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State v. Momoh

Court of Appeals of Utah

September 20, 2018

State of Utah, Appellee,
v.
Joseph Momoh, Appellant.

          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.

         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 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]

         ¶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 ...

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