Fanagyon v. State of Oregon

471 P.3d 153, 305 Or. App. 671

• Court: Court of Appeals of Oregon
• Decided: August 5, 2020
• Docket: A166620
• Status: Published

Opinion

Argued and submitted August 1, 2019; reversed and remanded as to second claim for relief for entry of judgment including the findings required by ORS 138.640(1), otherwise affirmed August 5, 2020

LUKAS FANAGYON, Petitioner-Appellant, v. STATE OF OREGON, Defendant-Respondent. Clackamas County Circuit Court 17CV20626; A166620 471 P3d 153

Petitioner pleaded guilty to fourth-degree assault and strangulation. Prior to initiating that plea, petitioner told his counsel that he was a United States cit- izen, even though he is not. Even so, counsel advised petitioner that there could be immigration consequences of his guilty plea. Petitioner violated the terms of his probation and, thereafter, Immigration and Customs Enforcement initiated deportation proceedings against him. He petitioned for post-conviction relief, contending that his counsel deficiently advised him regarding the immigration consequences of his plea and of violating the terms of his probation, in violation of his right to the adequate assistance of counsel under the state and federal consti- tutions. The post-conviction court denied relief, concluding that petitioner’s law- yer exercised reasonable professional skill and judgment in advising petitioner in connection with his guilty plea, but not addressing petitioner’s claim with respect to the probation violation proceedings. Petitioner appeals, arguing that (1) his counsel’s performance was deficient because counsel did not advise him that his plea would result in mandatory deportation and (2) the post-conviction court’s failure to address his second claim renders the judgment noncompliant with ORS 138.640(1). Held: The post-conviction court erred in failing to make a separate ruling on each claim as required by ORS 138.640(1). As for petitioner’s claim regarding counsel’s performance in the plea process, in view of petitioner’s con- firmation that he was a United States citizen, counsel’s advice to petitioner about the immigration consequences of his conviction was not deficient. Reversed and remanded as to second claim for relief for entry of judgment including the findings required by ORS 138.640(1); otherwise affirmed.

Katherine E. Weber, Judge. Lindsey Burrows and Bruce A. Myers, Certified Law Student, argued the cause for appellant. On the briefs were Lindsey Burrows and O’Connor Weber LLC. Ryan Kahn, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, 672 Fanagyon v. State of Oregon

Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General. Before Lagesen, Presiding Judge, and DeVore, Judge, and Powers, Judge. LAGESEN, P. J. Reversed and remanded as to second claim for relief for entry of judgment including the findings required by ORS 138.640(1); otherwise affirmed. Cite as 305 Or App 671 (2020) 673

LAGESEN, P. J. Petitioner appeals a judgment denying his petition for post-conviction relief, which raised two claims for relief: the first concerning legal representation he received with regard to his convictions for fourth-degree assault constitut- ing domestic violence and strangulation, and the second con- cerning representation he received with regard to his subse- quent probation revocation. We affirm the judgment insofar as it denies relief on petitioner’s first claim, but reverse and remand for further proceedings as to the second claim. We review a post-conviction court’s grant or denial of relief for legal error, accepting the court’s explicit factual findings and its necessarily implicit factual findings if there is evidence to support them. Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015). We state the facts in accordance with that standard, supplementing with additional, consis- tent details from the record as necessary for context. Following an attack on his wife, petitioner was charged with, among other things, one count of fourth- degree assault constituting domestic violence and one count of strangulation. The court appointed counsel to represent him. At petitioner’s pretrial release hearing, the prosecutor told the court that the victim opposed release because she thought that petitioner would flee the country if released because “he has lots of family in the Yap Islands and appar- ently is a citizen of—of that.” The court granted release but ordered defendant to surrender his passport. A little more than six weeks later, petitioner pleaded guilty to the charges of fourth-degree assault constituting domestic violence and strangulation. Although petitioner is not a citizen of the United States, when counsel asked him about his citizenship, petitioner said that he was a United States citizen. Even so, counsel, as is his practice, advised petitioner about the potential immigration consequences of convictions on the charges against him.1 Counsel told 1 The post-conviction court found as fact that “counsel did advise Petitioner that deportation is presumptively mandatory as a result of a guilty plea to these charges.” Petitioner acknowledges that that advice, if given, would satisfy the constitutional standard, but asserts that the post-conviction court’s factual find- ing that that was the advice given is not supported by the record, a point that 674 Fanagyon v. State of Oregon

petitioner that he faced “immigration consequences (depor- tation) if convicted of the subject charges after a trial” and that “a plea to a criminal charge can have immigration con- sequences.” The section of petitioner’s signed plea petition addressing “Age, Education, Citizenship” represents that petitioner is 34, has a twelfth-grade education, and is a United States citizen. It certifies further that “I understand that if I am not a citizen of the United States, a criminal conviction could cause me to be deported, denied United States citizenship, or refused the right to re-enter the United States.” At the plea hearing, counsel informed the court that petitioner is from Micronesia and, at that time, had been in the United States for 21 years and was permitted to be here. The trial court sentenced defendant to probation on both counts of conviction. Petitioner later violated the terms of his probation by contacting the victim. His previous lawyer was reap- pointed to represent him at the probation revocation pro- ceeding. The trial court found him in violation and revoked his probation on the assault conviction and ordered him to serve a year in jail but extended and continued his proba- tion on the strangulation conviction. Soon thereafter, Immigration and Customs Enforce- ment initiated deportation proceedings against petitioner, and petitioner initiated this post-conviction proceeding. He contends that the lawyer who represented him in the criminal proceedings deficiently advised him regarding the immigration consequences of his plea and about the immigration consequences of being found in violation of the terms of his probation, in violation of his right to the ade- quate assistance of counsel under Article I, section 11, of the Oregon Constitution and his right to the effective assis- tance of counsel under the Sixth Amendment to the United States Constitution. The post-conviction court denied relief, explaining its decision in a letter opinion that the subse- quent judgment incorporated. The court concluded that petitioner’s lawyer exercised reasonable professional skill and judgment in advising petitioner in connection with his

the state does not contest. We agree that that particular factual finding is not supported by the record. Cite as 305 Or App 671 (2020) 675

guilty plea, denying relief on petitioner’s claim with respect to the plea for that reason, without addressing whether peti- tioner was prejudiced by any deficiency in counsel’s perfor- mance. Neither the court’s letter opinion nor its judgment addressed petitioner’s claim with respect to the probation violation proceedings. Petitioner appealed. On appeal, petitioner contends that the post- conviction court erred in denying relief on his claim chal- lenging counsel’s performance in the plea process. He con- tends that counsel did not advise petitioner, as required under Padilla v. Kentucky, 559 US 356, 130 S Ct 1473, 176 L Ed 2d 284 (2010), that his plea would result in manda- tory deportation, and that, for that reason, counsel’s per- formance was deficient under both the state and federal constitutions, and the post-conviction court erred in deter- mining otherwise. Petitioner argues that, in view of the prosecutor’s statement at the pretrial release hearing about petitioner’s apparent citizenship in the Yap Islands, coun- sel was obligated to supply the advice required by Padilla, notwithstanding whatever petitioner may have told coun- sel in response to his question about petitioner’s citizenship. As for petitioner’s second claim for relief, addressing coun- sel’s performance in the probation-revocation proceedings, petitioner contends that the post-conviction court’s failure to address that ground for relief in its written judgment renders the judgment noncompliant with ORS 138.640(1), as interpreted in Datt v. Hill, 347 Or 672, 685, 227 P3d 714 (2010). The state responds that, in view of petitioner’s response to counsel’s question about citizenship and petition- er’s representation on the plea petition that he was a citizen, counsel did not perform inadequately in advising petitioner. As for the judgment’s treatment of petitioner’s claim about counsel’s performance in the probation revocation proceed- ings, the state concedes that the judgment does not comply with ORS 138.640 and that we must reverse and remand for entry of a judgment that satisfies the requirements of ORS 138.640 under Datt. Starting with the conceded error, the parties are cor- rect that the judgment does not comply with ORS 138.640(1) 676 Fanagyon v. State of Oregon

as interpreted by Datt. In Datt, the Supreme Court held that, under ORS 138.640(1), “a judgment denying claims for post-conviction relief must, at a minimum: (1) identify the claims for relief that the court considered and make separate rulings on each claim; (2) declare, with regard to each claim, whether the denial is based on a petitioner’s failure to utilize or follow avail- able state procedures or a failure to establish the merits of the claim; and (3) make the legal bases for denial of relief apparent.” 347 Or at 685. Here, the judgment makes no mention what- soever of petitioner’s second claim for relief and, for that rea- son, must be reversed and remanded for the post-conviction court to address that claim in a form that satisfies the three requirements identified above. As for petitioner’s claim regarding counsel’s perfor- mance in the plea process, we agree with the state that, in view of the post-conviction court’s supported factual finding that counsel asked petitioner about his citizenship status and petitioner confirmed that he was a United States cit- izen, counsel’s advice to petitioner about the immigration consequences of his conviction was not deficient and that the post-conviction court’s denial of relief must therefore be affirmed. To show that trial counsel performed deficiently for purposes of Article I, section 11, petitioner was required to show that trial counsel “failed to exercise reasonable pro- fessional skill and judgment” when counsel did not supply petitioner with the advice required by Padilla. Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017). To show that trial counsel performed deficiently for purposes of the Sixth Amendment, petitioner was required to make a compara- ble showing: that trial counsel’s performance “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 US 668, 687-88, 104 S Ct 2052, 80 L Ed 2d 674 (1984). In either instance, we evaluate the reason- ableness of counsel’s exercise of skill and judgment under the circumstances that confronted counsel at the time, and not through the lens of hindsight. That is, whether counsel’s decision “reflects an absence of reasonable professional skill Cite as 305 Or App 671 (2020) 677

and judgment turns on the facts known to counsel at the time that [he] made that decision.” Cartrette v. Nooth, 284 Or App 834, 841, 395 P3d 627 (2017).

Here, accepting as we must the post-conviction court’s supported factual finding that counsel asked peti- tioner whether he was a United States citizen and petitioner told him that he was, counsel did not act unreasonably in advising petitioner that a plea “can have immigration con- sequences.” At the time counsel gave that advice, the pros- ecutor had mentioned that the victim had said that peti- tioner “apparently” was a citizen of the Yap Islands, but, upon being questioned, petitioner had told counsel that he was a United States citizen. Nevertheless, counsel advised petitioner anyway that a plea could have immigration consequences—advice that gave petitioner an opportunity to be more forthcoming with counsel about his citizenship status or to, at least, inquire what those consequences were, if he were not in fact a citizen, neither of which petitioner did. Absent any indication from petitioner that he had mis- represented his citizenship status or might need additional advice about immigration consequences, under the circum- stances that confronted counsel at the time, counsel’s course of conduct falls within the range of reasonable professional responses to those circumstances. Although it does not rep- resent the only reasonable professional way to approach the situation—having been told by a client that the client was a United States citizen, counsel reasonably could have opted to provide no advice about immigration consequences, or, alternatively, reasonably could have provided the advice required by Padilla as a precautionary measure in the event his client’s representation was not accurate—it was a rea- sonable one.

Petitioner nonetheless argues that the prosecutor’s representations at the pretrial release hearing obligated counsel to treat petitioner as if he was not a citizen and provide the advice required under Padilla. We disagree. Although, again, that would not have been an unreasonable thing to do, it was not the only reasonable course of action available to counsel, particularly given the tentative nature of the prosecutor’s statement about petitioner’s citizenship. 678 Fanagyon v. State of Oregon

Under those circumstances, it was just as reasonable for counsel to ask petitioner directly about his citizenship and provide him the cautionary advice about potential immigra- tion consequences, so as to afford petitioner the opportunity to rethink his representation about being a United States citizen or ask further questions about immigration conse- quences, and then to proceed as if petitioner correctly repre- sented his citizenship status. Reversed and remanded as to second claim for relief for entry of judgment including the findings required by ORS 138.640(1); otherwise affirmed.