Opinion
C. A. PM-2021-03678
02-09-2022
YA CHUM v. STATE OF RHODE ISLAND
For Plaintiff: Shannah Kurland, Esq. For Defendant: Judy Davis, Esq.
For Plaintiff: Shannah Kurland, Esq.
For Defendant: Judy Davis, Esq.
DECISION
PROCACCINI, J.
Before this Court is Ya Chum's (Petitioner) application for postconviction relief (Application). Petitioner asserts that his trial counsel denied him effective assistance of counsel as guaranteed by the Sixth Amendment of the United States Constitution and article I, section 10 of the Rhode Island Constitution. Petitioner requests that this Court grant the Application and enter an order vacating his conviction. This matter is before the Court pursuant to G.L. 1956 § 10-9.1-3.
I Facts and Travel
On February 5, 2009, Petitioner pled nolo contendere to one count of possession with intent to deliver a controlled substance, cocaine, before this Court. (Tr. 11:10-14, Feb. 5, 2009 (Tr.).) The Court sentenced Petitioner to a total of six years at the Adult Correctional Institutions (ACI) with one year to serve and five years suspended, with probation. Id. at 11:16-18. Petitioner was credited with time served retroactive to August 8, 2008. Id. at 11:18-19.
Petitioner is a citizen of Cambodia but was granted asylum and moved to the United States with his family in 1985. (Appl. ¶ 5.) At the time of Petitioner's arrest, on August 8, 2008, Petitioner was a Legal Permanent Resident and not a United States citizen. Id. Following Petitioner's arrest, an immigration detainer was lodged against him. (Tr. 2:1-3.)
On June 3, 2009, the United States Immigration Court ordered Petitioner to be removed from the United States. (Appl. Ex. C). However, Immigration and Customs Enforcement did not detain Petitioner until August 6, 2016, and subsequently deported Petitioner on May 2, 2017. (Appl. ¶ 17.)
On June 1, 2021, Petitioner filed an Application alleging that his trial counsel, Attorney David Gentile (Attorney Gentile), provided him with ineffective assistance of counsel. Id. ¶ 4. Petitioner requested the Court vacate the nolo contendere plea based upon Attorney Gentile's misadvice regarding Petitioner's immigration status. Id. ¶¶ 14, 19.
II
Standard of Review
"'[T]he remedy of postconviction relief is available to any person who has been convicted of a crime and who thereafter alleges either that the conviction violated the applicant's constitutional rights or that the existence of newly discovered material facts requires vacation of the conviction in the interest of justice.'" DeCiantis v. State, 24 A.3d 557, 569 (R.I. 2011) (quoting Page v. State, 995 A.2d 934, 942 (R.I. 2010)). The action is civil in nature, with all rules and statutes applicable in civil proceedings governing. See § 10-9.1-7; see also Ouimette v. Moran, 541 A.2d 855, 856 (R.I. 1988) ("In this jurisdiction an application for postconviction relief is civil in nature."). A petitioner for postconviction relief "bears '[t]he burden of proving, by a preponderance of the evidence, that such relief is warranted' in his or her case." Brown v. State, 32 A.3d 901, 907 (R.I. 2011) (quoting State v. Laurence, 18 A.3d 512, 521 (R.I. 2011)).
III
Analysis
Petitioner alleges that Attorney Gentile misadvised him of the consequences of this plea agreement and incorrectly relayed the information provided by immigration attorney Carl Krueger (Attorney Krueger). (Mem. Supp. Pet'r's Appl. 1.) According to Petitioner, the misadvice was that "pleading to the charge was preferable from an immigration standpoint to risking the longer sentence he could face at trial for the same charge." Id. Further, Petitioner argues that Attorney Gentile's advice caused Petitioner to take the plea and waive his right to a trial. Id. Petitioner claims that Attorney Gentile caused prejudice to Petitioner because "[Petitioner] had no reason to believe that he could win at trial[, and] [w]ith Attorney Gentile's misadvice, [Petitioner] had no reason to even try." Id. at 12.
On the other hand, the State argues that Petitioner focuses on one statement which is not reflective of the entire plea colloquy. (State Mem. Supp. Obj. 6.) The State argues that a review of the entire record makes it "abundantly clear" that Attorney Gentile was aware Petitioner would be deported and that Attorney Gentile provided effective representation. Id. at 9. Moreover, the State argues that Petitioner chose to plead because he felt he would be convicted at trial, and therefore could not be prejudiced by his "own informed decision." Id. at 12. Last, the State argues Petitioner's Application is barred under the doctrine of latches. Id.
A
Ineffective Assistance of Counsel
The seminal decision when faced with a claim of ineffective assistance of counsel is the United States Supreme Court case Strickland v. Washington, 466 U.S. 668 (1984), which has been adopted and applied by our Supreme Court in numerous decisions. Strickland sets forth a two- tiered test and "provides certain criteria that a [petitioner] must establish in order to show ineffective assistance of counsel." Brennan v. Vose, 764 A.2d 168, 171 (R.I. 2001).
The first prong of Strickland requires a petitioner to "demonstrate that counsel's performance was deficient, to the point that the errors were so serious that trial counsel did not function at the level guaranteed by the Sixth Amendment." Id. According to our Supreme Court in Guerrero v. State, 47 A.3d 289 (R.I. 2012), "[a] trial attorney's representation of his or her client will be deemed to have been ineffective under that criterion only when the court determines that it fell 'below an objective standard of reasonableness.'" Guerrero, 47 A.3d at 300 (internal quotations omitted). The Sixth Amendment standard, however, is very forgiving and the presumption is that counsel performed competently as illustrated by our Supreme Court in Gonder v. State, 935 A.2d 82 (R.I. 2007). Our Supreme Court observed: "With respect to the first prong of the Strickland test, in determining whether counsels [sic] performance was deficient, a strong (albeit rebuttable) presumption exists that counsel's performance was competent." Gonder, 935 A.2d at 86.
As for the second prong of Strickland, a petitioner "must show that the deficient performance prejudiced the defense." Navarro v. State, 187 A.3d 317, 326 (R.I. 2018) (internal quotations omitted). When a petitioner argues ineffective assistance of counsel after a plea, the petitioner "must demonstrate a reasonable probability that but for counsel's errors, he or she would not have pleaded guilty and would have insisted on going to trial and, importantly, that the outcome of the trial would have been different." Id. (internal quotations omitted). However, the Court does not proceed to the second prong of the Strickland test unless it is determined that the deficient performance standard in the first prong has been met. See Guerrero, 47 A.3d at 300-01.
Furthermore, when dealing with a claim of ineffective assistance of counsel, a reviewing court should aim "to eliminate the distorting effects of hindsight." Strickland, 466 U.S. at 689. As a result, tactics used by counsel that "appear[] unwise only in hindsight, do[] not constitute constitutionally-deficient representation under the reasonably competent assistance standard." United States v. Bosch, 584 F.2d 1113, 1121 (1st Cir. 1978). Furthermore, it is not appropriate for this Court to "meticulously scrutinize an attorney's reasoned judgment or strategic maneuver in the context of a claim of ineffective assistance of counsel." Brennan, 764 A.2d at 173.
Before addressing Strickland, the Court finds it important to address and distinguish Petitioner's case from Lee v. United States, 137 S.Ct. 1958 (2017), given the Petitioner's strong reliance on Lee. In Lee, the Court agreed that the petitioner's attorney provided "objectively unreasonable representation[, ]" so the Court focused on whether the petitioner was prejudiced. Id. at 1962. Ultimately, the Court held the petitioner demonstrated, with substantial and uncontroverted evidence, that he would not have pled and would have proceeded to trial but for his attorney's advice. Id. at 1969. In Lee, the attorney assured the petitioner he would not be deported if he pled guilty. Id. at 1963. The attorney stated numerous times that deportation was not something the petitioner needed to worry about, and that "if deportation was not in the plea agreement, 'the government cannot deport you.'" Id. Even in the plea colloquy, the petitioner stated that deportation would affect his decision to plea. Id. Only after his attorney's assurance that the judge's statement was a "standard warning" did the petitioner proceed with the plea. Id. at 1968. Last, the petitioner's attorney admitted that "if he had known [petitioner] would be deported upon pleading guilty, he would have advised him to go to trial." Id. at 1963.
Here, Petitioner's case is a far cry from Lee. Not only did Attorney Gentile advise Petitioner that deportation was likely, but Attorney Gentile advised the Court during the plea colloquy, in front of Petitioner, that there was already an immigration detainer. (Tr. 2:1-2). Also, unlike in Lee, Attorney Gentile consulted with an immigration expert, Attorney Krueger, at the advice of another associate justice of the Superior Court. Id. at 2:10-20. Attorney Gentile advised Petitioner "on several occasions, [Petitioner was] going to have to deal with immigration sooner or later." Id. at 2:21-23. Finally, unlike the petitioner in Lee, here Petitioner acknowledged three times that he wanted to plead rather than proceed to trial despite the immigration consequences. Id. at 4:8-23, 9:9-18. As a result, Petitioner's case is factually distinguishable from Lee, and thus the holding in Lee is not applicable.
Moving on to Strickland, as previously mentioned, Petitioner argues Attorney Gentile's statement that "[i]f we go to trial the maximum penalty is 30 years at the ACI. He may never see the United States of America ever if he's convicted with those numbers" constituted misadvice that caused prejudice to Petitioner. (Mem. Supp. Pet'r's Appl. 11.) However, the Court will not examine this sentence alone, but rather, will consider the totality of Attorney Gentile's actions. Addressing the first prong of Strickland, the Court finds Attorney Gentile's actions did not fall below the objective standard of reasonableness, and that Petitioner had more than adequate representation.
First, as Petitioner pointed out in his brief, Attorney Gentile not only advised Petitioner to seek advice from an immigration attorney but spoke with one himself after Petitioner stated he could not afford one. Id. at 4. Attorney Gentile consulted with Attorney Krueger, a well-respected immigration attorney, at the recommendation of another associate justice on the Superior Court. (Tr. 2:10-20.) Based upon his advice, Attorney Gentile understood and reiterated to Petitioner that he was going to have to deal with immigration "sooner or later." Id. at 2:22-23.
Second, both Attorney Gentile and Petitioner knew a plea would have immigration consequences. At the start of the plea, Attorney Gentile told the Court that Petitioner was not a citizen and that there was already an immigration detainer. Id. at 1:25-2:2. Then, Attorney Gentile stated, while Petitioner was standing next to him, that "[i]mmigration is waiting to come and get him as soon as this matter is over." Id. at 2:3-4.
Moreover, during the plea colloquy, the Court asked Petitioner four times if he understood his plea would have serious immigration consequences, and each time Petitioner said yes. Immediately following Petitioner's statement, "I don't want to take a trial to this because it's my word against the police in Woonsocket, so I know I will lose. I just plead right here, Your honor[, ]" the Court emphasized to Petitioner that his decision has serious immigration and deportation consequences including release to the custody of the immigration service. Id. at 4:8-23.
Third, the record reflects that Attorney Gentile understood the conviction triggered deportation rather than the sentence despite Petitioner's argument to the contrary. At the plea, Attorney Gentile said that the State was not willing to amend the charge to either a narcotics nuisance or a simple possession. Id. at 2:23-3:1. The Court further reiterated, while addressing Petitioner, that the Court could not amend the charge but did "have some input over the ultimate sentence in the case, but it's the charge that is probably more of a problem for you than the sentence." Id. at 3:20-23.
The Court is mindful of Petitioner's situation and understands that he made the best choice he could for himself in the moment. However, the Court is satisfied that Attorney Gentile not only provided adequate representation but clearly emphasized the deportation risk to both the Court and Petitioner. As a result, Petitioner has not satisfied the first prong of Strickland. Thus, the Court need not address the second prong of Strickland or the laches defense raised by the State.
IV
Conclusion
In conclusion, this Court finds that Petitioner has failed to meet his burden of establishing by a preponderance of the evidence that postconviction relief is warranted. Accordingly, Petitioner's application for postconviction relief is denied.