State Of Washington, Resp. v. Saciid K. Nadif, App.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 71802-9-1 r-o
<=3
Respondent, CXI
DIVISION ONE
v.
UNPUBLISHED OPINION
"X--'
SACIID KASIM NADIF,
Appellant, FILED: August 3, 2015 en
Trickey, J. — An attorney has a duty to advise a noncitizen defendant of the
immigration consequences of his plea. Failure to do so may constitute ineffective
assistance of counsel. Here, however, the record reveals that defense counsel advised
the defendant of potential immigration consequences that could attach to his conviction
for second degree assault. Additionally, the defendant's statement of guilty plea
contained a paragraph on possible immigration consequences, including deportation,
exclusion of admission to the United States, and denial of naturalization. That portion of
his plea was read aloud at the hearing and acknowledged by the defendant before the
court accepted the guilty plea. Accordingly, we affirm the trial court's denial of the
defendant's motion to withdraw his guilty plea.
FACTS
Saciid Kasim Nadif pleaded guilty to second degree assault-domestic violence of
his wife. Nadif also pleaded guilty to the aggravating factor that the offense occurred
within the sight or sound of the couple's minor child.
In exchange for his plea, the State agreed to recommend 24 months of
incarceration, 9 months for the assault and 15 months for the enhancement. At
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sentencing, Nadifs counsel, Timothy Leary, withdrew because of potential ineffective
assistance allegations. The trial court assigned new counsel. Nadif then moved to
withdraw his guilty plea under CrR 4.2(f), alleging that his defense counsel provided
ineffective assistance of counsel for failing to advise him that he was facing certain
deportation. Alternatively, Nadif contended that his plea was involuntary because he had
not been informed of the immigration consequences.
After an evidentiary hearing, the trial court denied the motion. Nadif timely
appeals, contending that the trial court abused its discretion in denying his motion to
withdraw his guilty plea.
ANALYSIS
Under CrR 4.2(f), the trial court "shall allow a defendant to withdraw the
defendant's plea ofguilty whenever it appears thatthe withdrawal is necessary to correct
a manifest injustice." We review the trial court's decision on a motion to withdraw a guilty
plea for an abuse of discretion. State v. Lamb, 175Wn.2d 121,127, 285 P.3d 27 (2012).
A trial court abuses its discretion if its decision is manifestly unreasonable or based on
untenable grounds. Manifest injustice is a "demanding standard." State v. Taylor, 83
Wash. 2d 594, 597, 521 P.2d 699 (1974).
To prevail on an ineffective assistance of counsel claim, Nadif must show both that
his counsel's performance was deficient and that he was prejudiced by the deficiency.
Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674,
693 (1984). In Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284
(2010), the United States Supreme Court held that under the Sixth Amendment right to
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counsel, as articulated in Strickland, counsel has a duty to provide advice relating to
deportation.
Nadifs reliance on State v. Sandoval, 171 Wash. 2d 163, 249 P.3d 1015 (2011), as
support for finding counsel deficient is misplaced. In Sandoval, defense counsel told his
client "that he should accept the State's plea offer because he would not be immediately
deported and that he would then have sufficient time to retain proper immigration counsel
to ameliorate any potential immigration consequences of his guilty plea." 171 Wash. 2d at
167. Here, unlike Sandoval, defense counsel informed Nadif that he would be facing
deportation whether it was in two years if he pleaded guilty or in ten years if he were found
guilty at trial.
At the evidentiary hearing, Leary and Nadif offered conflicting testimony about
whether Leary had informed Nadif thata guilty plea may result in deportation proceedings.
Leary testified that he had discussed immigration issues with Nadif several times. Nadif
told Leary that he was a citizen ofSomalia and that his green card had expired two years
earlier. Leary also advised Nadif that the crime with which he was charged, second
degree assault, was a crime subject to deportation. Leary clearly advised Nadif that he
would be subject to deportation although there might be a question of whether he would
actually be deported due to the instability in Somalia.
Before Nadif pleaded guilty, Leary unsuccessfully tried to negotiate a reduced
charge from a felony. Before trial, the State informed Leary by letter that it was seeking
an exceptional sentence often years because of the significant injuries inflicted on Nadifs
wife and the fact that the assault occurred in front of the child. If Nadif pleaded guilty, the
State agreed to remove the aggravator of excessive injuries for second degree assault.
No. 71802-9-1/4
Leary provided Nadifwith a written copy of the State's offer. Nadif did not wish to plead
guilty and the matter proceeded to trial.
Prior to the start of trial, Leary had negotiated with the State to not introduce the
photographic evidence of the wife's injuries if Nadif pleaded guilty. Without that plea, the
graphic photographs were going to be admitted. Nadif changed his mind the second day
of trial after the CrR 3.5 hearing when the court made its decision to admit the 911 tape.
The court adjourned, giving defense counsel time to speak with his client. Leary
testified that he reviewed the plea agreement with Nadif. He further testified that it was
his practice to go over each and every paragraph in a plea agreement. Leary again
informed Nadif that his guilty plea would have adverse immigration consequences,
reminding him that his choice was to face those immigration consequences in two years
if he pleaded guilty or risk facing them in ten years if he were found guilty. Leary averred
that he had spoken with Nadif at length about the consequences, including how this would
impact his ability to get a green card.
Nadif testified at the hearing that the he had spoken with Leary approximately four
times. Nadif stated that when he first hired Leary, Nadif told Leary that he knewthat there
were immigration consequences to his case because it was a felony. Nadif testified that
he expressed concerns about his expired green card, but that Leary told Nadif that he
would contact an immigration attorney and get back to him, but never did so. Nadif further
testified that he was only advised about the proposed plea offer from the Statejust before
trial, when he was informed that his wife was going to testify.
When Nadif finally agreed to plead guilty, he testified that he was confused and
misinformed and was just signing papers. Nadif alleged that he had not read the papers
No. 71802-9-1/5
and that his attorney just told him where to sign and what to say. Nadif claimed that he
was never informed that he would in fact be deported if he pleaded guilty.
However, Nadifs testimony is contradicted by the record. At the time Nadif agreed
to the plea in open court, the prosecutor specifically read aloud the following clause
contained in the plea agreement that Nadif signed:
[l]f [I am] not a citizen of the United States, a plea of guilty to an offense
punishable as a crime under state law is grounds for deportation, exclusion
from admission to the United States, or denial of naturalization pursuant to
the laws of the United States.™
Nadif acknowledged that he was aware of this and that he still wanted to plead guilty.
After acknowledging that Nadif agreed to the plea, the court queried counsel on whether
he had in fact advised Nadif of the immigration consequences of his plea. Assured that
Nadif was so advised, the court found his plea to be voluntarily, knowingly, and
intelligently made.
The court found Leary's testimony regarding his interaction with Nadif and the
ensuing discussion about the sentence and immigration consequences credible. The
credibility of the witnesses, the weight to be given to their testimony, and the inferences
to be drawn from such evidence are all matters within the province of the trier of fact.
State v. Camarillo, 115 Wash. 2d 60, 71, 794 P.2d 850 (1990). The court also noted that
Nadifs answers to questions at the plea hearing demonstrated that his plea was knowing
and voluntary.
The record amply supports the court's findings of fact and conclusions of law
regarding counsel's effectiveness and the validity of Nadifs plea. Nadif failed to
demonstrate a manifest injustice.
1 Report of Proceedings (RP) (Oct. 17, 2013) at 8-9.
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No. 71802-9-1/6
Affirmed.
Ir/t/kgN/ j 3~
WE CONCUR: