State v. Garge, s. 20110298
| Citation | 2012 ND 138,818 N.W.2d 718 |
| Decision Date | 12 July 2012 |
| Docket Number | 20110299.,Nos. 20110298,s. 20110298 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Mon Mahon GARGE a/k/a Manmohan Garg, Defendant and Appellant. |
| Court | United States State Supreme Court of North Dakota |
818 N.W.2d 718
2012 ND 138
STATE of North Dakota, Plaintiff and Appellee,
v.
Mon Mahon GARGE a/k/a Manmohan Garg, Defendant and Appellant.
Nos. 20110298, 20110299.
Supreme Court of North Dakota.
July 12, 2012.
[818 N.W.2d 719]
Christene Ann Harris, Assistant State's Attorney, Minot, ND, for plaintiff and appellee.
Clint Derrick Morgenstern, Grand Forks, ND, for defendant and appellant.
CROTHERS, Justice.
[¶ 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, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (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
[818 N.W.2d 720]
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
[818 N.W.2d 721]
discretion.” State v. Jones, 2011 ND 234, ¶ 8, 817 N.W.2d 313 (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...
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