COMMONWEALTH OF KENTUCKY v. ANDREY GEVORGIYAN
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RENDERED: MAY 13, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002743-MR
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, JUDGE
ACTION NO. 00-CR-00008
v.
ANDREY GEVORGIYAN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND JOHNSON, JUDGES.
BARBER, JUDGE:
Appellant, Commonwealth of Kentucky, appeals the
Warren Circuit Court’s order sustaining a motion to amend plea
and judgment entered November 21, 2003.
We affirm the trial
court’s ruling on the motion.
Appellee, Andrey Gevorgiyan (Gevorgiyan), is an
immigrant who sought asylum from racism, terrorism and possible
death in Azerbaijan, where he was a member of a religious and
ethnic minority.
Gevorgiyan and his wife moved to Kentucky
where he was a contributing member of society, and a highly
commended employee.
They had a son, who is now ten years old
and an American citizen.
his wife and son.
American citizens.
Gevorgiyan is the sole supporter of
He and his wife were seeking to become
One evening, after losing his job because
his place of employment unexpectedly closed, Gevorgiyan had too
much to drink and caused a vehicular accident.
As a result of the motor vehicle accident, Gevorgiyan
was indicted on one count of assault in the first degree, five
counts of wanton endangerment in the first degree, operating a
motor vehicle while under the influence of intoxicants, and
having no operator’s license on January 12, 2000.
On January 22, 2002, Gevorgiyan admitted his
culpability and took responsibility for his actions by entering
a plea of guilty to one count of second-degree assault, and five
counts of wanton endangerment in the first degree.
The record
does not show injury to any other parties involved in the
collision.
The order on plea of guilty was entered on January
23, 2002 in which the Commonwealth recommended a sentence of ten
years on Count I and five years each on Counts II through VI,
with the sentences to run concurrently for a total of ten years’
imprisonment.
The Commonwealth moved to dismiss the remaining
counts of the indictment.
2
On February 27, 2002, the trial court entered a
Judgment and Sentence on Plea of Guilty.
The Judgment showed
that Gevorgiyan was eligible for probation and the court entered
an Order of Probation on that date.
No appeal of the final
judgment was taken by the Commonwealth.
Gevorgiyan complied
with the terms of his probation agreement and promptly paid all
required fines and costs.
Federal law provides that any
offender with a felony conviction must be deported. Defense
counsel shows this Court that the law governing deportation is
automatic.
Defense counsel cited 8 U.S.C.A. Section 1227 and
related statutes.
Because of his plea of guilty to the second-
degree assault charge, Gevorgiyan was seized and housed at
Immigration Facilities in Louisiana.
Gevorgiyan was scheduled
for immediate deportation without his wife or son.
On November 14, 2003, Gevorgiyan filed a motion asking
that the court amend the judgment on plea of guilty to a plea of
guilty to misdemeanor offenses so that he would not be subject
to immediate deportation.
Defense counsel filed the motion
requesting that the charges be amended before Gevorgiyan was
deported.
At the hearing, the Commonwealth argued that the
court had no authority to grant the requested relief and failed
to respond to Gevorgiyan’s equity arguments.
3
After hearing the
parties’ arguments, the court entered an order sustaining the
motion to amend the charges to misdemeanor offenses.
Persons
guilty of a misdemeanor offense are not automatically subject to
deportation.
The Commonwealth, in a one paragraph argument,
contends that the court’s order was void because the court had
no authority to enter it.
The Commonwealth cites to Silverberg
v. Commonwealth, 587 S.W.2d 241, 244 (Ky. 1979), and Stallworth
v. Commonwealth, 102 S.W.3d 918, 923 (Ky. 2003), which provide
that once the time for a motion for a new trial or time for
appeal has passed, a judgment is final and may not be amended.
The decision in Stallworth was based on the fact that the trial
court’s decision adversely affected the defendant’s
constitutional rights by improperly enhancing his sentence in
violation of law.
Id., 102 S.W.3d at 923.
Gevorgiyan contends that CR 60.02 and CR 60.03 permit
the court to amend the earlier judgment and order under the
present circumstances.
Gevorgiyan asserts that the trial court
properly considered all aspects of the case, and his potential
right to post-conviction relief when granting the motion.
The
court’s ruling did not affect the terms of his sentence or
probation.
Gevorgiyan argues that CR 60.02 permits a court to
correct a judgment where facts and grounds not appearing on the
face of the judgment are not discovered until after the judgment
4
is rendered.
Fryrear v. Parker, 920 S.W.2d 519 (Ky. 1996),
provides that CR 60.02 may be used to obtain relief where “it is
no longer equitable that the judgment should have prospective
application.”
Id., at 522.
The movant is charged with showing why he should be
entitled to extraordinary relief when requesting an amendment to
an existing judgment.
101 (Ky. 1998).
Barnett v. Commonwealth, 979 S.W.2d 98,
Gevorgiyan argued that it would be improper and
inequitable to deprive his wife and son of his financial and
emotional support and to have him deported to face certain
discrimination and possible death far from his family.
He
showed the court that deportation and a risk of death or injury
is too serious a penalty for the offense charged.
The
Commonwealth has failed to address the issue of whether
Gevorgiyan was entitled to the extraordinary relief granted.
A court properly has jurisdiction to amend a judgment
where it is reinvested with such jurisdiction under an
applicable rule of procedure.
85, 86 (Ky. 1996).
Commonwealth v. Gross, 936 S.W.2d
Where circumstances change such that
enforcement of the judgment as written would be inequitable, a
court can set aside an earlier order.
Berry v. Cabinet for
Families and Children ex rel Howard , 998 S.W.2d 464, 467 (Ky.
1999).
CR 60.02 affords the trial court broad discretion in
vacating or amending earlier orders.
5
Kurtsinger v. Board of
Trustees of Kentucky Retirement Systems, 90 S.W.3d 454, 456 (Ky.
2002).
Such a ruling will not be disturbed absent evidence of
an abuse of discretion.
Id.
“The test for an abuse of
discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.”
Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.
2000).
The Commonwealth has failed to show that the trial
court’s actions were an abuse of discretion.
For this reason,
we affirm the Warren Circuit Court’s ruling.
BUCKINGHAM, JUDGE, CONCURS IN RESULT.
JOHNSON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
JOHNSON, JUDGE, DISSENTING:
I respectfully dissent.
I conclude that the trial court abused its discretion by going
beyond setting aside the judgments of conviction and entering a
new judgment amending Gevorgiyan’s convictions from the felonies
of assault in the second degree and wanton endangerment in the
first degree to the misdemeanors of assault in the fourth degree
and wanton endangerment in the second degree.
While it would
have been within the authority of the trial court to vacate
Gevorgiyan’s convictions and to have allowed him to withdraw his
guilty pleas and to stand trial, the trial court exceeded its
authority when it entered the misdemeanor convictions over the
6
objection of the Commonwealth.
The Commonwealth is entitled to
its day in court too.1
The better approach for the trial court to have taken
would have involved an analysis under the standard for
ineffective assistance of counsel in a guilty plea.
In Taylor
v. Commonwealth,2 this Court stated:
In the context of challenges arising from
entry and acceptance of a guilty plea, a
defendant who alleges the ineffectiveness of
his legal counsel at such proceedings must
first prove that his counsel's performance
was deficient; and second, that defendant
was prejudiced by the deficiency such that
there exists "a reasonable probability that,
but for counsel's errors, he would not have
pleaded guilty and would have insisted on
going to trial."3
I would agree that in certain circumstances defense
counsel is under a duty to investigate possible immigration
consequences when advising a non-citizen defendant to plead
guilty; and counsel’s failure to investigate and to duly inform
his client of a significant negative immigration consequence
1
Commonwealth v. Hay, 987 S.W.2d 792, 795 (Ky.App. 1998) (stating that “a
trial court lacks the authority to use a summary judgment procedure in a
criminal case”); Lycans v. Commonwealth, 562 S.W.2d 303, 305 (Ky. 1978)
(stating that “the Commonwealth had a right to . . . select a jury to fix a
penalty”); Lewallen v. Commonwealth, 584 S.W.2d 748, 751 (Ky.App. 1979)
(stating that “[t]o set [a criminal judgment] aside at this late date for the
reasons argued would be grossly unjust to the Commonwealth and unfair to the
prosecution”).
2
724 S.W.2d 223, 226 (Ky.App. 1986).
3
See also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984); and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203
(1985).
7
could result in the denial of effective assistance of counsel.
I would follow the approach explained by the Supreme Court of
Colorado in People v. Pozo:4
In view of these factors, we conclude
that the potential deportation consequences
of guilty pleas in criminal proceedings
brought against alien defendants are
material to critical phases of such
proceedings. The determination of whether
the failure to investigate those
consequences constitutes ineffective
assistance of counsel turns to a significant
degree upon whether the attorney had
sufficient information to form a reasonable
belief that the client was in fact an alien.
When defense counsel in a criminal case is
aware that his client is an alien, he may
reasonably be required to investigate
relevant immigration law. This duty stems
not from a duty to advise specifically of
deportation consequences, but rather from
the more fundamental principle that
attorneys must inform themselves of material
legal principles that may significantly
impact the particular circumstances of their
clients. In cases involving alien criminal
defendants, for example, thorough knowledge
of fundamental principles of deportation law
may have significant impact on a client's
decisions concerning plea negotiations and
defense strategies [citations omitted].
This case-by-case approach comports with the
principles announced in Strickland, supra, more so than other
approaches.5
In Strickland, the Supreme Court of the United
4
746 P.2d 523, 529 (Colo. 1987).
See United States v. George, 869 F.2d 333, 337 (7th Cir. 1989) (stating that
“deportation is a collateral consequence of the criminal proceeding and
therefore no ineffective assistance of counsel was found”); and United States
v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975) (holding that the defendant
5
8
States emphasized that the determination of whether any
particular defendant had received ineffective assistance of
counsel depended upon the particular facts of each case:
[A] court deciding an actual ineffectiveness
claim must judge the reasonableness of
counsel's challenged conduct on the facts of
the particular case, viewed as of the time
of counsel's conduct. A convicted defendant
making a claim of ineffective assistance
must identify the acts or omissions of
counsel that are alleged not to have been
the result of reasonable professional
judgment. The court must then determine
whether, in light of all the circumstances,
the identified acts or omissions were
outside the wide range of professionally
competent assistance [emphases added].
These standards require no special
amplification in order to define counsel's
duty to investigate, the duty at issue in
this case. As the Court of Appeals
concluded, strategic choices made after
thorough investigation of law and facts
relevant to plausible options are virtually
unchallengeable; and strategic choices made
after less than complete investigation are
reasonable precisely to the extent that
reasonable professional judgments support
the limitations on investigation. In other
words, counsel has a duty to make reasonable
investigations or to make a reasonable
decision that makes particular
investigations unnecessary. In any
ineffectiveness case, a particular decision
not to investigate must be directly assessed
for reasonableness in all the circumstances,
applying a heavy measure of deference to
counsel's judgments [emphasis added].6
failed to state a claim for ineffective assistance of counsel because he had
not averred that his counsel had made any “affirmative misrepresentations”).
6
Id. at 690-91.
9
A blanket rule precluding an ineffective assistance of
counsel claim where the attorney has failed to inform a
defendant of possible immigration consequences does not allow
for the kind of case-by-case analysis that the Strickland test
envisions.
Similarly, a rule which requires affirmative
misrepresentation precludes a claim where defense counsel is
reasonably aware that deportation would be likely, but
nevertheless intentionally or negligently fails to advise the
defendant of this significant consequence.
On the other hand, a
case-by-case analysis is consistent with Strickland and it
allows a trial court to judge each claim of ineffective
assistance of counsel upon its particular facts.
Therefore, I
would hold that if, under the particular facts of the case, a
trial court finds that an objectively reasonable attorney would
have advised the client of possible deportation consequences
because of facts known to counsel at the time, or facts that
should have been known to counsel through a reasonable
investigation, but counsel nonetheless failed to so advise the
defendant, a claim for ineffective assistance of counsel is
possible.
Thus, in this case the proper approach would have been
to determine whether Gevorgiyan received ineffective assistance
of counsel when he entered his guilty pleas to the felony
charges.
If he did, he should be allowed to withdraw his guilty
10
pleas and to stand trial.
Then, the Commonwealth will have its
day in court and not be prejudiced as it is by the trial court’s
amendment of Gevorgiyan’s convictions.7
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Julia K. Pearson
Assistant Public Advocate
Frankfort, Kentucky
Christopher H. Hancock
Assistant Attorney General
Frankfort, Kentucky
7
Fortney v. Mahan, 302 S.W.2d 842, 843 (Ky. 1957) (citing Moore’s Federal
Practice, 2d Ed., § 60.19,; Civ.Code Prac. § 518; and Mason v. Lacy, 274 Ky.
21, 117 S.W.2d 1026 (1938)) (stating that “[t]wo of the factors to be
considered by the trial court in exercising its discretion are whether the
movant had a fair opportunity to present his claim at the trial on the merits
and whether the granting of the relief sought would be inequitable to other
parties”).
11
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