Mejia-Paxtor v. Commonwealth

Full title: ABDIAS MEJIA-PAXTOR APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

Court: Commonwealth of Kentucky Court of Appeals

Date published: Jul 3, 2014

NO. 2012-CA-002196-MR (Ky. Ct. App. Jul. 3, 2014)

Opinion

NO. 2012-CA-002196-MR

07-03-2014

ABDIAS MEJIA-PAXTOR APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

BRIEF FOR APPELLANT: Carols D'Angelo Bailey Bowling Green, Kentucky ORAL ARGUMENT FOR APPELLANT: Carols D'Angelo Bailey Judy Freeman Schwank Bowling Green, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Wm. Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky ORAL ARGUMENT FOR APPELLEE: Wm. Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky

TAYLOR, JUDGE

NOT TO BE PUBLISHED APPEAL FROM WARREN CIRCUIT COURT
HONORABLE STEVE ALAN WILSON, JUDGE
ACTION NO. 10-CR-00317
OPINION
AFFIRMING IN PART, VACATING IN PART,
AND REMANDING
BEFORE: CLAYTON, JONES, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Abdias Mejia-Paxtor brings this appeal from a December 18, 2012, order of the Warren Circuit Court denying his motion pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 and Kentucky Rules of Civil Procedure (CR) 60.02 to set aside his guilty plea and sentence of imprisonment. We affirm in part, vacate in part, and remand.

Appellant was indicted by a Warren County Grand Jury upon three counts of criminal abuse in the second degree. Pursuant to a plea agreement with the Commonwealth, appellant entered a guilty plea to all three counts of second-degree criminal abuse. On June 14, 2011, the circuit court sentenced appellant to five-years' imprisonment probated for a period of five years.

Thereafter, on August 10, 2012, appellant filed an RCr 11.42 and a CR 60.02 motion alleging that trial counsel failed to adequately inform him of the adverse immigration consequences of his guilty plea and cited to Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). The circuit court conducted an evidentiary hearing and denied appellant's motion by order entered December 18, 2012. In its order denying appellant's motion, the court concluded:

[C]ounsel for the defendant, Roger Bryant, adequately informed as did the Court on the possibility of deportation ramifications on this defendant. Padillo states that the defendant must be warned as to the possibility of deportation not the guarantee of it.

This appeal follows.

Appellant contends that the circuit court erred by denying his RCr 11.42 and CR 60.02 motion to set aside his guilty plea and sentence of imprisonment. Appellant asserts he was not adequately informed by trial counsel that his conviction for criminal abuse would subject him to mandatory deportation. Appellant maintains that his trial counsel was ineffective for failing to so advise him before entering the guilty plea. Conversely, the Commonwealth contends that appellant was informed of the potential risk of deportation before he pleaded guilty:

[T]he Order on Plea of Guilty specifically, required appellant to acknowledge the waiver of his constitutional rights. Further by signing the order in open court and with the assistance of counsel, appellant specifically acknowledged that, "I understand that if I am not a United States citizen, I may be subject to deportation pursuant to the laws and regulations governing the United States Immigration and Customs Enforcement." (citations omitted.)

Commonwealth's Brief at 2. And, before accepting appellant's guilty plea, the Commonwealth pointed out that trial court informed appellant:

[I]t's also important for me to tell you because you're entering a plea of guilty, this could effect you [sic] ability to stay in the United States, okay. I don't have any control over that, neither does Mr. Cohron [Commonwealth Attorney] or Mr. Bryant [appellant's attorney], that's up to the federal government.

Commonwealth's Brief at 6. The Commonwealth also relies upon the testimony of appellant's trial counsel; trial counsel testified that he informed appellant he was unaware of the effect of the guilty plea on appellant's immigration status because he was not an immigration attorney.

In Padilla, 559 U.S. 356, the United States Supreme Court addressed this very issue:

Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea
are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by Justice ALITO), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

Id. at 369 (footnote omitted). Under Padilla, 559 U.S. 356, trial counsel's duty is to accurately inform a defendant of the adverse immigration consequence when the law is "succinct and straightforward" concerning same. However, when the immigration consequence of a guilty plea is unclear or uncertain under the law, trial counsel's only duty is to inform defendant of the potential risk to his immigration status. Padilla, 559 U.S. 356.

In this case, appellant was only informed of the potential risk of adverse immigration consequences. Trial counsel admitted that he was uncertain as to the immigration consequence of the guilty plea and informed appellant of same.

Accordingly, the pivotal question presented is whether the adverse immigration consequence of appellant's guilty plea was legally straightforward or legally uncertain to a reasonable defense attorney. This precise question was not decided by the circuit court, so we must vacate the circuit court's order denying appellant's RCr 11.42 motion and remand for reconsideration.

Upon remand, the circuit court shall determine whether trial counsel rendered ineffective assistance by failing to inform appellant of the adverse immigration consequence following his guilty plea. If the circuit court finds that the adverse immigration consequence was straightforward under the law to a reasonable attorney, trial counsel rendered ineffective assistance. See Padilla, 559 U.S. 356. On the other hand, if the circuit court finds that the adverse immigration consequence was uncertain under the law to a reasonable attorney, trial counsel did not render ineffective assistance. See Padilla, 559 U.S. 356. Also, we direct that appellant shall be provided the aid of an interpreter at all subsequent proceedings on remand.

As to appellant's CR 60.02 motion, we do not believe that appellant's allegations of error are cognizable under this rule. See Meredith v. Com., 312 S.W.2d 460 (Ky. 1958). We, thus, conclude the circuit court properly denied the CR 60.02 motion.

For the foregoing reasons, the order of the Warren Circuit Court is affirmed in part, vacated in part, and this cause is remanded to the circuit court for proceedings consistent with this opinion.

ALL CONCUR. BRIEF FOR APPELLANT: Carols D'Angelo Bailey
Bowling Green, Kentucky
ORAL ARGUMENT FOR
APPELLANT:
Carols D'Angelo Bailey
Judy Freeman Schwank
Bowling Green, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky