State v. Garg
| Decision Date | 12 July 2012 |
| Docket Number | No. 20110298-20110299 |
| Citation | 2012 ND 138 |
| Parties | State of North Dakota, Plaintiff and Appellee v. Mon Mahon Garge a/k/a Manmohan Garg, Defendant and Appellant |
| Court | North Dakota Supreme Court |
This opinion is subject to petition for rehearing.
Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable William W. McLees, Judge.
AFFIRMED.
Christene Ann Harris, Assistant State's Attorney, Ward County Courthouse, P.O. Box 5005, Minot, ND 58702-5005, for plaintiff and appellee.
Clint Derrick Morgenstern, 424 DeMers Avenue, Grand Forks, ND 58201, for defendant and appellant.
[¶1] Manmohan Garg appeals a district court order denying his motion to withdraw guilty pleas in two criminal cases. Garg argues the district court erred by denying the motion because his attorneys were constitutionally ineffective for failing to advise him of the deportation consequences of the plea agreements as required by the United States Supreme Court decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010). We affirm.
[¶2] Garg is a non-citizen living in the United States. In April 2011, Garg received notice from United States Immigration and Customs Enforcement that his immigration status was being revoked and that he was subject to deportation as a result of two previous criminal convictions in Ward County, North Dakota.
[¶3] The first criminal case was initiated in March 1994, when Garg was charged with class C felony attempt to deal in stolen property. Garg hired two attorneys and was represented at his preliminary examination and arraignment. A jury trial was scheduled for March 1995. In January 1995, Garg sent his attorneys letters indicating his desire to terminate their legal services. Both attorneys moved to withdraw, and the district court granted their motions.
[¶4] In February 1995, Garg accepted an agreement in which he pled guilty to class A misdemeanor attempt to commit theft of property. The plea agreement stated that "Defendant, Mon Mahon Garge, pro se" was advised of his right to be represented by an attorney and waived that right. The district court accepted Garg's guilty plea and entered a criminal judgment sentencing Garg to one year incarceration suspended for one year unsupervised probation.
[¶5] In August 1995, Garg, represented by a third attorney, moved to modify the criminal judgment. A letter filed with the motion explained:
"The basis for the request for modification is that at the time of entering into the Plea Agreement, I believe that neither Mr. Garg, pro se, nor the Ward Co. States Attorney's Office was aware of the Immigration and Naturalization Act provisions which provide that an alien who is convicted of a crime involving moral turpitude . . . may be excluded from the United States where they are sentenced to a term of incarceration exceeding six (6) months."
The district court granted the motion and amended Garg's sentence to six months incarceration suspended for two years unsupervised probation.
[¶6] The second criminal case was initiated in July 1999, when Garg was charged with class C felony theft of property and class C felony altering or forging a certificate of title to a motor vehicle. Garg hired an attorney and was represented in February 2000 when he pled guilty to altering or forging a certificate of title to a motor vehicle. The district court sentenced Garg to one year incarceration suspended for two years supervised probation, and the theft of property charge was dismissed.
[¶7] In July 2011, Garg moved to withdraw his guilty pleas in both cases, alleging his attorneys were constitutionally ineffective. Garg relied on Padilla v. Kentucky, a 2010 decision in which the United States Supreme Court held that "counsel must advise her client regarding the risk of deportation" resulting from a guilty plea and failure to advise is ineffective assistance of counsel. 130 S. Ct. at 1482. Garg argued Padilla applied to his 1995 and 2000 convictions and asserted his attorneys were constitutionally ineffective for failing to advise him of the deportation consequences. After a hearing, the district court denied the motion. The district court concluded Padilla did not apply retroactively and found Garg's attorneys were not constitutionally ineffective under the prevailing professional norms when Garg pled guilty. The district court further found that even if Padilla applied retroactively, Garg's ineffective assistance of counsel claims failed because Garg failed to prove he was prejudiced by his attorneys' alleged deficient performance.
[¶8] An applicant's attempt to withdraw a guilty plea under the Uniform Postconviction Procedure Act, N.D.C.C. ch. 29-32.1, generally is treated as a motion to withdraw a guilty plea under N.D.R.Crim.P. 11(d). State v. Howard, 2011 ND 117, ¶ 3, 798 N.W.2d 675. A defendant who has been sentenced may not withdraw a guilty plea "[u]nless the defendant proves that withdrawal is necessary to correct a manifest injustice[.]" N.D.R.Crim.P. 11(d)(2). "The decision whether a manifest injustice exists for withdrawal of a guilty plea lies within the trial court's discretion and will not be reversed on appeal except for an abuse of discretion." State v. Jones, 2011 ND 234, ¶ 8, 812 N.W.2d 484 (quotation omitted). "A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or it misinterprets or misapplies the law." Id. (quotation omitted).
[¶9] Garg argues the district court erred by determining the Padilla requirement that an attorney advise a client of the deportation consequences of a guilty plea did not apply to his 1995 and 2000 convictions. Garg further argues that his attorneys in both cases were ineffective under Padilla for failing to advise him of the deportation consequences and that he was prejudiced by their deficient performance because he would have insisted on going to trial if he had known his guilty pleas could result in deportation. The State responds the district court correctly concluded Padilla does not apply retroactively. The State further responds that even under Padilla, Garg's ineffective assistance of counsel claims fail because Garg's assertions are not sufficient to prove Garg was denied effective assistance of counsel.
[¶10] "A criminal defendant has the right to be represented by counsel under the Sixth Amendment to the United States Constitution and Article I, Section 12 of the North Dakota Constitution." State v. Dahl, 2009 ND 204, ¶ 22, 776 N.W.2d 37. The constitutional right to counsel guarantees effective assistance of counsel. Abdi v. State, 2000 ND 64, ¶ 29, 608 N.W.2d 292. When reviewing claims of ineffective assistance of counsel, we apply the United States Supreme Court's two-part test from Strickland v. Washington, 466 U.S. 668 (1984):
Id. at 687; see Abdi, at ¶ 29. To prove "prejudice," a defendant who pleads guilty must prove that "but for counsel's errors, the defendant would not have pled guilty and would have insisted on going to trial." Abdi, at ¶ 29 (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
[¶11] In our 1994 decision in State v. Dalman, 520 N.W.2d 860 (N.D. 1994), we considered a postconviction petitioner's argument that her attorneys were constitutionally ineffective for failing to advise her she could be deported as a result of her guilty plea. We rejected the argument, holding deportation was a collateral consequence that could not be the basis of an ineffective assistance of counsel claim. Id. at 863-64.
[¶12] In 2010, the United States Supreme Court considered the same argument in Padilla v. Kentucky, 130 S. Ct. 1473 (2010). In Padilla, the Court concluded Strickland applied to a petitioner's claim that his attorney was constitutionally ineffective for failing to advise him of the deportation consequences of his guilty plea. Padilla, at 1482. The Padilla holding effectively overrules our decision on this issue in Dalman.
[¶13] In analyzing the first Strickland prong, the Padilla Court held that "[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation." Padilla, 130 S. Ct. at 1482. The Court explained the nature of advice required depends on the complexity of the relevant immigration law. Id. at 1483. When "the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence[,]" an attorney must advise a defendant of the consequence. Id. When the law is less clear, as with crimes involving moral turpitude, an attorney's duty is more limited. Id. at 1483 (majority opinion), 1488-89 (Alito, J., concurring). "When the law is not succinct and straightforward[,] . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id. at 1483. The Court concluded Padilla proved deficiency because "[t]he consequences of Padilla's plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel's advice was incorrect." Id. The Court did not determine whether Padilla proved the second Strickland prong, instead remanding for the Kentucky courts to consider the issue in the first instance. Padilla, at 1483-84. The Court stated that to prove prejudice, "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Id. at 1485.
[¶14] Since Padilla was decided, lower courts considering whether the decision applies retroactively...
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