THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 66729-7-1
Respondent, DIVISION ONE
v.
PUBLISHED OPINION
MAHENDRA SAMI CHETTY,
Appellant. FILED: November 24, 2014
Schindler, J. — In February 2011, Mahendra Sami Chetty filed a motion under
RAP 18.8(b) to extend the time to file a direct appeal of his 2004 conviction for
possession ofcocaine with intent to deliver. Chetty asserted he was denied effective
assistance when his trial attorney failed to advise him of the adverse immigration
consequences of the conviction and the advantages and disadvantages offiling an
appeal. We remanded to King County Superior Court for an evidentiary hearing to
determine whether Chetty's trial counsel provided ineffective assistance and whether
Chetty waived his right to appeal.1 After conducting an evidentiary hearing, the court
entered detailed findings.2 On the record before us, we conclude Chetty met the burden
of showing ineffective assistance of counsel and the State failed to demonstrate that
Chetty knowingly, intelligently, and voluntarily waived his state constitutional right to
1 State v. Chettv. 167 Wn. App. 432, 444-45, 272 P.3d 918 (2012).
2Both parties filed a notice of appeal from the findings of fact and the court's decision. Because
the court's decision is not a final order or judgment, it is not appealable as of right. See RAP 2.2.
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appeal.3 We therefore grant his motion to extend the time to file a notice of appeal.
The procedural history is set forth in detail in State v. Chetty, 167 Wn. App. 432,
272 P.3d 918 (2012). In 2003, the State charged Chetty with possession of cocaine
with intent to deliver in violation of former RCW 69.50.401 (a)(1)(i) (1998). After Chetty
retained attorney Peter Connick in March 2004, Connick negotiated a cooperation
agreement with the Seattle Police Department that provided for eventual dismissal of
the pending charge. The parties later disputed whether Chetty complied with the terms
of the agreement. The trial court found that Chetty breached the terms of the
cooperation agreement and found Chetty guilty as charged of possession of cocaine
with intent to deliver. Chetty did not appeal the 2004 conviction.
After the United States Department of Homeland Security instituted removal
proceedings, Chetty filed a motion in February 2011 to extend the time to file a notice of
appeal. Chetty asserted that Connick did not advise him of the adverse immigration
consequences of his conviction or discuss the advantages and disadvantages of an
appeal. Chetty claimed that because Connick did not provide effective assistance of
counsel, he did not waive his right to appeal the 2004 conviction.
We remanded to superior court for an evidentiary hearing to determine whether
trial counsel's performance was constitutionally deficient and whether Chetty knowingly,
intelligently, and voluntarily waived his right to appeal. Chetty, 167 Wn. App. at 444-45.
Criminal defense attorneys Howard Phillips, David Gehrke, and Peter Connick; Chetty;
Chetty's sister; and Jay Stansell, an expert immigration attorney, testified at the
evidentiary hearing. The testimony at the hearing and the findings of fact support the
following summary.
3 Const, art. 1, § 22 (amend. 10).
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Following his arrest in May 2003, Chetty retained Howard Phillips. Phillips
contacted the Seattle Police Department to suggest a cooperation agreement. Phillips'
practice at the time was not to provide any information about immigration consequences
unless he first consulted with an immigration expert about the client's case. Phillips
could recall few specific details about his representation of Chetty. But he did not
believe that he ever discussed immigration issues with Chetty. Phillips did not routinely
discuss appellate rights with clients during the pretrial stage. His practice was to "file an
appeal if a person has a valid reason to have their appeal filed."
David Gehrke represented Chetty from November 2003 until March 2004.
Gehrke was aware of Chetty's immigration concerns and pursued "an immigration safe
resolution" in negotiations with the prosecutor's office. Gehrke's practice at the time
was to advise clients with potential immigration issues to contact specific attorneys who
specialized in immigration law. Gehrke did not advise Chetty about his appellate rights
or how a conviction would affect his immigration status.
Peter Connick represented Chetty from March 2004 through sentencing in
November 2004. Connick never provided advice about the specific immigration
consequences of a conviction. If he recognized a potential immigration issue, he would
generally refer a client to an immigration attorney. Connick believed that this practice
was common among local criminal defense attorneys at the time. Connick
acknowledged that Chetty had expressed concerns about potential immigration issues,
including deportation. Connick understood that because of the potential immigration
issues, Chetty would not consider pleading guilty. Connick did not advise Chetty of the
specific consequences of his conviction and did not refer him to an immigration
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attorney.
Connick's general practice regarding an appeal was to answer any questions his
clients asked when they were advised of the right to appeal at sentencing. Connick
recalled that he discussed with Chetty several potential issues for an appeal before the
trial court ruled on whether Chetty complied with the terms of the cooperation
agreement, and prior to sentencing. "Connick believed that there were potentially
meritorious claims that could have been the subject of appeal." But Connick never
discussed the advantages and disadvantages of an appeal with Chetty.
Immigration law expert Jay Stansell has practiced immigration law since 1990.
Stansell testified that the prevailing professional norms in 2003-2004 imposed a duty on
criminal defense attorneys "to seek out, discover, and advise a client concerning
immigration consequences flowing from a conviction." Stansell asserted that at the time
of Chetty's prosecution, a conviction for possession of cocaine with intent to deliver
would be an "aggravated felony" under federal law. Stansell testified the determination
that the conviction would result in almost certain deportation was "one of the simplest
most elementary questions that any criminal defense attorney should know the answer
to." Stansell believed that an attorney's decision to refer a client facing such a charge to
an immigration lawyer reflected deficient knowledge and understanding.
Stansell also testified that an attorney's failure to file a notice of appeal when a
client faced deportation fell below prevailing professional standards. Stansell noted that
the appellate attorney could always withdraw if no arguable basis for an appeal
developed. Based on Stansell's testimony, the court found that at the time of Connick's
representation, a criminal defense attorney "should have possessed a full working
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knowledge of [the] immigration consequences" of a charge of possession of cocaine
with intent to deliver.
The court rejected as not credible Chetty's testimony that he did not know what
an appeal was and that Connick had advised him not to appeal because it would be a
waste of time. The court found that Chetty knew that "an appeal meant review by a
higher court," but that Connick did not discuss "in any detail" the advantages and
disadvantages of an appeal. Chetty acknowledged that Gehrke told him he needed to
find "someone in immigration," but claimed he did not follow up on that advice because
Gehrke did not provide him with a specific reference. The court found that although
Chetty "knew there were immigration consequences of a conviction," he "was not
informed that his conviction would definitely result in deportation." The court's findings
state, in pertinent part:
Following sentencing, defendant was informed by the court that he had
the right to appeal. Defendant understood that an appeal meant review by
a higher court. Defendant did not understand the legal nuances of an
appeal. Defendant understood that he had thirty days to file an appeal.
Mr. Connick did not discuss with defendant, in any detail, the advantages
and disadvantages of an appeal. Defendant did not file a notice of appeal
within thirty days.
Following the evidentiary hearing, the trial court transmitted its finding of fact, and
the parties submitted supplemental briefs.
Generally, this court will extend the time to file a notice of appeal "only in
extraordinary circumstances and to prevent a gross miscarriage of justice." RAP
18.8(b). But in a criminal case, we must balance strict application of that filing deadline
with the defendant's state constitutional right to an appeal. State v. Kells. 134 Wn.2d
309, 314, 949 P.2d 818 (1998); see Const, art. 1, § 22 (amend. 10). The State bears
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the burden of showing that the decision to waive the constitutional right to appeal was
knowing, intelligent, and voluntary. State v. Sweet, 90 Wn.2d 282, 286, 581 P.2d 579
(1978). Consequently, the State must demonstrate that "a defendant understood his
right to appeal and consciously gave up that right before a notice of appeal may be
dismissed as untimely." Kells, 134 Wn.2d at 314.
As we previously held, "the effectiveness of counsel is a circumstance that bears
on the validity of a defendant's waiver of the right to appeal and, in turn, on this court's
ultimate determination whether to extend the time to file a notice of appeal under RAP
18.8(b)." Chetty, 167 Wn. App. at 444. Well before Chetty's prosecution in 2003, the
United States Supreme Court addressed claims of ineffective assistance of counsel
based on the failure to consult with the defendant about filing an appeal. See Roe v.
Flores-Orteaa. 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000).
In Roe, the court rejected a bright-line rule requiring counsel to always consult
with the defendant regarding an appeal. Roe. 528 U.S. at 478. Instead, the court
adopted the framework of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), for analyzing when defense counsel's failure to file a notice of
appeal constitutes ineffective assistance. Roe, 528 U.S. at 478.
In situations where the defendant has not clearly conveyed his or her desire to
appeal, counsel's failure to consult is constitutionally deficient
when there is reason to think either (1) that a rational defendant would
want to appeal (for example, because there are nonfrivolous grounds for
appeal), or (2) that this particular defendant reasonably demonstrated to
counsel that he was interested in appealing.
Roe, 528 U.S. at 480; Chetty, 167 Wn. App. at 441. To establish prejudice, the
defendant must "demonstrate that, but for counsel's deficient conduct, he would have
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appealed." Roe, 528 U.S. at 486. In assessing counsel's performance, courts consider
"all the information counsel knew or should have known." Roe, 528 U.S. at 480.
Counsel's obligation, once it arises, is not satisfied by a cursory reference to the
right to an appeal. Rather, the duty to consult in this context means "advising the
defendant about the advantages and disadvantages of taking an appeal, and making a
reasonable effort to discover the defendant's wishes." Roe, 528 U.S. at 478. As we
also noted in Chetty, our Supreme Court has expressed its expectation that attorneys
will follow similar procedures outlined in the American Bar Association's Standards:
"8.2 Appeal.
"(a) After conviction, the lawyer should explain to the defendant the
meaning and consequences of the court's judgment and his right of
appeal. The lawyer should give the defendant his professional judgment
as to whether there are meritorious grounds for appeal and as to the
probable results of an appeal. He should also explain to the defendant the
advantages and disadvantages of an appeal. The decision whether to
appeal must be the defendant's own choice."
Sweet, 90 Wn.2d at 290 (quoting Am. Bar Ass'n, Standards Relating to the
Prosecution Function and the Defense Function Defense Function std. 8.2 (1971));
Chetty, 167 Wn. App. at 441-42.
The testimony at the evidentiary hearing supports the finding that Chetty did not
know his conviction would almost certainly result in deportation. Connick acknowledged
that Chetty had repeatedly expressed concerns about the immigration consequences of
a conviction. And even through sentencing, Connick continued to believe that there
were meritorious grounds for an appeal. But Connick neither attempted to ascertain
whether Chetty wanted to appeal nor advised him in a meaningful way about the
advantages and disadvantages of filing an appeal.
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Given the virtual certainty of deportation following Chetty's conviction and the
presence of nonfrivolous issues for appeal, the record clearly establishes that a rational
defendant would have wanted to appeal. See also Roe, 528 U.S. at 480 (whether
conviction follows trial or guilty plea is a "highly relevant factor"). Trial counsel's failure
to consult with Chetty about the advantages and disadvantages of filing an appeal
constituted deficient performance.
Chetty's repeatedly expressed concerns about immigration consequences, the
deportation consequences of the conviction, and the presence of nonfrivolous issues for
appeal also support a reasonable inference that but for counsel's failure to consult,
Chetty would have filed an appeal. On the record before us, Chetty demonstrated both
counsel's deficient performance and resulting prejudice. See Roe, 528 U.S. at 484;
Chettv. 167 Wn. App. at 441.
The State claims the trial court's findings improperly turn the presumption of
defense counsel's competence on its head by relying on the absence of evidence to
establish deficient performance. See Burt v. Titlow. U.S. , 134 S. Ct. 10, 17,
187 L. Ed. 2d 348 (2013) ("the absence of evidence cannot overcome the 'strong
presumption that counsel's conduct [fell] within the wide range of reasonable
professional assistance' "4 (quoting Strickland. 466 U.S. at 689)). But unlike Burt, here,
the determination of deficient performance is not based on the absence of evidence in
the record.
In his original declaration, Connick recalled very little about his representation of
Chetty. Chettv. 167 Wn. App. at 437. However, by the time of the evidentiary hearing,
4 Alteration in original.
8
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Connick had reviewed parts of his file and other materials. Connick was able to testify
in some detail about his general practice at the time and specifically about his
representation of Chetty. Connick acknowledged that despite his understanding of
Chetty's immigration concerns and his belief that there were nonfrivolous arguments
supporting an appeal, his failure to consult with Chetty after the conviction was
completely consistent with his general practice at the time. Substantial evidence
supports the relevant findings.
The State also maintains Chetty failed to demonstrate any prejudice resulting
from defense counsel's failure to consult about an appeal. The State argues that
because Chetty knew he had the right to file an appeal, was concerned about
immigration consequences, and knew that an appeal meant review by a higher court, he
understood all the critical factors in favor of filing an appeal. The State asserts Chetty's
decision not to file an appeal under these circumstances demonstrates a valid waiver.
But the State fails to address the full effect of defense counsel's obligation to
consult with Chetty about an appeal.5 Chetty understood he had a right to an appeal
and an appeal meant review by another court. But we must assess that knowledge in
the context of Chetty's lack of a full understanding about the likelihood of deportation,
and counsel's failure to advise him of the specific consequences of the conviction. At
oral argument, the deputy prosecutor identified several possible reasons why a
defendant in Chetty's position would not have filed an appeal. The very existence of
such countervailing reasons, however, underscores the potential significance of defense
5 Accordingly, the State's reliance on cases focusing primarily on the defendant's failure to file an
appeal despite knowledge of the existence of a right to an appeal is misplaced. See, e.g., State v. Devin,
158 Wn.2d 157, 166-67. 142 P.3d 599 (2006).
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counsel's postconviction obligation to discuss the advantages and disadvantages of
filing an appeal as outlined in Roe.
Our ultimate inquiry focuses not only on Chetty's knowledge of the existence of a
right to an appeal, but also on the effect of counsel's alleged deficient performance.
See Chettv, 167 Wn. App. at 444-45. In order to satisfy its burden of establishing a
valid waiver, the State must demonstrate both that Chetty understood the right to an
appeal and that he "did in fact willingly and intentionally relinquish a known right."
Sweet, 90Wn.2dat287.
When viewed in light of Chetty's incomplete understanding of the immigration
consequences of his conviction, the effect of an appeal on those consequences, and
counsel's failure to ascertain Chetty's desires about an appeal or discuss the
advantages and disadvantages of filing an appeal, we cannot say that Chetty's failure to
file an appeal constituted a knowing, intelligent, and voluntary relinquishment of that
constitutional right. The State has therefore failed to sustain its burden of
demonstrating a valid waiver.
We grant Chetty's motion to extend the time to file his notice of appeal ^
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WE CONCUR:
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