Opinion issued July 18, 2013.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00272-CR
———————————
KODIGBO ODELUGO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Case No. 1249648
MEMORANDUM OPINION
Appellant, Kodigbo Odelugo, without an agreed punishment
recommendation from the State, pleaded guilty to the offense of engaging in
organized criminal activity, namely aggregate theft of over $200,000, 1 and the trial
court assessed his punishment at confinement for fifteen years. In three issues,
appellant contends that he received ineffective assistance of counsel and the trial
court erred in denying his motions to withdraw his guilty plea and for a new trial.
We affirm.
Background
On February 8, 2010, appellant pleaded guilty to the offense of engaging in
organized criminal activity and stipulated to conspiring with Chukwuma Odelogu,
Aghaegbuna Odelugo, and Samuel Ezezue, to appropriate over $200,000 owned by
Sharon Thompson, Mark Porter, the Texas Health and Human Services
Commission, and the Centers for Medicare and Medicaid Services. The trial court
presented appellant with written admonishments, which were signed by appellant
and stated, among other things, “If you are not a United States citizen, pleading
guilty or no contest to a criminal charge may result in removal, denial of
naturalization or exclusion from admission into this country.” During the plea
proceedings, and before the trial court accepted appellant’s plea, appellant’s
counsel at the time, Don Becker, told the trial court, “He is competent. We went
through everything with a fine-tooth comb and he’s pleading guilty freely and
voluntarily and because he is guilty.”
1
See TEX. PENAL CODE ANN. § 71.02(a)(1) (Vernon 2011).
2
Before the trial court concluded the subsequently-held sentencing hearing,
appellant, a non-citizen, on October 11, 2011, filed a motion to withdraw his guilty
plea, arguing that his guilty plea was involuntary because his counsel did not
apprise him of the mandatory immigration consequences of his plea. 2 At the
December 9, 2011 hearing on his motion to withdraw his plea, appellant testified
that he was a Nigerian citizen and permanent resident of the United States. His
permanent residency was set to be renewed in 2013, and he had applied for
American citizenship as well. Appellant asserted that when he pleaded guilty in
February 2010, he had not consulted with Becker regarding the immigration
consequences of his plea at any time. Approximately two months prior to filing his
motion to withdraw his plea, appellant, on the advice of a prosecutor, consulted
with an immigration attorney, who informed him that deportation would be a
consequence of pleading guilty. Appellant then asserted that he wished to
withdraw his plea so that he could take his case to trial.
Becker testified that he did not specifically remember speaking with
appellant about the immigration consequences of his plea. However, Becker
explained that in his initial interview with clients “obviously born in a foreign
country,” he would “always discuss immigration consequences.” Specifically,
Becker would always inform such defendants that, if they pleaded guilty, they
2
See Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010).
3
would be deported or removed from the country involuntarily. Becker noted that
this had been his practice since 1996, he was prepared to take appellant’s case to
trial, but appellant chose to plead guilty.
Emmanuel Nwuli, an immigration attorney, testified that he had consulted
with appellant and his brother, Aghaegbuna Odelugo. Nwuli explained that he
discussed “immigration matters” with both appellant and Aghaegbuna after they
had been indicted. Appellant retained Nwuli for representation during the
naturalization process, and Nwuli filed appellant’s naturalization papers, but he did
not “specifically” have a discussion with appellant about the consequences of the
pending case on appellant’s immigration status. Nwuli did inform appellant,
before he entered his plea, that the United States Immigration and Naturalization
Service “would not make a determination until they know the outcome of this case
pending.” Nwuli explained that he did not discuss the immigration consequences
of appellant’s guilty plea because he did not represent appellant “on criminal
matters.”
After hearing the evidence, the trial court denied appellant’s motion to
withdraw his plea, stating,
You know, if the Supreme Court wanted to make a checklist for the
immigration lawyer to fill out before somebody can plead guilty in the
criminal court, we’ve gotten to an unreasonable circumstance. I think
it’s—common sense says by the time you go to an immigration
lawyer, first lawyer already told you you’re going to be deported and
4
then you go to an immigration lawyer, I don’t know what more we
could ask for. So . . . I’m denying your motion to withdraw your plea.
On March 5, 2012, the trial court later concluded the sentencing hearing and
assessed appellant’s punishment at confinement for fifteen years.
Appellant, on March 26, 2012, filed a new-trial motion, arguing that he was
denied effective assistance of counsel during his plea proceedings because Becker
did not “investigate the underlying facts before advising [him] to plead guilty” and
there existed “exculpatory evidence which counsel could have found if he had
investigated the facts of the case.” Appellant also asserted that Becker did not
provide him with “competent legal advice regarding the potential immigration
consequences” of his plea, but rather provided him only a “boiler plate”
admonishment.
Appellant attached to his new-trial motion his affidavit, in which he testified
that Becker did not tell him that his plea of guilty would result in his deportation.
Appellant was unable to contact Becker for three months before Becker appeared
on appellant’s trial date. Although appellant requested a trial continuance so that
he could discuss the case with Becker, the trial court denied his request. Becker
then told appellant he had ten minutes to decide whether to plead guilty or go to
trial. And appellant explained that he decided to plead guilty after Becker
informed him that the trial court would defer adjudication of appellant’s guilt and
place him on community supervision.
5
Appellant further testified that he first heard about the immigration
consequences of his plea when a prosecutor approached his post-plea attorney,
Vivian King, and asked whether appellant had been informed of the immigration
consequences of his plea. When he responded that he had not, King filed a motion
to withdraw his plea, and appellant consulted with an immigration attorney who
informed him that his plea “would definitely result” in deportation. Appellant
noted that although Nwuli represented him in his naturalization proceedings, Nwuli
did not discuss with him the immigration consequences of his guilty plea.
Appellant also attached to his new-trial motion an affidavit from Nwuli, who
testified that he “did not discuss any other immigration issues and consequences
relative to felony cases to the best of my knowledge with [appellant].”
At the May 14, 2012 hearing on appellant’s new-trial motion, King asserted
that appellant had not been advised of the immigration consequences of his guilty
plea until after he had entered it and she recommended that he speak with an
immigration attorney. King “reurg[ed] the fact [that appellant] did not know the
consequences of the plea” and asked that he be granted a new trial. The trial court
then denied appellant’s motion.
Standard of Review
Generally, we review a trial court’s denial of a motion for a new trial under
an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim.
6
App. 2001). However, “where the trial court ‘is not in an appreciably better
position’ than the appellate court to decide the issue, the appellate court may
independently determine the issue while affording deference to the trial court’s
findings on subsidiary factual questions.” Villareal v. State, 935 S.W.2d 134, 139
(Tex. Crim. App. 1996) (McCormick, P.J., concurring) (citing Miller v. Fenton,
474 U.S. 104, 110–17, 106 S. Ct. 445, 450–53 (1985)); see Kober v. State, 988
S.W.2d 230, 233 (Tex. Crim. App. 1999). We note that trial courts remain in the
best position to “evaluate the credibility” of witnesses and resolve conflicts in
evidence. See Kober, 988 S.W.2d at 233. And a trial court may choose to believe
or disbelieve all or any part of the witnesses’ testimony. Id. at 233.
In determining whether a guilty plea is voluntary, we consider the record as
a whole. Fimberg v. State, 922 S.W.2d 205, 207 (Tex. App.—Houston [1st Dist.]
1996, pet. ref’d) (citing Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App.
1975)). A record that indicates that a trial court properly admonished a defendant
presents a prima facie showing that the guilty plea was made voluntarily and
knowingly. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998);
Arreola v. State, 207 S.W.3d 387, 391 (Tex. App.—Houston [1st Dist.] 2006, no
pet.). When the record presents a prima facie showing that the plea was entered
voluntarily and knowingly, the burden shifts to the defendant to show that he
entered the plea without understanding the consequences of the plea. Edwards v.
7
State, 921 S.W.2d 477, 479 (Tex. App.—Houston [1st Dist.] 1996, no pet.). An
accused who attests when he enters his plea of guilty that he understands the nature
of his plea and that it is voluntary has a heavy burden on appeal to show that his
plea was involuntary. Id. However, a guilty plea is not voluntary if made as a
result of ineffective assistance of counsel because it does not represent an informed
choice. Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980).
“Before deciding whether to plead guilty, a defendant is entitled to the
effective assistance of competent counsel.” Padilla v. Kentucky, 559 U.S. 356, 130
S. Ct. 1473, 1480–81 (2010). Courts have “long recognized that the negotiation of
a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment
right to effective assistance of counsel.” Id. at 1486; see also Ex parte Reedy, 282
S.W.3d 492, 500 (Tex. Crim. App. 2009) (“There is no doubt that an accused has a
Sixth Amendment right to the effective assistance of counsel in guilty plea
proceedings.”). To provide effective assistance during plea proceedings, “counsel
has a duty to render his best judgment to his client about what plea to enter, and
that judgment should be informed by an adequate and independent investigation of
the facts of the case.” Ex parte Reedy, 282 S.W.3d at 500. “Specifically, when a
person challenges the validity of a plea entered upon the advice of counsel,
contending that his counsel was ineffective, the voluntariness of the plea depends
on (1) whether counsel’s advice was within the range of competence demanded of
8
attorneys in criminal cases and if not, (2) whether there is a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty.” Ex parte
Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010) (quotations omitted).
Plea counsel’s performance is deficient if counsel fails to advise a noncitizen
defendant about deportation consequences that are “truly clear.” 3 See Padilla, 130
S. Ct. at 1483; Aguilar v. State, 375 S.W.3d 518, 524 (Tex. App.—Houston [14th
Dist.] 2012), vacated on other grounds, 393 S.W.3d 787 (Tex. Crim. App. 2013).
Thus, plea counsel is deficient if counsel merely mentions the possibility of
deportation when the relevant immigration provisions are presumptively
mandatory. See Aguilar, 375 S.W.3d at 524 (citing United States v. Bonilla, 637
F.3d 980, 984 (9th Cir. 2011)). However, when the law is not clear “a criminal
defense attorney need do no more than advise a noncitizen client that pending
3
We note that, since the United States Supreme Court’s ruling in Padilla, the Court
has held that its holding does not extend retroactively to “defendants whose
convictions became final prior to Padilla.” See Chaidez v. United States, ___ U.S.
___, 133 S. Ct. 1103, 1113 (2013). The Texas Court of Criminal Appeals has
since adopted the Supreme Court’s ruling in Chaidez. Ex Parte De Los Reyes, 392
S.W.3d 675, 679 (Tex. Crim. App. 2013). Here, although appellant initially
pleaded guilty on February 8, 2010, almost two months before the Supreme
Court’s ruling in Padilla, the trial court had not concluded its sentencing of
appellant. Appellant filed a motion to withdraw his plea on October 11, 2011, the
trial court sentenced appellant on March 5, 2012, and appellant filed a new-trial
motion on March 26, 2012. And the State has not argued that Padilla would not
apply to appellant’s conviction. Thus, we proceed to address the merits of
appellant’s Padilla contentions.
9
criminal charges may carry a risk of adverse immigration consequences.” Padilla,
130 S. Ct. at 1483.
Voluntariness of Plea
In his first issue, appellant argues that the trial court erred in denying his
motion to withdraw his guilty plea because it “was not voluntarily and intelligently
entered” and “his plea attorney failed to apprise him about the mandatory
immigration consequences of his plea.” In his second and third issues, appellant
argues that the trial court erred in denying his new-trial motion because plea
counsel did not provide effective assistance and failed to adequately apprise him of
the immigration consequences of his plea.4
A defendant may file a motion to withdraw his guilty plea, asserting that his
plea was not freely and voluntarily entered or he was not aware of the
consequences of his plea. See TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (Vernon
Supp. 2012). A defendant may withdraw his guilty plea for any reason as a matter
4
A motion to withdraw a guilty plea is functionally indistinguishable from a motion
for new trial. Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.—Houston
1996, pet. ref’d) (citing State v. Evans, 843 S.W.2d 576, 578 (Tex. Crim. App.
1992)). Although appellant challenges the trial court’s denial of his motion to
withdraw his guilty plea and his new-trial motion in separate issues, all his issues
concern whether he entered his plea voluntarily and whether his plea counsel was
effective in adequately informing him of the immigration consequences of his
plea. Accordingly, we address his issues together. See id.; see also Scott v. State,
No. 01-01-00726-CR, 2002 WL 31122165, at *3 (Tex. App.—Houston [1st Dist.]
Sept. 26, 2002, pet. ref’d) (not designated for publication) (“We review appellant’s
motion for new trial as a motion to withdraw a guilty plea, from which it is
indistinguishable.”).
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of right until judgment has been pronounced or the case has been “taken under
advisement.” Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979).
However, when a defendant decides to withdraw his guilty plea after the trial judge
takes the case under advisement or pronounces judgment, the withdrawal of such
plea is within the sound discretion of the trial court. State v. Ellis, 976 S.W.2d
789, 792 (Tex. App.—Houston [1st Dist.] 1998, no pet.). A case is under
advisement after each side has concluded its case-in-chief, the defendant has
entered a plea of guilty, the plea has been accepted, and the necessary
admonishments have been given, even though the issue of punishment remains.
See Thompson v. State, 852 S.W.2d 268, 270 (Tex. App.—Dallas 1993, no pet.).
Here, appellant pleaded guilty to committing the offense of engaging in
organized criminal activity, namely, aggregate theft of over $200,000, which has a
sentencing range of confinement for five years to life. See TEX. PENAL CODE ANN.
§ 31.03(e)(7) (Vernon 2011) (naming theft of over $200,000 as first-degree
felony); id. § 12.32(a) (Vernon 2009) (setting punishment range for first-degree
felonies). The United States Immigration and Nationality Act provides that any
alien who is convicted of an aggravated felony at any time after admission is
deportable. 8 U.S.C. § 1227(a)(2)(A)(iii). A conviction for “aggravated felony”
includes a conviction for theft for which the term of imprisonment is at least one
year. Id. § 1101(a)(43)(G). Because the minimum sentence that appellant could
11
have received was confinement for five years, he was convicted of an “aggravated
felony” rendering him deportable under the Immigration and Nationality Act.
As in Padilla, the deportation consequences of appellant’s conviction were
“succinct, clear, and explicit” and trial counsel was required to inform him of those
consequences. See Padilla, 130 S. Ct. at 1483. At the hearing on appellant’s
motion to withdraw his plea, appellant testified that neither his plea counsel,
Becker, nor any other lawyer, consulted with him regarding the immigration
consequences of his guilty plea. Instead, appellant did not learn of the immigration
consequences of his plea until after he had entered it and spoken with an
immigration lawyer at the suggestion of a prosecutor. And Becker admitted that
on the day that appellant entered his plea, he “probably” did not consult with
appellant about the immigration consequences “beyond the admonishments” that
appellant signed along with his plea. These admonishments generally stated that a
noncitizen’s guilty plea “may result in removal, denial of naturalization or
exclusion from admission into this country.” Such general admonishments have
been found to be insufficient to discharge plea counsel’s duty. See Padilla, 130 S.
Ct. at 1482–84, 1486; Enyong v. State, 369 S.W.3d 593, 602 (Tex. App.—Houston
[1st Dist.] 2012), vacated on other grounds, 397 S.W.3d 208 (Tex. Crim. App.
2013); see also United States v. Bonilla, 637 F.3d 980, 984 (9th Cir. 2011) (“A
criminal defendant who faces almost certain deportation is entitled to know more
12
than that it is possible that a guilty plea could lead to removal; he is entitled to
know that it is a virtual certainty.”) (emphasis in original).
However, although Becker testified that he did not specifically recall
informing appellant of the immigration consequences of his plea, he explained that,
beginning in 1996, his “common procedure” upon first meeting with a client was
to “always discuss immigration consequences.” He routinely told his noncitizen
clients that if they entered guilty pleas, then they would be deported or removed
from the country involuntarily. Becker gave this information to “all of [his]
potential clients [he] might believe have that citizenship issue,” and appellant
would have “fall[en] under those parameters.” The trial court, as fact-finder, could
have reasonably believed Becker’s testimony that he “always” discussed the
immigration consequences of a plea with non-citizen clients like appellant and
disbelieved appellant’s testimony that Becker did not so inform him. See, e.g.,
Charles v. State, 146 S.W.3d 204, 213 (“[T]he trial judge could have reasonably
disbelieved some or all of the affiants’ statements, found them inconclusive,
contradictory, internally inconsistent, or ambiguous.”); Fimberg v. State, 922
S.W.2d 205, 208 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (holding that
trial court did not err in denying new-trial motion because trial court could have
believed counsel’s testimony over defendant’s contradictory testimony). And the
13
trial court impliedly found that it believed Becker’s testimony and did not believe
appellant’s testimony, stating,
I think it’s—common sense says by the time you go to an immigration
lawyer, first lawyer already told you you’re going to be deported and
then you go to an immigration lawyer, I don’t know what more we
could ask for. So . . . I’m denying your motion to withdraw your plea.
(Emphasis added).
In support of his argument, appellant relies on Enyong and Ex Parte
Tanklevskaya, 361 S.W.3d 86 (Tex. App.—Houston [1st Dist.] 2011), vacated, 393
S.W.3d 787 (Tex. Crim. App. 2013). However, in both Enyong and Tanklevskaya,
the defendants’ plea counsel testified that if they consulted with their clients, they
would have only informed them of the general immigration consequences found in
the admonishments that their clients “may” be subject to deportation. Enyong, 369
S.W.3d at 599; Tanklevskaya, 361 S.W.3d at 96. Here, however, the trial court
could have reasonably believed Becker’s testimony that, as a matter of routine, he
would have informed appellant that if he entered a plea of guilty, he would in fact
be deported or removed from the country involuntarily.
In his affidavit testimony, attached to his new-trial motion, appellant stated
further that he could not actually communicate with Becker for three months and
he felt pressured into pleading guilty. However, appellant argues that the trial
court erred in denying his new-trial motion only on the ground that he entered his
plea involuntarily because he was not informed of the immigration consequences
14
of his plea. Moreover, as noted above, the trial court was entitled to disbelieve
appellant’s affidavit testimony. See, e.g., Charles, 146 S.W.3d at 213.
Accordingly, we hold that the trial court did not abuse its discretion in
denying either appellant’s motion to withdraw his guilty plea or his new-trial
motion.
We overrule appellant’s first, second, and third issues.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Brown, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
15