Joseph Ebu v. Commonwealth of Kentucky

RENDERED: JUNE 24, 2022; 10:00 A.M.
TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2020-CA-0553-MR

JOSEPH EBU APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JULIE M. GOODMAN, JUDGE
ACTION NO. 15-CR-01061

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION
AFFIRMING

** ** ** ** **

BEFORE: ACREE, CALDWELL, AND K. THOMPSON, JUDGES.

THOMPSON, K., JUDGE: Joseph Ebu appeals from the order of the Fayette

Circuit Court denying his motion to set aside his plea after the circuit court

conducted an evidentiary hearing on Ebu’s ineffective assistance of counsel claim

pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Ebu argues his

trial counsel was ineffective by failing to advise him on the effect his guilty plea to

two misdemeanors would have on his immigration status pursuant to Padilla v.
Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473, 1482, 176 L.Ed.2d 284 (2010). Ebu

argues his counsel was obligated to research crimes involving moral turpitude and

advise him that pleading to theft and fraudulent conduct made him deportable. We

affirm because we believe that counsel was not acting ineffectively by advising

Ebu that there could be immigration consequences to his plea and that he should

consult with an immigration attorney.

This case was before us previously in 2019 when Ebu challenged the

summary denial of his motion to set aside his plea. We provide the relevant facts

as summarized in his previous appeal:

Ebu was indicted by the Fayette County Grand
[J]ury of theft by deception including cold checks under
$10,000 and theft of identity of another without consent,
both Class D felonies. The charges arose from Ebu’s
alleged involvement with the fraudulent purchases of
mobile phones using stolen identities.

On June 9, 2017, on advice of counsel, Ebu
entered guilty pleas to amended charges of facilitation to
theft by deception and fraudulent use of a credit card,
both misdemeanors. He was sentenced to twelve months
on each of the two misdemeanors, to run concurrently,
with the imposition of the sentence of imprisonment
probated for two years.

On October 4, 2017, Ebu filed an RCr 11.42
motion along with a verified affidavit requesting that he
be permitted to set aside his guilty pleas on the basis he
received ineffective assistance of counsel in the form of
affirmative misadvice from his former counsel about the
immigration consequences of his plea and sentence.
Specifically, Ebu stated his former counsel advised him

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 he would not be deported if he pled guilty to the
misdemeanors. At this point, Ebu had been seized by
immigration and deportation procedures had started.

On October 26, 2017, the Fayette Circuit Court
summarily denied Ebu’s motion to set aside indicating
that it reviewed the video record of Ebu’s guilty plea and
sentencing. Ebu’s motion to reconsider was denied[.]

Ebu v. Commonwealth, No. 2017-CA-002035-MR, 2019 WL 6245351, at *1

(Ky.App. Nov. 22, 2019) (unpublished). After reviewing the relevant law, we

reversed and remanded for an evidentiary hearing as Ebu had presented material

factual allegations of ineffective assistance of counsel that were not refuted by the

record. Id. at *2-3.

On February 12, 2020, the circuit court held an evidentiary hearing.

Ebu, his mother, and his trial counsel testified.

Trial counsel testified he met with Ebu several times about his case

and was aware of Ebu’s legal status as a legal resident in the United States. Trial

counsel denied that Ebu’s mother attended all of his meetings with Ebu, explaining

she attended more of them at the beginning.

Trial counsel testified he does not practice immigration law and did

not feel he was in a position or qualified to give immigration advice, knew just

enough to be dangerous, and did not advise Ebu on crimes of moral turpitude.

Instead, knowing that Ebu’s family had an immigration attorney, trial counsel

explained he consistently advised Ebu to speak to that immigration attorney.

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 Trial counsel expressed he believed Ebu’s pleading guilty to

misdemeanors was the best trial counsel could do but admitted there was not much

time for Ebu to decide on whether to take the latest plea deal as the offer came in

on a Friday and the trial was scheduled for the following Monday. Trial counsel

also explained he thought it would be better for Ebu’s immigration status for Ebu

to be convicted on misdemeanors rather than felonies but told Ebu that he could

still face possible deportation.

Trial counsel stated Ebu did have a credible defense; it was not a case

where there was no hope, but it would be a hard case to win. Trial counsel

explained that Ebu’s defense would have been that he was a low-level member of a

criminal organization and was an innocent mule who collected packages and

mailed them to Ghana in the attempt to do a favor for his friend. While trial

counsel admitted Ebu was a member of WhatsApp chats found on his phone by the

police regarding stolen credit card numbers, trial counsel stated there was no proof

that Ebu had looked at any of those chats, there was no proof Ebu had used any of

the credit card numbers, Ebu had no criminal record, and trial counsel believed

Ebu would make a credible witness. Trial counsel explained that if he had taken

the case to trial, he would have hoped for an acquittal or a hung jury.

Trial counsel admitted not knowing if avoiding felony convictions

was key for avoiding deportation, but thought if Ebu were deported that maybe he

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could reenter the country with misdemeanor convictions and feared if Ebu was

convicted of felony offenses that he would be deported for sure. Trial counsel

expressed that in some cases he does some research about deportation but did not

do that in this case because he thought it would be better for Ebu to speak with his

family’s immigration attorney, and stated he suggested that Ebu speak to that

immigration attorney several times. However, trial counsel noted he never got the

impression that Ebu talked with an immigration attorney.

During his testimony, the following exchange took place regarding

trial counsel’s uncertainty about what would happen with Ebu’s immigration status

post-plea:

Q: In looking at the record, probation in most
circumstances would be a good deal. Do you feel,
looking back on it now, that you should have done more?

A: Had I known that they were going to come in and
take [Ebu] because of that plea, I wouldn’t have done the
plea. I mean, I think [Ebu], we both, would have said
“let’s take our chances” if we’d known with certainty, we
just had no way of knowing with certainty, but if we’d
known he was going to be deported with certainty, I
don’t think [Ebu] would have. I think I would have
rather had misdemeanors, but if he’s going to be
deported, and that’s important to him and his family, I
think he’d been in the country about four years when this
had happened, if I had known with certainty, we
wouldn’t have done the plea.

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Trial counsel explained he did not tell Ebu he would be deported by taking the plea

but told him he could be deported. Trial counsel hoped that Ebu would not be

deported, but believed the plea was the best Ebu could get.

Ebu testified he left Ghana after his grandfather died because he and

his sister had nowhere to go. He stated his uncle was poisoned and killed due to

his Jewish faith.

Ebu testified his biggest concern was about being deported and he had

no idea he would face deportation for a misdemeanor and had previously turned

down an offer of one-year probation for a felony, and then a misdemeanor

conviction with two months in jail, as it would have interfered with his college

term. Ebu explained trial counsel told him he was facing mandatory deportation if

convicted of the felonies but told him that misdemeanors would be okay for his

immigration status. Ebu denied that trial counsel had ever told him to contact an

immigration attorney for advice.

As to the specific plea offer he accepted, Ebu stated he was called on

a Friday and told to come to Lexington to plead guilty that day, with trial counsel

telling him that it was a good deal for him. Ebu stated trial counsel had told him

his chances at trial were about fifty-fifty, but Ebu insisted he would have gone to

trial instead of pleading if he had known he would be deported. Ebu explained that

being deported was like a “gun to his head” and he would have seen if he could

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have gotten acquitted. Ebu stated while he knew his mother had an immigration

lawyer that did her citizenship and had advised her to bring him to the United

States, Ebu had never met him.

Ebu testified he found out he would be deported when he went to visit

his probation officer and Immigration and Customs Enforcement (ICE) was

waiting to pick him up. At that time, he was told that his plea affected his green

card. He explained he has remained in ICE detention since that time.

Ebu’s mother testified she attended all of Ebu’s meetings with trial

counsel. She stated that trial counsel never advised Ebu to speak to her

immigration attorney and that Ebu never spoke to an immigration attorney.

The parties filed post-hearing briefs. Ebu argued trial counsel was

deficient when he failed to advise Ebu that he would be deported after pleading

guilty to two misdemeanors, noting that under Padilla that “[w]hen deportation

consequences are clear, the duty to give correct advice is equally clear.” Ebu then

argued that the one thing that was clear from trial counsel’s testimony is that he did

not know that Ebu would be deported and trial counsel’s “failure to research and

lack of knowledge of the law fell below the objective standard of reasonableness

under the prevailing professional norms.” Relying on the unpublished case of

Pierre v. Commonwealth, No. 2012-CA-001038-MR, 2014 WL 5064169 (Ky.App.

Oct. 10, 2014) (unpublished), Ebu argued that similar advice to what he was given

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was “vague and incomplete” and, therefore, deficient. Ebu argued that 8 United

States Code (U.S.C.) § 1227(a)(2)(A)(i)(I)-(II)1 is “clear and explicit” that “any

alien who is convicted of a crime of moral turpitude within five years after date of

admission, and is convicted of a crime for which a sentence of one year or long[er]

may be imposed is deportable.” Ebu indicated that “theft and fraud” are crimes of

moral turpitude and stated that “[a] legal inquiry into Westlaw shows multiple

cases of crimes considered to be of moral turpitude which result in deportation.”

Ebu then argued that if he had been convicted of a crime involving moral turpitude

for which the maximum sentence possible would be less than one year, he could

have avoided deportation; therefore, he was prejudiced by his trial counsel failing

to negotiate a plea deal with less than one year to serve if he violated probation.

Ebu also argued he was prejudiced because he was deprived of a right

to a trial, which both Ebu and trial counsel would have insisted upon had they

known that Ebu would be deported based on his plea. Ebu argued it would have

been rational for him to insist on going to trial as he had a legitimate defense that

he was also a victim of this scheme, was an unknowing “mule,” has no family left

in Ghana, and fears religious persecution if he is returned to Ghana.

1
This provision is contained in the Immigration and Nationality Act (INA) § 237(a)(2)(A)(i)(I)
and referred to as such by immigration courts. We refer to the U.S.C. rather than the INA for all
our citations.

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 Ebu attached the decision of the immigration judge in his immigration

case which concluded that Ebu is removable because his misdemeanor convictions

qualify as crimes involving moral turpitude:

The Court finds that the respondent’s convictions under
[Kentucky Revised Statutes (KRS)] 434.540 [sic] and
KRS 514.040, which explicitly require an intent to
defraud and an intent to deprive another by deception,
respectively, necessarily involve turpitudinous conduct.
See Marin-Rodriguez v. Holder, 710 F.3d 734, 738 (7th
Cir. 2013) (“Crimes entailing an intent to deceive or
defraud are unquestionably morally turpitudinous.”); see
also Arias v. Lynch, 834 F.3d 823, 826-29 [(7th Cir.
2016)] (opining that, while fraud remains morally
turpitudinous, simple dishonesty may not). The
respondent’s counsel has not argued that either statute
contains overbroad, non-turpitudinous conduct. Nor has
he shown a realistic probability of prosecution for such
conduct.

In the circuit court’s order, the court implicitly made a credibility

finding in favor of trial counsel, rather than Ebu and his mother, largely adopting

trial counsel’s testimony over theirs when they conflicted, finding as follows:

Counsel represented Mr. Ebu for over two years
during which time he met with Mr. Ebu approximately
seven or eight times where he discussed the possible
outcome of his client’s case. Trial counsel further
testified that during those meetings he advised Mr. Ebu
he could be convicted of two Class D Felonies, and
discussed the adverse consequences of such a conviction
to his college education, his immigration status, and his
employment. Additionally, counsel advised Mr. Ebu that
he was not an immigration attorney and that he should
contact his immigration attorney regarding what
consequences a plea result could have on his immigration

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 status. Counsel advised Mr. Ebu that a misdemeanor
plea could result in deportation but advised that a
misdemeanor plea was better than a felony conviction
sentence of up to five years [for] his future, and possibly
his immigration status. Trial Counsel further testified
that he advised Mr. Ebu to take the misdemeanor offer
believing that this was his best chance to remain in the
United States and out of the penitentiary. He based his
advice knowing that there was no guarantee of a not
guilty verdict at trial based on all the facts of his case and
the undisputed physical evidence of the crimes found in
Mr. Ebu’s possession.

The circuit court determined that based on the strong evidence against

Ebu, the testimony of the parties, and the fact that counsel advised Ebu of his

potential deportation if he pled, there was no error and no deficient representation.

The circuit court explained that counsel advised Ebu “of the possible adverse

consequences a plea could have on his education, his future employment, and his

possible immigration status” and “to contact his immigration attorney.”

The circuit court also determined that Ebu was not prejudiced by the

advice to accept the plea offer. The circuit court explained that Ebu was charged

with two Class D felonies and was facing sentences of one to five years in the

penitentiary on each, with collateral consequences of being a convicted felon. The

circuit court noted that trial counsel assessed Ebu’s trial chances at fifty-fifty and

advised Ebu that based on the evidence and the misdemeanor offer that he should

accept, and Ebu in fact was sentenced to concurrent twelve months on each of the

misdemeanors, given the opportunity to have that sentence probated for two years,

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and avoided the collateral consequences of being a convicted felon. Therefore, the

circuit court denied Ebu’s motion to set aside his guilty plea.

Ebu reiterates his argument that his plea was involuntary due to the

ineffective assistance of counsel he received, because he was given inaccurate

information about the effect his plea would have on his immigration status, when

he should have been told that his plea would lead to his deportation for committing

crimes of moral turpitude as crimes involving fraud clearly fall into that category.

He argues if he had received accurate information, he would have declined to plead

guilty and taken his chances with a trial.

A trial court considers the totality of the circumstances in determining

whether a plea is involuntary; if the plea is involuntary, the trial court must grant

the motion to withdraw the plea. Edmonds v. Commonwealth, 189 S.W.3d 558,

566 (Ky. 2006). “This inquiry is inherently fact-sensitive, thus this Court reviews

such a determination for clear error, i.e., whether the determination was supported

by substantial evidence.” Id. “If . . . the trial court determines that the guilty plea

was entered voluntarily, then it may grant or deny the motion to withdraw the plea

at its discretion. This decision is reviewed under the abuse of discretion standard.”

Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky.App. 2004).

The Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

2064, 80 L.Ed.2d 674 (1984), test for ineffective assistance of counsel applies to

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challenges to guilty pleas. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370,

88 L.Ed.2d 203 (1985).

In such an instance, the trial court is to “consider the
totality of the circumstances surrounding the guilty plea
and juxtapose the presumption of voluntariness inherent
in a proper plea colloquy with a Strickland v. Washington
inquiry into the performance of counsel.” To support a
defendant’s assertion that he was unable to intelligently
weigh his legal alternatives in deciding to plead guilty
because of ineffective assistance of counsel, he must
demonstrate the following:

(1) that counsel made errors so serious that
counsel’s performance fell outside the wide range
of professionally competent assistance; and (2) that
the deficient performance so seriously affected the
outcome of the plea process that, but for the errors
of counsel, there is a reasonable probability that
the defendant would not have pleaded guilty, but
would have insisted on going to trial.

Rigdon, 144 S.W.3d at 288 (footnotes omitted) (quoting Bronk v. Commonwealth,

58 S.W.3d 482, 486 (Ky. 2001) and Sparks v. Commonwealth, 721 S.W.2d 726,

727-28 (Ky.App. 1986)).

In Padilla, the defendant Padilla, a permanent resident, alleged he

received ineffective assistance of counsel regarding his plea of guilty to

transporting a large amount of marijuana because his counsel told him that based

on the amount of time he had spent in the United States, he could not be deported.

Padilla argued if he had known he would be deported, he would have proceeded to

trial instead of accepting a plea. Padilla, 559 U.S. at 359, 130 S.Ct. at 1477-78. In

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reviewing the matter, the Kentucky Supreme Court rejected his argument,

believing that “neither counsel’s failure to advise petitioner about the possibility of

removal, nor counsel’s incorrect advice, could provide a basis for relief” as it was a

“collateral” consequence of his conviction. Id. at 359-60, 130 S.Ct. at 1478. The

United States Supreme Court granted certiorari “to decide whether, as a matter of

federal law, Padilla’s counsel had an obligation to advise him that the offense to

which he was pleading guilty would result in his removal from this country” and

“agree[d] . . . that constitutionally competent counsel would have advised him that

his conviction for drug distribution made him subject to automatic deportation.”

Id. at 360, 130 S.Ct. at 1478. As noted by the United States Supreme Court

multiple times in its opinion, “Padilla’s crime, like virtually every drug offense

except for only the most insignificant marijuana offenses, is a deportable offense

under 8 U.S.C. § 1227(a)(2)(B)(i).” Id. at 359 n.1, 130 S.Ct. at 1477 n.1.

The United States Supreme Court explained its reasoning for

reversing as follows:

In the instant case, the terms of the relevant
immigration statute are succinct, clear, and explicit in
defining the removal consequence for Padilla’s
conviction. See 8 U.S.C. § 1227(a)(2)(B)(i) (“Any alien
who at any time after admission has been convicted of a
violation of (or a conspiracy or attempt to violate) any
law or regulation of a State, the United States or a foreign
country relating to a controlled substance . . . , other than
a single offense involving possession for one’s own use
of 30 grams or less of marijuana, is deportable”).

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 Padilla’s counsel could have easily determined that his
plea would make him eligible for deportation simply from
reading the text of the statute, which addresses not some
broad classification of crimes but specifically commands
removal for all controlled substances convictions except
for the most trivial of marijuana possession offenses.
Instead, Padilla’s counsel provided him false assurance
that his conviction would not result in his removal from
this country. This is not a hard case in which to find
deficiency: The consequences of Padilla’s plea could
easily be determined from reading the removal statute,
his deportation was presumptively mandatory, and his
counsel’s advice was incorrect.

Immigration law can be complex, and it is a legal
specialty of its own. Some members of the bar who
represent clients facing criminal charges, in either state or
federal court or both, may not be well versed in it. There
will, therefore, undoubtedly be numerous situations in
which the deportation consequences of a particular plea
are unclear or uncertain. The duty of the private
practitioner in such cases is more limited. When the law
is not succinct and straightforward (as it is in many of
the scenarios posited by Justice [Alito]), a criminal
defense attorney need do no more than advise a
noncitizen client that pending criminal charges may
carry a risk of adverse immigration consequences. But
when the deportation consequence is truly clear, as it
was in this case, the duty to give correct advice is equally
clear.

Padilla, 559 U.S. 356, 368-69, 130 S.Ct. at 1483 (footnotes omitted) (emphases

added).

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 In Justice Alito’s concurrence, he argued for a clear rule that was

universally applicable, rather than reliance on how clear the immigration law was

in a particular case.2 He further noted:

The Court’s new approach is particularly
problematic because providing advice on whether a
conviction for a particular offense will make an alien
removable is often quite complex. “Most crimes
affecting immigration status are not specifically
mentioned by the [INA], but instead fall under a broad
category of crimes, such as crimes involving moral
turpitude or aggravated felonies.” M. Garcia & L. Eig,
CRS Report for Congress, Immigration Consequences of
Criminal Activity (Sept. 20, 2006) (summary) (emphasis
in original). As has been widely acknowledged,
determining whether a particular crime is an “aggravated
felony” or a “crime involving moral turpitude” [(CIMT)]
is not an easy task. See R. McWhirter, ABA, The
Criminal Lawyer’s Guide to Immigration Law:
Questions and Answers 128 (2d ed. 2006) (hereinafter
ABA Guidebook).

Id. at 377-78, 130 S.Ct. at 1488 (Alito, J., concurring). He provided several

examples of particular crimes in which it was complicated to determine whether

2
Justice Alito explained:

In my view, such an attorney must (1) refrain from unreasonably providing
incorrect advice and (2) advise the defendant that a criminal conviction may have
adverse immigration consequences and that, if the alien wants advice on this
issue, the alien should consult an immigration attorney. I do not agree with the
Court that the attorney must attempt to explain what those consequences may be.

Id. at 375, 130 S.Ct. at 1487 (Alito, J., concurring).

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each would be classified as a crime involving moral turpitude.3

Justice Alito also emphasized that the test announced by the majority

could be difficult to apply in practice:

[I]t will not always be easy to tell whether a particular
statutory provision is “succinct, clear, and explicit.”
How can an attorney who lacks general immigration law
expertise be sure that a seemingly clear statutory
provision actually means what it seems to say when read
in isolation? What if the application of the provision to a
particular case is not clear but a cursory examination of
case law or administrative decisions would provide a
definitive answer? See Immigration Law and Crimes §
2:1, at 2-2 (“Unfortunately, a practitioner or respondent
cannot tell easily whether a conviction is for a removable
offense . . . . [T]he cautious practitioner or apprehensive
respondent will not know conclusively the future
immigration consequences of a guilty plea”).

Id. at 381, 130 S.Ct. at 1490-91 (Alito, J., concurring).

3
These examples were from the ABA Guidebook:

See id., at 134 (“Writing bad checks may or may not be a CIMT” (emphasis
added)); ibid. (“[R]eckless assault coupled with an element of injury, but not
serious injury, is probably not a CIMT” (emphasis added)); id., at 135
(misdemeanor driving under the influence is generally not a CIMT, but may be a
CIMT if the DUI results in injury or if the driver knew that his license had been
suspended or revoked); id., at 136 (“If there is no element of actual injury, the
endangerment offense may not be a CIMT” (emphasis added)); ibid. (“Whether [a
child abuse] conviction involves moral turpitude may depend on the subsection
under which the individual is convicted. Child abuse done with criminal
negligence probably is not a CIMT” (emphasis added)).

Padilla, 559 U.S. at 379, 130 S.Ct. at 1489 (Alito, J., concurring) (citing ABA Guidebook, at
134-36).

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 While 8 U.S.C. § 1227(a)(2)(A)(i) provides that classes of deportable

aliens include those who have committed a general crime in the category of crimes

of moral turpitude, as is evident from reading the provision, it does not clarify what

crimes fit the category of CIMT:

Any alien who –

(I) is convicted of a crime involving moral turpitude
committed within five years (or 10 years in the
case of an alien provided lawful permanent
resident status under section 1255(j) of this title)
after the date of admission, and

(II) is convicted of a crime for which a sentence of one
year or longer may be imposed,

is deportable.

In the years after the Padilla decision, courts have struggled with

determining whether the immigration consequences of crimes, which did not have

statutory provisions as explicit as that in Padilla, fit in the “clear” or “unclear”

categories, and thus, what counsel is obliged to do. Padilla did not provide a clear

answer as to whether a practitioner is obligated to do additional research if faced

with the question of whether the crime a client is given an offer to plead to may be

a CIMT and, if counsel has an obligation to conduct such research, how much

research is enough to either reach a definitive answer on the likely immigration

consequences, or to conclude the answer remains unclear.

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 The category of CIMT is certainly not as clear as 8 U.S.C. §

1227(a)(2)(B)(i), which mandated that Padilla was deportable for his plea to a “law

. . . of a State . . . relating to a controlled substance[.]” The effects of that

provision were certainly “succinct, clear, and explicit[,]” “truly clear[,]” and

“easily determined . . . simply from reading the text of the statute” rather than

involving “some broad classification of crimes” or otherwise being “unclear or

uncertain” as the majority opinion noted that “many of the scenarios” raised by

Justice Alito were. Padilla, 559 U.S. at 368-69, 130 S.Ct. at 1483. As noted

earlier, these scenarios included crimes for which there was confusion as to

whether they were CIMT.

State courts have had to grapple with this problem and have reached a

variety of solutions. However, Kentucky appellate courts have yet to weigh in on

this issue.

This analysis is further complicated by the very nature of the United

States’s immigration law, which has often been characterized as a “labyrinth” and

“Byzantine.” Castro-O’Ryan v. U.S. Dep’t of Immigration and Naturalization, 847

F.2d 1307, 1312 (9th Cir. 1987); Mezo v. Holder, 615 F.3d 616, 621 (6th Cir.

2010). Immigration law is described “[w]ith only a small degree of hyperbole” as

being “‘second only to the Internal Revenue Code in complexity.’” Castro-

O’Ryan, 847 F.2d at 1312 (quoting E. Hull, Without Justice For All 107 (1985)).

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 Defining what a crime involving moral turpitude is requires

navigating that labyrinth, a task that general criminal practitioners are generally not

prepared to do. As explained by some of our sister courts:

[T]here is no clear consensus in the federal courts about
how to define a “crime involving moral turpitude.”
Neither the Immigration and Nationality Act nor the
Code of Federal Regulations defines the term, nor do
they list examples of crimes in this category. The term
“moral turpitude” was intentionally left undefined by
Congress and, thus, is open to interpretation by the Board
of Immigration Appeals (Board) and the courts.

People v. Valdez, 67 N.E.3d 233, 240 (Ill. 2016) (citations omitted). “Because the

term ‘crime involving moral turpitude’ has no settled meaning in immigration law,

the Board and the courts use various methodologies to determine whether a crime

should be classified as a CIMT.” Id. “The characterization of an offense as a

CIMT is a matter of statutory interpretation. The moral turpitude determination

has traditionally been based upon the definition of the offense cited in the

judgment of conviction[.]” Lopez-Penaloza v. State, 804 N.W.2d 537, 545 (Iowa

App. 2011) (citation omitted). “Thus, ascertaining whether a particular crime is a

CIMT must be done on a case-by-case basis, though there are some crimes that

have long been viewed as involving moral turpitude, particularly those involving

an element of fraud.” Id. (citation omitted).

“Indeed, even for those who are trained in immigration law, it may be

difficult to ascertain whether a particular crime would be considered as a crime

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involving moral turpitude or as an aggravated felony.” State v. Sanmartin Prado,

141 A.3d 99, 132 (Md. 2016). Therefore, criminal defense counsel may well have

trouble giving accurate advice concerning whether a particular crime falls within

the category of being a CIMT, and could err in unequivocally telling a defendant

that immigration authorities will consider a particular crime to be a CIMT which

would make the defendant deportable and inadmissible to the United States; this

puts counsel in the position of potentially providing misinformation which is too

definite that removal proceedings will ensue, which could thus dissuade a

defendant from taking a beneficial plea offer. State v. Ortiz-Mondragon, 866

N.W.2d 717, 735 (Wis. 2015).

We have before us a dispute about which of the two branches of the

Padilla standard apply, the one with clear consequences that requires equally clear

advice, or the one with unclear consequences that only requires the advice that

there may be immigration consequences. The threshold question we are faced with

here, is as stated by our sister court:

[W]hether the immigration consequences of [the
appellant’s] guilty plea . . . were clear and easily
ascertainable, such that the Sixth Amendment required
[the appellant’s] trial counsel to recognize those
consequences and communicate them to petitioner, or
whether they were unclear or uncertain, such that the
Sixth Amendment required only that he advise [the
appellant] that a conviction might carry a risk of adverse
immigration consequences. If the immigration
consequences of [the appellant’s] plea were clear and

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 easily ascertainable, then [the appellant’s] trial counsel
was personally responsible for ensuring that [the
appellant] received correct advice on that issue . . . .
Conversely, if they were unclear or uncertain, then trial
counsel only needed to put [the appellant] on general
notice that his plea might have immigration
consequences, at which point it was [the appellant’s]
choice whether to consult an immigration attorney before
entering the plea.

Madrigal-Estrella v. State, 463 P.3d 23, 30 (Or. App. 2020) (citations omitted).

See People v. Dominguez, 64 N.E.3d 1191, 1199 (Ill. App. 2016) (discussing the

test being which of the two branches of Padilla applies); Paxtor v. Commonwealth,

No. 2012-CA-002196-MR, 2014 WL 3026750, at *2 (Ky.App. Jul. 3, 2014)

(unpublished) (explaining “the pivotal question presented is whether the adverse

immigration consequence of appellant’s guilty plea was legally straightforward or

legally uncertain to a reasonable defense attorney”).4

In challenging counsel’s advice on the immigration consequences of a

plea as being ineffective, the defendant should explain

how the immigration consequences of a plea would have
been clear and easily ascertainable to any competent
attorney, including identifying the relevant sources of
law. Relatedly, . . . the court’s task is to review the
identified sources of law and determine whether they
actually made the immigration consequences of the plea
clear and easily ascertainable.

4
We do not cite this unpublished case as authority, but simply to show that this is how this issue
is generally understood.

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Madrigal-Estrella, 463 P.3d at 31. See Dominguez, 64 N.E.3d at 1199 (discussing

which of the two branches of Padilla applies and placing the burden on the

defendant to establish that the consequences are clear, requiring clear advice).

Our sister courts have dealt with these difficulties in a variety of ways.

Some have categorically declared that for all crimes (like CIMT offenses) which

do not make an alien deportable through clear statutory language (unlike Padilla’s

drug crime), the terms are not succinct, clear, and explicit, but are rather unclear or

uncertain, and thus only require attorneys to advise their clients that they may be

deported. See, e.g., People v. Lawrence, 148 A.D.3d 1472, 1473 (N.Y. App. Div.

2017) (quoting Padilla, 559 U.S. at 369, 130 S.Ct. at 1483) (citations omitted)

(explaining “[w]here . . . deportation consequences of a guilty plea are less certain

because removal was sought for a crime involving moral turpitude, counsel’s

obligation is more limited, requiring that a defendant be advised that a guilty plea

‘may carry a risk of adverse immigration consequences.’”). Other courts have

generally held to that approach, except when it comes to crimes involving fraud as

it is sufficiently clear that such crimes are considered to be CIMT; therefore,

crimes involving fraud require the advice that pleading to them will make

defendants eligible for deportation. See Jordan v. De George, 341 U.S. 223, 232,

71 S.Ct. 703, 708, 95 L.Ed. 886 (1951) (explaining “[t]he phrase ‘crime involving

moral turpitude’ has without exception been construed to embrace fraudulent

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conduct.”). Other courts have required research as to whether the specific crime or

similar crimes have previously been ruled to be CIMT and make decisions as to

whether an attorney’s advice was sufficient depending upon what that research

would have revealed in each individual case. See, e.g., State v. Nkiam, 778 S.E.2d

863, 870 (N.C. App. 2015) (noting “[w]hen other courts have found deportation

consequences unclear for particular guilty pleas, they have pointed to the need for

trial counsel to look beyond the plain language of the United States Code in order

to reach a conclusion regarding the deportation consequences for the defendant.”).

Undoubtedly, the third approach creates the most uncertainty for practitioners

about how much research is enough and what crimes are sufficiently similar.

Fortunately, in resolving the question of what approach our Courts

should take, we are not writing on an entirely blank slate. In Commonwealth v.

Pridham, 394 S.W.3d 867 (Ky. 2012), the Kentucky Supreme Court interpreted

whether Padilla applies to two different types of potential advice, whether our

violent offender statute applied, and when a sexual offender would be eligible for

parole. Regarding our violent offender statute, the Court explained that the duty of

counsel to give accurate advice was clear:

In Padilla, the Court observed that the relevant
immigration statute was “succinct, clear, and explicit in
defining the removal consequence for Padilla’s
conviction.” 130 S.Ct. at 1483. Here, the violent
offender statute, KRS 439.3401, is also “succinct, clear
and explicit” in deeming a person convicted of a Class A

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 felony, as Pridham was, a violent offender and then
providing he “shall not be released” until he has served
85% of his sentence. Just as “[t]he consequences of
Padilla’s plea could easily be determined from reading
the removal statute,” 130 S.Ct. at 1483, the parole
eligibility consequences of Pridham’s plea could easily
be determined by reading the violent offender statute.
Finally, like the immigration statutes at issue in Padilla,
the violent offender statute, KRS 439.3401, has for years
now been a prominent fixture of our criminal law. It is
expressly referred to in KRS 532.080, the persistent
felony offender sentencing statute, under which Pridham
was likely to be sentenced had he gone to trial.

We do not believe it unreasonable to expect of
competent defense counsel an awareness of the violent
offender statute and accurate advice concerning its effect
on parole eligibility. We agree with the Court of
Appeals, therefore, that under Padilla, Pridham has
stated a Sixth Amendment claim of ineffective assistance
of counsel and is entitled to an evidentiary hearing on the
merits of his claim, at which he will have an opportunity
to prove that counsel misadvised him as alleged and that
absent the misadvice there is a reasonable probability that
he would have insisted upon a trial.

Pridham, 394 S.W.3d at 878-79 (footnotes omitted). See Stiger v. Commonwealth,

381 S.W.3d 230, 236 (Ky. 2012) (agreeing that “counsel’s alleged failure to take

the violent offender statute into account when giving advice about parole eligibility

would constitute, if proven, deficient performance”).

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 However, the Pridham Court came to a different conclusion as to

counsel’s responsibility to advise criminal defendants about parole eligibility for

sex offenders, explaining as follows:

Unlike the 85% parole eligibility evident from the face of
the violent offender statute, there is no place in Kentucky
law where there is a “succinct, clear, and explicit,”
Padilla, 130 S.Ct. at 1483, answer to the issue of whether
a sex offender treatment program can be completed in
two years. Any parole eligibility effect, therefore,
cannot, like the deportation at issue in Padilla, be said to
be enmeshed with the defendant’s sentence and easily
ascertainable by reference to statute. We agree with the
Court of Appeals and the trial court that the challenged
advice in this case falls outside what the Sixth
Amendment requires of counsel.

394 S.W.3d at 882 (footnote omitted).

We observe that in reaching its conclusions in each of these situations,

the Kentucky Supreme Court focused on whether or not the relevant statutes

provided a clear answer as to the outcome in determining what advice counsel had

to give.

Additionally, after Pridham, the Kentucky Supreme Court has

continued to emphasize the mandatory requirement that counsel give correct

advice where the consequences are easily discernable from reading a statute. In

Commonwealth v. Thompson, 548 S.W.3d 881, 891 (Ky. 2018), a case concerning

the failure of counsel to advise the appellant that the Sexual Offender Registration

Act (SORA) would apply to him, the Court determined that “given the automatic,

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serious and lifelong consequences of registration – consequences readily

discernible by reading the SORA statute – we conclude that effective assistance of

counsel pursuant to the Sixth Amendment requires informing a defendant about the

fact of mandatory sex offender registration and what that entails.” In its

subsequent discussion, the Court noted that “[s]ex offender registration, like the

violent offender statute, is codified and can be understood by reading the relevant

Kentucky Revised Statute.” Id. at 892. The Court emphasized again that “[t]his

serious and automatic consequence of a plea to certain charges can ‘easily be

determined by reading . . . the statute,’ Pridham, 394 S.W.3d at 878 (quoting

Padilla, 559 U.S. at 357, 130 S.Ct. 1473), and is a matter that competent counsel

would and should discuss with his client.” Id. at 893.

Based upon Pridham, we believe that our Supreme Court is

interpreting the first of the two categories in Padilla, when specific and conclusive

advice must be given, narrowly. The unpublished case of Pierre, which Ebu relies

upon to establish his claim for ineffective assistance of counsel, does not support

his position and is consistent with Pridham.

In Pierre, the question involved whether counsel was ineffective for

failing to “inform him he would automatically be deported upon pleading guilty to

felony burglary and robbery.” Pierre, 2014 WL 5064169, at *6. 8 U.S.C. §

1227(a)(2)(A)(iii) succinctly provides: “Any alien who is convicted of an

-26-
aggravated felony at any time after admission is deportable.” Pursuant to 8 U.S.C.

§ 1101(a)(43) “aggravated felony” is defined as including categories (A) through

(U), with 8 U.S.C. § 1101(a)(43)(G) including “a theft offense (including receipt of

stolen property) or burglary offense for which the term of imprisonment [is] at

least one year[.]” (Footnote omitted indicating an “is” should probably precede the

“at.”) The factual finding after the evidentiary hearing was that Pierre’s counsel

(who did not independently recall what he advised Pierre but testified that he

always advised defendants about possible deportation consequences as this is

mentioned in the plea form), advised Pierre that he could face possible deportation

as a result of accepting the plea agreement.

The way the opinion is written, it appears that the Court gave Pierre

the benefit of the doubt that counsel’s advice was defective, noting “[a]fter wading

through the immigration law ourselves, we are loath to say [trial counsel] provided

bad advice,” pointing out that counsel did not know that Pierre’s removal was

certain since he was pleading to an aggravated felony, a change made to

immigration law several years prior, which made Pierre ineligible for a waiver to

deportation pursuant to 8 U.S.C. § 1229b(a)(3). Pierre, 2014 WL 5064169, at *7.

The Court concluded that even if it accepted that the trial counsel’s advice “should

have been more precise, and therefore, was deficient,” there was no prejudice and,

therefore, relief was unwarranted. Id.

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 Pierre is distinguishable from Ebu’s situation as it decided what kind

of advice must be provided regarding aggravated felonies, with the specific

charges Pierre faced specifically qualifying for this category as defined by statute.

Resolving whether a particular crime is a CIMT is generally more complicated

than merely reviewing statutes (which are complex enough) and based on

Pridham, it appears that reading beyond the statutes is not required in the

Kentucky Supreme Court’s interpretation of Padilla.

While Ebu did generally argue that the CIMT section is “clear and

explicit[,]” indicated that “theft and fraud” are crimes considered to constitute

moral turpitude, and stated that “[a] legal inquiry into Westlaw shows multiple

cases of crimes considered to be of moral turpitude which result in deportation[,]”

Ebu did not cite any of these cases or directly establish that the crimes for which he

pled have clearly been determined (in the timeframe before he entered his plea) to

be CIMT. While we could summarily reject Ebu’s argument based on his failure

to adequately establish through citation to appropriate authorities that his

misdemeanor convictions clearly qualified as CIMT before he was seized by ICE,

instead, we choose to establish a broad holding that will be of help to Kentucky

Courts grappling with these complex immigration issues and what advice is

necessary.

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 We hold that unless a defendant can identify federal statutory

provisions that in and of themselves (without additional legal research) establish

that pleading guilty to a particular Kentucky crime makes that defendant

deportable and ineligible for cancellation of removal, this crime is placed in the

second Padilla category of crimes where “the law is not succinct and

straightforward[.]” Padilla, 559 U.S. at 369, 130 S.Ct. at 1483. In such a

situation, “a criminal defense attorney need do no more than advise a noncitizen

client that pending criminal charges may carry a risk of adverse immigration

consequences.” Id. That is counsel’s only duty. This definitive rule in

categorizing when crimes fall into the second Padilla category will make it easier

for parties and attorneys to understand what trial counsel’s duties are and will

make it much easier for courts to evaluate whether counsel has acted as required

under the Sixth Amendment, while still appropriately following Padilla and

providing defendants with constitutionally appropriate notice as to the potential

consequences of their pleas or convictions.

While Justice Alito suggests that counsel should also recommend

consultation with an immigration attorney,5 we recognize that the majority opinion

5
Justice Alito, who would have the same advice be applicable to all, rather than having the two
categories the majority opinion decided upon, stated “[w]hen a criminal defense attorney is
aware that a client is an alien, the attorney should advise the client that a criminal conviction may
have adverse consequences under the immigration laws and that the client should consult an
immigration specialist if the client wants advice on that subject.” Id. at 387, 130 S.Ct. at 1494

-29-
in Padilla did not rule that this is constitutionally required in either category of

case. However, we strongly recommend that counsel offer this additional advice.

While we do not discourage trial counsel from conducting research on

immigration law, we caution practitioners that any advice they give beyond the

standard must still be accurate, and unless the answer is clear, counsel should

discuss possibilities, rather than certainties. Such an approach should galvanize

defendants into consulting with immigration attorneys for answers to the questions

their defense attorneys have raised, and indeed defense attorneys should encourage

and facilitate such discussions whenever possible.

The circuit court found that trial counsel advised Ebu that trial counsel

was uncertain of the effect Ebu’s pleas would have on his immigration status,

indicated that he may be deported, and advised him to consult with an immigration

attorney. Trial counsel should have reviewed 8 U.S.C. § 1227 to see whether

Ebu’s original or amended charges had explicit deportation consequences,6 and

(Alito, J., concurring). Justice Alito further opined that “an alien defendant’s Sixth Amendment
right to counsel is satisfied if defense counsel advises the client that a conviction may have
immigration consequences, that immigration law is a specialized field, that the attorney is not an
immigration lawyer, and that the client should consult an immigration specialist if the client
wants advice on that subject.” Id. at 388, 130 S.Ct. at 1494 (Alito, J., concurring).
6
We note that Ebu’s original crimes likely would have been considered aggravated felonies just
as Pierre’s were. Thus, counsel’s advice that Ebu would definitely be subject to deportation if
convicted on the felonies was correct. However, it is important to recognize that whether other
crimes are considered aggravated felonies is not as clear for certain classes of crimes, especially
those that do not neatly fit into the listed categories. Additionally, apparently pleading guilty to
misdemeanors is not a guarantee that they will not be treated as felonies if the misdemeanors are
subject to a year (twelve months or 365 days is treated as a year) of imprisonment. As recounted

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then advised Ebu. Trial counsel could have advised Ebu that his amended charges

could be CIMT and if immigration authorities determined that they qualified under

this category, he could be deported. However, any failure to do such research was

harmless as trial counsel’s advice that Ebu’s plea to the misdemeanors could result

in deportation was nonetheless correct. Trial counsel acted appropriately by giving

such advice where there was no clear statutory answer as to whether the

misdemeanors would qualify as CIMT and recommending that Ebu, who had been

released from custody on bond, consult with an immigration attorney who would

understand that matter better than trial counsel did and could provide more specific

advice.

Therefore, having established that based on the factual findings the

circuit court made that Ebu’s counsel offered proper legal advice, we need not

proceed to the prejudice prong of Strickland. We note, however, that Ebu is

in United States v. Urias-Escobar, 281 F.3d 165, 167 (5th Cir. 2002), a case discussing
sentencing guidelines enhancements based on conviction of an aggravated felony as defined in 8
U.S.C. § 1101(a)(43), multiple circuits have ruled that a misdemeanor punishable by
imprisonment of at least one year can be an aggravated felony. Additionally, classification can
vary as to whether state felonies will be treated as aggravated felonies if the equivalent federal
crime is a misdemeanor under federal law. See Lopez v. Gonzales, 549 U.S. 47, 52-60, 127 S.Ct.
625, 629-633, 166 L.Ed.2d 462 (2006) (thoroughly discussing this issue and ultimately holding
“a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ [see 18
U.S.C. § 924(c)(2); 8 U.S.C. § 1101(a)(43)(B)] only if it proscribes conduct punishable as a
felony under that federal law.”). So, while the classification of certain crimes as aggravated
felonies at first blush appears easy and straightforward, results can vary depending on the
specifics.

-31-
incorrect that it would have been easy to avoid mandatory removal through plea

negotiations by structuring a sentence of 364 days on the misdemeanors.7 Ebu

acted at his own peril in declining to consult with an immigration attorney when

his own trial counsel said he was uncertain the effect that pleading guilty to these

misdemeanors would have on Ebu’s immigration status.

Accordingly, we affirm the Fayette Circuit Court’s order denying

Ebu’s motion to set aside his plea based on receiving inaccurate advice as to the

probable immigration consequences of accepting the Commonwealth’s plea offer.

Trial counsel properly advised Ebu that his plea could have consequences to his

status as a legal resident of the United States and advised him to consult an

immigration attorney; more was not required where 8 U.S.C. § 1227(a)(2)(A)(i)(I)-

7
8 U.S.C. § 1227(a)(2)(A)(i)(I)-(II) has been interpreted as applying where a crime could be
sentenced for up to one year, regardless of the actual sentence imposed. See Velasquez-Rios v.
Wilkinson, 988 F.3d 1081, 1088 (9th Cir. 2021) (determining a man who pled guilty to
misdemeanor forgery and was sentenced to twelve days in jail, eight days of community service
and a fine had committed a CIMT because the maximum sentence for his crime was one year
and a later change to the statute making the maximum sentence 364 days did not apply
retroactively to change the nature of his conviction). See also Mancilla-Delafuente v. Lynch, 804
F.3d 1262, 1265 (9th Cir. 2015) (interpretating the petty offense exception to CIMT in 8 U.S.C.
§ 1182(a)(2)(A)(ii) and noting that this exception does not apply to a crime for which the
sentence could have been one year, explaining “we defer to the BIA’s reasonable approach of
considering the sentence that could have been imposed, not the actual sentence.”); Lucio-Rayos
v. Sessions, 875 F.3d 573, 584 n.16 (10th Cir. 2017) (explaining that a CIMT subject to a 365-
day sentence does not qualify for the petty offense exception as 8 U.S.C. § 1227(a)(2)(A)(i)
includes CIMT “for which a sentence of one year or longer may be imposed”). The confusion of
postconviction counsel reveals the very real difficulty of non-immigration attorneys attempting
to understand the United States’s convoluted immigration law without typically practicing in this
area.

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(II) only provided that crimes involving moral turpitude were deportable offenses

but did not clarify whether Ebu’s crimes fit within this category.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

J. Ryan Chailland Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky

Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky

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