State of Louisiana Versus Abdellah Karim ( 2020 )

STATE OF LOUISIANA NO. 19-KA-132
VERSUS FIFTH CIRCUIT
ABDELLAH KARIM COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 18-1986, DIVISION "I"
HONORABLE NANCY A. MILLER, JUDGE PRESIDING
September 09, 2020
STEPHEN J. WINDHORST
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Robert A. Chaisson, and Stephen J. Windhorst
CONVICTION AND SENTENCE AFFIRMED
SJW
RAC
WICKER, J., CONCURS IN PART, DISSENTS IN PART
FHW
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Terry M. Boudreaux
Gail D. Schlosser
Joshua K. Vanderhooft
COUNSEL FOR DEFENDANT/APPELLANT,
ABDELLAH KARIM
Katherine M. Franks
WINDHORST, J.
In this out-of-time appeal, defendant, Abdellah Karim, seeks review of his
unconditional guilty plea and sentence. For the reasons stated herein, we affirm
defendant’s conviction and sentence.
PROCEDURAL HISTORY
On May 14, 2018, the Jefferson Parish District Attorney filed a bill of
information charging defendant, Abdellah Karim, “a/k/a Karim Abdellah,” with
possession with intent to distribute cocaine weighing less than twenty-eight grams
in violation of La. R.S. 40:967 A.1 On May 15, 2018, defendant pled not guilty.2
On June 18, 2018, defendant entered an unconditional guilty plea to
possession with intent to distribute cocaine weighing less than twenty-eight grams
and was sentenced to five years at hard labor, sentence suspended, and placed on
thirty-six months active probation.3 His sentence was ordered to run concurrently
with the sentences imposed in district court case numbers 17-900 and 18-2750.4
Defendant was ordered to report to probation upon release.
On December 28, 2018, defendant wrote a pro se letter to the Jefferson Parish
Clerk of Court requesting legal advice from the Clerk of Court on the procedure and
process of how to vacate his conviction under Padilla v. Kentucky,5 and for the
appointment of an attorney to help him with the process. Defendant stated that he
1 The State amended the bill of information to amend defendant’s name, but did not include the date
amended.
2 The record is unclear as to whether defendant was arraigned before or after the bill was amended. The
purpose of an arraignment is to inform the defendant of the substance of the crime he is charged with. La.
C.Cr.P. art. 551. A rearraignment is only required after amendment of a bill of information if the substance
of the charge is changed. State v. Willie, 17-252 (La. App. 5 Cir. 12/20/17), 235 So.3d 1339, 1353. Here,
rearraignment of defendant on the amended bill was unnecessary as it did not alter the substance of the
charge against defendant.
3 Defendant was also ordered to pay court costs, fees, fines and to perform community service.
4 On June 18, 2018, as part of defendant’s plea agreement (1) defendant also pled guilty and was
sentenced in district court case number 18-2750, which is appeal number 19-KA-133; (2) defendant further
pled guilty and was sentenced in district court case number 17-900, which defendant did not appeal; and
(3) the State dismissed defendant’s district court case number 17-901.
5 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)
19-KA-132 1
was in “ICE custody” 6 in Pine Prairie, Louisiana, and his criminal charges were the
reason he was being detained. On January 9, 2019, the trial court informed defendant
that neither the trial court nor the clerk of court could provide legal advice and that
he should contact an attorney or file a request for an out-of-time appeal. The trial
court, although finding the letter was not a motion but a request of the clerk’s office,
noted that defendant did not make any specific allegations that his plea was
involuntary, that he was not informed of immigration consequences, or that he is
from another country. The trial court then concluded that defendant was not entitled
to any relief at that time.
On January 4, 2019, defendant filed a pro se Motion for Appeal of his guilty
plea with an attached letter dated December 25, 2018. In the letter, defendant stated
that his trial counsel never explained to him the immigration consequences of
pleading guilty and that he desired to reopen his case to prove he was innocent of
the charges. On January 11, 2019, the trial court granted defendant an out-of-time
appeal. This appeal followed.
FACTS
Because defendant pled guilty, the underlying facts were not fully developed
at a trial. A factual basis was not provided at the guilty plea proceedings, therefore
the facts have been gleaned from the bill of information which provided that: on or
about April 12, 2018, defendant knowingly or intentionally possessed with intent to
distribute cocaine weighing less than twenty-eight grams. The transcript of
defendant’s guilty plea shows that defendant admitted that on April 12, 2018, he was
in possession of the cocaine weighing less than twenty-eight grams and he intended
to distribute the cocaine.
6 Immigration and Customs Enforcement
19-KA-132 2
DISCUSSION
In his sole assignment of error, defendant argues that his counsel rendered
ineffective assistance by failing to inform him of the possible immigration/
deportation consequences of his guilty plea under Padilla. Specifically, defendant
argues that it is evident from the record that he “had some difficulty with the
[English] language” and that his counsel knew he was a “foreign national” because
she listed “Arabic” as his race on the “Felony: Schedule of Court Costs, Fines, Fees,
Sentencing Provisions & Probation Requirements” worksheet, but failed to inform
him of the immigration/deportation consequences of pleading guilty. Additionally,
defendant argues that none of the documents in the record contain a social security
number for defendant. He further contends that he was prejudiced by counsel’s
ineffectiveness and that it impacted the voluntariness of his plea because he is
currently in “ICE custody” awaiting deportation proceedings.
A defendant is entitled to effective assistance of counsel under the Sixth
Amendment to the United States Constitution and Article I, § 13 of the Louisiana
Constitution of 1974. State v. Johnson, 18-294 (La. App. 5 Cir. 01/16/19), 264 So.3d
593, 598; State v. Francois, 13-616 (La. App. 5 Cir. 01/31/14), 134 So.3d 42, 58,
writ denied, 14-431 (La. 09/26/14), 149 So.3d 261. Under the standard for
ineffective assistance of counsel set forth in Strickland,7 a conviction must be
reversed if the defendant proves: (1) that counsel’s performance fell below an
objective standard of reasonableness under prevailing professional norms; and (2)
counsel’s inadequate performance prejudiced defendant to the extent that the trial
was rendered unfair and the verdict suspect. State v. Lyons, 15-2197 (La. 09/23/16),
199 So.3d 1140, 1141 (per curiam).
7 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
19-KA-132 3
When a defendant claims that counsel’s ineffective assistance rendered a
guilty plea invalid, under Strickland the defendant must show that (1) counsel’s
performance was deficient; and (2) “there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going
to trial.” State v. Stiller, 16-659 (La. App. 5 Cir. 07/26/17), 225 So.3d 1154, 1157
(citing Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203(1985)).
Generally, an ineffective assistance of counsel claim is most appropriately
addressed through an application for post-conviction relief filed in the district court,
where a full evidentiary hearing can be conducted, if necessary, rather than by direct
appeal. See State v. Leger, 05-11 (La. 07/10/06), 936 So.2d 108, 142; State v.
Lawrence, 18-372 (La. App. 5 Cir. 05/15/19), 273 So.3d 548, 553; State v. Ferrera,
16-243 (La. App. 5 Cir. 12/14/16), 208 So.3d 1060, 1066-1067. However, when the
record contains sufficient evidence to rule on the merits of the claim and the issue is
properly raised in an assignment of error on appeal, it may be addressed in the
interest of judicial economy. Ferrera, supra. If, on the other hand, the record does
not contain sufficient evidence to fully explore a claim of ineffective assistance of
counsel, the claim should be relegated to post-conviction proceedings. Id.At the outset, we find that defendant did not, at the time of entering the guilty
plea, expressly reserve any issues to appeal. An unconditional guilty plea, by its
nature, admits factual guilt and waives all non-jurisdictional defects in the
proceedings prior to the entering of the plea and precludes review thereof either by
appeal or by post-conviction relief. State v. Crosby, 338 So.2d 584, 588 (La. 1976);
State v. Starks, 01-1078 (La. 03/28/02), 812 So.2d 638, 638-639 (citing Tollett v.
Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973)). We find that
the plea colloquy along with the signed waiver of rights form constitute a sufficient
affirmative showing on the record that defendant was advised of his constitutional
19-KA-132 4
rights, understood those rights, and that he made an intelligent and knowing waiver
of his rights. Defendant was further informed that he would be sentenced to five
years at hard labor, sentence suspended, and placed on thirty-six months active
probation, to run concurrent with district court case numbers 17-900 and 18-2750.
Defendant was sentenced in conformity with the plea agreement.
For the following reasons, we conclude that the record as to defendant’s
felony conviction is insufficient to fully examine defendant’s ineffective assistance
of counsel claim due to the limited record on appeal.
The United States Supreme Court in Padilla found that, even though
immigration consequences are technically collateral and not direct consequences of
a conviction, “advice regarding deportation” falls within “the ambit of the Sixth
Amendment right to counsel.” Padilla, 559 U.S. at 366. The Supreme Court held
that “[t]he weight of prevailing professional norms supports the view that counsel
must advise her client regarding the risk of deportation.” Id. at 367-368
Where statutory language makes the deportation consequences of a plea “truly
clear, . . . the duty to give correct advice is equally clear.” Id. at 369. The Supreme
Court in Padilla found the relevant immigration statute, 8 U.S.C. § 1227(a)(2)(B)(i),
to be “succinct, clear, and explicit in defining the removal consequence for [the
defendant’s] conviction.” Id. at 368. Although the Court recognized that
“[i]mmigration law can be complex,” and under many circumstances “the law is not
succinct and straightforward,” it held that where “the consequences of [the
defendant’s] plea could easily be determined from reading the removal statute, his
deportation was presumptively mandatory, and his counsel’s advice was incorrect,”
the defendant had sufficiently alleged constitutional deficiency to satisfy the first
prong of Strickland. Id. at 369. The Supreme Court found that Mr. Padilla’s trial
counsel had an obligation to inform him of the consequences of the guilty pleas as it
19-KA-132 5
related to his immigration status, and remanded the matter to the lower court for a
determination of the prejudice issue. Id. at 374.
In this case, defendant pled guilty to possession with intent to distribute
cocaine weighing less than twenty-eight grams, a violation of La. R.S. 40:967 A.
8 U.S.C. § 1227(a)(2)(B)(i) provides:
Any alien who at any time after admission has been convicted of a
violation of (or a conspiracy or attempt to violate) any law or regulation
of a State, the United States, or a foreign country relating to a controlled
substance (as defined in section 802 of Title 21), other than a single
offense involving possession for one’s own use of 30 grams or less of
marijuana, is deportable.
Thus, 8 U.S.C. § 1227(a)(2)(B)(i) is “succinct, clear and explicit” in stating
the consequence of defendant’s plea to the charge of possession with the intent to
distribute less than twenty-eight grams of cocaine is deportation. Under Padilla, it
appears that defendant could possibly prove that trial counsel rendered deficient
performance, as trial counsel did not advise defendant on the record that a
consequence of pleading guilty to possession with intent to distribute less than
twenty-eight grams of cocaine is that he would be deportable. A review of the record
indicates that defendant was not advised of any deportation consequences, either on
the waiver of rights form or during the colloquy, or of defendant’s status as a non-
citizen. Therefore, the question is whether trial counsel knew defendant was a non-
citizen.
We find the record is insufficient for this Court to determine whether trial
counsel knew defendant was a non-citizen. On the “Felony: Schedule of Fines, Fees,
Sentencing Provisions & Probation Requirements” worksheet, “Arabic” is listed as
defendant’s race. The sentencing minute entry reflects defendant’s name as
“Abdellah Karim.” The waiver of rights form does not contain any personal
information apart from defendant’s name. The record also contains an Arrest Report
and Probable Cause Affidavit from defendant’s arrest. The report states defendant’s
19-KA-132 6
name is “Karim, Abdellah” and under “Residency/Ethnicity,” the notation is
“R/NHisp.” The form is blank under a spot to place defendant’s “Birth State” and
contains “USA” as his “Nationality.” Defendant’s social security number is not
provided in the blank on the form. Several documents in the record do not include
a social security number for defendant, such as the arrest report and probable cause
affidavit, requests for appointment of counsel, and the Louisiana uniform abuse
prevention order. Defendant is described as a white male in the bill of information,
arrest report and probable cause affidavit, and Louisiana uniform abuse prevention
order. There is also no indication in the record that defendant informed his trial
counsel that he was a non-citizen, or that his behavior or comprehension so indicated.
A person’s race or ethnicity is not indicative of whether he or she is a citizen
or an “alien” for the purposes of 8 U.S.C. § 1227(a)(2)(B)(i). On the arrest report
and probable cause affidavit, defendant’s nationality was listed as “USA.” During
the colloquy, defendant informed the trial court that he was thirty-four years old and
had a college education, but did not inform the trial court that he was a non-citizen.
On the face of the record, there was apparently nothing to cause the trial judge to
give defendant the advice required by Padilla, or to inquire whether such a warning
was necessary.
Thus, there is nothing in the record or the documents therein which indicate
that trial counsel knew or should have known whether defendant was a non-citizen,
and that he failed to advise him of any possible immigration/deportation
consequences. It is likewise insufficient for this Court to make that determination.
More specifically, the record is insufficient for this Court to determine
(1) whether trial counsel rendered a deficient performance, and if so, (2) whether
defendant can show that there is a reasonable probability that, but for counsel’s
deficiency, he would not have pleaded guilty and would have insisted on going to
trial.
19-KA-132 7
Accordingly, for the reasons stated above, based on the very limited record
before this Court, defendant’s ineffective assistance of counsel claim cannot be
decided herein, and would be more appropriately raised in an application for post-
conviction relief in the trial court, where a full evidentiary hearing can be conducted,
if necessary, and defendant can present evidence to support his allegation. Having
not been reviewed on appeal, this right is preserved for defendant.
ERRORS PATENT DISCUSSION
The record was reviewed for errors patent, according to the mandates of La.
C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland,
556 So.2d 175 (La. App. 5 Cir. 1990). Our review reveals no errors patent which
require correction.
DECREE
For the foregoing reasons, we affirm defendant’s conviction and sentence, and
reserve to defendant the right to raise an ineffective assistance claim in a post-
conviction relief proceeding if he chooses.
CONVICTION AND SENTENCE AFFIRMED
19-KA-132 8
STATE OF LOUISIANA NO. 19-KA-132
VERSUS FIFTH CIRCUIT
ABDELLAH KARIM COURT OF APPEAL
STATE OF LOUISIANA
WICKER, J., CONCURS IN PART, DISSENTS IN PART
I agree with the majority’s analysis of the errors assigned on appeal, and I
also agree that this Court’s typical approach when an appellate record does not
permit us to analyze the merits of an appellant’s ineffective assistance of counsel
claim is to leave the matter for the district court to address through an application
for post-conviction relief. See, e.g., State v. Stiller, 16-659 (La. App. 5 Cir.
7/26/17), 225 So.3d 1154, 1157. However, because defendant has raised a
colorable claim for ineffective assistance of counsel under Padilla v. Kentucky,
559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), in my opinion, the
interests of justice and judicial economy are best served, in this case, by
remanding this matter to the district court now for a full evidentiary hearing
addressing defendant’s claim of ineffective assistance of counsel. Therefore, I
disagree with the ultimate outcome of this case at this point in time.
Jurisdictional Matters
Also pending before this Court in case number 19-KA-133, defendant
appeals his conviction for possession of marijuana weighing fourteen grams or less
in violation of La. R.S. 40:966(C), which is punishable by imprisonment in parish
jail for not more than six months, or a fine of up to $500.00, or both. See La. R.S.
40:966(C)(2)(a). The misdemeanor conviction is not an appealable judgment. See
La. C.Cr.P. art. 912.1(C)(1); State v. Trepagnier, 07-749 c/w 07-750 (La. App. 5
Cir. 3/11/08), 982 So.2d 185, 188, writ denied, 08-0784 (La. 10/24/08), 992 So.2d
1033. However, I believe that the misdemeanor and felony convictions are
“intertwined to the point that the interests of justice are better served by
considering the matters together.” See May 29, 2014 En Banc Policy n.3; State v.
Carroll, 16-599 (La. App. 5 Cir. 2/8/17), 213 So.3d 486, 488; State v. Jones, 12-
640 c/w 12-641 (La. App. 5 Cir. 10/30/13), 128 So.3d 436, 441-43. Therefore, I
would also consolidate the matters for consideration.
Ineffective Assistance of Counsel
As to defendant’s assigned error that his trial counsel was ineffective for
failing to inform him of the possible immigration consequences of his guilty plea, I
agree that the record is insufficient to determine his ineffective assistance of
counsel claim at this time. In this case, as the majority acknowledges,
[u]nder Padilla, it appears that defendant could possibly prove that trial
counsel rendered deficient performance, as trial counsel did not advise
defendant on the record that a consequence of pleading guilty to
19-KA-132 1
possession with intent to distribute less than twenty-eight grams of
cocaine is that he would be deportable. A review of the record indicates
that defendant was not advised of any deportation consequences, either
on the waiver of rights form or during the colloquy, or of defendant’s
status as a non-citizen.
Supra, at 6. Defendant’s remedy—upon proving (1) that trial counsel failed to
inform him that his plea carried a risk of deportation and (2) that he would have
insisted on going to trial if he had been so informed—is an opportunity to
withdraw the guilty plea and proceed to trial on the merits. See Padilla, 559 U.S.
at 372-74. Therefore, whether defendant’s plea was constitutionally valid should
be addressed expeditiously.
An evidentiary hearing on defendant’s ineffective assistance of counsel
claim is warranted, and, in my opinion, the interests of justice and judicial
economy are better served by remanding this case now for an evidentiary hearing
so that the issue of ineffective assistance of counsel may be resolved promptly. See
State v. Lopez-Ventura, 17-556 (La. App. 5 Cir. 10/31/17) (unpublished writ
decision) (JJ., Liljeberg, Chaisson, Murphy); State v. King, 17-0126 (La. App. 4
Cir. 10/27/17), 231 So.3d 110.
Therefore, in my opinion, the better course of action at this time is to
consolidate defendant’s felony and misdemeanor cases and remand both for an
evidentiary hearing addressing the constitutionality of defendant’s guilty plea. For
this reason alone, I dissent from the majority’s disposition of this case at this point
in time.
19-KA-132 2
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
SEPTEMBER 9, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-KA-132
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE NANCY A. MILLER (DISTRICT JUDGE)
GAIL D. SCHLOSSER (APPELLEE) TERRY M. BOUDREAUX (APPELLEE) THOMAS J. BUTLER (APPELLEE)
KATHERINE M. FRANKS (APPELLANT)
MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
JOSHUA K. VANDERHOOFT (APPELLEE)
ASSISTANT DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053