Abbas v. State

2022 UT App 137THE UTAH COURT OF APPEALS
FADHIL ABBAS,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20200913-CA
Filed December 8, 2022
Third District Court, West Jordan Department
The Honorable Chelsea Koch
No. 190401992
Fadhil Abbas, Appellant Pro Se
Simarjit S. Gill and Perrin R. Love,
Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGE RYAN M. HARRIS and SENIOR JUDGE KATE APPLEBY
concurred. 1
MORTENSEN, Judge:
¶1 Fadhil Abbas received some bad advice from his attorney
(Counsel)—that a jail sentence of less than one year would help
him avoid deportation. After Abbas encountered immigration
troubles as a result of his plea, he filed a petition for post-
conviction relief, contending that Counsel’s bad advice motivated
him to accept a plea resulting in his deportation and that he never
would have pled guilty had he known doing so would carry
negative immigration consequences. Because the record shows
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
Abbas v. State
that Counsel’s wrong advice had no effect on Abbas’s decision to
accept the plea, we affirm.
BACKGROUND 2
The Conduct and Charges
¶2 Over about thirty-five days, Abbas, who was then fifty-
four years old, engaged in a relationship with fifteen-year-old
Sylvia, 3 whom he met in an online forum for selling used goods.
After they met, Abbas cultivated the relationship through an
online messaging service.
¶3 Many of the messages (which are contained in a 180-page
chat log) were relatively innocuous, but Abbas steered some
exchanges toward inappropriate subjects aimed at manipulating
Sylvia to become romantically involved with him. In addition to
Abbas befriending Sylvia by providing a sympathetic ear to listen
to her teenage troubles, he delved into more sensitive subjects,
such as asking Sylvia about her former boyfriend and their sexual
activity, her virginity, and whether she liked sex. Abbas also
suggested that he and Sylvia should secretly marry and
repeatedly referred to her as “my wife” in the messages.
2. This case comes before us in a post-conviction setting, after the
district court held an evidentiary hearing. Accordingly, the facts
as related hereafter reflect the record from the plea hearing in the
criminal case as well as facts established at the evidentiary
hearing held in the post-conviction case.
3. A pseudonym.
20200913-CA 2 2022 UT App 137Abbas v. State
¶4 In addition to broaching these intimate topics, Abbas
initiated a more sordid exchange with Sylvia when the two were
discussing their future together:
Abbas: If u re 18 now u r my wife
Sylvia: So what would you do to me
Abbas: Eat u
Sylvia: You can’t force me to do something
Abbas: Not by force but u may ask me to do it
Sylvia: Ya and what if I don’t want it and you do
will you just do it to me
Abbas: If u don’t want it the[n] it will ha[ve] no taste
Sylvia: Are you going to rape me
That’s what it sounds like you are saying
you have to be clear with what you say with me
I’m so confused
Abbas: U know what? I am afraid u will have some
[ph]obia from doing sex because the boy who rape
u[4] and it could be permanent complex
Sylvia: What does that mean[?] I want to be with you
I just don’t understand what you are saying
Abbas: Sex is very necessary in life specially between wife
and husband or gf and bf but it seems u don’t care
about it
4. Sylvia had earlier revealed to Abbas that her former boyfriend
“made her do things [she] didn’t want to do.”
20200913-CA 3 2022 UT App 137Abbas v. State
Sylvia: I do care you know what when I am 18 we can get
married and you can be my husband and love me
in anyway you want
¶5 And in another exchange, Abbas appeared to ask Sylvia for
nude photos but retracted the request after Sylvia balked:
Sylvia: I owe you so much thank you
Abbas: Nudes
Sylvia: I told you no I dont do that
Abbas: No nudes
Wazs mistake
No nude i meant
....
Don’t want that before the 18
Ok
¶6 On four occasions, Abbas met secretly with Sylvia. During
the meetings, Abbas gave Sylvia a cell phone and small gifts
(a notebook, a necklace, drawing paper, pens, and candy). The
third time they met, Abbas told Sylvia he wanted a kiss, and she
pointed to her cheek. Abbas said he wanted a kiss on the lips,
leaned in, kissed her on the lips, put his tongue in her mouth, and
bit her lip.
¶7 Abbas insisted that Sylvia delete the pictures and messages
they exchanged and that they keep their relationship a secret,
saying, “[T]he thing is that you [are] still under the age of 17 or
18” and “you . . . know [the] laws here.” He also insisted that
Sylvia never reveal that she received the cell phone from him.
¶8 But Sylvia didn’t stay silent. Abbas’s conduct was reported
to school officials, who turned the matter over to the police.
Officers interviewed Abbas, who admitted to being in contact
20200913-CA 4 2022 UT App 137Abbas v. State
with Sylvia but claimed that “he was just pretending, just saying
things” in the messages. Abbas further admitted that he had
asked Sylvia to marry him, that he had kissed her, that he met her
four times, and that he gave her a cell phone and other small
items.
¶9 Abbas was charged with one count of enticing a minor, a
class A misdemeanor. See Utah Code Ann. § 76-4-401(2)(a)
(LexisNexis Supp. 2022) (“A person commits enticement of a
minor when the person knowingly uses the Internet or text
messaging to solicit, seduce, lure, or entice a minor, or to attempt
to solicit, seduce, lure, or entice a minor, or another person that
the actor believes to be a minor, to engage in any sexual activity
which is a violation of state criminal law.”).
The Plea Agreement
¶10 Abbas retained Counsel to represent him and initially pled
not guilty. But Counsel believed that Abbas’s actions satisfied the
elements of enticing a minor:
His contacting her and meeting her four times in his
car, kissing her with his tongue penetrating her
mouth, and asking her about nude pictures and if he
can have sex with her and if he can keep her as a
girlfriend on the side.
All these things—and also to keep the relationship
secret. They are all part of the sexual activity. If you
read the statute, the law is designed to protect
minors.
And Counsel went on to express this opinion:
Any reasonable person looking at all these things
happening between a child, a 15-year-old, and a
20200913-CA 5 2022 UT App 137Abbas v. State
man of 55-years-old[5] with six children and a wife,
would easily infer this is not a charitable
relationship, it is designed for sexual activity.
Counsel also revealed that Abbas admitted to him that he had
asked Sylvia for nude pictures “a couple of times” and that “[h]e
basically wanted [Sylvia as] a girlfriend on the side.”
¶11 Contemporaneously, the prosecutor had notified Counsel
that Sylvia had provided “additional statements” that could
support the charges against Abbas being expanded and
“amended to felonies.” Counsel testified that he had a
“conversation” with Abbas “about those additional disclosures”
that Sylvia “was making,” but Abbas said he was “already aware”
of them and that “they didn’t come as a surprise to him.” Counsel
communicated to Abbas that the charges could be expanded and
amended to felonies. In light of these realities, Counsel negotiated
a plea agreement with the State in which Abbas would plead
guilty to the misdemeanor charge, and the State would agree not
to expand the charges to felonies and, in addition, would agree to
recommend probation rather than jail time as well as a potential
“402 reduction” at the conclusion of the probationary period after
the completion of sex offender registration and treatment
requirements. See Utah Code Ann. § 76-3-402(8)(a) (LexisNexis
Supp. 2022) (allowing reduction to a lower degree of offense
under specific circumstances). Subsequently, Abbas decided to
accept the plea agreement and change his initial plea.
¶12 On the day of the change-of-plea hearing, the prosecutor
initially indicated that she would recommend a 365-day
suspended sentence. Counsel advised Abbas to retain an
immigration attorney. Abbas refused to take Counsel’s advice and
instead chose to plead guilty, saying, “No. I need to finish this
today. I need to end this because of the immigration reason, and I
5. Abbas turned fifty-five shortly after his actions came to light.
20200913-CA 6 2022 UT App 137Abbas v. State
am willing to take the classes.” Counsel said he believed that
Abbas’s plan was to plead guilty and “to keep low, take the
classes, [and] avoid immigration contact by not going to jail or
[getting] arrest[ed].”
¶13 After Abbas agreed to move forward with the proffered
agreement, Counsel asked the prosecutor to recommend a 364-
day (instead of a 365-day) suspended sentence, believing that if
the sentence was for less than one year, Abbas was less likely to
be deported. The prosecutor agreed to make—and did make—
that recommendation.
¶14 While entering his guilty plea, Abbas assured the court that
he understood the English language, did not need an interpreter,
and had read the plea documents. The court asked Abbas if he
was “thinking clearly” and “under[stood] what [he was] doing,”
specifically that he was waiving his right to a jury trial. After
conducting the plea colloquy, see Utah R. Crim. P. 11(e), and
receiving the signed agreement, the court found Abbas’s “plea
[had] been knowing[ly], voluntarily, and intelligently given.” The
plea form included the following statement: “I understand that if
I am not a United States citizen my guilty plea(s) may subject me
to deportation.”
Abbas’s Petition for Post-conviction Relief
¶15 Abbas didn’t fly under the immigration radar as he had
planned. Disliking the imposition of conditions including
probation with sex offender status, Abbas, acting pro se, filed a
petition for post-conviction relief (PCR petition), alleging, among
other things, that he was innocent, lacked “cultural knowledge,”
was unaware of legal terminology and procedure, was
represented by a “weak” lawyer, and was confronted with a
prosecutor and police officers who were dishonest and partial “to
the other side.”
20200913-CA 7 2022 UT App 137Abbas v. State
¶16 Shortly thereafter, Abbas’s probation officer filed a
progress violation report and notified the court that Abbas had
not yet initiated sex-offender treatment. An arrest warrant was
issued. In October 2019, officers from the U.S. Department of
Homeland Security detained Abbas and held him in Colorado.
¶17 In May 2020, now represented by new counsel, Abbas
amended his PCR petition to seek additional relief, alleging
(1) that his plea was not voluntarily made; (2) that the prosecution
failed to turn over exculpatory evidence; and (3) that Counsel
rendered ineffective assistance in various ways—(a) giving
incorrect immigration advice, (b) failing to include in the record
what sexual activity Abbas enticed Sylvia to engage in, (c) failing
to obtain the chat log, (d) failing to explain the plea statement and
the elements of the offense to Abbas, and (e) failing to view police
interview videos of Abbas and Sylvia.
Ruling on Abbas’s PCR Petition
¶18 The court held a three-day hearing on Abbas’s PCR
petition, receiving testimony from the investigating detective,
Counsel, Abbas, Abbas’s friends, and Abbas’s wife. The parties
also submitted supplemental briefing on applicable immigration
statutes.
¶19 The court denied each of Abbas’s three claims. It first
determined that Abbas had entered his guilty plea knowingly and
intelligently. It stated that the sentencing court “performed an
adequate colloquy, including ensuring that [Abbas] understood
English, had read the plea form, understood all his rights and the
consequences of pleading guilty, and had no questions.” The
court found Abbas’s testimony—that he did not know what type
of crime he had committed, that he pled guilty only because he
was not given an option, and that he signed the plea form because
Counsel had pointed with his finger to the bottom of the plea form
and told him to sign—“to be not credible.” Instead, the court
20200913-CA 8 2022 UT App 137Abbas v. State
noted that Abbas had affirmed on the record that he understood
everything on the form, that he did not need an interpreter, that
he had worked as an English interpreter, and that he had read and
understood the plea form. Given this testimony, the court
concluded that Abbas had “not shown that he had such an
incomplete understanding of the charge that his plea [could not]
stand.”
¶20 Next, regarding his claim that the prosecution withheld
exculpatory evidence by not turning the chat log over to Counsel,
the court stated that it was uncertain whether the chat log had
been turned over. But as a threshold matter, the court noted that
while “the State had a constitutional duty to turn over the chat
log, when [Abbas] entered a plea of guilty, he waived any pre-
plea constitutional violations.” See Medel v. State, 2008 UT 32, ¶ 26,
184 P.3d 1226 (“By entering a knowing and voluntary guilty plea,
a defendant waives all non-jurisdictional challenges to a
conviction. This waiver includes pre-plea constitutional
violations.” (cleaned up)).
¶21 Moreover, the court concluded that even if the chat log had
not been turned over, its discovery by subsequent counsel did
not—for several reasons—“constitute newly discovered
evidence” that required Abbas’s plea to be vacated. First, Counsel
knew about the log and could have obtained it through reasonable
diligence. Second, the evidence in the chat log was cumulative of
chats already outlined in the police report. And third, rather than
being exculpatory, “the chat log, when viewed in its entirety,
[was] much more inculpatory than even the various excerpts
outlined in the police report.” As inculpatory elements, the court
referred to sections of the chat log concerning nude photos; the
purchase of numerous gifts; the secretive provision of a cell
phone; conversations about sex, virginity, and a secret marriage;
keeping the communications a secret; meeting several times; and
kissing. In sum, the court stated that “the 180 page chat log gives
light to the fact that [Abbas] not only had a conversation with the
20200913-CA 9 2022 UT App 137Abbas v. State
fifteen year old girl about nudes, but that the relationship was
much less innocent” than he represented. In fact, the court
concluded that “numerous . . . troubling sections” demonstrated
“that the chat log, in no way, constituted exculpatory evidence.”
“Instead,” the court asserted, “it provided overwhelming
evidence of [Abbas’s] guilt” such that “no reasonable trier of fact
could have found [Abbas] not guilty with the admission of the
chat log.” Thus, “any failure to disclose the chat log did not result
in prejudice to [Abbas].”
¶22 Lastly, the court concluded that Abbas’s ineffective
assistance claims failed under the test articulated in Strickland v.
Washington, 466 U.S. 668 (1984). Significant for this appeal, the
court found that Counsel performed deficiently in advising Abbas
that changing the sentence from 365 to 364 days would have a
beneficial effect on potential immigration consequences. While
Counsel correctly advised that there could be “severe
immigration consequences” for entering a guilty plea, his
“representation was deficient” when “he made affirmative
material misrepresentations that [Abbas] would not be deported
if he were sentenced to 364 days instead of one year.” But the court
concluded that “despite” Counsel’s “deficient performance” in
this regard, Abbas had not demonstrated prejudice: “Even if
[Abbas’s] claims were all valid, he must still show prejudice . . . .
Considering all of the evidence, there is not a reasonable
likelihood of a more favorable outcome had [Abbas] proceeded to
trial.” 6
6. Regarding Abbas’s claims that Counsel was ineffective in
failing to include in the record what sexual activity Abbas enticed
Sylvia to engage in and failing to explain the plea statement and
the elements of the offense to Abbas, the court concluded that
Counsel’s performance in these respects, in addition to not
resulting in prejudice, was not deficient.
20200913-CA 10 2022 UT App 137Abbas v. State
Abbas’s Rule 59 Motion
¶23 Abbas filed a motion for a new trial, see Utah R. Civ. P. 59,
asserting that the court applied the incorrect legal standard in
determining prejudice when it assessed whether he had shown a
likelihood of a better outcome had he proceeded to trial. Rather
than a better outcome, Abbas argued that to make a showing of
prejudice “in a guilty plea case,” a petitioner “must show that but
for the deficiency of trial counsel the petitioner would have not
pleaded guilty and would have insisted on going to trial and that
such a decision would have been rational under the
circumstances.” (Cleaned up.) See Ramirez-Gil v. State, 2014 UT
App 122, ¶ 8, 327 P.3d 1228 (“In order to demonstrate prejudice
on this type of claim, [a] petitioner must show that 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 and
that such a decision would have been rational under the
circumstances.” (cleaned up)).
¶24 Abbas also argued that because “something more than
success at trial was the motivating factor in the plea,” he qualified
for a “special circumstance” as articulated in Lee v. United States,
137 S. Ct. 1958 (2017). Specifically, Abbas argued that “his desire
to avoid deportation at all costs” was “a special circumstance.” See
Arriaga v. State, 2020 UT 37, ¶ 35, 469 P.3d 914 (noting that “when
a defendant provides substantial and uncontroverted evidence
that something other than a more favorable outcome at trial was
a determinative issue at the time the plea decision was made,” a
special circumstance arises in the ineffective assistance of counsel
context, meaning a defendant “need not demonstrate a likelihood
of success at trial” to establish prejudice).
¶25 The court agreed that it should have applied the prejudice
standard advanced by Abbas: because the claim involved
entering a plea, “in order to prove there [was] a reasonable
likelihood of a more favorable outcome,” Abbas needed to show
20200913-CA 11 2022 UT App 137Abbas v. State
only “a reasonable probability that, but for the error [of Counsel],
he would have not pleaded guilty and insisted on going to trial.”
See id. ¶ 32.
¶26 But even applying this prejudice standard, the court
concluded that Abbas “failed to show that but for [Counsel’s]
advice regarding deportation, he would not have pleaded guilty
and would have insisted on going to trial.” The court noted,
Other than [Abbas’s] post-conviction, self-serving
supposition that he would have gone to trial if he
had known he would be deported, there was no
other evidence to support that assertion. In fact, the
evidence presented directly contradicts this
position, including testimony that [Abbas] wanted
to proceed with the plea that day to put the case
behind him as quickly as possible.
The court also noted that Abbas signed the plea form stating that
his plea “may subject [him] to deportation.”
¶27 Further, the court rejected Abbas’s argument that the
exception articulated in Lee should apply to him. The court
explained that under Lee, “‘special circumstances’ arise only when
a defendant provides ‘substantial and uncontroverted’ evidence
that something other than a more favorable outcome at trial was
a determinative issue at the time the plea decision was made.”
(Quoting Lee, 137 S. Ct. at 1965, 1969.) Specifically, the court said
that Abbas had “failed to present substantial and uncontroverted
evidence that something other than a more favorable outcome at
trial” was determinative of his plea decision. (Cleaned up.) “As
such,” the court concluded, “the ‘special circumstances’ exception
does not apply in the instant case.”
20200913-CA 12 2022 UT App 137Abbas v. State
ISSUE AND STANDARDS OF REVIEW
¶28 Abbas argues on appeal that the post-conviction court was
incorrect in not applying the exception articulated in Lee v. United
States, 137 S. Ct. 1958 (2017), for assessing the prejudice from
Counsel’s deficient performance. “We review an appeal from an
order dismissing or denying a petition for post-conviction relief
for correctness without deference to the lower court’s conclusions
of law. Moreover, when confronted with ineffective assistance of
counsel claims, we review a lower court’s purely factual findings
for clear error, but we review the application of the law to the facts
for correctness.” Archuleta v. State, 2020 UT 62, ¶ 20, 472 P.3d 950(cleaned up). 7
ANALYSIS
¶29 The question here is whether “but for Counsel’s errors,
[Abbas] would not have pleaded guilty and would have insisted
on going to trial and that such a decision would have been rational
under the circumstances.” See Ramirez-Gil v. State, 2014 UT App
122, ¶ 8, 327 P.3d 1228 (cleaned up). Our supreme court has
explained,
7. Abbas also included a rule 23B motion for remand in his
briefing as his second legal issue for this appeal. In October 2021,
this court denied a similar rule 23B motion from Abbas, stating,
“By its express terms rule 23B is applicable only in criminal
appeals. This appeal is not a direct appeal from a criminal
conviction, but instead an appeal from the dismissal of his petition
for post-conviction relief. Thus, rule 23B is not applicable to this
appeal.” Our opinion that a rule 23B remand is inapplicable to
post-conviction relief has not changed, and we decline to consider
this issue further.
20200913-CA 13 2022 UT App 137Abbas v. State
In limited circumstances, a defendant may
rationally reject a plea deal where “special
circumstances” suggest that there is more to
consider than simply the likelihood of success at
trial. And the [Supreme] Court explained that where
these “special circumstances” exist, defendants
need not demonstrate a likelihood of success at trial.
Rather, they need only show that if properly
advised, they would have opted to go to trial.
Arriaga v. State, 2020 UT 37, ¶ 35, 469 P.3d 914 (cleaned up). Thus,
Abbas’s argument is that “special circumstances” governed his
decision to accept the plea because it was motivated by something
other than success at trial, namely, his desire to avoid deportation.
In other words, Abbas asserts that Counsel’s incorrect advice
caused him to accept the plea under the mistaken assumption that
doing so would allow him to avoid deportation.
¶30 Abbas cites Lee v. United States, 137 S. Ct. 1958 (2017), in
support of his arguments. But Lee is of little help to Abbas. In Lee,
the Supreme Court explained that a “special circumstance[]”
arises when an immigrant-defendant “would not have accepted a
plea had he known it would lead to deportation.” Id. at 1965, 1969.
But the Court’s explanation is nuanced by a specific condition,
But for his attorney’s incompetence, [the defendant]
would have known that accepting the plea
agreement would certainly lead to deportation.
Going to trial? Almost certainly. If deportation were
the “determinative issue” for an individual in plea
discussions, as it was for [the defendant]; if that
individual had strong connections to this country
and no other, as did [the defendant]; and if the
consequences of taking a chance at trial were not
markedly harsher than pleading, as in this case, that
“almost” could make all the difference.
20200913-CA 14 2022 UT App 137Abbas v. State
Id. at 1968–69. This was not Abbas’s situation. Abbas knew that
accepting the plea deal would possibly have immigration
consequences, but he was hoping to avoid those consequences by
pleading to a misdemeanor, complying with his probation
conditions, and keeping a low profile. And he also knew that
turning down the plea deal and going to trial would have nearly
guaranteed severe consequences—jail time, perhaps for a felony
conviction—and additional scrutiny that would make
deportation all but a certainty.
¶31 Of course, avoiding deportation was Abbas’s ultimate
motivation in pleading guilty. But what must be considered here
is not so much the macro-motive of avoiding deportation, but the
specific mechanism Abbas employed to achieve this end. And that
mechanism was to plead guilty to a misdemeanor and avoid a
trial. Had he not accepted the plea, he would have gone to trial
and almost certainly been convicted of the misdemeanor. And
rejecting the offered plea may have opened the door to the State
enhancing his charge to include at least one felony. Thus, for
Abbas, the motivation for accepting the plea was to achieve a
more favorable outcome—largely to avoid the publicity of a
trial—which he, in turn, thought would support his immigration
aspirations.
¶32 Even absent the possibility of the threatened felony
conviction, Abbas still faced a substantial risk in going to trial on
the misdemeanor charge. We agree with the district court’s
assessment that if the State had presented the evidence of the chat
log at trial, Abbas would have been convicted on the enticement
count—but without the benefits afforded by the plea, namely a
suspended sentence of less than one year. Indeed, by taking the
plea that essentially consisted of probation accompanied by sex
offender treatment, Abbas was able to pursue his strategy of
keeping a low profile to avoid the notice of immigration officials,
even if the success of that strategic goal was far from certain.
Conviction of a misdemeanor with jail time—or, certainly,
20200913-CA 15 2022 UT App 137Abbas v. State
conviction of a felony, probably with prison time—would have
likely carried far more severe consequences, including
immigration issues, than accepting the plea deal. Thus, the plea
involving no jail time best suited Abbas’s chances, slim though
they might have been, to stay out of sight of immigration
authorities.
¶33 The defendant in Lee faced a choice between a trial that
would “almost certainly” result in deportation and a plea that
“certainly” would have resulted in deportation. Abbas’s choices
were the exact inverse. In his situation, choosing to go to trial was
the more likely of the two options to result in deportation. His
choice was between (1) pleading guilty to a misdemeanor, which
would lead to deportation if he was ever caught by immigration
officials but which might afford him the opportunity to avoid
contact with those officials until he could obtain a 402 reduction,
and (2) facing prosecution for not only the misdemeanor—for
which he was certain to be convicted and deported—but also for
unspecified felonies, which would probably include a stay in
prison followed by certain deportation. Abbas made a rational
choice in opting for the better chance to avoid deportation, narrow
though that path was.
¶34 Abbas has presented no evidence that at the time he
accepted the plea deal he had any other thought than resolving
the matter quickly and avoiding the perils of going to trial.
Indeed, Counsel had told Abbas that he would likely face
negative immigration consequences if he pled guilty to the
misdemeanor charge, but Abbas had set his mind on doing just
that. The fact that Abbas had decided to accept the plea agreement
even before the prosecutor agreed to a reduced duration of the
sentence dispositively indicates that Abbas’s acceptance of the
plea deal was not reliant on Counsel’s bad immigration advice. In
other words, there is no indication in the record that the offer of a
reduced length of suspended sentence had any effect on Abbas’s
20200913-CA 16 2022 UT App 137Abbas v. State
decision to accept the plea. Given this circumstance, we fail to see
how Counsel’s deficient performance prejudiced Abbas.
¶35 We have no trouble concluding that Counsel’s error had no
effect on Abbas’s “decision to plead guilty rather than go to trial.”
See Arriaga, 2020 UT 37, ¶ 32. Abbas appears to have calculated
that he had more to lose in going to trial (a misdemeanor
conviction or potential felony conviction at trial that would equal
deportation) than if he accepted the plea deal of whatever length
(a misdemeanor that—in his mind—could allow him to avoid the
notice of immigration officials). Only by obtaining a more
favorable outcome (that is, pleading guilty to a guaranteed
misdemeanor without jail time) did Abbas believe that he might
be able to avoid negative immigration consequences. And going
to trial just on the misdemeanor charge would have been more
likely to draw attention to Abbas. In other words, his primary
concern was to receive the least serious conviction and maintain
the greatest possible obscurity. By doing so, he thought that his
chances of not being deported were better. If he had gone to trial
and been convicted of a felony, deportation would have been
guaranteed. Even a conviction of a misdemeanor at trial carried a
much higher risk. But by accepting the plea to a misdemeanor
with the least onerous sentence, deportation was less likely—or at
least he thought—because he might be able to fly under the radar.
But going to trial carried with it the additional risk of a felony
conviction or a misdemeanor conviction with substantial jail time.
The bad advice Counsel gave—that the sentence of less than a
year would enable Abbas to avoid deportation—had no effect on
Abbas’s decision because he was already set on accepting the plea
as a means to avoid notice by limiting his exposure.
¶36 Abbas has thus failed to show that Counsel’s advice
regarding deportation had any impact on his decision to plead
guilty. Abbas wanted to proceed with the plea because he
believed that an expedient resolution afforded by a misdemeanor
conviction—even one that raised the possibility of immigration
20200913-CA 17 2022 UT App 137Abbas v. State
consequences—was preferable to the extended trial with
practically guaranteed immigration entanglements. And because
Abbas has not produced any evidence that he would have
succeeded at trial—indeed, Abbas’s reluctance to go to trial may
have been based on his fear that additional disclosures from
Sylvia would result in a felony conviction—we conclude that
Abbas “has not met his burden of showing it would have been
rational to forego his plea deal under the circumstances of his
case.” Id. ¶ 38.
CONCLUSION
¶37 Abbas’s ineffective assistance of counsel claim fails because
he cannot show prejudice. He has not demonstrated that he was
influenced to take the plea because of Counsel’s erroneous advice.
Thus, we conclude that the district court properly denied Abbas’s
PCR petition. Affirmed.
20200913-CA 18 2022 UT App 137