COMMONWEALTH OF KENTUCKY V. JOSCELYN FUARTADO, ET AL
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RENDERED : AUGUST 25, 2005
TO BE PUBLISHED
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2003-SC-1022-DG
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COMMONWEALTH OF KENTUCKY
V.
APPELLANT
REVIEW FROM COURT OF APPEALS
2002-CA-001729
JEFFERSON CIRCUIT COURT NO . 97-CR-2669
JOSCELYN FUARTADO, ET AL
APPELLEES
OPINION OF THE COURT BY JUSTICE GRAVES
REVERSING
Appellee, Joscelyn Fuartado, is a native and citizen of Jamaica . This Court
granted discretionary review to determine whether failure of defense counsel to advise
Appellee of potential deportation consequences is cognizable as a claim for ineffective
counsel . In a decision designated for publication, a Court of Appeals panel vacated the
trial court's denial of Appellee's post conviction relief from a 1997 guilty plea to
marijuana trafficking . The trial court ruled that criminal defendants must be advised
regarding direct but not collateral consequences of a guilty plea . It reasoned that since
a federal civil immigration proceeding such as a deportation is clearly collateral as to
guilt and outside the trial court's control or responsibility, failure of defense counsel to
advise Appellee of potential deportation consequences is not cognizable as a claim for
ineffective counsel . We agree and accordingly, we reinstate the judgment of the trial
court.
In 1997, Appellee was indicted for the Class C felony of first-degree marijuana
trafficking. By a counseled plea bargain, the charge was reduced to second-degree
marijuana trafficking, a Class D felony . Appellee was probated for five years with ninety
(90) days to serve on work release. Within days after entry of final judgment, Appellee
was charged with another Class D felony, second-degree escape, to which he pled
guilty and was given a one-year sentence, probated for five years . Appellee failed to
appear when the Commonwealth moved to revoke his probation . A bench warrant was
issued for his arrest.
Within months, Appellee was arrested for automobile theft. At the time of this
felony arrest, Appellee had failed to report to his probation officer, changed his address
without permission, absconded supervision, taken up residence with a convicted felon,
and admittedly abused cocaine . A second bench warrant was issued . Less than six
months after the sentence had been imposed, Appellee's probation on his marijuana
trafficking sentence was revoked .'
The following year, the United States Immigration and Naturalization Service
formally notified Appellee of its intention to deport him back to his native Jamaica
because of his marijuana trafficking conviction . Approximately two years later, Appellee
filed a pro se motion for RCr 11 .42 relief to challenge the voluntariness of his guilty plea
to marijuana trafficking as supplemented with the assistance of counsel . Appellee
asserted that his guilty plea had been entered involuntarily because neither the trial
court nor his defense counsel had informed him that deportation was a consequence of
guilt. The trial court denied relief.
' The Court of Appeals euphemistically characterizes the two subsequent felony
commissions and parole violations as "a variety of activities."
2
On appeal of the denial of his RCr 11 .42 motion, a Court of Appeals panel
vacated and remanded Appellee's case for an evidentiary hearing on counsel
ineffectiveness . The Court of Appeals panel held that while deportation potential is a
collateral consequence that does not need to be mentioned by the trial court during a
guilty plea colloquy, the failure of defense counsel to mention deportation potential to
his or her client prior to a guilty plea colloquy may be counsel ineffectiveness of
constitutional dimension . We disagree and hold that advising criminal defendants
regarding the collateral consequences of a guilty plea is outside the scope of
representation required under the Sixth Amendment .
In this case, it is undisputed that there is no constitutional requirement for trial
courts to advise criminal defendants regarding collateral consequences that may result
from a conviction before accepting a guilty plea and that deportation is such a collateral
consequence . See EI-Nobani v. United States , 287 F.3d 417, 421 (6th Cir. 2002).
Appellee claims, instead, that the Sixth Amendment requires criminal defense attorneys
to investigate their clients' civil immigration status and to advise them of any potential
consequences a guilty plea could have on that status. However, as noted in the Court
of Appeals' opinion, "several federal and state courts have taken the opposite position,
holding that a defendant cannot as a matter of law succeed on a claim for ineffective
assistance of counsel by showing that his attorney failed to inform him of the possibility
of deportation following a guilty plea." See , e.g ., United States v. Fry, 322 F.3d 1198,
1200 (9th Cir. 2003) ; United States v. Couto, 311 F.3d 179, 187 (2nd Cir. 2002) ; United
States v . Gonzalez , 202 F.3d 20, 25 (1st Cir. 2000) ; United States v. DeFreitas , 865
F.2d 80, 82 (4th Cir. 1989) ; United States v. George, 869 F.2d 333, 337 (7th Cir. 1989) ;
United States v. Campbell, 778 F.2d 764, 768-69 (11th Cir .1985) ; Chukwurah v. United
States , 813 F .Supp. 161, 165 (E .D .N .Y.1993) ; People v . Ford , 657 N .E .2d 265, 268
(N .Y. 1995). In fact, in Fry , the United States Court of Appeals for the Ninth Circuit
stated in rather sweeping terms, "All other circuits to address the question have
concluded that deportation is a collateral consequence of the criminal process and
hence the failure to advise does not amount to ineffective assistance of counsel ." 322
F.3d at 1200.
The reasoning behind these opinions derives from the fact that a defendant's
Sixth Amendment right to counsel encompasses criminal prosecutions only, and does
not extend to requiring counsel on collateral consequences that may result from such
proceedings . Cf. Turner v. Commonwealth , 647 S.W .2d 500, 500-501 (Ky. App. 1982)
("A guilty plea that is brought about by a person's own free will is not less valid because
he did not know all possible consequences of the plea and all possible alternative
courses of action.") . "[T]he Sixth Amendment right to counsel exists, and is needed, in
order to protect the fundamental right to a fair trial ." Strickland v . Washington, 466 U .S.
668, 684, 104 S .Ct. 2052, 2064, 80 L .Ed .2d 674 (1984) . The. constitutional requirement
of effective assistance of counsel, therefore, extends to and encompasses only those
activities which tend to protect a criminal defendant's right to a fair and intelligent
determination of guilt or innocence. See id . at 686 ("In giving meaning to the
requirement [of effective assistance of counsel] . . . . we must take its purpose--to ensure
a fair trial--as the guide .") ; McMann v. Richardson , 397 U .S. 759, 766, 90 S .Ct. 1441,
1446, 25 L.Ed.2d 763 (1970) (since a guilty plea is also a waiver of trial, it is endowed
with certain constitutional protections .)
In cases where defendants are agreeing to plead guilty in accordance with a plea
bargain, this principle of protecting a criminal defendant's right to be fairly tried and
justly convicted is extended to include investigating and advising the criminal defendant
on all aspects of the plea and the direct consequences thereof - such as the sufficiency
of the evidence supporting the plea, the availability of substantial defenses, the loss of
several fundamental constitutional rights, and the punishment that may be imposed by
the trial court . See Brady v. United States , 397 U .S . 742, 755, 90 . S . Ct. 1463, 1472, 25
L .Ed.2d 747 (1970) (defendant must be "fully aware of the direct consequences" of a
guilty plea) (emphasis added) ; Beasley v. United States , 491 F.2d 687, 696 (6th Cir.
1974) (setting forth standards for effective assistance of counsel) . The existence of
collateral consequences is irrelevant to the determination of a defendant's guilt or
innocence and completely outside the authority or control of the trial court. Accordingly,
we find, along with the majority of other courts determining the issue, that the Sixth
Amendment requires representation encompassing only the criminal prosecution itself
and the direct consequences thereof. Because the consideration of collateral
consequences is outside the scope of representation required under the Sixth
Amendment, failure of defense counsel to advise Appellee of potential deportation
consequences was not cognizable as a claim for ineffective assistance of counsel .
The opinion of the Court of Appeals is reversed ; and the judgment of the trial
court is reinstated .
All concur.
ATTORNEY FOR APPELLANT
Gregory D . Stumbo
Attorney General
David A. Smith
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
ATTORNEY FOR APPELLEES
Joseph Ray Myers
Assistant Public Advocate
Department of Public Advocate
100 Fair Oaks Lane, Suite 301
Frankfort, KY 40601
David E . Funke
6461 W LaGrange Road
P O Box 1108
Crestwood, KY 40014
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