State of Louisiana Versus Abdellah Karim

• Court: Louisiana Court of Appeal
• Decided: September 9, 2020
• Docket: 19-KA-133
• Status: Unknown

Opinion

STATE OF LOUISIANA NO. 19-KA-133

VERSUS FIFTH CIRCUIT

ABDELLAH KARIM COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 18-2750, DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING

September 09, 2020

STEPHEN J. WINDHORST JUDGE

Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Stephen J. Windhorst

CONVICTION AND SENTENCE AFFIRMED SJW RAC

WICKER, J., CONCURS IN PART, DISSENTS IN PART FHW COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Terry M. Boudreaux Gail D. Schlosser Joshua K. Vanderhooft

COUNSEL FOR DEFENDANT/APPELLANT, ABDELLAH KARIM Katherine M. Franks WINDHORST, J.

In this out-of-time appeal, defendant, Abdellah Karim, seeks review of his

unconditional guilty plea and sentence. For the following reasons, we affirm

defendant’s conviction and sentence.

PROCEDURAL HISTORY

On May 14, 2018, the Jefferson Parish District Attorney filed a bill of

information charging defendant, Abdellah Karim, “a/k/a Karim Abdellah,” with

possession of marijuana weighing fourteen grams or less in violation of La. R.S.

40:966 C.1 On May 15, 2018, defendant pled not guilty.2

On June 18, 2018, defendant entered an unconditional guilty plea to

possession of marijuana weighing fourteen grams or less and was sentenced to

fifteen days in the Jefferson Parish Correctional Center. 3 His sentence was ordered

to run concurrently with the sentences imposed in district court case numbers 17-

900 and 18-1986.4

On December 28, 2018, defendant wrote a pro se letter to the Jefferson Parish

Clerk of Court requesting legal advice from the Clerk of Court on the procedure and

process of how to vacate his conviction under Padilla v. Kentucky,5 and for the

1 The State amended the bill of information to amend defendant’s name, but did not

include the date amended. 2 The record is unclear as to whether defendant was arraigned before or after the bill was amended. The purpose of an arraignment is to inform the defendant of the substance of the crime he is charged with. La. C.Cr.P art. 551. A rearraignment is only required after amendment of a bill of information if the substance of the charge is changed. State v. Willie, 17-252 (La. App. 5 Cir. 12/20/17), 235 So.3d 1339, 1353. Here, rearraignment of defendant on the amended bill was unnecessary because it did not alter the substance of the charge against defendant. 3 Defendant was also ordered to pay fees within ninety days. 4 On June 18, 2018, as part of defendant’s plea agreement (1) defendant also pled guilty

and was sentenced in district court case number 18-1986, which is appeal number 19- KA-132; (2) defendant further pled guilty and was sentenced in district court case number 17-900, which defendant did not appeal; and (3) the State dismissed defendant’s district court case number 17-0901. 5 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

19-KA-133 1 appointment of an attorney to help him with the process. Defendant stated that he

was in “ICE custody”6 in Pine Prairie, Louisiana, and his criminal charges were the

reason he was being detained. On January 9, 2019, the trial court informed defendant

that neither the trial court nor the clerk of court could provide legal advice and that

he should contact an attorney or file a request for an out-of-time appeal. The trial

court, although finding the letter was not a motion but a request of the clerk’s office,

noted that defendant did not make any specific allegations that his plea was

involuntary, that he was not informed of immigration consequences, or that he is

from another country. The trial court then concluded that defendant was not entitled

to any relief at that time.

On January 4, 2019, defendant filed a pro se Motion for Appeal of his guilty

plea with an attached letter dated December 25, 2018. In the letter, defendant stated

that his trial counsel never explained to him the immigration consequences of

pleading guilty and that he desired to reopen his case to prove he was innocent of

the charges. On January 11, 2019, the trial court granted defendant an out-of-time

appeal. This appeal followed.

FACTS

Because defendant pled guilty, the underlying facts were not fully developed

at a trial. A factual basis not provided at the guilty plea proceedings, therefore the

facts have been gleaned from the bill of information which provided that on or about

April 12, 2018, defendant knowingly and intentionally possessed marijuana

weighing fourteen grams or less. The transcript of defendant’s guilty plea shows

that defendant admitted that on April 12, 2018, he was in possession of marijuana.

6 Immigration and Customs Enforcement

19-KA-133 2 MISDEMEANOR APPEAL

This Court’s appellate jurisdiction extends only to cases that are triable by a

jury. State v. Chess, 00-164 (La. App. 5 Cir. 06/27/00), 762 So.2d 1286, 1287 (citing

La. Const. of 1974, art. 5 § 10; La. C.Cr.P. art. 912.1). Unless the punishment that

may be imposed exceeds six months imprisonment, a misdemeanor is not triable by

a jury. Id.; State v. Flowers, 11-376 (La. App. 5 Cir. 12/13/11), 81 So.3d 910; La.

C.Cr.P. art. 779 B. However, this Court has reviewed misdemeanor convictions and

sentences on appeal when the misdemeanor and felony convictions are so

intertwined that the interests of justice are better served by considering the matters

together. State v. Carroll, 16-599 (La. App. 5 Cir. 02/08/17), 213 So.3d 486, 488;

State v. Jones, 12-640, 12-641 (La. App. 5 Cir. 10/30/13), 128 So.3d 436, 441-443.

In this case, defendant was charged with and pled guilty to possession of

marijuana weighing fourteen grams or less in violation of La. R.S. 40:966 C, a

misdemeanor punishable by a fine of not more than three hundred dollars,

imprisonment in parish jail for not more than 15 days, or both. La. R.S. 40:966

C(2)(a). Defendant’s misdemeanor was not triable by a jury and his conviction is,

therefore, not ordinarily an appealable judgment. Usually, the proper procedure for

seeking review of a misdemeanor conviction is an application for writ of review

directed to this Court to exercise its supervisory jurisdiction. La. C.Cr.P. art. 912.1

C(1); State v. Trepagnier, 07-749, 07-750 (La. App. 5 Cir. 03/11/08), 982 So.2d 185,

188, writ denied, 08-0784 (La. 10/24/08), 992 So.2d 1033.

However, defendant’s felony appeal is also currently pending before this

Court (19-KA-132). While defendant’s misdemeanor and felony offenses were

charged in separate bills of information, the facts in defendant’s felony and

misdemeanor cases are the same. Thus, under the facts of this case, we find

defendant’s misdemeanor and felony convictions are so intertwined that judicial

19-KA-133 3 economy and the interests of justice are better served by considering both together

on appeal.

DISCUSSION

In his sole assignment of error, defendant argues that his counsel rendered

ineffective assistance by failing to inform him of the possible immigration/

deportation consequences of his guilty plea under Padilla. Specifically, defendant

argues that it is evident from the record that he “had some difficulty with the

[English] language” and that his counsel knew he was a “foreign national” because

she listed “Arabic” as his race on the “Misdemeanor: Schedule of Court Costs, Fines,

Fees, Sentencing Provisions & Probation Requirements” worksheet, but failed to

inform him of the immigration/deportation consequences of pleading guilty.

Additionally, defendant argues that none of the documents in the record contain a

social security number for defendant. He further contends that he was prejudiced by

counsel’s ineffectiveness and that it impacted the voluntariness of his plea because

he is currently in “ICE custody” awaiting deportation proceedings.

A defendant is entitled to effective assistance of counsel under the Sixth

Amendment to the United States Constitution and Article I, § 13 of the Louisiana

Constitution of 1974. State v. Johnson, 18-294 (La. App. 5 Cir. 01/16/19), 264 So.3d

593, 598; State v. Francois, 13-616 (La. App. 5 Cir. 01/31/14), 134 So.3d 42, 58,

writ denied, 14-431 (La. 09/26/14), 149 So.3d 261. Under the standard for

ineffective assistance of counsel set forth in Strickland,7 a conviction must be

reversed if the defendant proves: (1) that counsel’s performance fell below an

objective standard of reasonableness under prevailing professional norms; and (2)

counsel’s inadequate performance prejudiced defendant to the extent that the trial

7 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

19-KA-133 4 was rendered unfair and the verdict suspect. State v. Lyons, 15-2197 (La. 09/23/16),

199 So.3d 1140, 1141 (per curiam).

When a defendant claims that counsel’s ineffective assistance rendered a

guilty plea invalid, under Strickland the defendant must show that (1) counsel’s

performance was deficient; and (2) “there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on going

to trial.” State v. Stiller, 16-659 (La. App. 5 Cir. 07/26/17), 225 So.3d 1154, 1157

(citing Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203

(1985)).

Generally, an ineffective assistance of counsel claim is most appropriately

addressed through an application for post-conviction relief filed in the district court,

where a full evidentiary hearing can be conducted, if necessary, rather than by direct

appeal. See State v. Leger, 05-11 (La. 07/10/06), 936 So.2d 108, 142; State v.

Lawrence, 18-372 (La. App. 5 Cir. 05/15/19), 273 So.3d 548, 553; State v. Ferrera,

16-243 (La. App. 5 Cir. 12/14/16), 208 So.3d 1060, 1066-1067. However, when the

record contains sufficient evidence to rule on the merits of the claim and the issue is

properly raised in an assignment of error on appeal, it may be addressed in the

interest of judicial economy. Ferrera, supra. If, on the other hand, the record does

not contain sufficient evidence to fully explore a claim of ineffective assistance of

counsel, the claim should be relegated to post-conviction proceedings. Id.

At the outset, we find that defendant did not, at the time of entering the guilty

plea, expressly reserve any issues to appeal. An unconditional guilty plea, by its

nature, admits factual guilt and waives all non-jurisdictional defects in the

proceedings prior to the entering of the plea and precludes review thereof either by

appeal or by post-conviction relief. State v. Crosby, 338 So.2d 584, 588 (La. 1976);

State v. Starks, 01-1078 (La. 03/28/02), 812 So.2d 638, 638-639 (citing Tollett v.

Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973)). We find that

19-KA-133 5 the plea colloquy along with the signed waiver of rights form constitute a sufficient

affirmative showing on the record that defendant was advised of his constitutional

rights, understood those rights, and that he made an intelligent and knowing waiver

of his rights. Defendant was further informed that he would be sentenced to fifteen

days in the Jefferson Parish Correctional Center, to run concurrent with district court

case numbers 17-900 and 18-1986. Defendant was sentenced in conformity with the

plea agreement.

We conclude the record is sufficient to determine defendant’s ineffective

assistance of counsel claim as to his misdemeanor conviction. For the following

reasons, we find that defendant’s claim is without merit.

The United States Supreme Court in Padilla found that, even though

immigration consequences are technically collateral and not direct consequences of

a conviction, “advice regarding deportation” falls within “the ambit of the Sixth

Amendment right to counsel.” Padilla, 559 U.S. at 366. The Supreme Court held

that “[t]he weight of prevailing professional norms supports the view that counsel

must advise her client regarding the risk of deportation.” Id. at 367-368.

Where statutory language makes the deportation consequences of a plea “truly

clear, . . . the duty to give correct advice is equally clear.” Id. at 369. The Supreme

Court found the relevant immigration statute, 8 U.S.C. § 1227(a)(2)(B)(i), to be

“succinct, clear, and explicit in defining the removal consequence for [the

defendant’s] conviction.” Id. at 368. Although the Court recognized that

“[i]mmigration law can be complex,” and under many circumstances “the law is not

succinct and straightforward,” it held that where “the consequences of [the

defendant’s] plea could easily be determined from reading the removal statute, his

deportation was presumptively mandatory, and his counsel’s advice was incorrect,”

the defendant had sufficiently alleged constitutional deficiency to satisfy the first

prong of Strickland. Id. at 369. The Supreme Court found that Mr. Padilla’s trial

19-KA-133 6 counsel had an obligation to inform him of the consequences of the guilty pleas as it

related to his immigration status and remanded the matter for further proceedings.

Id. at 374.

In this case, defendant pled guilty to possession of marijuana weighing

fourteen grams or less, a violation of La. R.S. 40:966 C. Significantly,

8 U.S.C. §1227(a)(2)(B)(i) provides:

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 (as defined in section 802 of Title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable. (Emphasis added.)

Based upon the plain language of 8 U.S.C. § 1227(a)(2)(B)(i), defendant’s

misdemeanor conviction for possession of marijuana weighing fourteen grams or

less is an exception under the statute and is not a deportable offense under these

facts. Trial counsel did not advise defendant of any deportation consequences of

pleading guilty on the record. However, in this case, deportation would not result

from defendant’s guilty plea to misdemeanor possession of marijuana weighing

fourteen grams or less because it is expressly excepted from the crimes for which an

offender is deportable under 8 U.S.C. § 1227(a)(2)(B)(i).8

Furthermore, contrary to defendant’s assertions, there is no indication in the

record that trial counsel knew that defendant was a non-citizen.9 We therefore have

no reason to conclude that trial counsel had a duty to inform defendant of possible

immigration consequences under the statute. We therefore conclude that defendant

failed to show that trial counsel’s performance was deficient for not advising

defendant of deportation consequences which did not apply, and that defendant has

8 This is the “personal use exception” to the statute which deems all other controlled

substances convictions deportable offenses. 9 This issue is examined and discussed in detail in the related appeal of defendant’s felony

guilty plea.

19-KA-133 7 not sustained his burden under Strickland. Accordingly, we find this assignment of

error to be without merit.

ERRORS PATENT DISCUSSION

Generally, an errors patent review is not conducted on a misdemeanor

conviction. Nevertheless, this Court in similarly situated matters has conducted an

errors patent review. See State v. Vaughn, 18-51 (La. App. 5 Cir. 05/16/18), 248

So.3d 578, 588; Jones, supra. Thus, the record was reviewed for errors patent,

according to the mandates of La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337

(La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). Our review

reveals no errors patent which require correction.

DECREE

For the foregoing reasons, we affirm defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED

19-KA-133 8 STATE OF LOUISIANA NO. 19-KA-133

WICKER, J., CONCURS IN PART, DISSENTS IN PART

I agree with the majority’s analysis of the errors assigned on appeal, however, in my opinion the better course of action at this time would be to consolidate this case with the companion case 19-KA-132 and remand the matter for an evidentiary hearing addressing the merits of the defendant’s ineffective assistance of counsel claim. Therefore, I disagree with the ultimate outcome of this case at this point in time.

Jurisdictional Matters

Defendant’s conviction for possession of marijuana weighing fourteen grams or less in violation of La. R.S. 40:966(C) is a misdemeanor conviction, which is not an appealable judgment. See La. R.S. 40:966(C)(2)(a); La. C.Cr.P. art. 912.1(C)(1); State v. Trepagnier, 07-749 c/w 07-750 (La. App. 5 Cir. 3/11/08), 982 So.2d 185, 188, writ denied, 08-0784 (La. 10/24/08), 992 So.2d 1033. However, defendant has also appealed a felony conviction for possession with intent to distribute cocaine weighing less than twenty-eight grams in violation of La. R.S. 40:967(A), under case number 19-KA-132. I believe that the misdemeanor and felony convictions are “intertwined to the point that the interests of justice are better served by considering the matters together.” See May 29, 2014 En Banc Policy n.3; State v. Carroll, 16-599 (La. App. 5 Cir. 2/8/17), 213 So.3d 486, 488; State v. Jones, 12-640 c/w 12-641 (La. App. 5 Cir. 10/30/13), 128 So.3d 436, 441-43. Therefore, I would consolidate the matters for consideration.

Ineffective Assistance of Counsel

Defendant’s sole assignment of error on appeal is that his trial counsel was ineffective for failing to inform him of the possible immigration consequences of his guilty plea. While I agree with the majority that the defendant’s misdemeanor conviction is not a deportable offense pursuant to 8 U.S.C. § 1227(a)(2)(B)(i), defendant has raised a colorable claim for ineffective assistance of counsel under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), with respect to his felony conviction. The Padilla Court held that trial counsel’s failure to inform a defendant that his guilty plea carried a risk of deportation may have constituted ineffective assistance of counsel under the Sixth Amendment. Id. at 373-74. Defendant’s remedy—upon proving (1) that trial counsel failed to inform him that his plea

19-KA-133 1 carried a risk of deportation and (2) that he would have insisted on going to trial if he had been so informed—is an opportunity to withdraw the guilty plea and proceed to trial on the merits. See id. at 372-74. A review of the record in this case shows no indication that defendant was advised of any deportation consequences, either on the waiver of rights form or during the colloquy.

Therefore, in my opinion, an evidentiary hearing on defendant’s ineffective assistance of counsel claim at this time is warranted, and the interests of justice and judicial economy are better served by remanding the consolidated matter to the district court now for an evidentiary hearing so that the issue of ineffective assistance of counsel may be resolved promptly. See State v. Lopez-Ventura, 17- 556 (La. App. 5 Cir. 10/31/17) (unpublished writ decision) (JJ., Liljeberg, Chaisson, Murphy); State v. King, 17-0126 (La. App. 4 Cir. 10/27/17), 231 So.3d 110.

For this reason alone, I respectfully dissent from the final disposition of this case at this point in time.

19-KA-133 2 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY SEPTEMBER 9, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-KA-133 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE NANCY A. MILLER (DISTRICT JUDGE) GAIL D. SCHLOSSER (APPELLEE) THOMAS J. BUTLER (APPELLEE) KATHERINE M. FRANKS (APPELLANT)

MAILED HONORABLE PAUL D. CONNICK, JR. (APPELLEE) DISTRICT ATTORNEY JOSHUA K. VANDERHOOFT (APPELLEE) ASSISTANT DISTRICT ATTORNEY TWENTY-FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053