Thayorath v. State

• Decision Date: 27 January 2021
• Docket Number: PM-20-04232
• Parties: SONGKOTH THAYORATH v. STATE OF RHODE ISLAND
• Court: Rhode Island Superior Court

SONGKOTH THAYORATH v. STATE OF RHODE ISLAND

No. PM-20-04232

Superior Court of Rhode Island, Providence

January 27, 2021

(P2/96-2165AG) (P2/96-2345A)

For Plaintiff: Shannah Kurland, Esq.

For Defendant: Judy Davis, Esq.

DECISION

KRAUSE, J.

A claim of ineffective assistance of counsel is not a judicial wild card to be played indiscriminately whenever and wherever a losing hand is cleanly dealt. Here, the petitioner in this postconviction relief application has taken such undocked liberties with the record and the factual history of this case that he has markedly disfigured the parameters which govern such claims.

Songkoth Thayorath is a Laotian national who is presently facing the very deportation proceedings which he himself predicted could befall him when he pled guilty to attempted murder and felony assault in 1996. Now, twenty-five years later, he entreats this Court to grant his postconviction relief (PCR) application in which he criticizes his attorney for allegedly providing him with substandard assistance, asserting that he was kept in the dark about being deported.

The petition is legally and factually meritless, as well as incurably flawed by laches.^[1]

Background

On September 30, 1995, Thayorath, then nineteen, shot a man twice with a shotgun, then pointed the weapon at his head and told him, "You're going to die." After one of Thayorath's cohorts pushed the gun aside, Thayorath fled. The victim survived. The following spring, on May 31, 1996 Thayorath and two confederates beat up a defenseless man in his driveway using clubs and their fists while he was cleaning his car. Both victims knew Thayorath. They and other witnesses, who also knew Thayorath, identified him as the culprit during the attacks. A separate Criminal Information was filed for each event, charging Thayorath with multiple offenses (the maximum penalty for each count is parenthetically noted):

• P2/96-2165-AG, the September 30, 1995 shooting: (1) assault with intent to murder (twenty years); (2) discharging a firearm during a crime of violence resulting in injury (mandatory twenty consecutive years without parole). • P2/96-2345-A, the May 31, 1996 attack: (1) assault with a dangerous weapon (twenty years); (2) conspiracy to commit that assault (ten years); (3) extortion (fifteen years); (4) conspiracy to commit extortion (ten years).

Thayorath's total incarceration exposure was ninety-five years, which included a mandatory, consecutive twenty-year term without parole for wounding his victim.

Pursuant to a very favorable plea agreement negotiated by his attorney, Assistant Public Defender David Levy, Thayorath was shielded from several decades of incarceration in exchange for his guilty pleas to two charges: assault with intent to murder for the September 30, 1995 shooting, and felony assault for the May 31, 1996 driveway beating. Defense counsel also convinced the state to agree to a "capped" plea, so that the aggregate period of incarceration for both offenses would not exceed ten years to serve, while still affording counsel an opportunity to argue for even less jail time at a sentencing hearing. The state also dismissed all of the other charges, thereby eliminating eighty-five years of incarceration exposure, including the requisite twenty-year consecutive, nonparolable term.

Thayorath entered his guilty pleas on September 30, 1996, and on December 10, 1996, this Court imposed an eight-year period of incarceration (the prosecutor had requested a nine-year term), followed by twelve years of suspended/probationary time.

In 1998, while he was serving that sentence, the federal immigration authorities ordered Thayorath deported to Laos. Although deportation proceedings would have commenced after Thayorath was paroled in October of 2001, he was spared immediate removal because the United States, at least for the time being, had stopped deporting people to Laos. According to Thayorath, that changed at the end of 2019 or the beginning of 2020, when the United States resumed deportations to Laos, and Thayorath's 1998 deportation order was reactivated.

Some twenty-five years after his 1996 convictions, when he knew that he was deportable, and twenty-two years after the Government formally ordered him deported, Thayorath finally filed the instant PCR application in June of 2020, professing that neither his attorney nor anyone else ever told him about the potential of deportation.

That delusive contention seriously misrepresents the case history which includes, among other recorded evidence, Thayorath's own presentence admissions that he was painfully aware of his precarious immigration status and had voiced significant apprehension of deportation if convicted.

Thayorath's Claims

In his verified application, Thayorath avows in paragraphs 8-10:

"8. Age nineteen at the time of his plea and sentencing, petitioner was entirely unaware of his immigration status in the United States. Mr. Thayorath does not recall ever having heard the terms "citizen," "legal resident," "deportation," or any references to immigration status until after his conviction. Mr. Thayorath, at the time of his sentencing, did not know anyone who had been deported, and had never heard of any immigration consequences related to criminal convictions. He was only aware of the penalties administered through the criminal courts such as imprisonment, and did not contemplate nor imagine any immigration consequences as a result of his plea.

"9. During his representation of the petitioner, defense counsel incorrectly represented that because petitioner was from Southeast Asia, he may have been protected by some type of asylum.

"10. Despite defense counsel's assurances to the Court there is no indication anywhere on the record that Mr. Thayorath had any knowledge or understanding of the immigration consequences of his plea[.]"

Analysis

Pursuant to G.L. 1956 § 10-9.1-1 et seq. '"post-conviction relief is available to a defendant convicted of a crime who contends that his original conviction or sentence violated rights that the state or federal constitutions secured to him."' Torres v. State, 19 A.3d 71, 77 (R.I. 2011) (quoting Otero v. State, 996 A.2d 667, 670 (R.I. 2010) and Ballard v. State, 983 A.2d 264, 266 (R.I. 2009)). An applicant for postconviction relief bears the burden of proving, by a preponderance of the evidence, that postconviction relief is warranted. Rice v. State, 38 A.3d 9, 16 (R.I. 2012).

PCR petitions such as this one customarily invite application of the test delivered in Strickland v. Washington, 466 U.S. 668 (1984) and its prolific progeny by which to measure the adequacy of a lawyer's performance. The Court need not expand the pages of this Decision unnecessarily with an extensive recitation of what has essentially become hornbook law. A shortened explication will suffice. It is the factual arena (Part B, infra) which requires closer attention, and which, as is usual in these actions, impels resolution of the case.

A. Strickland, et al.

Strickland is the benchmark for a claim of ineffective assistance of counsel and is followed by our Supreme Court. E.g., Brown v. Moran, 534 A.2d 180, 182 (R.I. 1987); LaChappelle v. State, 686 A.2d 924, 926 (R.I. 1996). A Strickland claim presents a two-part analysis. First, the petitioner must demonstrate that counsel's performance was deficient. Strickland, 466 U.S. at 687; Powers v. State, 734 A.2d 508, 521 (R.I. 1999). A strong presumption exists that counsel fulfilled his responsibilities efficiently. Gonder v. State, 935 A.2d 82, 86 (R.I. 2007).

Secondly, even if counsel's performance was deficient, the petitioner must also establish that his attorney's shortcomings "prejudiced" his defense, such that a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 694; Crombe v. State, 607 A.2d 877, 878 (R.I. 1992). Both of Strickland's requirements must be satisfied to mount a successful ineffectiveness claim. Hazard v. State, 968 A.2d 886, 892 (R.I. 2009).

With respect to immigration claims, two cases principally bear on counsel's obligations: Padilla v. Kentucky, 559 U.S. 356 (2010) and Lee v. United States, U.S., 137 S.Ct. 1958 (2017). In Padilla, the Supreme Court held that when the immigration consequences of a guilty plea are clear, an attorney has a responsibility to advise a noncitizen defendant of those consequences. If, however, the effects of the plea are not clear or obvious, counsel must at least advise the defendant that his guilty plea may adversely impact immigration circumstances. Padilla, 559 U.S. at 371. In Lee, the Supreme Court agreed that regardless of the strength of the prosecution's case, and irrespective of the remote chance of exoneration at trial, a petitioner is entitled to opt for a trial rather than face certain deportation where his attorney failed to tell him that he would be deported. Lee, 137 S.Ct. at 1967.

Thayorath's reliance on these cases is misplaced. In the first instance, it is beyond peradventure that at the time he was convicted, he was fully aware and, indeed, readily conceded that his presence in the United States was in jeopardy. See Part (B), infra.

In any event, Padilla and Lee offer no safe harbor for Thayorath. Padilla has not been accorded retroactivity, Desamours v. State, 210 A.3d 1177 1181 n.5 (R.I. 2019), Chaidez v. United States, 568 U.S. 342, 347-48, 358 (2013), and neither has Lee. State v. Ferreira, 302 So.3d 1096, 1097 (La. 2020) (holding that "defendants whose convictions became final prior to Lee cannot benefit from its holding"). See also Collins v. United States, No. 17-cv-3151, 2018 WL 283237, at *2 (C.D. Ill. 2018), Mitchell v....