Awralla Aldus v. State
Case Date: 03/14/2000
Court: Supreme Court
Docket No: 2000 ME 47
Aldus v. State Back to Opinions page MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2000 ME 47 Docket: Ken-99-193 Argued: November 1, 1999 Decided: March 14, 2000 Panel: WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ. AWRALLA H. ALDUS v. STATE OF MAINE CALKINS, J. [¶1] The State appeals from a judgment entered in the Superior Court (Kennebec County, Studstrup, J.) granting Awralla H. Aldus post-conviction relief and vacating Aldus's conviction for aggravated assault (Class B), see 17-A M.R.S.A. § 208(1)(B) (1983). The State contends that the Superior Court erred in finding that Aldus was deprived of effective assistance of counsel. We affirm the judgment. I. FACTS AND PROCEEDINGS [¶2] Aldus, age twenty-nine years, is a native of Somalia and has lived in the United States for twelve years. She is not a citizen of the United States. She was recently divorced from her husband of eleven years. They have two children. At the time of the post-conviction hearing Aldus was in the custody of the Immigration and Naturalization Service (INS). [¶3] Aldus was arrested for aggravated assault on her estranged husband on July 3, 1998. The State alleged that she went to the home where her husband and their two children resided with his girlfriend and attacked the husband with a knife. In addition to aggravated assault, Aldus was charged with three Class D offenses. She was taken to District Court on July 6, 1998, and counsel was appointed for a bail hearing. She pled not guilty on the Class D offenses; trial was scheduled; and bail was set. After spending several days in jail, Aldus posted bail and was released. She was subsequently hospitalized following a suicide attempt, and upon her release from the hospital on August 11, 1998, she was rearrested and charged with additional Class D offenses because, according to the State, she threatened her husband and his girlfriend over the telephone. She appeared in District Court on August 12, 1998, and attorney David Geller was appointed to represent her for the arraignment and bail hearing on the new charges. [¶4] Aldus was unable to post the new bail, and she remained in custody. She was taken to court on August 19, which was the date set for the trial on the July 3 Class D charges and for the probable cause hearing on the aggravated assault charge.{1} She did not have an attorney because the attorney originally appointed to represent her had withdrawn due to a conflict. When Aldus arrived at court, the District Court (Waterville, Westcott, C.J.) appointed Geller to represent Aldus on the charges that were scheduled for trial that day. Geller met with Aldus and reviewed the charges with her.{2} He spent approximately one hour with her, not including the time spent before the judge. [¶5] The prosecutor allowed Geller to review the State's file on Aldus which contained the police reports and witness statements, and Geller discussed these with Aldus. Geller asked Aldus her version of the July 3 events. Geller testified at the post-conviction hearing that Aldus told him that she had no recollection of the events because she was inebriated. According to Geller, Aldus was very upset while they were talking and said she just wanted to get it over. Aldus testified at the post-conviction hearing that she told Geller she did not stab her husband, that she had been drinking that night and did not remember everything, but she did remember that she did not stab her husband. Geller and Aldus also discussed the August 11th incident. Aldus testified that she and Geller discussed "dead time."{3} She understood that if her case was continued to another day for trial, the time in jail would not count toward any eventual sentence. [¶6] At some point during a conversation between Geller and the prosecutor, the prosecutor said that INS, meaning the Immigration and Naturalization Service, was looking for Aldus. The prosecutor said he did not have any more information. Geller knew from his previous representation of Aldus at the August 12 bail hearing that she was not a United States citizen and was from Somalia. Geller repeated to Aldus the information that INS was looking for her. She asked him what that meant, and he said, "I have no idea." Aldus did not ask any more questions about INS. Geller did not inquire of Aldus if she desired time to learn why INS was interested in her, and he did not indicate to her that any court action could be deferred so that she could obtain more information. [¶7] Geller and the prosecutor discussed a plea agreement by which the State offered to recommend a sentence of five years, suspending all but six months, and probation for five years on the aggravated assault charge. After presenting this offer to Aldus, Geller and the prosecutor talked further, and a new plea offer was made. The second offer was a choice between two alternatives: (1) five years, suspending all but ninety days, and four years probation; or (2) five years, suspending all but six months, and four years probation, and Geller would be free to argue for less time before the judge. Aldus chose the ninety-day alternative. [¶8] Geller was given a District Court form to review with Aldus. The two-page form, entitled Acknowledgment of Rights, listed the rights contained in M.R. Crim. P. 11(c)(2). Geller read the form to Aldus, filled in the blanks with Aldus's name, the charge of aggravated assault, and the maximum sentence of ten years and $20,000 fine. Aldus signed the form, which further stated that she understood all of her rights and was pleading guilty and giving up her rights. Geller also signed the form thereby asserting that he had thoroughly explained all of her rights to Aldus as well as the elements of the offense; that he believed she understood the rights; that she had the mental capacity to evaluate her rights; and had knowingly and intelligently waived them. [¶9] Thereafter, Geller and Aldus went into the courtroom. The judge explained the charge of aggravated assault to Aldus who said she understood it. The court then asked Geller if he had reviewed the Acknowledgement of Rights form with Aldus, and Geller stated that he read it word for word to her. The court asked Aldus if she had any questions, and she said "No." The court asked if she understood that she was giving up her right to have the State present her case to the grand jury, and she replied that she understood. The court then instructed her to sign the Acknowledgment of Rights form if she still wanted to plead guilty. The court asked her if anyone was "forcing you to do this, or are you doing this of your own free will?" She responded, "My own free will, your Honor." The court then asked Geller if he was satisfied that Aldus understood and was entering the plea knowingly and intelligently. Geller responded in the affirmative. The judge did not address Aldus personally as to whether she understood each of the individual rights that she was giving up.{4} [¶10] Aldus pled guilty to aggravated assault, and the prosecutor briefly described the facts of the assault. The court asked about the knife, and the prosecutor said it had not been found. The court accepted the guilty plea, and Aldus then pled guilty to all of the pending charges from both July 3 and August 11, except a simple assault charge.{5} The State recommended a sentence on the aggravated assault count of five years incarceration with all but ninety days suspended, and four years of probation. The prosecutor listed various conditions of probation. On all other charges the State recommended a sentence of sixty days in jail, to be served concurrently with the aggravated assault sentence. The court imposed the sentence on aggravated assault and stated the probation conditions. [¶11] Approximately two months after her conviction, Aldus filed a petition for post-conviction relief. She claimed that her plea was not made knowingly and voluntarily and that she was deprived of adequate assistance of counsel. Following a hearing, the Superior Court granted her petition and vacated her conviction on the aggravated assault charge. The court found that Aldus's plea was made voluntarily, but that she had been deprived of adequate assistance of counsel. The court found that Geller's inability to answer her question "clearly would call for at least a request for continuance" and that the failure to "stop and obtain the information requested by the petitioner" placed Geller's performance in representing Aldus below that of an ordinary fallible attorney because Geller knew that Aldus was not a United States citizen. The Superior Court noted that the conviction for aggravated assault meant that Aldus was "conclusively presumed" to be deportable. See 8 U.S.C. § 1228 (Supp. 1999). The court found that Aldus would not have entered her plea but for Geller's error in failing to call a halt in the proceedings to obtain time to answer Aldus's question. II. THE STRICKLAND/HILL TEST AND STANDARD OF REVIEW [¶12] In Lang v. Murch, 438 A.2d 914, 915 (Me. 1981), we enunciated a two-part test for evaluating ineffective assistance of counsel claims. In a subsequent case we described the test as involving: first, whether there has been serious incompetency, inefficiency, or inattention of counsel amounting to performance measurably below what "might be expected from an ordinary fallible attorney"; and second, whether any such ineffective representation "likely deprived the defendant of an otherwise available substantial ground of defense." Kimball v. State, 490 A.2d 653, 656 (Me. 1985) (quoting Lang, 438 A.2d at 915). We later deleted the word "measurably" from the first prong of the Lang test, finding that the term "measurably" was without meaning in this context and served only to confuse courts applying the Lang standard. See State v. Brewer, 1997 ME 177, ¶¶ 6-7, 699 A.2d 1139, 1144. A few years after Lang, the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), articulated a similar two-part test that a petitioner must meet in order to obtain post-conviction relief. We noted that the Strickland and Lang tests are "virtually identical." Kimball, 490 A.2d at 656. [¶13] In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court applied Strickland to convictions resulting from a guilty plea as opposed to a trial. Hill reformulated Strickland's second prong, the "prejudice" prong, to require a showing by the petitioner "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59. In Laferriere v. State, 697 A.2d 1301 (Me. 1997), we said that in order to demonstrate prejudice, the petitioner had to show a reasonable probability he would have insisted on going to trial if he had not received ineffective assistance of counsel. We further said that "reasonable probability" means "a probability sufficient to undermine confidence in the outcome." Id. at 1305 (quoting Strickland, 466 U.S. at 694). These holdings mean that, before the Superior Court could vacate Aldus's conviction, it had to find that (1) the performance of Aldus's attorney fell below that of an ordinary fallible attorney; and (2) there is a reasonable probability that, but for her attorney's error, Aldus would not have entered a guilty plea and would have insisted on going to trial. [¶14] We apply a deferential standard of review to the trial court's holding on both parts of the Strickland/Hill test. Whether the performance of an attorney falls below the standard is a question of fact. "We will not overturn a post-conviction court's determination as to the effectiveness of trial counsel unless it is clearly erroneous and there is no competent evidence in the record to support it." Tribou v. State, 552 A.2d 1262, 1265 (Me. 1989). See also Brewer, ¶ 19, 699 A.2d at 1144 (stating, "[w]e must uphold the court's findings regarding the quality of trial counsel's performance unless they are clearly erroneous and unsupported by any evidence in the record"); True v. State, 457 A.2d 793, 795 (Me. 1983) (stating that the court's "findings, express and implied, are reviewed under the 'clearly erroneous test' and will not be overturned on appeal unless there is no competent evidence to support them." (emphasis supplied)). Lang, 438 A.2d at 915 (vacating the denial of a writ of habeas corpus and remanding for consideration of the new standard enunciated in the decision "because it is a factual question"). Likewise, the finding of whether the petitioner was prejudiced by her attorney's error is a factual finding reviewed for clear error. See Conner v. State, 543 A.2d 819, 820-22 (Me. 1988) (holding that the trial court's finding that petitioner was not prejudiced was not clearly erroneous). Our decisions have emphasized the fact-laden nature of post-conviction review when the issue is inadequacy of counsel. See True, 457 A.2d at 795. The two-prong inquiry set forth in Strickland and Lang "does not lend itself to categorical rules but rather is meant to be applied on a case-by-case basis." Id. [¶15] We bear in mind that the purpose of the constitutional requirement of effective counsel is "to ensure a fair trial." See Strickland, 466 U.S. at 686. That purpose, in the context of a conviction based upon a guilty plea, is to ensure that the advice of counsel is within the realm of an ordinary competent attorney because the voluntariness of the plea hinges upon whether the advice is that of an ordinary competent attorney. See Hill, 474 U.S. at 56-67. In Laferriere we noted that our inquiry is whether the plea proceeding produced a just result which is "the knowing and voluntary entry of a guilty plea by a guilty party." Laferriere, 697 A.2d at 1307. Thus, in making the determination of whether counsel was ineffective, we and the trial courts must be guided by the overall justness and fairness of the proceeding. III. WAS COUNSEL'S PERFORMANCE BELOW THAT OF AN ORDINARY FALLIBLE ATTORNEY? [¶16] We examine first whether the performance of Aldus's attorney fell below that of an ordinary fallible attorney. Aldus contends that her attorney's failure to request a halt in the proceedings, in order to investigate her question of why INS was looking for her, is performance below the standard. [¶17] Preliminarily, the Superior Court found that Geller knew, before the date of the plea proceeding, that Aldus was not born in the United States. As the court acknowledged, this fact alone would not require any particular action or advice by counsel. But this fact, when combined with the statement from the prosecutor that INS was looking for Aldus, alerted, or should have alerted, Aldus's counsel to a potential problem with the immigration authorities. The Superior Court recognized that immigration law is a specialized area of the law with which ordinary criminal defense attorneys are not familiar. The court indicated that if the situation consisted solely of Geller's knowledge that Aldus was an alien and that INS was looking for her, it would not find that counsel was inadequate. It was the fact that Aldus asked, "What does that mean?" when told that INS was looking for her and the fact that counsel did nothing to answer that question or advise Aldus that she could defer the proceeding to another day to get more information, that prompted the court to find that counsel had crossed the boundary between "ordinary fallible counsel" and "below ordinary fallible counsel." [¶18] The State argues that, as a matter of law, an ordinary fallible attorney is not expected to advise criminal defendants of the potential for deportation because deportation is a collateral consequence of a plea.{6} We have not been called upon previously to determine if deportation comes within the collateral consequences doctrine or whether an alien defendant is deprived of adequate assistance of counsel when the attorney does not inform the defendant about deportation consequences.{7} We conclude that it is not necessary for us to address the collateral consequence doctrine in order to decide Aldus's case. Instead, we conclude that the ordinary fallible attorney is expected to advise a defendant, when that client has a question about a serious consequence of a plea agreement,{8} that the plea need not be entered that day. The attorney should advise the defendant about the ramifications of delay{9} and the possibility of obtaining a continuance of any matters scheduled that day so that the defendant can obtain information concerning the consequences of the plea and better evaluate her position. The choice to accept the plea agreement is left to the defendant but after advice that deferring the plea is an option. Given the fact that Aldus said she wanted the matter concluded, it is possible that she would have decided to proceed with the plea even after being advised that it could be rescheduled, but she should have been advised of her options. Geller should have made certain that Aldus wanted to proceed with the plea agreement in the face of uncertainty about why INS was looking for her, and he should have made certain that she understood that it was her choice to proceed that day or return to court on another day as the judge had previously suggested. [¶19] Whether there has been ineffective assistance of counsel is a factual determination dependant upon the particular facts of the case before the court. The sole issue in this case is whether the Superior Court's factual determination that Aldus was deprived of effective assistance of counsel should stand or whether the evidence compelled a contrary finding. Following the standard of review that we have utilized consistently in post- conviction matters, we view the facts of the case before us, and we do not overturn the trial court unless it is clearly erroneous. See Kimball, 490 A.2d at 657. The post-conviction court had before it all of the facts surrounding Aldus's guilty plea and was well aware of the context in which the plea was taken. It considered the fact that Geller knew that Aldus was not a citizen; that the prosecutor told Geller that INS was inquiring about Aldus; and that Aldus herself asked Geller what it meant that INS was looking for her. That factual context included a Rule 11 proceeding in which the District Court did not personally address Aldus regarding her rights, the elements of the offense, and the maximum sentence as required by Rule 11(c). The Superior Court viewed the totality of the factual scenario in light of the purpose of the constitutional requirement of effective counsel. It considered the overall justness and fairness of the plea proceeding. The court determined as a matter of fact, looking at these particular circumstances, that counsel was ineffective, and on the facts of this case we cannot say that the court was clearly erroneous. IV. WAS ALDUS PREJUDICED BY HER COUNSEL'S ERROR? [¶20] The "prejudice" prong of Strickland, as reformulated by Hill and applied in Laferriere, required Aldus to show a reasonable probability, meaning "a probability sufficient to undermine confidence in the outcome," that she would have insisted on going to trial if she had not received ineffective assistance of counsel. Laferriere, 697 A.2d at 1305 (quoting Strickland, 466 U.S. at 694). The State argues that the Superior Court erred in its explicit finding that Aldus met her burden of showing prejudice and its implicit finding that she would not have pled guilty but for her attorney's error. [¶21] The court identified the attorney's error as the failure to request a halt in the proceedings in order to answer Aldus's question about why INS was looking for her. Aldus testified at the post-conviction hearing that Geller did not tell her that a continuance could be requested and if she had known that a continuance was possible, "I would have taken a continuance." She further testified that she did not think she would be found guilty at a trial, because she was innocent. This testimony raises a fair inference that if Geller had told Aldus that they could defer entering a plea on the aggravated assault charge to find out why INS was looking for her, Aldus would not have entered a plea of guilty. The court was justified in determining there is a reasonable probability that, but for her attorney's error, Aldus would not have entered a guilty plea and would have insisted on going to trial. The evidence does not compel a finding that Aldus suffered no prejudice from her attorney's error. The entry is: Judgment affirmed.Click here for attorneys and footnotes. Back to opinions page. |