State v. Chetty, 66729–7–I.

• Decision Date: 26 March 2012
• Docket Number: No. 66729–7–I.,66729–7–I.
• Citation: 272 P.3d 918
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Mahendra Sami CHETTY, Appellant.

272 P.3d 918

STATE of Washington, Respondent,

v.Mahendra Sami CHETTY, Appellant.

No. 66729–7–I.

Court of Appeals of Washington, Division 1.

March 26, 2012.

Neil Fox, Law Office of Neil Fox PLLC, Seattle, WA, for Appellant.

Dennie J. McCurdy, King County Prosecutor's Office, Seattle, WA, for Respondent.

James Lobsenz, Carney Badley Spellman, Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA, for Amicus Curiae WACDL.SCHINDLER, J.

¶ 1 Mahendra Sami Chetty filed a motion under RAP 18.8(b) to extend the time to file a direct appeal of his 2004 conviction of possession of cocaine with the intent to deliver in violation of former RCW 69.50.401(a)(1)(i) (1998). Chetty contends he is entitled to an extension of the time on the grounds that his attorney provided ineffective assistance of counsel. Chetty asserts that because his attorney did not advise him of the adverse deportation consequences of the conviction and the advantages and disadvantages of filing an appeal, he did not voluntarily, knowingly, or intelligently waive his right to file an appeal. Because the record is inadequate to determine whether we should grant or deny the motion to extend the time to file an appeal, we remand to superior court for a reference hearing.

FACTS

¶ 2 Mahendra Sami Chetty was born in Fiji in 1963. In 1975, Chetty and his family moved to the United States and Chetty became a lawful, permanent resident. Chetty married a United States citizen and has three young children.

¶ 3 In 2003, the State charged Chetty with one count of possession of cocaine with intent to deliver in violation of the Uniform Controlled Substances Act, former RCW 69.50.401(a)(1)(i). Chetty retained attorney Peter Connick to represent him.

¶ 4 After the information was filed, a King County prosecuting attorney, a detective from the Seattle Police Department (SPD), and Connick negotiated the terms of a cooperation agreement. In exchange for complying with the terms of the cooperation agreement, the State agreed to continue the trial and “[u]pon satisfactory fulfillment of Chetty's obligation,” agreed to dismiss the pending charge of possession of cocaine with the intent to deliver.

¶ 5 The cooperation agreement required Chetty to “complete the following tasks for SPD:”

1. Chetty will assist in the investigation and prosecution of three drug dealers in the greater Seattle area.

2. Chetty will make controlled purchases of controlled substances as directed by SPD officers.

3. Chetty will assist in the arrest and prosecution of three drug dealers who are arrested with more than 9 ounces of cocaine (one quarter kilo).

4. Chetty will provide any other assistance required by SPD in order to further their investigations of these three individuals.

¶ 6 In October 2004, the superior court held a contested hearing on the parties' dispute over the terms of the cooperation agreement. While the court concluded that the terms of the agreement were “not entirely clear,” the court ruled that Chetty breached the agreement and the State was entitled to proceed with a trial on stipulated facts. The court convicted Chetty as charged of possession of cocaine with the intent to deliver in violation of former RCW 69.50.401(a)(1)(i).

¶ 7 At the sentencing hearing on November 3, 2004, the court imposed a low-end sentence of 15 months followed by community custody. The court provided Chetty with the “Notice of Rights on Appeal” and informed Chetty that he had a right to file an appeal of his conviction within 30 days.¹ Chetty did not file an appeal.

¶ 8 On June 22, 2010, the U.S. Department of Homeland Security instituted removal proceedings against Chetty under the Immigration and Nationality Act, 8 U.S.C. section 1229a. The notice of removal proceedings states that based on his 2004 conviction of possession of cocaine with the intent to deliver in violation of former RCW 69.50.401(a)(1)(i), Chetty is subject to removal.

¶ 9 On February 24, 2011, Chetty filed a motion under RAP 18.8(b) to extend the time to file an appeal of his 2004 conviction. In support, Chetty filed a declaration asserting his attorney knew that he was a “resident alien” but did not advise him about either the immigration consequences of the conviction or the advantages and disadvantages of filing an appeal. Chetty's declaration states, in pertinent part:

3. When I was charged with a crime in this case, I ended up hiring Peter Connick to represent me. When we first met, he asked me if I was a citizen, and I told him I was a resident alien. He did not say anything to me about immigration consequences of a conviction for possession with intent to deliver drugs. At another time, when we were talking about the case, because I was worried about being deported, I asked Mr. Connick what I should say if the subject of my immigration status should come up, and he told me that if no one asked me about it, I should not volunteer any information about it.

4. Around the time that I was sentenced, I asked Mr. Connick whether I should appeal or not. He told me that an appeal would be a waste of time because I would be released from custody within three to six months or so, and that I would be out of custody before the appeal was resolved. That is the reason I did not appeal.

5. Mr. Connick did not tell me that a conviction for possession with intent to deliver cocaine would be considered to be an aggravated felony, for immigration purposes, that would make me not only deportable and inadmissible to the United States, but also would bar almost any type of immigration relief. While we did discuss whether I should appeal or not, the discussions revolved around only whether the appeal would be resolved before I was released or not. Mr. Connick did not discuss with me the immigration consequences of the conviction in this case when we were talking about whether I should appeal.

¶ 10 Chetty asserts that because he challenged the meaning of the cooperation agreement and the “State's attempt to terminate the contract,” if his attorney had told him that the conviction would make him “automatically deportable,” he would have exercised his right to appeal.

6. Because I did not plead guilty in this matter, and challenged the State's attempt to terminate the contract I had with the police, I could have appealed the judge's rulings against me. Had I known that the conviction in this case was an aggravated felony that would make me automatically deportable, without most avenues of relief in the immigration court, I would have exercised my right to appeal. I did not instruct Mr. Connick to appeal only because I did not understand the consequences of a final conviction for possession with intent to deliver cocaine.

¶ 11 Chetty's sister Kushma Chetty and Connick also filed declarations in support of his motion to extend the time to file an appeal. Kushma states that Connick “never said anything” about the immigration consequences of a conviction. According to Kushma, when Chetty asked Connick “whether he should mention the fact that he was not a citizen of the United States,” the attorney's “only response was to ask why he should mention it, and that if he was ever asked in any type of forms in prison about it, he should not say anything and leave the box blank.” Kushma also describes another meeting where either she or Chetty asked about fling an appeal of the conviction. According to Kushma, Connick said “there was no point to an appeal because my brother would go straight to work release,” and did not mention immigration consequences.

¶ 12 In his declaration, Connick confirms that he did not address the immigration consequences of the conviction. Connick states, in pertinent part:

I cannot recall many details from this case and do not recall saying anything to Mr. Chetty about the immigration consequences of a conviction. I do not recall talking about appeals as well. I am not sure why Mr. Chetty would not have appealed because this case did not involve a guilty plea. I have no recollection of what happened and why Mr. Chetty did not appeal.

¶ 13 The State opposed Chetty's motion and we scheduled the matter for oral argument.²

ANALYSIS

¶ 14 Chetty contends he is entitled to an extension of time to file a direct appeal under RAP 18.8(b) on the grounds that he did not voluntarily, knowingly, and intelligently waive his constitutional right to appeal because his attorney did not advise him about the deportation consequences of the conviction or the advantages and disadvantages of filing an appeal.

¶ 15 The State argues that Chetty is not entitled to an extension of time because he waived his constitutional right to file an appeal and he cannot establish his attorney provided ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The State also argues that the recent decision of the United States Supreme Court in Padilla v. Kentucky, 559 U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), is not retroactive and does not apply to a motion to extend the time to file an appeal under RAP 18.8(b).

RAP 18.8(b)/Right to Appeal

¶ 16 Chetty's motion is governed by RAP 18.8(b) and whether there was a voluntary, knowing, and intelligent waiver of the constitutional right to file an appeal. But our disposition is also informed by whether there was ineffective assistance of counsel and a duty to provide advice on the immigration consequences of the conviction.

¶ 17 The Washington State Constitution guarantees a criminal defendant the right to appeal. Const. art. I, § 22 (amend. 10). Article 1, section 22 (amend. 10) states, in pertinent part: “In criminal prosecutions the accused shall have ... the right to appeal in all cases.” Under RAP 5.2(a), a defendant must file a notice of appeal within 30 days of the entry of the judgment and sentence.³ RAP 18.8(a) allows the appellate court to “enlarge ... the time within which an act must be done in a particular...