facing c ertain deporta tion.” St. Cyr , 533January Term, 2020

21 U.S. at 325, 121 S.Ct. 2271, 150 L.Ed.2d 347. Just as the rati onality of Lee’s decision to reject a plea agreement would not have turned solel y on the slim
likelihood of his success on the merits at trial, Lee at ___, 137 S.Ct. at 1966, here we should not say that Bozso’s d ecision would have turned solel y on his likelihood of success in an application for discretionary relief from depo rtation. {¶ 50} Further, if the advice to Bozso regarding the applicability of INA Section 212(c) had been correct, he would have had far more tha n a slim, highly improbable likelihood of obtaining relief from deportation. In the era when it still applied, relief was granted unde r Section 212(c) so frequently that “preserving the possibility of such relief would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead t o proceed to trial.” St. Cyr at 323. {¶ 51} The immigration advice upon whic h Bozso relied has been repeatedly recognized as having rightfully been pivotal to a no ncitizen’s decision to accept a plea deal. See Padilla , 559 U.S. at 368-369, 130 S.Ct. 1473, 176 L.Ed.2d 284. The majority is simply incorrect that a guilty plea in th e face of such advice
indicates that Bozso did not car e about being deported. Given the advice Bozso received, as well as the fact tha t he asked for immigration adv ice in the first place, this second factor weighs strongly in Bozso’s favor. C. Judicial advisement of immigration consequences {¶ 52} The trial court’s advisement pursuant to R.C. 2943.031(A) does not weigh for or against a finding that Bozso was prejudiced by his counsel’s erroneous advice. In fact, the advisement i s irrelevant given the specif ic facts of Bozso’s case. {¶ 53} The trial court’s verbatim r ecitation of R.C. 2941.031(A) would only
have informed Bozso that “convic tion of the offense to which yo u are pleading guilty * * * may have the consequences of deportation.” It is undisputed that Bozso was already aware that commencement of deportation proceedings against him was not only a possibility, but indeed a certainty. The decisive i nformation relevant toS UPREME C OURT OF O HIO

22 his plea, which is not addressed in R.C. 2943.031(A), was that Bozso had the possibility of obtaining relief from deportation pursuant to INA Section 212(c) once deportation was ordered. There was no possibility of curing co unsel’s erroneous advice to Bozso through the tri al court’s mere recitation of R. C. 2943.031. D. The consequences of going to trial {¶ 54} Although the final factor in this analysis looks to the potenti al consequences of going to trial, the majority erroneously jumps straight to the consequences of being convicted. The majority’s analysis gloss es over the fact that there are potential consequences of going to trial besides conv iction. It does so by focusing on the context of Lee , in which it was all but cer tain that the consequence of going to trial was a convic tion with a full sentence. But t hat is not the context here. And the context of the particular case being reviewed is extremely important. Although the defendant’s decisionmaking “may not turn solely on the likelihood of conviction after trial, ” (emphasis added) Lee , ___ U.S. at ___, 137 S.Ct. at 1966, 198 L.Ed.2d 476, the likelihood of c onviction or acquittal is n ot irrelevant. It is definitely to be considered, “because defendants obviously weig h their prospects at trial in deciding whether to accept a plea,” id. at ___, 137 S.Ct. at 1966. {¶ 55} In 2016, the state brought two sets of rape charges against Boz so just a few days short of the 20-year statute of limitations in the a pplicable prior version of R.C. 2901.13(A)(3). Many charges of this type in Cuyahoga C ounty originate from so-called “cold cases,” in which there was an unknown perp etrator at the time of the offense whose DNA was eventually linked to the offense w hen the victim’s rape kit was finally tested. See State v. Dixon , 2015-Ohio-3144, 40 N.E.3d 601, ¶ 13 (8th Dist.); State v. Jones , 2015-Ohio-2853, 35 N.E.3d 606, ¶ 18 (8th Dist.), judgment reversed by State v. Jones , 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688; State v. Powell , 2016-Ohio-1220, 61 N.E.3d 789, ¶ 5 (8th Dist.). But that is not how Bozso’s charges originated.January Term, 2020

23 {¶ 56} In the two rape cases alleged against Bozso, the accusers, T.C. and R.R., immediately reported their allegations to the police in 1 996. They both
identified Bozso as the assailant , and the police had contacted Bozso in both instances, but the state chose not to prosecute the cases for a lmost two decades. It appears that the state finally performed DNA testing on the 199 6 rape kit from R.R. around 2013 and on the 1996 rape kit from T.C. in 2016. The DN A tests matched other people and excluded Bozso as a contributor. {¶ 57} Soon after the charges were initiated against Bozso in 2016, he filed a motion to dismiss due to prejudi cial preindictment delay. No thing in the record
indicates that the trial court ruled on his motion. He filed s econd and third motions to dismiss, again with no indication of a ruling. According to the record before this court, all of his motions to di smiss due to preindictment delay were still pending
and had not received considerati on by the trial court or even a hearing when Bozso entered his plea. {¶ 58} Additionally, it is not clear from the record whether the alleg ed victims even planned to participate in the prosecution 20 years after they made their allegations. In an interview on January 6, 2015, investigators asked R.R. if she wanted to pursue charges against Bozso and she responded only t hat she would consult with her husband. Nothing in the record indicates that R.R. participated any further in the investigati on or subsequent prosecution. T. C. did provide information to the police during an interview on May 13, 2016, shortly before charges were filed. But investigators were not able to reach t he witnesses she identified. After Bozso pleaded guilty, neither R.R. nor T.C. responded to the state’s request for victim-impact statements. {¶ 59} Given this context of the state’s prosecution of its case again st Bozso, there was a distinct possibility that Bozso’s charges co uld have been dismissed or that he could have been acquitted had he proceeded to a jury trial. Was dismissal or acquittal a sure thing? Certainly not. But t here were strongS UPREME C OURT OF O HIO

24 indicators that the state would have had a tough time prevailin g if the charges against Bozso had proceeded to t rial. The plea offer alone is telling. . {¶ 60} Bozso originally faced 18 charges that included rape, complicit y, sexual battery, gross sexual i mposition, kidnapping, and attemp ted abduction, along with a few firearm specifi cations. Five months after bri nging the charges, the state offered to drop almost all of these charges in exchan ge for Bozso’s guilty plea to amended third-degree-felo ny counts of sexual battery an d attempted abduction. Bozso received suspended one-year prison sentences and was ordered to serve two years of probation on each count. The plea offer by the state is not the kind of plea offer provided when the state has any confidence t hat it could win the case. It is the kind of plea offer the state provides when it is confident that it will
lose and wants to see if it can cut its losses by making a coer cively lenient offer. {¶ 61} Because Bozso had a realistic c hance of prevailing in his case either at the motions stage or the tria l stage, this fourth factor wei ghs heavily in Bozso’s
favor.
III. Conclusion {¶ 62} The record in this case substantiated Bozso’s plea-withdrawal averment that he “would not have pled guilty to Sexual Battery and Attempted
Abduction had he known that re lief from immigration consequence s pursuant to INA §212(c) was wholly unavailable to him.” Of the four factor s that are particularly important to a de termination of prejudice from err oneous advice given to a noncitizen defendant about the immigration consequences of a guilty plea, one is irrelevant and the other three weigh decidedly in Bozso’s fa vor. It would have been rational for Bozso to have rejected the state’s plea offer , and there is a reasonable probability that, but for counsel’s errors, Bozso wo uld not have pleaded guilty and would have chosen to move forward in his case toward trial. Accordingly, I would affirm the judgment of the Eighth District Court of Appeals.
S TEWART , J., concurs in the foregoing opinion.January Term, 2020

25 _________________ Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Gregory Ochocki, Assistant Pros ecuting Attorney, for appellant. Daniel J. Misiewicz, for appellee.

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