Commonwealth of Kentucky v. Cianneh Fahnbullah ( 2021 )

RENDERED: MAY 21, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0047-MR
COMMONWEALTH OF KENTUCKY APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO. 10-CR-001468
CIANNEH FAHNBULLAH APPELLEE
OPINION
AFFIRMING
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BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: The Commonwealth of Kentucky brings this appeal from a
December 20, 2019, order of the Jefferson Circuit Court setting aside the guilty
plea of Cianneh Fahnbullah. We affirm.
On May 13, 2010, Fahnbullah was indicted by a Jefferson County
Grand Jury upon one count of criminal possession of a forged instrument in the
second degree (Kentucky Revised Statutes (KRS) 516.060) and two counts of false
statements/representations/failure to report change in order to receive public
assistance benefits (KRS 194A.505). Fahnbullah, who was born in Monrovia,
Liberia, came to the United States as a young adult. When indicted upon these
charges, she had lived in the United States for approximately nineteen years.
Ultimately, Fahnbullah and the Commonwealth reached a pretrial
diversion agreement. Under the pretrial diversion agreement, Fahnbullah was to
serve a one-year diversionary period, with a possible extension of up to five years,
until restitution of $4,083.91 was fully paid. Upon completion of the diversionary
period, all indicted charges would be dismissed. Pursuant to the pretrial diversion
agreement, Fahnbullah entered a guilty plea to the indicted charges on May 8,
2012. During the plea colloquy, the circuit court inquired if Fahnbullah had any
further questions. Fahnbullah briefly consulted with her attorney, and her attorney
had the following peculiar response:
Judge, well, I guess, a few things if I may place on the
record. Uh, Judge, Ms. Fahnbullah has informed that she
is a U.S. citizen, uh, refugee status from Liberia, so I
talked to her about potential immigration consequences.
I’m obviously not an immigration attorney, don’t practice
law in that field, but I advised her there’s certainly
possibilities for immigration consequences, deportation.
She informed me that is not something she needs to be
concerned about. She is confident about that.
May 8, 2012, Trial Video at 11:51:44 a.m.
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By a May 9, 2012, order, Fahnbullah was granted pretrial diversion
and ordered to pay restitution of $4,083.91 within five years. See Kentucky Rules
of Criminal Procedure (RCr) 8.04. By early 2017, Fahnbullah had paid the
restitution and otherwise fully complied with the pretrial diversion agreement.
On June 5, 2019, Fahnbullah filed a motion to set aside her guilty plea
pursuant to RCr 11.42 and Kentucky Rules of Civil Procedure (CR) 60.02. The
basis for Fahnbullah’s motion was that she was not properly informed of the
immigration consequences of the guilty plea. More particularly, Fahnbullah
asserted that she and her trial counsel both believed that if Fahnbullah complied
with the conditions of the pretrial diversion agreement, the indicted charges would
be dismissed and her immigration status would be unaffected. However, such was
not the case. After successfully completing her pretrial diversion, Fahnbullah
learned she could not seek United States citizenship and even faced deportation
due to the guilty plea she entered under the pretrial diversion agreement. Even
though the diverted charges were deemed dismissed under Kentucky law, federal
law viewed the diverted charges differently. Pursuant to federal law, the guilty
plea to the diverted charges prevented her from gaining citizenship and subjected
her to possible deportation.
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By order entered December 20, 2019, the circuit court granted
Fahnbullah’s motion to set aside her guilty plea under CR 60.02(f). In so doing,
the circuit court reasoned:
[I]t would ordinarily be sufficient that counsel inform a
client that the guilty plea could have some immigration
consequences, including deportation, which is what
[Fahnbullah’s] counsel did. However, in the very
particular facts of this case, it appears that such advise
[sic] was given under the belief that [Fahnbullah] was a
United States citizen. Counsel asserts such to the Court,
and counsel’s belief would be bolstered by
[Fahnbullah’s] statements that her status was not
something to be concerned about, and that she was
confident about that, statements that counsel apparently
adopted as true. In hindsight, the fact that [Fahnbullah]
apparently informed counsel that she is a United States
citizen with refugee status should have been a red flag to
everyone, including the Court, because one is either a
citizen, or in the country legally as a refugee, but not
both. At a minimum, there should have been further
inquiry as to what her status was believed to be, which
might have obviated the need for this current motion. In
light of the very general caveat to [Fahnbullah], coupled
with what appears to be an erroneous assumption by both
[Fahnbullah] and her counsel as to her status, the Court
finds that there was ineffective assistance of counsel, and
that the setting aside of the guilty plea is warranted
pursuant to CR 60.02(f).
December 20, 2019, Order Setting Aside Guilty Plea at 3. This appeal by the
Commonwealth follows.
Our standard of review upon a circuit court’s order granting or
denying a motion pursuant to CR 60.02 is for an abuse of discretion. See White v,
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Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). An abuse of discretion occurs
if the “decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004) (quoting
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
The Commonwealth contends that CR 60.02 is not the proper avenue
of relief for Fahnbullah as she basically claims trial counsel was ineffective; thus,
her sole remedy is under RCr 11.42.
It is true that CR 60.02 is only available to raise claims that cannot be
brought under RCr 11.42. Sanders v. Commonwealth, 339 S.W.3d 427, 437 (Ky.
2011); Gross v. Commonwealth, 648 S.W.2d 853, 855-57 (Ky. 1983).
Nonetheless, to be entitled to relief under RCr 11.42, the movant must be in the
custody of the Commonwealth either under a sentence of imprisonment or under a
probated, paroled, or conditionally discharged sentence. RCr 11.42;1 Parrish v.
Commonwealth, 283 S.W.3d 675, 677 (Ky. 2009) (quoting Sipple v.
Commonwealth, 384 S.W.2d 332, 332 (Ky. 1964)).
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Kentucky Rules of Criminal Procedure 11.42 provides, in relevant part:
(1) A prisoner in custody under sentence or a defendant on
probation, parole or conditional discharge who claims a right to be
released on the ground that the sentence is subject to collateral
attack may at any time proceed directly by motion in the court that
imposed the sentence to vacate, set aside or correct it.
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In this case, Fahnbullah was not in the custody of the Commonwealth
under a sentence of imprisonment or under a probated, paroled, or conditionally
discharged sentence. In fact, Fahnbullah was never sentenced upon the indicted
charges. Rather, Fahnbullah’s charges were diverted by order entered May 9,
2012. Our Supreme Court has recognized that “pretrial diversion is not a
sentencing alternative;” rather, pretrial diversion “is an interruption of prosecution
prior to final disposition.” Commonwealth v. Derringer, 386 S.W.3d 123, 130
(Ky. 2012) (quoting Flynt v. Commonwealth, 105 S.W.3d 415, 424 (Ky. 2003)).
Accordingly, Fahnbullah is not entitled to seek RCr 11.42 relief under the plain
terms of RCr 11.42. In this situation, Fahnbullah’s only remedy was CR 60.02.
We, thus, reject the Commonwealth’s contention that Fahnbullah should have filed
a motion pursuant to RCr 11.42 alleging ineffective assistance of trial counsel.
The Commonwealth alternatively contends that even if Fahnbullah’s
claims were properly asserted under CR 60.02, her trial counsel rendered effective
assistance pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010).
In this case, the circuit court determined that Fahnbullah was entitled
to relief under CR 60.02(f). The circuit court carefully considered trial counsel’s
actions and Fahnbullah’s belief as to the immigration ramifications of the guilty
plea. In the final analysis, the circuit court was swayed by the confusion about
Fahnbullah’s alleged status as both a United States citizen and a refugee, which the
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circuit court correctly acknowledged was a “red flag” to all participants in the
proceeding, including the court. Although Fahnbullah and trial counsel shared this
mistaken belief, it is axiomatic that trial counsel possessed a duty to be informed as
to the facts of the case and to give the proper legal advice to his client concerning
the guilty plea. And, not only did trial counsel fail to give correct legal advice, he
also failed to properly assess the facts of Fahnbullah’s case. Considering the
equities and the unique facts herein, we are unable to conclude that the circuit court
abused its discretion by granting Fahnbullah’s motion to set aside her guilty plea
under CR 60.02(f). In short, we agree with the circuit court that this case presents
reasons of an extraordinary nature justifying relief per CR 60.02(f).
The Commonwealth also argues that Fahnbullah’s CR 60.02 motion
was not timely filed. For the following reasons, we disagree.
CR 60.02 provides, in relevant part:
On motion a court may, upon such terms as are just,
relieve a party or his legal representative from its final
judgment, order, or proceeding upon the following
grounds: . . . (f) any other reason of an extraordinary
nature justifying relief. The motion shall be made within
a reasonable time, and on grounds (a), (b), and (c) not
more than one year after the judgment, order, or
proceeding was entered or taken. A motion under this
rule does not affect the finality of a judgment or suspend
its operation.
CR 60.02 clearly provides that a motion brought pursuant to subsection (f) shall be
made “within a reasonable time” after the judgment or order is entered. CR
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60.02(f); Djoric v. Commonwealth, 487 S.W.3d 908, 910 (Ky. App. 2016). It is
well-established that “[w]hat constitutes a reasonable time in which to move to
vacate a judgment under CR 60.02 is a matter that addresses itself to the discretion
of the trial court.” Djoric, 487 S.W.3d at 910 (quoting Gross v. Commonwealth,
648 S.W.2d 853, 858 (Ky. 1983)). And, in exercising that discretion, the trial court
must consider the particular facts and circumstances of each case. See Gross, 648
S.W.2d at 858.
In the case sub judice, Fahnbullah was placed on pretrial diversion
and ordered to pay restitution on May 9, 2012. Fahnbullah ultimately paid the
restitution and successfully completed the diversion in early 2017. After
completing the diversion, Fahnbullah apparently contacted an immigration lawyer
to assist her in gaining United States citizenship. The immigration attorney
informed Fahnbullah that her guilty plea pursuant to the pretrial diversion
agreement prevented her from pursuing citizenship and placed her at risk for
deportation.
On June 5, 2019, Fahnbullah filed a motion to set aside the guilty
plea. Approximately two years passed between Fahnbullah completing her pretrial
diversion and the filing of the CR 60.02(f) motion. However, the circuit court
concluded that Fahnbullah filed the CR 60.02 motion within a reasonable time of
learning of the adverse consequences of her guilty plea on her immigration status
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in the United States. Again, considering the unique facts and circumstances of this
case, we cannot say the circuit court’s decision was arbitrary, unreasonable, unfair
or unsupported by legal principles. See Djoric, 487 S.W.3d at 910. In sum, we
conclude that the circuit court did not abuse its discretion by determining that the
CR 60.02(f) motion was filed within a reasonable time.
In sum, we are of the opinion that the circuit court properly set aside
Fahnbullah’s guilty plea under CR 60.02.
For the foregoing reasons, the order of the Jefferson Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Daniel Cameron Theodore S. Shouse
Attorney General of Kentucky Louisville, Kentucky
Frankfort, Kentucky
Jeanne Anderson
Special Assistant Attorney General
Louisville, Kentucky
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