Keserovic v. State
| Decision Date | 11 February 2015 |
| Docket Number | No. 41890.,41890. |
| Citation | 345 P.3d 1024,158 Idaho 234 |
| Court | Idaho Court of Appeals |
| Parties | Haris KESEROVIC, Plaintiff–Respondent, v. STATE of Idaho, Defendant–Appellant. |
Hon. Lawrence G. Wasden, Attorney General; Shawna Dunn, James K. Dickinson, Special Deputy Attorneys General, Boise, for appellant. Shawna Dunn argued.
Alan Trimming, Ada County Public Defender; Kimberly J. Simmons, Abraham Wingrove, Deputy Public Defenders, Boise, for respondent. John R. Shackelford argued.
The State appeals from the district court's order reversing the magistrate's grant of the State's motion for summary dismissal of Haris Keserovic's petition for post-conviction relief. Specifically, the State contends the district court erred by determining that Keserovic raised a genuine issue of material fact as to whether Keserovic was prejudiced by his trial counsel's incorrect advice regarding the immigration consequences of his guilty plea. For the reasons set forth below, we affirm the district court's decision reversing the magistrate's grant of summary dismissal.
In January 2012, Keserovic, a lawful permanent resident of the United States, was arrested for stealing a purse from a grocery cart. He was charged with felony grand theft, obtained counsel, and entered a plea of not guilty. Keserovic was visited in jail by an Immigration and Customs Enforcement (ICE) officer who told Keserovic he would be deported if he was convicted of a felony offense. Keserovic relayed this information to his counsel, who advised Keserovic to accept the State's offer that he plead guilty to a reduced charge of misdemeanor petit theft, with an agreed sentence of 365 days in jail, with 305 days suspended, and two years on supervised probation. Keserovic states that counsel told him that because he was pleading to a misdemeanor, he "wouldn't have any problems with immigration" and "within sixty (60) days [he] would have [his] life back on track."
At the change of plea hearing, the prosecutor made the following statement regarding the immigration consequences of Keserovic's plea:
[P]rior to accepting the plea of guilty, we just need to make it very clear on the record the State understands a petit theft with 365 days as being what the ICE or the federal government determines to be an aggravated felony even though it is a misdemeanor.[1 ] It is the State's understanding that this does subject Mr. Keserovic to deportation and so entering this plea of guilty, we just want it very clear on the record that he recognizes that it does subject him to that potential.
The magistrate asked Keserovic's counsel whether he had "that discussion" with Keserovic, to which counsel replied, The magistrate then asked Keserovic if he understood that by entering a guilty plea that it "could affect your citizenship, your application for citizenship or your ability to work in the United States?"2 Keserovic stated that he did.
After completing the plea colloquy, the magistrate court accepted the plea and entered a judgment of conviction and sentence in accordance with the agreement. Several months later, ICE assumed custody of Keserovic and initiated deportation proceedings. Several days after being detained, Keserovic, represented by different counsel, filed a petition for post-conviction relief, contending his trial counsel rendered ineffective assistance by providing inaccurate advice regarding the immigration consequences of his guilty plea and that, had he understood the actual consequences, he would not have entered the plea. Contrary to counsel's assurance that there would not be immigration consequences since he pled guilty to a misdemeanor, Keserovic's post-conviction petition explained that his plea to what federal law considered an aggravated felony subjected him to mandatory deportation. See 8 U.S.C. § 1229b(a)(3) (). The consequences of the plea, he asserted in his petition, would be "virtually certain deportation." During the pendency of the post-conviction proceedings, Keserovic was deported to his home country of Bosnia–Herzegovina.
In his affidavit accompanying the post-conviction petition, Keserovic asserted that after the State's statement at the plea hearing that Keserovic's plea subjected him to possible deportation and the magistrate's indication in this regard, Keserovic asked his defense counsel if this was true, to which counsel replied, "They are just trying to scare you." An affidavit from defense counsel also accompanied Keserovic's petition. Counsel averred that he encouraged Keserovic to accept the plea and did not know (and did not advise Keserovic) at the time that the conviction would be classified as an aggravated felony, and thus subject Keserovic to near certain deportation. Counsel stated that during the change of plea hearing he recalled the prosecutor stating that Keserovic "was pleading guilty to a felony because it was a theft offense with [a] one year sentence and the court saying something about the conviction affecting his immigration status generally." Counsel recalled Keserovic turning to him after the statements were made and, although counsel did not remember exactly what Keserovic said, recalled that Keserovic "stated he did not want to plead guilty to a felony" and counsel reassured him that "he was pleading guilty to a misdemeanor, not a felony."
The State filed a motion for summary dismissal, which the magistrate granted upon determining that Keserovic could not show prejudice because any deficiency in his counsel's performance was "cured" by the State's statement at the plea hearing regarding the possible immigration consequences. On intermediate appeal, the district court reversed the magistrate's decision, holding that neither the State's nor the magistrate's admonitions had "cured or eliminated the resulting prejudice" of counsel's incorrect advice. The State now appeals.
The State contends the district court erred by reversing the magistrate's summary dismissal of Keserovic's claim that his trial counsel provided ineffective assistance of counsel by incorrectly informing him of the immigration consequences of his guilty plea. On review of a decision of the district court, rendered in its appellate capacity, we review the decision of the district court directly. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760 (2008). Thus, we do not review the decision of the magistrate. State v. Trusdall, 155 Idaho 965, 968, 318 P.3d 955, 958 (Ct.App.2014). Rather, we are procedurally bound to affirm or dismiss the decisions of the district court. Id.
A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C. § 19–4907 ; Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009) ; State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983) ; Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct.App.1992). Like a plaintiff in a civil action, the petitioner must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct.App.2002). Idaho Code Section 19–4906 authorizes summary dismissal of a petition for post-conviction relief, either pursuant to a motion by a party or upon the court's own initiative, if it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. When considering summary dismissal, the district court must construe disputed facts in the petitioner's favor, but the court is not required to accept either the petitioner's mere conclusory allegations, unsupported by admissible evidence, or the petitioner's conclusions of law. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct.App.1994) ; Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct.App.1986). Moreover, the district court, as the trier of fact, is not constrained to draw inferences in favor of the party opposing the motion for summary disposition; rather, the district court is free to arrive at the most probable inferences to be drawn from uncontroverted evidence. Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct.App.2008). Such inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify them. Id.
Claims may be summarily dismissed if the petitioner's allegations are clearly disproven by the record of the criminal proceedings, if the petitioner has not presented evidence making a prima facie case as to each essential element of the claims, or if the petitioner's allegations do not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 (2010) ; DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in the petitioner's favor. For this reason, summary dismissal of a post-conviction petition may be appropriate even when the State does not controvert the petitioner's evidence. See Roman, 125 Idaho at 647, 873 P.2d at 901.
Conversely, if the petition, affidavits, and other evidence supporting the petition allege facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004) ; Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct.App.2008). If a...
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