State v. Momoh

2018 UT App 180

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JOSEPH MOMOH,
Appellant.

Opinion
No. 20161009-CA
Filed September 20, 2018

Third District Court, Salt Lake Department
The Honorable Mark Kouris
No. 161905069

Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Jonathan S. Bauer, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.

ORME, Judge:

¶1 Defendant Joseph Momoh appeals the district court’s
denial of his motion to withdraw his guilty plea. Specifically,
Defendant claims ineffective assistance of counsel by reason of
counsel’s alleged failure to adequately explain the immigration
consequences of his guilty plea. Defendant asserts that counsel’s
ineffective assistance precluded him from entering his plea
knowingly and voluntarily. We affirm.
State v. Momoh

BACKGROUND 1

¶2 Defendant is a lawful permanent resident of the United
States. In 2016, the State charged Defendant with the purchase,
transfer, possession, or use of a firearm by a restricted person, 2 a
third degree felony (the Firearm Charge), see Utah Code Ann.
§ 76‑10‑503(3)(a) (LexisNexis 2017); 3 possession of a controlled
substance with intent to distribute, a third degree felony (the
Drug Possession Charge), see id. § 58-37-8(1)(a)(iii) (Supp. 2017);
and possession of drug paraphernalia, a class B misdemeanor,
see id. § 58-37a-5(1)(b) (2016). With the assistance of counsel (Plea
Counsel), Defendant pled guilty to the Firearm Charge. In
exchange, the State dismissed the remaining two charges.

¶3 In support of his plea, Defendant signed a statement
acknowledging that he understood the rights he was waiving by
pleading guilty. The statement included the following section:

Immigration/Deportation: I understand that if I
am not a United States citizen, my plea(s) today
may, or even will, subject me to deportation under
United States Immigration laws and regulations, or
otherwise adversely affect my immigration status,
which may include permanently barring my
re‑entry into the United States. I understand that if
I have questions about the effect of my plea on my

1. Absent clear error, we defer to the factual findings of the
district court. See State v. Tripp, 2010 UT 9, ¶ 30, 227 P.3d 1251.

2. Defendant had previously been convicted of a felony drug
offense in Nebraska.

3. Because the statutory provisions in effect at the relevant time
do not differ in any way material to our analysis from those now
in effect, we cite the current version of the Utah Code for
convenience.

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State v. Momoh

immigration status, I should consult with an
immigration attorney.

At the bottom of Defendant’s signed statement, Plea Counsel
certified that she had discussed Defendant’s statement with
him and that she believed he fully understood its contents.
Although no mention was made of the immigration
ramifications of the guilty plea at the subsequent plea hearing, it
does appear—and Defendant acknowledges—that the district
court complied with rule 11 of the Utah Rules of Criminal
Procedure when it accepted his guilty plea.

¶4 Two days after pleading guilty, Defendant says he
received a letter from the United States Department of
Homeland Security. The letter referenced Defendant’s
guilty plea in the current case and notified him that Homeland
Security had probable cause to remove him from the
United States. Defendant immediately wrote to the district court
requesting to “recant” his guilty plea. He stated that he had not
been advised that pleading guilty to the Firearm Charge
would adversely affect his immigration status. Once the
district court appointed new counsel for Defendant, he filed a
motion to withdraw Defendant’s plea, arguing that it “was
not knowingly, intelligently and voluntarily entered” and
alleging ineffective assistance of counsel. 4

4. In his motion, Defendant wove these two arguments together.
He claimed that his plea was not “knowing and voluntary”
specifically because he received ineffective assistance from Plea
Counsel. The district court recognized the distinct arguments
and made several findings on the adequacy of Plea Counsel’s
performance and the accuracy of her understanding of the
immigration consequences of the plea. See infra ¶ 7. This, then, is
not a case in which the claim of ineffective assistance of counsel
is first raised on appeal.

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¶5 Defendant and Plea Counsel both testified at the
subsequent evidentiary hearing. Plea Counsel testified that she
had consulted with an immigration attorney regarding the
immigration implications of Defendant pleading guilty to the
Firearm Charge. She stated that the immigration attorney had
provided her with a “pretty detailed” written analysis of
Defendant’s case, 5 which analysis she recounted from memory:

His analysis of that was that [the Drug Possession
Charge] was an aggravated felony, [the Firearm
Charge] was not an aggravated felony; however [it]
was a charge that would render an individual
inadmissible, so there were immigration
consequences stemming from both charges. One
charge had more serious consequences for
immigration purposes than the other.

Plea Counsel explained that it was her understanding that an
“aggravated felony” charge would result in Defendant’s
immediate deportation, whereas a charge that rendered
the Defendant “inadmissible” meant that he would be unable to
adjust his status—apply for citizenship, for example—but not
necessarily that he would be deported. Plea Counsel
further testified that she had visited Defendant more than once
to discuss the immigration implications of pleading guilty to the
Firearm Charge. Each time, Plea Counsel brought the
immigration attorney’s written analysis to help facilitate
those discussions. It was Plea Counsel’s opinion that she had
covered the immigration issue with Defendant in a “complete
manner.” Specifically, they had discussed that both the Firearm
and Drug Possession Charges carried immigration
consequences, but that the Drug Possession Charge was likely to

5. The actual email correspondence between Plea Counsel and
the immigration attorney is not part of the record. Nor is the
letter Defendant claims to have received from Homeland
Security.

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carry more adverse immigration consequences than the Firearm
Charge.

¶6 Next, Defendant testified that Plea Counsel had discussed
possible immigration consequences with him, but that it was his
understanding that a conviction on the Firearm Charge was
“unlikely” to result in his deportation. He testified that if he had
understood that he was “likely” to be deported as a result of
pleading guilty to the charge, he would not have done so.

¶7 At the conclusion of the hearing, the district court
concluded that Plea Counsel had not been ineffective in
representing Defendant—she had done “her due diligence” in
consulting the immigration attorney and had “explained [the
immigration ramifications] very, very well.” The court further
found that Defendant had entered the guilty plea knowingly and
voluntarily. Defendant appeals.

ISSUES AND STANDARDS OF REVIEW

¶8 Defendant first argues that the district court erred in
concluding that Plea Counsel had not rendered ineffective
assistance when she advised him of the possible immigration
ramifications of pleading guilty to the Firearm Charge. “When
confronted with ineffective assistance of counsel claims, we
review a lower court’s purely factual findings for clear error, but
we review the application of the law to the facts for correctness.”
Archuleta v. Galetka, 2011 UT 73, ¶ 25, 267 P.3d 232 (quotation
simplified). Accord State v. King, 2017 UT App 43, ¶ 13, 392 P.3d
997.

¶9 Second, as a result of Plea Counsel’s alleged ineffective
assistance, Defendant contends that his plea was not entered into
knowingly and voluntarily. “We review the denial of a motion to
withdraw a guilty plea under an abuse of discretion standard,
disturbing the findings of fact made in conjunction with that
decision only if they are clearly erroneous.” State v. Ruiz, 2013
UT App 274, ¶ 12, 316 P.3d 984.

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ANALYSIS

¶10 Defendant first challenges his guilty plea to the Firearm
Charge on a claim of ineffective assistance of counsel. Defendant
next challenges the district court’s conclusion that he entered the
plea knowingly and voluntarily. See Utah Code Ann.
§ 77‑13‑6(2)(a) (LexisNexis 2017) (“A plea of guilty . . . may be
withdrawn only upon leave of the court and a showing that it
was not knowingly and voluntarily made.”). Because
Defendant’s second argument—that he did not enter the plea
knowingly and voluntarily—appears to be predicated solely on a
claim of ineffective assistance of counsel, and Defendant does
not challenge the district court’s factual findings that supported
its conclusion, our determination of Defendant’s first claim
essentially resolves his second claim. As such, our analysis of the
second claim is limited.

I. Ineffective Assistance of Counsel

¶11 A successful ineffective assistance of counsel claim
requires a defendant to establish that (1) “counsel’s performance
was deficient”; and (2) “the deficient performance prejudiced the
defense.” 6 Strickland v. Washington, 466 U.S. 668, 687 (1984).
Counsel’s performance is deficient if it falls below “an objective
standard of reasonableness.” Id. at 688.

¶12 In arguing that Plea Counsel performed deficiently,
Defendant attacks her analysis of the immigration consequences
of pleading guilty to either the Firearm Charge or the Drug
Possession Charge. He asserts that he “should have been told

6. Because we conclude that Plea Counsel’s performance was not
deficient, we do not reach the second prong of Strickland. See
State v. Goode, 2012 UT App 285, ¶ 7 n.2, 288 P.3d 306 (“Because
both prongs of the Strickland test must be met to establish
ineffective assistance of counsel, we need not always address
both prongs.”).

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straight-up that if he entered a plea of guilty to the [Firearm
Charge], he would be deemed ‘deportable’ and without any
possibility for equitable relief.” Contending that pleading guilty
to either the Firearm or Drug Possession charge would result in
his deportation, as evidenced by the letter from Homeland
Security he claims to have received, he argues that Plea Counsel
should have advised him to reject the plea deal and to take his
chances at trial, as slim as they might be. 7 In sum, Defendant
argues that Plea Counsel’s inexperience in the field of
immigration law prevented her from properly informing him of
the possible adverse immigration consequences of pleading
guilty to the Firearm Charge.

¶13 Conversely, the State argues that Plea Counsel was
required to notify Defendant only that pleading guilty to
the Firearm Charge carried the risk of negative immigration
consequences. In any event, the State argues that the district
court noted that Plea Counsel consulted an immigration attorney
and that her analysis was sound. 8 As explained by the State,
“the firearm felony was preferable to the drug felony from an
immigration standpoint. A conviction on either felony count
would have made [Defendant] deportable. However, it is at least
arguable that the firearm felony is not an ‘aggravated felony’

7. “Slim” might be an overstatement. Officers responding to a
report of shots fired at Liberty Park arrived on the scene, saw
Defendant running, pursued him, and caught up with him just
after seeing him drop a bag and a jacket. In the bag, they found a
handgun, ammunition, and a spent casing. They also found a
variety of illegal drugs and paraphernalia.

8. Although both Defendant and the State discuss the correctness
of Plea Counsel’s immigration analysis on appeal, Defendant did
not raise such an argument at the change-of-plea hearing,
instead stating, “I’m not necessarily asserting that [Plea Counsel]
made an error.”

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that would preclude discretionary relief from removal under
8 U.S.C. section 1229b.”

¶14 With regard to the first prong of Strickland, we analyze
Plea Counsel’s performance cognizant of the “strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Strickland, 466 U.S. at 689.
When advising defendants of the possible negative immigration
consequences of pleading guilty, the United States Supreme
Court specified the requisite “objective standard of
reasonableness” in Padilla v. Kentucky, 559 U.S. 356 (2010), as
follows:

When the law is not succinct and straightforward
. . . 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 . . . the duty
to give correct advice is equally clear.

Id. at 369 (footnote omitted). And as explained by Justice Alito in
his concurring opinion, the determination of what constitutes an
“aggravated felony” in the immigration context is a highly
complex matter. 9 See id. at 377–79 (Alito, J., concurring) (“As has
been widely acknowledged, determining whether a particular
crime is an ‘aggravated felony’ . . . is not an easy task.”).

¶15 Consequently, Defendant’s argument fails for two
reasons. First, because the determination of whether the Firearm
Charge constitutes an “aggravated felony” for immigration
purposes is neither “succinct” nor “straightforward,” Plea

9. Plea Counsel’s recommendation to accept the plea deal was
based on the immigration attorney’s analysis “that [the Drug
Possession Charge] was an aggravated felony; [the Firearm
Charge] was not an aggravated felony.”

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Counsel was obligated to inform Defendant only that
pleading guilty to the Firearm Charge carried immigration risks.
See Jelashovic v. State, 2012 UT App 220, ¶ 10, 285 P.3d 14 (“Padilla
requires only that the risks be expressed—not that they be
expressed in any particular detail or by an attorney with
any particular expertise.”). Plea Counsel testified that it was her
understanding “there were immigration consequences stemming
from both charges,” which she explained to Defendant.
Defendant testified that it was his understanding that it
was “unlikely” that he would be deported if he pled guilty to the
Firearm Charge. This testimony demonstrates that Plea
Counsel did advise him that there was at least some risk of
negative immigration consequences to pleading guilty. As
such, Plea Counsel “did her due diligence,” in the words of the
district court, and even exceeded the duty imposed by Padilla by
consulting an immigration attorney to determine what the
likely immigration risks would be in Defendant’s particular
case and then sharing that information with Defendant, rather
than merely inviting him to consult with an immigration
attorney.

¶16 Second, the plea statement that Plea Counsel discussed
with Defendant and that Defendant signed also warned, with
our emphasis, of the potential risk of deportation: “I understand
that if I am not a United States citizen, my plea(s) may, or even
will, subject me to deportation under United States immigration
laws and regulations, or otherwise adversely affect my
immigration status.” Defendant therefore cannot claim that he
was unaware that his guilty plea could possibly result in his
deportation when the statement he signed and said he
understood clearly indicated as much. See Ramirez-Gil v. State,
2014 UT App 122, ¶ 10, 327 P.3d 1228 (“Between the statements
in the written plea form explaining the deportation
consequences of Petitioner’s plea and Petitioner’s signature on
that form confirming that trial counsel reviewed the plea with
him, Petitioner cannot demonstrate that counsel performed
deficiently by failing to advise him that his plea could affect his
immigration status.”).

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¶17 For these reasons, we affirm the district court’s conclusion
that Plea Counsel did not perform deficiently, and Defendant’s
ineffective assistance claim is unavailing.

II. Knowing and Voluntary

¶18 Once entered, a guilty plea may be withdrawn only upon
“a showing that it was not knowingly and voluntarily made.”
Utah Code Ann. § 77-13-6(2)(a) (LexisNexis 2017). Defendant
argues that Plea Counsel’s allegedly deficient performance in
advising him of the immigration ramifications prevented him
from entering his guilty plea knowingly and voluntarily.
Because we have determined that Plea Counsel did not perform
deficiently, see supra ¶¶ 14–16, we conclude that the district court
did not abuse its discretion when it denied Defendant’s motion
to withdraw his guilty plea, which was premised exclusively on
that theory.

CONCLUSION

¶19 We conclude that Plea Counsel did not perform
deficiently when she advised Defendant of the immigration
consequences of pleading guilty to the Firearm Charge.
Regardless of whether her analysis was entirely correct, Plea
Counsel notified Defendant that pleading guilty carried
immigration risks. Defendant also signed a statement certifying
that he was aware that his guilty plea could potentially result in
deportation. Because Plea Counsel did not perform deficiently,
the district court did not abuse its discretion in finding that
Defendant entered his guilty plea knowingly and voluntarily.

¶20 Affirmed.

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