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Daramola v. State

Court of Appeals of Oregon

October 17, 2018

ABAYOMI EMMANUEL DARAMOLA, Petitioner-Appellant,
v.
STATE OF OREGON, Defendant-Respondent.

          Argued and submitted April 26, 2018

          Lane County Circuit Court 16CV14788; Ilisa Rooke-Ley, Judge.

          Brian Patrick Conry argued the cause and fled the briefs for appellant.

          Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and James, Judge, and Linder, Senior Judge.

         Case Summary:

         Petitioner appeals from a judgment denying his petition for post-conviction relief wherein he alleged ineffective and inadequate assistance of counsel in providing advice as to the immigration consequences of entering a guilty plea to one count of first-degree online sexual corruption of a child, ORS 163.433. On appeal, petitioner argues that, under the Sixth Amendment to the United States Constitution, as interpreted by Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), his criminal defense counsel was constitutionally ineffective in failing to inform petitioner, clearly and without equivocation, that conviction of the charged offense would result in his removal from the United States, and that defenses to that removal would not be successful. Held: The duty to advise a defendant of immigration consequences is defense counsel's. When defense counsel seeks the advice of specialized immigration counsel, immigration counsel functions as part of the defense team. In this case, it is not clear that ORS 163.433 qualifies as either an aggravated felony, or a particularly serious crime for purposes of federal immigration law. As such, immigration counsel's advice, attributed to defense counsel, that petitioner may be placed in removal proceedings upon conviction of the charged offense met the standard for counsel as expressed in Padilla when the immigration consequences of a pending criminal charge are unclear. Further, immigration counsel's advice that asylum was a possible way for petitioner to avoid deportation was advice that Padilla countenances when the consequences are unclear. Therefore, the post-conviction court did not err in concluding that counsel adequately advised petitioner.

          [294 Or.App. 457] JAMES, J.

         Petitioner appeals from a judgment denying his petition for post-conviction relief wherein he alleged ineffective and inadequate assistance of counsel in providing advice as to the immigration consequences of entering a guilty plea to one count of first-degree online sexual corruption of a child, ORS 163.433. Petitioner contends that, under the Sixth Amendment to the United States Constitution, as interpreted by Padilla v. Kentucky, 559 U.S. 356, 364, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), his criminal defense counsel was constitutionally ineffective in failing to inform petitioner, clearly and without equivocation, that conviction of the charged offense would result in his removal from the United States, and that defenses to that removal, such as the filing of a defensive asylum petition, would not be successful.[1] The post-conviction court denied relief, finding that criminal defense counsel provided effective assistance to petitioner such that, when petitioner pleaded guilty, "he was aware of the consequences of his plea." We affirm.

         Under the Sixth Amendment to the United States Constitution, a petitioner seeking post-conviction relief must show that counsel's performance was deficient and the deficient performance caused actual prejudice to the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We review the post-conviction court's proceedings for errors of law. Green v. Franke, 357 Or. 301, 312, 350 P.3d 188 (2015). "A post-conviction court's findings of historical fact are binding on this court if there is evidence in the record to support them." Id. "If findings are not made on all such facts, and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the ultimate conclusion[.]" Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968).

         At the time of his plea, petitioner was married to a United States citizen, and, as of May 1, 2014, had been granted conditional permanent resident (CPR) status. [294 Or.App. 458] Pursuant to that status, petitioner was required to file a Petition to Remove Conditions on Residence (known as an 1-751) within 90 days of the second anniversary of the grant of CPR status, i.e., within 90 days of May 1, 2016. In that two-year period, the state charged petitioner with first-degree online sexual corruption of a child after he answered an online posting on Backpage.com. The posting was created in April, 2015, by a Eugene Police detective who posted four photographs of what appeared to be an underage teenage girl advertising online prostitution services.

         Petitioner retained criminal defense counsel and engaged in negotiations with the state. Initially, petitioner and his counsel had hoped to negotiate a misdemeanor charge, as opposed to a felony charge, under the belief that doing so would ameliorate the immigration consequences. Petitioner's counsel referred petitioner to an immigration attorney to advise him on immigration law. Criminal defense counsel explained at the post-conviction trial:

"[CRIMINAL DEFENSE COUNSEL]: At that-at this meeting on April 29th, I gave him the-what I typically do is just I go into their website and I print out all [immigration counsel's] contact information and I hand that to the client. So that-that was the day that I gave him that contact information.
"[PCR COUNSEL]: So that's within two weeks of your initial meeting with him, you're not only referring him to an immigration attorney but giving him contact information and how to get a hold of them?
"[CRIMINAL DEFENSE COUNSEL]: Yes.
"[PCR COUNSEL]: All right. And is the plan or is the arrangement that Mr. Daramola will go to the immigration attorney himself and work through that?
"[CRIMINAL DEFENSE COUNSEL]: Yes. Independently. That was the idea, that he-he would go independently and talk to them. And then after having that, I would be in contact with the immigration [attorney] after he had the appropriate releases [.]"

         Petitioner met with immigration counsel at least twice; criminal defense counsel also spoke with immigration [294 Or.App. 459] counsel multiple times. As defense counsel testified in the post-conviction trial, in his first conversation with immigration counsel she informed him that ORS 163.433 would likely not be classified as an aggravated felony, but was a deportable crime involving moral turpitude (CIMT). A subsequent phone message indicated that immigration counsel had been unable to think of an alternative crime for defendant to plead to that would not be a CIMT.

         Sometime later, immigration counsel provided petitioner, and criminal defense counsel, a letter opinion. In that letter, immigration counsel "analyzed the possible immigration consequences of [petitioner's] conviction of the charge of online sexual corruption of a child in the first degree." The next sentence of the letter advised petitioner: "[W]e believe your conviction of or plea of guilty to this charge would be a deportable offense. Upon conviction of this offense, you may be placed in removal proceedings." Immigration counsel went on to advise petitioner that the charge he faced was "not likely to be considered an 'aggravated felony' under the immigration laws and therefore you would not be subjected to automatic removal based on a conviction of that charge. However, it would most likely be considered a 'crime involving moral turpitude' for purposes of immigration law." The letter explained that being convicted "of a crime involving moral turpitude is grounds for a non-citizen's deportation from the United States." The paragraph concluded, "Accordingly, we believe your conviction of or plea of guilty to the felony charge of online sexual corruption of a child would render you subject to removal."

         In concluding the letter, immigration counsel offered three possible alternative ways to remain in the United States. Counsel advised petitioner that the "consequences to your immigration status would be ameliorated if the crime you plead guilty to or are convicted of does not involve 'moral turpitude' or is not an 'aggravated felony' within the meaning of immigration law"; however, counsel warned that that decision would be up to the discretion of the prosecuting ...


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