Rumpel v. State

• Decision Date: 27 September 2002
• Parties: Niculai RUMPEL v. STATE.
• Court: Alabama Court of Criminal Appeals

847 So.2d 399

Niculai RUMPEL v. STATE.

CR-01-0907.

Court of Criminal Appeals of Alabama.

September 27, 2002.

William R. Blanchard, Montgomery, for appellant.

William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.

PATTERSON, Retired Appellate Judge.

Niculai Rumpel appeals from the circuit court's summary dismissal of his postconviction petition filed pursuant to Rule 32, Ala. R.Crim. P. In 1999, pursuant to a plea-bargain agreement, Rumpel pleaded guilty to the following charges for which he had been indicted: three counts of first-degree sexual abuse and two counts of enticing a child for immoral purposes. He also pleaded guilty to a fourth first-degree sexual abuse, a lesser offense included in a first-degree rape indictment. For each sexual-abuse conviction, he was sentenced to 10 years' imprisonment. For each conviction for enticing a child, he was sentenced to five years' imprisonment. The trial court ordered that all sentences are to run concurrently and it split each sentence, ordering Rumpel to serve two years' imprisonment followed by the balance on probation. Rumpel did not appeal these convictions and sentences.

Rumpel contends that the circuit court erred in dismissing his petition without an evidentiary hearing. In his petition, he asserted two grounds: (1) that his counsel were ineffective for failing to advise him that, as an immigrant and a resident alien, he would be subject to mandatory detention by the United States Immigration and Naturalization Service ("the INS") and to deportation proceedings when he has served his sentences if convicted of the charges and that, had counsel so advised him, he would not have pleaded guilty; and (2) that his guilty pleas were not knowing, voluntary, and intelligent because, he argued, neither the trial court nor the "Ireland" form advised him of "the possibility or probability of deportation or other adverse immigration consequences" of pleading guilty, which, he argued, was required by due process and Rule 14.4, Ala. R.Crim. P.¹

Because neither the State, in its motion to dismiss Rumpel's petition, nor anything in the record contradicts Rumpel's allegations of fact alleged in his petition, this court must take those factual allegations as true. See Goetzman v. State, 844 So.2d 1289 (Ala.Crim.App.2002). We start with the facts that Rumpel is an immigrant and a resident alien; that these facts were obvious to the trial court and to Rumpel's attorneys; that Rumpel was not advised of the possible immigration consequences of a plea of guilty; and that, because of his convictions, the INS has filed a detainer to take him into custody for deportation proceedings when he is released from the Alabama Department of Corrections.

First, Rumpel contends that the circuit court erred in using the procedural bars of Rule 32.2(a)(3) and (5) in dismissing his petition. The court concluded that "the sole issue" in Rumpel's petition was that his pleas had been unlawfully induced or that they were not voluntarily made. It found that this issue was precluded because it could have been, but was not, raised at the plea proceeding, at sentencing, or on appeal. However, Rumpel correctly points out that a challenge in a Rule 32 petition to the voluntariness of a guilty plea is not precluded by the petitioner's failure to have raised the issue at trial or on appeal. Avery v. State, 825 So.2d 129 (Ala.Crim.App.1999). The attorney general concedes that the circuit court's order overlooked Rumpel's allegation of ineffective assistance of counsel, which is not subject to preclusion, as the attorney general points out. See Drake v. State, 620 So.2d 60, 61 (Ala.Crim.App.1992) (ineffective-counsel claims cannot be precluded from review in a timely-filed Rule 32 petition where they could not have been raised on appeal). We agree with Rumpel's conclusion that the circuit court should not have denied his petition on the preclusion grounds stated.

Thus, we turn to the merits of Rumpel's claims to determine if there is any reason for upholding the circuit court's dismissal. See Reed v. State, 748 So.2d 231, 233 (Ala. Crim.App.1999) ("If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition."). In doing so, we address Rumpel's second issue on appeal: "Whether the uncontroverted factual allegations of Rumpel's Rule 32 Petition entitled him to a hearing." (Appellant's brief, p. 7.) The attorney general asks us to remand this case for the circuit court to address the merits of Rumpel's ineffective-assistance-of-counsel claim. However, taking the allegations of fact in Rumpel's petition as undisputed, we find we are confronted with the following questions of law: before accepting a guilty plea from an alien defendant, must the trial court inform the defendant of the immigration consequences of a conviction, and is defense counsel ineffective in not so informing the defendant? We agree with Rumpel that the de novo standard of review applies: "[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, the court's review in a Rule 32 proceeding is de novo." Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001). See also Scroggins v. State, 827 So.2d 878 (Ala.Crim.App.2001).

The disposition of the claims in Rumpel's petition depends on whether immigration consequences of a guilty plea are direct or collateral consequences. "`An accused is entitled to information concerning the direct consequences of his plea. He is not entitled to information concerning all collateral effects, or future contingencies that might arise.'" Fearson v. State, 662 So.2d 1225, 1226 (Ala.Crim. App.1995) (quoting Minnifield v. State, 439 So.2d 190, 192 (Ala.Crim.App.1983)). See also Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (due process simply requires that the defendant understand the "direct consequences" of his plea).

"`Collateral consequences of a guilty plea are many. They may include the loss of civil service employment, of the right to vote and travel freely abroad, of the right to a driver's license, and of the right to possess firearms.'

"United States v. Del Rosario, 902 F.2d 55, 59 (C.A.D.C.Cir.), cert. denied, 498 U.S. 942, 111 S.Ct. 352, 112 L.Ed.2d 316 (1990) (citations omitted). See also Polk v. State, 405 So.2d 758, 761-62 (Fla.Dist. Ct.App.1981) (listing ineligibility for parole, loss of good time, and loss of rights of citizenship as collateral consequences of a guilty plea). `"The distinction between direct and collateral consequences of a plea `turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment.'"' State v. Ward, 123 Wash.2d 488, 869 P.2d 1062, 1075 (1994) (citations omitted) (emphasis added)."

Robinson v. State, 730 So.2d 252, 254 (Ala. Crim.App.1998).

Rumpel acknowledges that the court in Oyekoya v. State, 558 So.2d 990, 990 (Ala. Crim.App.1989), rejected the petitioner's postconviction challenge of his guilty plea on the ground that his counsel was ineffective for failing "to inform him of the possibility of deportation as a result of his guilty plea." In addition to finding that the petitioner did not submit sufficient proof of the allegations of his petition, the court observed the following:

"`[C]ounsel's failure to advise the defendant of the collateral consequences of a guilty plea, such as deportation, cannot rise to the level of constitutionally ineffective assistance.' United States v. Campbell, 778 F.2d 764, 768 (11th Cir. 1985). See also United States v. Romero-Vilca, 850 F.2d 177, 179 (3rd Cir. 1988) (`[W]e hold that potential deportation is a collateral consequence of a guilty plea. Accordingly, we find no error in the sentencing court's failure to inform Romero-Vilca in the Rule 11[, Fed.R.Crim.P.,] Colloquy of his possible deportation.'); Annot., 10 A.L.R.4th 8 (1981)."

558 So.2d at 990-91.

However, Rumpel contends that, since this ruling in Oyekoya, Congress has drastically altered immigration laws with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-546, and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214. See United States v. Amador-Leal, 276 F.3d 511, 516 (9th Cir.) ("No doubt the landscape has changed, because it is now virtually certain that an aggravated felon will be removed."), cert. denied, 535 U.S. 1070, 122 S.Ct. 1946, 152 L.Ed.2d 849 (2002). Rumpel asserts that these changes should compel this court to reexamine the ruling in Oyekoya. He argues that, under the former federal immigration laws, he would have been eligible for relief from deportation, whereas he faces "virtually automatic" deportation under the laws enacted since Oyekoya. (Appellant's brief, p. 10.)²

In addition to pointing out that numerous states have enacted legislation requiring that the trial court advise of the possible immigration consequences of a guilty or nolo contendere plea,³ Rumpel relies on caselaw from other jurisdictions, including United States v. El-Nobani, 145 F.Supp.2d 906 (N.D.Ohio 2001), which he quotes at length. However, the judgment in that opinion was reversed on appeal. 287 F.3d 417 (6th Cir.2002). In reversing the district court, the United States Court of Appeals for the Sixth Circuit stated, in part:

"Petitioner argues that his lack of awareness of the deportation consequences... make[s] his pleas involuntary and unknowing. A `defendant need only be aware of the direct consequences of the plea, however; the trial court is under no constitutional obligation to inform the defendant of all the possible collateral consequences of the plea.' King v. Dutton, 17 F.3d 151, 153 (6th Cir.1994).

"Petitioner contends that deportation is not collateral because under the Illegal Immigration Reform and Immigrant

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