Ebu v. Commonwealth
| Docket Number | 2020-CA-0553-MR |
| Decision Date | 24 June 2022 |
| Parties | JOSEPH EBU APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
BRIEFS FOR APPELLANT:
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 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 Nov. 22, 2019) (unpublished).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.
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 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:
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 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...
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