RENDERED: JUNE 24, 2022; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0553-MR
JOSEPH EBU APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE JULIE M. GOODMAN, JUDGE ACTION NO. 15-CR-01061
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Joseph Ebu appeals from the order of the Fayette
Circuit Court denying his motion to set aside his plea after the circuit court
conducted an evidentiary hearing on Ebu’s ineffective assistance of counsel claim
pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Ebu argues his
trial counsel was ineffective by failing to advise him on the effect his guilty plea to
two misdemeanors would have on his immigration status pursuant to Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473, 1482, 176 L.Ed.2d 284 (2010). Ebu
argues his counsel was obligated to research crimes involving moral turpitude and
advise him that pleading to theft and fraudulent conduct made him deportable. We
affirm because we believe that counsel was not acting ineffectively by advising
Ebu that there could be immigration consequences to his plea and that he should
consult with an immigration attorney.
This case was before us previously in 2019 when Ebu challenged the
summary denial of his motion to set aside his plea. We provide the relevant facts
as summarized in his previous appeal:
Ebu was indicted by the Fayette County Grand [J]ury of theft by deception including cold checks under $10,000 and theft of identity of another without consent, both Class D felonies. The charges arose from Ebu’s alleged involvement with the fraudulent purchases of mobile phones using stolen identities.
On June 9, 2017, on advice of counsel, Ebu entered guilty pleas to amended charges of facilitation to theft by deception and fraudulent use of a credit card, both misdemeanors. He was sentenced to twelve months on each of the two misdemeanors, to run concurrently, with the imposition of the sentence of imprisonment probated for two years.
On October 4, 2017, Ebu filed an RCr 11.42 motion along with a verified affidavit requesting that he be permitted to set aside his guilty pleas on the basis he received ineffective assistance of counsel in the form of affirmative misadvice from his former counsel about the immigration consequences of his plea and sentence. Specifically, Ebu stated his former counsel advised him
-2- he would not be deported if he pled guilty to the misdemeanors. At this point, Ebu had been seized by immigration and deportation procedures had started.
On October 26, 2017, the Fayette Circuit Court summarily denied Ebu’s motion to set aside indicating that it reviewed the video record of Ebu’s guilty plea and sentencing. Ebu’s motion to reconsider was denied[.]
Ebu v. Commonwealth, No. 2017-CA-002035-MR, 2019 WL 6245351, at *1
(Ky.App. Nov. 22, 2019) (unpublished). After reviewing the relevant law, we
reversed and remanded for an evidentiary hearing as Ebu had presented material
factual allegations of ineffective assistance of counsel that were not refuted by the
record. Id. at *2-3.
On February 12, 2020, the circuit court held an evidentiary hearing.
Ebu, his mother, and his trial counsel testified.
Trial counsel testified he met with Ebu several times about his case
and was aware of Ebu’s legal status as a legal resident in the United States. Trial
counsel denied that Ebu’s mother attended all of his meetings with Ebu, explaining
she attended more of them at the beginning.
Trial counsel testified he does not practice immigration law and did
not feel he was in a position or qualified to give immigration advice, knew just
enough to be dangerous, and did not advise Ebu on crimes of moral turpitude.
Instead, knowing that Ebu’s family had an immigration attorney, trial counsel
explained he consistently advised Ebu to speak to that immigration attorney.
-3- Trial counsel expressed he believed Ebu’s pleading guilty to
misdemeanors was the best trial counsel could do but admitted there was not much
time for Ebu to decide on whether to take the latest plea deal as the offer came in
on a Friday and the trial was scheduled for the following Monday. Trial counsel
also explained he thought it would be better for Ebu’s immigration status for Ebu
to be convicted on misdemeanors rather than felonies but told Ebu that he could
still face possible deportation.
Trial counsel stated Ebu did have a credible defense; it was not a case
where there was no hope, but it would be a hard case to win. Trial counsel
explained that Ebu’s defense would have been that he was a low-level member of a
criminal organization and was an innocent mule who collected packages and
mailed them to Ghana in the attempt to do a favor for his friend. While trial
counsel admitted Ebu was a member of WhatsApp chats found on his phone by the
police regarding stolen credit card numbers, trial counsel stated there was no proof
that Ebu had looked at any of those chats, there was no proof Ebu had used any of
the credit card numbers, Ebu had no criminal record, and trial counsel believed
Ebu would make a credible witness. Trial counsel explained that if he had taken
the case to trial, he would have hoped for an acquittal or a hung jury.
Trial counsel admitted not knowing if avoiding felony convictions
was key for avoiding deportation, but thought if Ebu were deported that maybe he
-4- could reenter the country with misdemeanor convictions and feared if Ebu was
convicted of felony offenses that he would be deported for sure. Trial counsel
expressed that in some cases he does some research about deportation but did not
do that in this case because he thought it would be better for Ebu to speak with his
family’s immigration attorney, and stated he suggested that Ebu speak to that
immigration attorney several times. However, trial counsel noted he never got the
impression that Ebu talked with an immigration attorney.
During his testimony, the following exchange took place regarding
trial counsel’s uncertainty about what would happen with Ebu’s immigration status
post-plea:
Q: In looking at the record, probation in most circumstances would be a good deal. Do you feel, looking back on it now, that you should have done more?
A: Had I known that they were going to come in and take [Ebu] because of that plea, I wouldn’t have done the plea. I mean, I think [Ebu], we both, would have said “let’s take our chances” if we’d known with certainty, we just had no way of knowing with certainty, but if we’d known he was going to be deported with certainty, I don’t think [Ebu] would have. I think I would have rather had misdemeanors, but if he’s going to be deported, and that’s important to him and his family, I think he’d been in the country about four years when this had happened, if I had known with certainty, we wouldn’t have done the plea.
-5- Trial counsel explained he did not tell Ebu he would be deported by taking the plea
but told him he could be deported. Trial counsel hoped that Ebu would not be
deported, but believed the plea was the best Ebu could get.
Ebu testified he left Ghana after his grandfather died because he and
his sister had nowhere to go. He stated his uncle was poisoned and killed due to
his Jewish faith.
Ebu testified his biggest concern was about being deported and he had
no idea he would face deportation for a misdemeanor and had previously turned
down an offer of one-year probation for a felony, and then a misdemeanor
conviction with two months in jail, as it would have interfered with his college
term. Ebu explained trial counsel told him he was facing mandatory deportation if
convicted of the felonies but told him that misdemeanors would be okay for his
immigration status. Ebu denied that trial counsel had ever told him to contact an
immigration attorney for advice.
As to the specific plea offer he accepted, Ebu stated he was called on
a Friday and told to come to Lexington to plead guilty that day, with trial counsel
telling him that it was a good deal for him. Ebu stated trial counsel had told him
his chances at trial were about fifty-fifty, but Ebu insisted he would have gone to
trial instead of pleading if he had known he would be deported. Ebu explained that
being deported was like a “gun to his head” and he would have seen if he could
-6- have gotten acquitted. Ebu stated while he knew his mother had an immigration
lawyer that did her citizenship and had advised her to bring him to the United
States, Ebu had never met him.
Ebu testified he found out he would be deported when he went to visit
his probation officer and Immigration and Customs Enforcement (ICE) was
waiting to pick him up. At that time, he was told that his plea affected his green
card. He explained he has remained in ICE detention since that time.
Ebu’s mother testified she attended all of Ebu’s meetings with trial
counsel. She stated that trial counsel never advised Ebu to speak to her
immigration attorney and that Ebu never spoke to an immigration attorney.
The parties filed post-hearing briefs. Ebu argued trial counsel was
deficient when he failed to advise Ebu that he would be deported after pleading
guilty to two misdemeanors, noting that under Padilla that “[w]hen deportation
consequences are clear, the duty to give correct advice is equally clear.” Ebu then
argued that the one thing that was clear from trial counsel’s testimony is that he did
not know that Ebu would be deported and trial counsel’s “failure to research and
lack of knowledge of the law fell below the objective standard of reasonableness
under the prevailing professional norms.” Relying on the unpublished case of
Pierre v. Commonwealth, No. 2012-CA-001038-MR, 2014 WL 5064169 (Ky.App.
Oct. 10, 2014) (unpublished), Ebu argued that similar advice to what he was given
-7- was “vague and incomplete” and, therefore, deficient. Ebu argued that 8 United
States Code (U.S.C.) § 1227(a)(2)(A)(i)(I)-(II)1 is “clear and explicit” that “any
alien who is convicted of a crime of moral turpitude within five years after date of
admission, and is convicted of a crime for which a sentence of one year or long[er]
may be imposed is deportable.” Ebu indicated that “theft and fraud” are crimes of
moral turpitude and stated that “[a] legal inquiry into Westlaw shows multiple
cases of crimes considered to be of moral turpitude which result in deportation.”
Ebu then argued that if he had been convicted of a crime involving moral turpitude
for which the maximum sentence possible would be less than one year, he could
have avoided deportation; therefore, he was prejudiced by his trial counsel failing
to negotiate a plea deal with less than one year to serve if he violated probation.
Ebu also argued he was prejudiced because he was deprived of a right
to a trial, which both Ebu and trial counsel would have insisted upon had they
known that Ebu would be deported based on his plea. Ebu argued it would have
been rational for him to insist on going to trial as he had a legitimate defense that
he was also a victim of this scheme, was an unknowing “mule,” has no family left
in Ghana, and fears religious persecution if he is returned to Ghana.
1 This provision is contained in the Immigration and Nationality Act (INA) § 237(a)(2)(A)(i)(I) and referred to as such by immigration courts. We refer to the U.S.C. rather than the INA for all our citations.
-8- Ebu attached the decision of the immigration judge in his immigration
case which concluded that Ebu is removable because his misdemeanor convictions
qualify as crimes involving moral turpitude:
The Court finds that the respondent’s convictions under [Kentucky Revised Statutes (KRS)] 434.540 [sic] and KRS 514.040, which explicitly require an intent to defraud and an intent to deprive another by deception, respectively, necessarily involve turpitudinous conduct. See Marin-Rodriguez v. Holder, 710 F.3d 734, 738 (7th Cir. 2013) (“Crimes entailing an intent to deceive or defraud are unquestionably morally turpitudinous.”); see also Arias v. Lynch, 834 F.3d 823, 826-29 [(7th Cir. 2016)] (opining that, while fraud remains morally turpitudinous, simple dishonesty may not). The respondent’s counsel has not argued that either statute contains overbroad, non-turpitudinous conduct. Nor has he shown a realistic probability of prosecution for such conduct.
In the circuit court’s order, the court implicitly made a credibility
finding in favor of trial counsel, rather than Ebu and his mother, largely adopting
trial counsel’s testimony over theirs when they conflicted, finding as follows:
Counsel represented Mr. Ebu for over two years during which time he met with Mr. Ebu approximately seven or eight times where he discussed the possible outcome of his client’s case. Trial counsel further testified that during those meetings he advised Mr. Ebu he could be convicted of two Class D Felonies, and discussed the adverse consequences of such a conviction to his college education, his immigration status, and his employment. Additionally, counsel advised Mr. Ebu that he was not an immigration attorney and that he should contact his immigration attorney regarding what consequences a plea result could have on his immigration
-9- status. Counsel advised Mr. Ebu that a misdemeanor plea could result in deportation but advised that a misdemeanor plea was better than a felony conviction sentence of up to five years [for] his future, and possibly his immigration status. Trial Counsel further testified that he advised Mr. Ebu to take the misdemeanor offer believing that this was his best chance to remain in the United States and out of the penitentiary. He based his advice knowing that there was no guarantee of a not guilty verdict at trial based on all the facts of his case and the undisputed physical evidence of the crimes found in Mr. Ebu’s possession.
The circuit court determined that based on the strong evidence against
Ebu, the testimony of the parties, and the fact that counsel advised Ebu of his
potential deportation if he pled, there was no error and no deficient representation.
The circuit court explained that counsel advised Ebu “of the possible adverse
consequences a plea could have on his education, his future employment, and his
possible immigration status” and “to contact his immigration attorney.”
The circuit court also determined that Ebu was not prejudiced by the
advice to accept the plea offer. The circuit court explained that Ebu was charged
with two Class D felonies and was facing sentences of one to five years in the
penitentiary on each, with collateral consequences of being a convicted felon. The
circuit court noted that trial counsel assessed Ebu’s trial chances at fifty-fifty and
advised Ebu that based on the evidence and the misdemeanor offer that he should
accept, and Ebu in fact was sentenced to concurrent twelve months on each of the
misdemeanors, given the opportunity to have that sentence probated for two years,
-10- and avoided the collateral consequences of being a convicted felon. Therefore, the
circuit court denied Ebu’s motion to set aside his guilty plea.
Ebu reiterates his argument that his plea was involuntary due to the
ineffective assistance of counsel he received, because he was given inaccurate
information about the effect his plea would have on his immigration status, when
he should have been told that his plea would lead to his deportation for committing
crimes of moral turpitude as crimes involving fraud clearly fall into that category.
He argues if he had received accurate information, he would have declined to plead
guilty and taken his chances with a trial.
A trial court considers the totality of the circumstances in determining
whether a plea is involuntary; if the plea is involuntary, the trial court must grant
the motion to withdraw the plea. Edmonds v. Commonwealth, 189 S.W.3d 558,
566 (Ky. 2006). “This inquiry is inherently fact-sensitive, thus this Court reviews
such a determination for clear error, i.e., whether the determination was supported
by substantial evidence.” Id. “If . . . the trial court determines that the guilty plea
was entered voluntarily, then it may grant or deny the motion to withdraw the plea
at its discretion. This decision is reviewed under the abuse of discretion standard.”
Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky.App. 2004).
The Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
2064, 80 L.Ed.2d 674 (1984), test for ineffective assistance of counsel applies to
-11- challenges to guilty pleas. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370,
88 L.Ed.2d 203 (1985).
In such an instance, the trial court is to “consider the totality of the circumstances surrounding the guilty plea and juxtapose the presumption of voluntariness inherent in a proper plea colloquy with a Strickland v. Washington inquiry into the performance of counsel.” To support a defendant’s assertion that he was unable to intelligently weigh his legal alternatives in deciding to plead guilty because of ineffective assistance of counsel, he must demonstrate the following:
(1) that counsel made errors so serious that counsel’s performance fell outside the wide range of professionally competent assistance; and (2) that the deficient performance so seriously affected the outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pleaded guilty, but would have insisted on going to trial.
Rigdon, 144 S.W.3d at 288 (footnotes omitted) (quoting Bronk v. Commonwealth,
58 S.W.3d 482, 486 (Ky. 2001) and Sparks v. Commonwealth, 721 S.W.2d 726,
727-28 (Ky.App. 1986)).
In Padilla, the defendant Padilla, a permanent resident, alleged he
received ineffective assistance of counsel regarding his plea of guilty to
transporting a large amount of marijuana because his counsel told him that based
on the amount of time he had spent in the United States, he could not be deported.
Padilla argued if he had known he would be deported, he would have proceeded to
trial instead of accepting a plea. Padilla, 559 U.S. at 359, 130 S.Ct. at 1477-78. In
-12- reviewing the matter, the Kentucky Supreme Court rejected his argument,
believing that “neither counsel’s failure to advise petitioner about the possibility of
removal, nor counsel’s incorrect advice, could provide a basis for relief” as it was a
“collateral” consequence of his conviction. Id. at 359-60, 130 S.Ct. at 1478. The
United States Supreme Court granted certiorari “to decide whether, as a matter of
federal law, Padilla’s counsel had an obligation to advise him that the offense to
which he was pleading guilty would result in his removal from this country” and
“agree[d] . . . that constitutionally competent counsel would have advised him that
his conviction for drug distribution made him subject to automatic deportation.”
Id. at 360, 130 S.Ct. at 1478. As noted by the United States Supreme Court
multiple times in its opinion, “Padilla’s crime, like virtually every drug offense
except for only the most insignificant marijuana offenses, is a deportable offense
under 8 U.S.C. § 1227(a)(2)(B)(i).” Id. at 359 n.1, 130 S.Ct. at 1477 n.1.
The United States Supreme Court explained its reasoning for
reversing as follows:
In the instant case, the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla’s conviction. See 8 U.S.C. § 1227(a)(2)(B)(i) (“Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a controlled substance . . . , other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable”).
-13- Padilla’s counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses. Instead, Padilla’s counsel provided him false assurance that his conviction would not result in his removal from this country. This is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect.
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.
Padilla, 559 U.S. 356, 368-69, 130 S.Ct. at 1483 (footnotes omitted) (emphases
added).
-14- In Justice Alito’s concurrence, he argued for a clear rule that was
universally applicable, rather than reliance on how clear the immigration law was
in a particular case.2 He further noted:
The Court’s new approach is particularly problematic because providing advice on whether a conviction for a particular offense will make an alien removable is often quite complex. “Most crimes affecting immigration status are not specifically mentioned by the [INA], but instead fall under a broad category of crimes, such as crimes involving moral turpitude or aggravated felonies.” M. Garcia & L. Eig, CRS Report for Congress, Immigration Consequences of Criminal Activity (Sept. 20, 2006) (summary) (emphasis in original). As has been widely acknowledged, determining whether a particular crime is an “aggravated felony” or a “crime involving moral turpitude” [(CIMT)] is not an easy task. See R. McWhirter, ABA, The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers 128 (2d ed. 2006) (hereinafter ABA Guidebook).
Id. at 377-78, 130 S.Ct. at 1488 (Alito, J., concurring). He provided several
examples of particular crimes in which it was complicated to determine whether
2 Justice Alito explained:
In my view, such an attorney must (1) refrain from unreasonably providing incorrect advice and (2) advise the defendant that a criminal conviction may have adverse immigration consequences and that, if the alien wants advice on this issue, the alien should consult an immigration attorney. I do not agree with the Court that the attorney must attempt to explain what those consequences may be.
Id. at 375, 130 S.Ct. at 1487 (Alito, J., concurring).
-15- each would be classified as a crime involving moral turpitude.3
Justice Alito also emphasized that the test announced by the majority
could be difficult to apply in practice:
[I]t will not always be easy to tell whether a particular statutory provision is “succinct, clear, and explicit.” How can an attorney who lacks general immigration law expertise be sure that a seemingly clear statutory provision actually means what it seems to say when read in isolation? What if the application of the provision to a particular case is not clear but a cursory examination of case law or administrative decisions would provide a definitive answer? See Immigration Law and Crimes § 2:1, at 2-2 (“Unfortunately, a practitioner or respondent cannot tell easily whether a conviction is for a removable offense . . . . [T]he cautious practitioner or apprehensive respondent will not know conclusively the future immigration consequences of a guilty plea”).
Id. at 381, 130 S.Ct. at 1490-91 (Alito, J., concurring).
3 These examples were from the ABA Guidebook:
See id., at 134 (“Writing bad checks may or may not be a CIMT” (emphasis added)); ibid. (“[R]eckless assault coupled with an element of injury, but not serious injury, is probably not a CIMT” (emphasis added)); id., at 135 (misdemeanor driving under the influence is generally not a CIMT, but may be a CIMT if the DUI results in injury or if the driver knew that his license had been suspended or revoked); id., at 136 (“If there is no element of actual injury, the endangerment offense may not be a CIMT” (emphasis added)); ibid. (“Whether [a child abuse] conviction involves moral turpitude may depend on the subsection under which the individual is convicted. Child abuse done with criminal negligence probably is not a CIMT” (emphasis added)).
Padilla, 559 U.S. at 379, 130 S.Ct. at 1489 (Alito, J., concurring) (citing ABA Guidebook, at 134-36).
-16- While 8 U.S.C. § 1227(a)(2)(A)(i) provides that classes of deportable
aliens include those who have committed a general crime in the category of crimes
of moral turpitude, as is evident from reading the provision, it does not clarify what
crimes fit the category of CIMT:
Any alien who –
(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and
(II) is convicted of a crime for which a sentence of one year or longer may be imposed,
is deportable.
In the years after the Padilla decision, courts have struggled with
determining whether the immigration consequences of crimes, which did not have
statutory provisions as explicit as that in Padilla, fit in the “clear” or “unclear”
categories, and thus, what counsel is obliged to do. Padilla did not provide a clear
answer as to whether a practitioner is obligated to do additional research if faced
with the question of whether the crime a client is given an offer to plead to may be
a CIMT and, if counsel has an obligation to conduct such research, how much
research is enough to either reach a definitive answer on the likely immigration
consequences, or to conclude the answer remains unclear.
-17- The category of CIMT is certainly not as clear as 8 U.S.C. §
1227(a)(2)(B)(i), which mandated that Padilla was deportable for his plea to a “law
. . . of a State . . . relating to a controlled substance[.]” The effects of that
provision were certainly “succinct, clear, and explicit[,]” “truly clear[,]” and
“easily determined . . . simply from reading the text of the statute” rather than
involving “some broad classification of crimes” or otherwise being “unclear or
uncertain” as the majority opinion noted that “many of the scenarios” raised by
Justice Alito were. Padilla, 559 U.S. at 368-69, 130 S.Ct. at 1483. As noted
earlier, these scenarios included crimes for which there was confusion as to
whether they were CIMT.
State courts have had to grapple with this problem and have reached a
variety of solutions. However, Kentucky appellate courts have yet to weigh in on
this issue.
This analysis is further complicated by the very nature of the United
States’s immigration law, which has often been characterized as a “labyrinth” and
“Byzantine.” Castro-O’Ryan v. U.S. Dep’t of Immigration and Naturalization, 847
F.2d 1307, 1312 (9th Cir. 1987); Mezo v. Holder, 615 F.3d 616, 621 (6th Cir.
2010). Immigration law is described “[w]ith only a small degree of hyperbole” as
being “‘second only to the Internal Revenue Code in complexity.’” Castro-
O’Ryan, 847 F.2d at 1312 (quoting E. Hull, Without Justice For All 107 (1985)).
-18- Defining what a crime involving moral turpitude is requires
navigating that labyrinth, a task that general criminal practitioners are generally not
prepared to do. As explained by some of our sister courts:
[T]here is no clear consensus in the federal courts about how to define a “crime involving moral turpitude.” Neither the Immigration and Nationality Act nor the Code of Federal Regulations defines the term, nor do they list examples of crimes in this category. The term “moral turpitude” was intentionally left undefined by Congress and, thus, is open to interpretation by the Board of Immigration Appeals (Board) and the courts.
People v. Valdez, 67 N.E.3d 233, 240 (Ill. 2016) (citations omitted). “Because the
term ‘crime involving moral turpitude’ has no settled meaning in immigration law,
the Board and the courts use various methodologies to determine whether a crime
should be classified as a CIMT.” Id. “The characterization of an offense as a
CIMT is a matter of statutory interpretation. The moral turpitude determination
has traditionally been based upon the definition of the offense cited in the
judgment of conviction[.]” Lopez-Penaloza v. State, 804 N.W.2d 537, 545 (Iowa
App. 2011) (citation omitted). “Thus, ascertaining whether a particular crime is a
CIMT must be done on a case-by-case basis, though there are some crimes that
have long been viewed as involving moral turpitude, particularly those involving
an element of fraud.” Id. (citation omitted).
“Indeed, even for those who are trained in immigration law, it may be
difficult to ascertain whether a particular crime would be considered as a crime
-19- involving moral turpitude or as an aggravated felony.” State v. Sanmartin Prado,
141 A.3d 99, 132 (Md. 2016). Therefore, criminal defense counsel may well have
trouble giving accurate advice concerning whether a particular crime falls within
the category of being a CIMT, and could err in unequivocally telling a defendant
that immigration authorities will consider a particular crime to be a CIMT which
would make the defendant deportable and inadmissible to the United States; this
puts counsel in the position of potentially providing misinformation which is too
definite that removal proceedings will ensue, which could thus dissuade a
defendant from taking a beneficial plea offer. State v. Ortiz-Mondragon, 866
N.W.2d 717, 735 (Wis. 2015).
We have before us a dispute about which of the two branches of the
Padilla standard apply, the one with clear consequences that requires equally clear
advice, or the one with unclear consequences that only requires the advice that
there may be immigration consequences. The threshold question we are faced with
here, is as stated by our sister court:
[W]hether the immigration consequences of [the appellant’s] guilty plea . . . were clear and easily ascertainable, such that the Sixth Amendment required [the appellant’s] trial counsel to recognize those consequences and communicate them to petitioner, or whether they were unclear or uncertain, such that the Sixth Amendment required only that he advise [the appellant] that a conviction might carry a risk of adverse immigration consequences. If the immigration consequences of [the appellant’s] plea were clear and
-20- easily ascertainable, then [the appellant’s] trial counsel was personally responsible for ensuring that [the appellant] received correct advice on that issue . . . . Conversely, if they were unclear or uncertain, then trial counsel only needed to put [the appellant] on general notice that his plea might have immigration consequences, at which point it was [the appellant’s] choice whether to consult an immigration attorney before entering the plea.
Madrigal-Estrella v. State, 463 P.3d 23, 30 (Or. App. 2020) (citations omitted).
See People v. Dominguez, 64 N.E.3d 1191, 1199 (Ill. App. 2016) (discussing the
test being which of the two branches of Padilla applies); Paxtor v. Commonwealth,
No. 2012-CA-002196-MR, 2014 WL 3026750, at *2 (Ky.App. Jul. 3, 2014)
(unpublished) (explaining “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”).4
In challenging counsel’s advice on the immigration consequences of a
plea as being ineffective, the defendant should explain
how the immigration consequences of a plea would have been clear and easily ascertainable to any competent attorney, including identifying the relevant sources of law. Relatedly, . . . the court’s task is to review the identified sources of law and determine whether they actually made the immigration consequences of the plea clear and easily ascertainable.
4 We do not cite this unpublished case as authority, but simply to show that this is how this issue is generally understood.
-21- Madrigal-Estrella, 463 P.3d at 31. See Dominguez, 64 N.E.3d at 1199 (discussing
which of the two branches of Padilla applies and placing the burden on the
defendant to establish that the consequences are clear, requiring clear advice).
Our sister courts have dealt with these difficulties in a variety of ways.
Some have categorically declared that for all crimes (like CIMT offenses) which
do not make an alien deportable through clear statutory language (unlike Padilla’s
drug crime), the terms are not succinct, clear, and explicit, but are rather unclear or
uncertain, and thus only require attorneys to advise their clients that they may be
deported. See, e.g., People v. Lawrence, 148 A.D.3d 1472, 1473 (N.Y. App. Div.
2017) (quoting Padilla, 559 U.S. at 369, 130 S.Ct. at 1483) (citations omitted)
(explaining “[w]here . . . deportation consequences of a guilty plea are less certain
because removal was sought for a crime involving moral turpitude, counsel’s
obligation is more limited, requiring that a defendant be advised that a guilty plea
‘may carry a risk of adverse immigration consequences.’”). Other courts have
generally held to that approach, except when it comes to crimes involving fraud as
it is sufficiently clear that such crimes are considered to be CIMT; therefore,
crimes involving fraud require the advice that pleading to them will make
defendants eligible for deportation. See Jordan v. De George, 341 U.S. 223, 232,
71 S.Ct. 703, 708, 95 L.Ed. 886 (1951) (explaining “[t]he phrase ‘crime involving
moral turpitude’ has without exception been construed to embrace fraudulent
-22- conduct.”). Other courts have required research as to whether the specific crime or
similar crimes have previously been ruled to be CIMT and make decisions as to
whether an attorney’s advice was sufficient depending upon what that research
would have revealed in each individual case. See, e.g., State v. Nkiam, 778 S.E.2d
863, 870 (N.C. App. 2015) (noting “[w]hen other courts have found deportation
consequences unclear for particular guilty pleas, they have pointed to the need for
trial counsel to look beyond the plain language of the United States Code in order
to reach a conclusion regarding the deportation consequences for the defendant.”).
Undoubtedly, the third approach creates the most uncertainty for practitioners
about how much research is enough and what crimes are sufficiently similar.
Fortunately, in resolving the question of what approach our Courts
should take, we are not writing on an entirely blank slate. In Commonwealth v.
Pridham, 394 S.W.3d 867 (Ky. 2012), the Kentucky Supreme Court interpreted
whether Padilla applies to two different types of potential advice, whether our
violent offender statute applied, and when a sexual offender would be eligible for
parole. Regarding our violent offender statute, the Court explained that the duty of
counsel to give accurate advice was clear:
In Padilla, the Court observed that the relevant immigration statute was “succinct, clear, and explicit in defining the removal consequence for Padilla’s conviction.” 130 S.Ct. at 1483. Here, the violent offender statute, KRS 439.3401, is also “succinct, clear and explicit” in deeming a person convicted of a Class A
-23- felony, as Pridham was, a violent offender and then providing he “shall not be released” until he has served 85% of his sentence. Just as “[t]he consequences of Padilla’s plea could easily be determined from reading the removal statute,” 130 S.Ct. at 1483, the parole eligibility consequences of Pridham’s plea could easily be determined by reading the violent offender statute. Finally, like the immigration statutes at issue in Padilla, the violent offender statute, KRS 439.3401, has for years now been a prominent fixture of our criminal law. It is expressly referred to in KRS 532.080, the persistent felony offender sentencing statute, under which Pridham was likely to be sentenced had he gone to trial.
We do not believe it unreasonable to expect of competent defense counsel an awareness of the violent offender statute and accurate advice concerning its effect on parole eligibility. We agree with the Court of Appeals, therefore, that under Padilla, Pridham has stated a Sixth Amendment claim of ineffective assistance of counsel and is entitled to an evidentiary hearing on the merits of his claim, at which he will have an opportunity to prove that counsel misadvised him as alleged and that absent the misadvice there is a reasonable probability that he would have insisted upon a trial.
Pridham, 394 S.W.3d at 878-79 (footnotes omitted). See Stiger v. Commonwealth,
381 S.W.3d 230, 236 (Ky. 2012) (agreeing that “counsel’s alleged failure to take
the violent offender statute into account when giving advice about parole eligibility
would constitute, if proven, deficient performance”).
-24- However, the Pridham Court came to a different conclusion as to
counsel’s responsibility to advise criminal defendants about parole eligibility for
sex offenders, explaining as follows:
Unlike the 85% parole eligibility evident from the face of the violent offender statute, there is no place in Kentucky law where there is a “succinct, clear, and explicit,” Padilla, 130 S.Ct. at 1483, answer to the issue of whether a sex offender treatment program can be completed in two years. Any parole eligibility effect, therefore, cannot, like the deportation at issue in Padilla, be said to be enmeshed with the defendant’s sentence and easily ascertainable by reference to statute. We agree with the Court of Appeals and the trial court that the challenged advice in this case falls outside what the Sixth Amendment requires of counsel.
394 S.W.3d at 882 (footnote omitted).
We observe that in reaching its conclusions in each of these situations,
the Kentucky Supreme Court focused on whether or not the relevant statutes
provided a clear answer as to the outcome in determining what advice counsel had
to give.
Additionally, after Pridham, the Kentucky Supreme Court has
continued to emphasize the mandatory requirement that counsel give correct
advice where the consequences are easily discernable from reading a statute. In
Commonwealth v. Thompson, 548 S.W.3d 881, 891 (Ky. 2018), a case concerning
the failure of counsel to advise the appellant that the Sexual Offender Registration
Act (SORA) would apply to him, the Court determined that “given the automatic,
-25- serious and lifelong consequences of registration – consequences readily
discernible by reading the SORA statute – we conclude that effective assistance of
counsel pursuant to the Sixth Amendment requires informing a defendant about the
fact of mandatory sex offender registration and what that entails.” In its
subsequent discussion, the Court noted that “[s]ex offender registration, like the
violent offender statute, is codified and can be understood by reading the relevant
Kentucky Revised Statute.” Id. at 892. The Court emphasized again that “[t]his
serious and automatic consequence of a plea to certain charges can ‘easily be
determined by reading . . . the statute,’ Pridham, 394 S.W.3d at 878 (quoting
Padilla, 559 U.S. at 357, 130 S.Ct. 1473), and is a matter that competent counsel
would and should discuss with his client.” Id. at 893.
Based upon Pridham, we believe that our Supreme Court is
interpreting the first of the two categories in Padilla, when specific and conclusive
advice must be given, narrowly. The unpublished case of Pierre, which Ebu relies
upon to establish his claim for ineffective assistance of counsel, does not support
his position and is consistent with Pridham.
In Pierre, the question involved whether counsel was ineffective for
failing to “inform him he would automatically be deported upon pleading guilty to
felony burglary and robbery.” Pierre, 2014 WL 5064169, at *6. 8 U.S.C. §
1227(a)(2)(A)(iii) succinctly provides: “Any alien who is convicted of an
-26- aggravated felony at any time after admission is deportable.” Pursuant to 8 U.S.C.
§ 1101(a)(43) “aggravated felony” is defined as including categories (A) through
(U), with 8 U.S.C. § 1101(a)(43)(G) including “a theft offense (including receipt of
stolen property) or burglary offense for which the term of imprisonment [is] at
least one year[.]” (Footnote omitted indicating an “is” should probably precede the
“at.”) The factual finding after the evidentiary hearing was that Pierre’s counsel
(who did not independently recall what he advised Pierre but testified that he
always advised defendants about possible deportation consequences as this is
mentioned in the plea form), advised Pierre that he could face possible deportation
as a result of accepting the plea agreement.
The way the opinion is written, it appears that the Court gave Pierre
the benefit of the doubt that counsel’s advice was defective, noting “[a]fter wading
through the immigration law ourselves, we are loath to say [trial counsel] provided
bad advice,” pointing out that counsel did not know that Pierre’s removal was
certain since he was pleading to an aggravated felony, a change made to
immigration law several years prior, which made Pierre ineligible for a waiver to
deportation pursuant to 8 U.S.C. § 1229b(a)(3). Pierre, 2014 WL 5064169, at *7.
The Court concluded that even if it accepted that the trial counsel’s advice “should
have been more precise, and therefore, was deficient,” there was no prejudice and,
therefore, relief was unwarranted. Id.
-27- Pierre is distinguishable from Ebu’s situation as it decided what kind
of advice must be provided regarding aggravated felonies, with the specific
charges Pierre faced specifically qualifying for this category as defined by statute.
Resolving whether a particular crime is a CIMT is generally more complicated
than merely reviewing statutes (which are complex enough) and based on
Pridham, it appears that reading beyond the statutes is not required in the
Kentucky Supreme Court’s interpretation of Padilla.
While Ebu did generally argue that the CIMT section is “clear and
explicit[,]” indicated that “theft and fraud” are crimes considered to constitute
moral turpitude, and stated that “[a] legal inquiry into Westlaw shows multiple
cases of crimes considered to be of moral turpitude which result in deportation[,]”
Ebu did not cite any of these cases or directly establish that the crimes for which he
pled have clearly been determined (in the timeframe before he entered his plea) to
be CIMT. While we could summarily reject Ebu’s argument based on his failure
to adequately establish through citation to appropriate authorities that his
misdemeanor convictions clearly qualified as CIMT before he was seized by ICE,
instead, we choose to establish a broad holding that will be of help to Kentucky
Courts grappling with these complex immigration issues and what advice is
necessary.
-28- We hold that unless a defendant can identify federal statutory
provisions that in and of themselves (without additional legal research) establish
that pleading guilty to a particular Kentucky crime makes that defendant
deportable and ineligible for cancellation of removal, this crime is placed in the
second Padilla category of crimes where “the law is not succinct and
straightforward[.]” Padilla, 559 U.S. at 369, 130 S.Ct. at 1483. In such a
situation, “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.” Id. That is counsel’s only duty. This definitive rule in
categorizing when crimes fall into the second Padilla category will make it easier
for parties and attorneys to understand what trial counsel’s duties are and will
make it much easier for courts to evaluate whether counsel has acted as required
under the Sixth Amendment, while still appropriately following Padilla and
providing defendants with constitutionally appropriate notice as to the potential
consequences of their pleas or convictions.
While Justice Alito suggests that counsel should also recommend
consultation with an immigration attorney,5 we recognize that the majority opinion
5 Justice Alito, who would have the same advice be applicable to all, rather than having the two categories the majority opinion decided upon, stated “[w]hen a criminal defense attorney is aware that a client is an alien, the attorney should advise the client that a criminal conviction may have adverse consequences under the immigration laws and that the client should consult an immigration specialist if the client wants advice on that subject.” Id. at 387, 130 S.Ct. at 1494
-29- in Padilla did not rule that this is constitutionally required in either category of
case. However, we strongly recommend that counsel offer this additional advice.
While we do not discourage trial counsel from conducting research on
immigration law, we caution practitioners that any advice they give beyond the
standard must still be accurate, and unless the answer is clear, counsel should
discuss possibilities, rather than certainties. Such an approach should galvanize
defendants into consulting with immigration attorneys for answers to the questions
their defense attorneys have raised, and indeed defense attorneys should encourage
and facilitate such discussions whenever possible.
The circuit court found that trial counsel advised Ebu that trial counsel
was uncertain of the effect Ebu’s pleas would have on his immigration status,
indicated that he may be deported, and advised him to consult with an immigration
attorney. Trial counsel should have reviewed 8 U.S.C. § 1227 to see whether
Ebu’s original or amended charges had explicit deportation consequences,6 and
(Alito, J., concurring). Justice Alito further opined that “an alien defendant’s Sixth Amendment right to counsel is satisfied if defense counsel advises the client that a conviction may have immigration consequences, that immigration law is a specialized field, that the attorney is not an immigration lawyer, and that the client should consult an immigration specialist if the client wants advice on that subject.” Id. at 388, 130 S.Ct. at 1494 (Alito, J., concurring). 6 We note that Ebu’s original crimes likely would have been considered aggravated felonies just as Pierre’s were. Thus, counsel’s advice that Ebu would definitely be subject to deportation if convicted on the felonies was correct. However, it is important to recognize that whether other crimes are considered aggravated felonies is not as clear for certain classes of crimes, especially those that do not neatly fit into the listed categories. Additionally, apparently pleading guilty to misdemeanors is not a guarantee that they will not be treated as felonies if the misdemeanors are subject to a year (twelve months or 365 days is treated as a year) of imprisonment. As recounted
-30- then advised Ebu. Trial counsel could have advised Ebu that his amended charges
could be CIMT and if immigration authorities determined that they qualified under
this category, he could be deported. However, any failure to do such research was
harmless as trial counsel’s advice that Ebu’s plea to the misdemeanors could result
in deportation was nonetheless correct. Trial counsel acted appropriately by giving
such advice where there was no clear statutory answer as to whether the
misdemeanors would qualify as CIMT and recommending that Ebu, who had been
released from custody on bond, consult with an immigration attorney who would
understand that matter better than trial counsel did and could provide more specific
advice.
Therefore, having established that based on the factual findings the
circuit court made that Ebu’s counsel offered proper legal advice, we need not
proceed to the prejudice prong of Strickland. We note, however, that Ebu is
in United States v. Urias-Escobar, 281 F.3d 165, 167 (5th Cir. 2002), a case discussing sentencing guidelines enhancements based on conviction of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43), multiple circuits have ruled that a misdemeanor punishable by imprisonment of at least one year can be an aggravated felony. Additionally, classification can vary as to whether state felonies will be treated as aggravated felonies if the equivalent federal crime is a misdemeanor under federal law. See Lopez v. Gonzales, 549 U.S. 47, 52-60, 127 S.Ct. 625, 629-633, 166 L.Ed.2d 462 (2006) (thoroughly discussing this issue and ultimately holding “a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ [see 18 U.S.C. § 924(c)(2); 8 U.S.C. § 1101(a)(43)(B)] only if it proscribes conduct punishable as a felony under that federal law.”). So, while the classification of certain crimes as aggravated felonies at first blush appears easy and straightforward, results can vary depending on the specifics.
-31- incorrect that it would have been easy to avoid mandatory removal through plea
negotiations by structuring a sentence of 364 days on the misdemeanors.7 Ebu
acted at his own peril in declining to consult with an immigration attorney when
his own trial counsel said he was uncertain the effect that pleading guilty to these
misdemeanors would have on Ebu’s immigration status.
Accordingly, we affirm the Fayette Circuit Court’s order denying
Ebu’s motion to set aside his plea based on receiving inaccurate advice as to the
probable immigration consequences of accepting the Commonwealth’s plea offer.
Trial counsel properly advised Ebu that his plea could have consequences to his
status as a legal resident of the United States and advised him to consult an
immigration attorney; more was not required where 8 U.S.C. § 1227(a)(2)(A)(i)(I)-
7 8 U.S.C. § 1227(a)(2)(A)(i)(I)-(II) has been interpreted as applying where a crime could be sentenced for up to one year, regardless of the actual sentence imposed. See Velasquez-Rios v. Wilkinson, 988 F.3d 1081, 1088 (9th Cir. 2021) (determining a man who pled guilty to misdemeanor forgery and was sentenced to twelve days in jail, eight days of community service and a fine had committed a CIMT because the maximum sentence for his crime was one year and a later change to the statute making the maximum sentence 364 days did not apply retroactively to change the nature of his conviction). See also Mancilla-Delafuente v. Lynch, 804 F.3d 1262, 1265 (9th Cir. 2015) (interpretating the petty offense exception to CIMT in 8 U.S.C. § 1182(a)(2)(A)(ii) and noting that this exception does not apply to a crime for which the sentence could have been one year, explaining “we defer to the BIA’s reasonable approach of considering the sentence that could have been imposed, not the actual sentence.”); Lucio-Rayos v. Sessions, 875 F.3d 573, 584 n.16 (10th Cir. 2017) (explaining that a CIMT subject to a 365- day sentence does not qualify for the petty offense exception as 8 U.S.C. § 1227(a)(2)(A)(i) includes CIMT “for which a sentence of one year or longer may be imposed”). The confusion of postconviction counsel reveals the very real difficulty of non-immigration attorneys attempting to understand the United States’s convoluted immigration law without typically practicing in this area.
-32- (II) only provided that crimes involving moral turpitude were deportable offenses
but did not clarify whether Ebu’s crimes fit within this category.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
J. Ryan Chailland Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
-33-