Patel v. Commonwealth
| Decision Date | 28 July 2017 |
| Docket Number | NO. 2015-CA-000105-DG,NO. 2015-CA-001443-MR,2015-CA-000105-DG,2015-CA-001443-MR |
| Parties | DILIPKUMAR PATEL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE AND ELIEZAR SANCHEZ A/K/A ELIESER SANCHEZ-SALGADO APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
ON DISCRETIONARY REVIEW FROM HARDIN CIRCUIT COURT
In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the United States Supreme Court held the Sixth Amendment requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea. In Chaidez v. United States, 568 U.S. 342, 133 S.Ct. 1103, 1105, 185 L.Ed.2d 149 (2013), the United States Supreme Court further held Padilla does not have retroactive effect, so a person whose conviction became final before Padilla was decided cannot benefit from it. Subsequently, panels of the Kentucky Court of Appeals held, in reliance on Chaidez, that Padilla does not have retroactive effect in post-conviction proceedings in Kentucky. See Al-Aridi v. Commonwealth, 404 S.W.3d 210, 214 (Ky. App. 2013); Diaz v. Commonwealth, 479 S.W.3d 90, 92 (Ky. App. 2015); Djoric v. Commonwealth, 487 S.W.3d 908, 911 (Ky. App. 2016).
Dilipkumar Patel and Eliezar Sanchez a/k/a Elieser Sanchez-Salgado both pleaded guilty to criminal offenses before Padilla became final. Under federal law, their criminal convictions render them subject to deportation. Patel, by means of a petition for discretionary review, and Sanchez, by means of a direct appeal, seek to reverse orders denying their post-conviction motions to vacate theirguilty pleas on the grounds their attorneys failed to advise them of the deportation consequences. Citing Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009), Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) and Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008), Patel and Sanchez seek to revisit the issue of Padilla's retroactive applicability, arguing a state court may adopt broader standards of retroactivity than those afforded in federal proceedings. Because they raise similar issues and arguments, their appeals have been designated to be heard together.
As a preliminary matter, we address certain deficiencies in the briefs of both appellants. The Commonwealth correctly asserts the Statement of Facts in Patel's brief relies almost entirely on the statement of facts contained in his appeal to the circuit court, rather than on citations to the records of the district and circuit courts. Similarly, Sanchez's appellate brief refers without citation to a misdemeanor charge incurred in 2014 and to subsequent deportation proceedings, but the record lacks any documents relating to these events. "CR1 76.12(4)(c) requires a party's 'ample' citation to the record in his Statement of the Facts and Argument." Walker v. Commonwealth, 503 S.W.3d 165, 170 (Ky. App. 2016), review denied (Dec. 8, 2016). The Commonwealth further asserts a majority of Patel's arguments were never presented to the district court and are consequently inadequately preserved.
These shortcomings could warrant the imposition of sanctions, because "CR 76.12(4)(c) grants this Court great discretion over the imposition of sanctions for failure to comply with its provisions." Walker, 503 S.W.3d at 171. "Any sanction must be commensurate with the harm caused and the severity of the defect, as determined on a case-by-case basis." Id. at 171 (internal citations and quotation marks omitted). Because these cases present primarily questions of law rather than factual disputes, and because the circuit courts did address the substance of the claims the appellants now raise on appeal, we will overlook any deficiencies and review their arguments.
Patel has been a lawful permanent resident of the United States since 2004. His wife and two minor children are American citizens. On January 4, 2007, Patel was charged with possession with the intent to deliver drug paraphernalia after some glass pipes were found in the inventory of a convenience store he had purchased through his company, Keshav Food Mart, Inc. Patel entered a plea of guilty to misdemeanor possession of drug paraphernalia and paid a fine of $500.00.
At some unspecified point in 2014, deportation proceedings were commenced against Patel. On June 11, 2014, he filed a pleading in district court styled "Motion to vacate and set aside the guilty plea, verdict and sentencing." The motion did not identify the rule under which Patel was proceeding, but sought relief on the grounds Patel's attorney had been ineffective IN advising him to pleadguilty, because there was insufficient evidence of the possession charge. The motion did not allude to Patel's immigration status, nor to any misadvice or lack of advice from his attorney regarding his immigration status.
At the hearing on the motion, the district court raised the issue of Padilla sua sponte and allowed Patel to supplement his pleading with affidavits. Patel submitted an affidavit in which he stated after purchasing the convenience store and its inventory, he hired a general manager and paid only one brief visit to the location thereafter. According to Patel, the previous owner had been notified some glass pipes he was selling could no longer be sold, but he did not inform Patel. Patel was charged with the sale of drug paraphernalia forty-five days after purchasing the store.
His attorney's affidavit stated he had been unaware the guilty plea would subject his client to deportation, and did not advise his client in this regard because he was not an immigration attorney. He stated Patel had a good defense to the drug paraphernalia charge but he had advised him to accept the plea offer because it was not worth taking the case to trial.
The district court found Patel's motion was untimely under RCr2 11.42, and the only rule that could conceivably apply was CR 60.02(f) which provides relief from a judgment for a reason of "an extraordinary nature." It ultimately denied the motion, concluding Padilla was not to be applied retroactively.
Patel appealed to the Hardin Circuit Court which affirmed the district court's ruling, addressing his claims under both RCr 11.42 and CR 60.02(f). Under RCr 11.42, the circuit court ruled it was bound by this Court's opinion in Al-Aridi, (which held Padilla was not retroactive) and the motion was untimely under the three-year limitations period of RCr 11.42(10). Under CR 60.0(f), the circuit court ruled immigration problems do not constitute a reason of extraordinary nature justifying relief in reliance on Commonwealth v. Bustamonte, 140 S.W.3d 581 (Ky. App. 2004).
Patel filed a motion for discretionary review in this Court which posited the following questions:
Patel's petition was granted and this appeal followed.
Sanchez is a Cuban national who until recently was a permanent resident of the United States. On November 14, 2000, he was indicted on chargesof assault in the first degree and terroristic threatening. On October 29, 2001, he entered a plea of guilty to an amended charge of assault in the second degree and one charge of terroristic threatening. According to Sanchez, his attorney did not advise him of any possible immigration consequences of his guilty plea. On August 14, 2002, he was sentenced to a total of eight years probated for five years. Sanchez successfully completed his probation.
In 2014, Sanchez was charged with a misdemeanor. When he was screened for immigration purposes, the prior second degree assault conviction was discovered and deportation proceedings against him were commenced.
On May 14, 2015, Sanchez filed a motion to vacate, correct or set aside his conviction and sentence pursuant to CR 60.02.4 He attached an affidavit stating he had not understood when he entered his guilty plea to a felony that he would be subject to automatic deportation. He argued ineffective assistance of counsel under Padilla. While acknowledging the retroactive application of Padilla was rejected by the United States Supreme Court in Chaidez, he argued states may broaden the class of retroactively applicable rules in the administration of their own post-conviction regimes.
The Jefferson Circuit Court denied the motion on the grounds there was no legal basis upon which Sanchez was entitled to relief, observing Sanchez was sentenced in 2002, Padilla was rendered in 2010, and Padilla is not retroactive under Chaidez. Sanchez timely appealed to this Court.
Patel raises four arguments on appeal: (1) the circuit court erred in relying on Bustamonte to deny CR 60.02 relief because it has been superseded by Padilla; (2) the circuit court erred in failing to apply the two-prong Strickland test to determine whether he had ineffective assistance of counsel in the entry of his guilty plea; (3) the circuit court failed to apply the exceptions to the three-year limitations period under RCr 11.42(10); (4) his attorney's failure to inform him of the immigration consequences of his plea constituted a reason of extraordinary nature justifying relief pursuant to CR 60.02(f); and (5) the circuit court erred in applying Chaidez and Teague, without considering Leonard, which he contends would permit a collateral...
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