State v. Awad

Filed 3/19/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 66
State of North Dakota, Plaintiff and Appellee
v.
Mohamed Jam Awad, Defendant and Appellant
No. 20190273
Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable M. Jason McCarthy, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Sarah W. Gereszek, Assistant State’s Attorney, Grand Forks, North Dakota,
for plaintiff and appellee; submitted on brief.
Erik A. Escarraman, Fargo, North Dakota, for defendant and appellant;
submitted on brief.
State v. Awad
No. 20190273
Tufte, Justice.
[¶1] Mohamed Awad appeals from a district court order denying his motion
to withdraw his guilty plea to a charge of knowingly voting when not qualified
to do so. On appeal, Awad argues the district court should have allowed him to
withdraw his guilty plea because he was not adequately advised under
N.D.R.Crim.P. 11(b) of the possible immigration consequences of pleading
guilty, and because he received ineffective assistance of counsel. We affirm the
district court order.
[¶2] When resolving a motion to withdraw a guilty plea, the district court
applies N.D.R.Crim.P. 11(d)(2), which provides: “Unless the defendant proves
that withdrawal is necessary to correct a manifest injustice, the defendant may
not withdraw a plea of guilty after the court has imposed sentence.” To
establish manifest injustice, a defendant must “prove serious derelictions on
the part of the defendant’s attorney that kept a plea from being knowingly and
intelligently made.” Morris v. State, 2019 ND 166, ¶ 18, 930 N.W.2d 195.
Whether the circumstances establish a manifest injustice is within the district
court’s discretion, and we reverse only for an abuse of discretion. State v. Bates,
2007 ND 15, ¶ 6, 726 N.W.2d 595. A court abuses its discretion when it acts in
an arbitrary, unreasonable, or unconscionable manner, or it misinterprets or
misapplies the law. State v. Pixler, 2010 ND 105, ¶ 7, 783 N.W.2d 9. Awad
frames his argument on appeal as a misapplication of the law set forth in Rule
11, stating the issue presented as: “Did the District Court err in denying the
appellant’s motion to withdraw his guilty plea because the Court did not
confirm with the Defendant that his guilty plea could expose him to
Immigration consequences, violating Rule 11 of the N.D. R. Crim. P.?”
[¶3] At Awad’s initial appearance on the charge, the district court advised
him of his rights consistent with N.D.R.Crim.P. 11(b)(1). At issue here is the
advisory required by N.D.R.Crim.P. 11(b)(1)(J), which requires advice to the
defendant “that, if convicted, a defendant who is not a United States citizen
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may be removed from the United States, denied citizenship, and denied
admission to the United States in the future.” The record shows that the court
advised Awad as follows: “Immigration consequences: If you are not a U.S.
citizen and you plead guilty, or are convicted of a crime, it may have
immigration consequences, including but not limited to: deportation, exclusion
from admission to the United States, or denial of citizenship.” The required
advisory about possible immigration consequences, like the other advisories in
N.D.R.Crim.P. 11(b)(1), need not be repeated immediately prior to entry of a
guilty plea if the advisory was given at an earlier hearing and the record
reflects the defendant’s knowledge of his rights. State v. Yost, 2018 ND 157,
¶ 20, 914 N.W.2d 508 (“A trial court is not required to readvise a defendant of
each of his rights at a change of plea hearing, provided the court determines
that the defendant was properly advised at arraignment, and that the
defendant now recalls that advice. It is sufficient to satisfy due process if the
defendant’s knowledge of his rights is clearly reflected from the whole record.”).
At the change of plea hearing, the court asked Awad, “Do you have any
questions about the rights that we went over earlier, sir?” Awad responded,
“No, Your Honor.” We conclude the district court did not misapply the law by
failing to readvise Awad under Rule 11(b)(1) at the change of plea hearing and
thus it did not abuse its discretion in denying Awad’s motion to withdraw his
guilty plea on that basis.
[¶4] Awad also argues that the district court failed to satisfy the
requirements of Padilla v. Kentucky, 559 U.S. 356 (2010). Padilla held that an
attorney who fails to give correct advice about immigration consequences that
are “truly clear” has failed to meet reasonable professional standards and thus
has provided constitutionally ineffective assistance under prong one of
Strickland v. Washington, 466 U.S. 668 (1984). Our review of the record here,
which, unlike Padilla, is a direct appeal from a criminal judgment rather than
an application for postconviction relief, reveals no evidence that Awad satisfies
either prong under the Strickland test for ineffective assistance of counsel.
[¶5] At the hearing on the motion to withdraw his guilty plea, Awad was
present with his attorney. Awad offered no testimony. When the court asked
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his attorney if he had any evidence he would like to present, he said he did not.
Awad’s attorney, the same attorney who represented Awad at the entry of his
guilty plea, stated, “I will admit that he wasn’t given proper immigration
advice at the time of sentencing or at least at plea.” We have said repeatedly
that statements by counsel are not evidence. See, e.g., S.M.B. v. G.G., 376
N.W.2d 27, 29 (N.D. 1985) (“A lawyer’s comments are not evidence.”). Awad
presented no evidence about what, if any, advice his attorney gave him. He
asserts as a fact in his appellate brief without citation to the record that “Awad
was not informed by his counsel that his guilty plea would make him
deportable from the United States, would subject him to mandatory
immigration detention, and would preclude him from almost all forms of relief
from removal.” He presented no evidence that if he had been given accurate
legal advice about the probable immigration consequences of a guilty plea, he
would have persisted in a not guilty plea and proceeded to trial. We require a
showing that a decision to go to trial would have been rational based on factors
such as a realistic possibility of a lower sentence or a meritorious defense at
trial. Morales v. State, 2019 ND 137, ¶ 10, 927 N.W.2d 401. Here the evidence
in the record doesn’t even contain a bare assertion that Awad would have gone
to trial.
[¶6] “Ordinarily, a claim of ineffective assistance of counsel should be
resolved in a post-conviction proceeding under N.D.C.C. ch. 29-32.1, so the
parties can fully develop a record on the issue of counsel’s performance and its
impact on the defendant’s claim.” Yost, 2018 ND 157, ¶ 23, 914 N.W.2d 508.
“When the record on direct appeal is inadequate to determine whether the
defendant received ineffective assistance, the defendant may pursue the
ineffectiveness claim at a post-conviction proceeding where an adequate record
can be made.” State v. Atkins, 2016 ND 13, ¶ 9, 873 N.W.2d 676. Because Awad
presented no evidence in support of his Padilla claim for ineffective assistance
of counsel, we reject that claim in this direct appeal without prejudice to his
opportunity to raise it in an application for postconviction relief where he may
again have an opportunity to develop a factual record in support of his claim.
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[¶7] We affirm the district court order denying Awad’s motion to withdraw
his guilty plea.
[¶8] Jerod E. Tufte
Daniel J. Crothers
Lisa Fair McEvers
Gerald W. VandeWalle
Jon J. Jensen, C.J.
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