AYYAD (WASSIM KARIM-ABDUL) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: NOVEMBER 14, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
WASSIM KARIM-ABDUL AYYAD
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NOS. 01-CR-01013, 02-CR-00139, & 02-CR-00139-0
COMMONWEALTH OF KENTUCKY
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BEFORE: COMBS, CHIEF JUDGE; STUMBO, JUDGE; GUIDUGLI,1 SENIOR
STUMBO, JUDGE: Wassim Karim-Abdul Ayyad appeals from an opinion and
order of the Fayette Circuit Court denying his motion for RCr 11.42 relief. He
argues that the circuit court erred in failing to find that he was denied effective
assistance of counsel when his counsel misinformed him that he would not be
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
deported if he plead guilty to the charges in the indictment. For the reasons stated
below, we affirm the opinion and order on appeal.
In October, 2001, and February, 2002, the Fayette County grand jury
indicted Ayyad on one count each of first-degree trafficking in a controlled
substance, tampering with physical evidence, possession of marijuana, and two
counts of first-degree robbery. The charges arose from events occurring in August,
2001, and November, 2001, when Ayyad was arrested for selling cocaine out of a
Lexington hotel room and later committing two armed robberies.
On April 19, 2002, Ayyad entered guilty pleas under each indictment.
In exchange for the pleas, the trafficking charge was reduced to possession of a
controlled substance; the possession of marijuana charge was dismissed; and, one
count of first-degree robbery was dismissed. On May 24, 2002, Ayyad was
sentenced to serve 3 years in prison under the first indictment, and 13 years under
the second indictment, to be served consecutively for a total of 16 years in prison.
Ayyad is a Jordanian citizen and native of Kuwait. On September 29,
2003, the United States Immigration and Naturalization Service notified Ayyad
that he was subject to deportation from the United States based on his convictions.
On May 14, 2004, Ayyad filed a pro se RCr 11.42 motion seeking
relief from judgment. As a basis for the motion, Ayyad argued that his counsel
was ineffective for informing him that he would not be deported if he pled guilty.
He maintained that he would not have pled guilty and would have gone to trial had
he known that his guilty pleas and subsequent conviction would have resulted in
the deportation proceedings. Sometime thereafter, the trial court held Ayyad’s
motion in abeyance pending resolution of the appeal in Commonwealth v.
Fuartado, 170 S.W.3d 384 (Ky. 2005), which was then pending before the
Kentucky Supreme Court.
Fuartado was rendered, and held in relevant part that a counsel’s
failure to advise a defendant of the potential deportation consequences of a guilty
plea did not form the basis for a claim of ineffective assistance of counsel. Relying
on Fuartado, the Fayette Circuit Court rendered its opinion and order on June 22,
2006, denying Ayyad’s motion for RCr 11.42 relief. This appeal followed.
Ayyad now argues that the circuit court erred in denying his motion
for RCr 11.42 relief. He contends that his guilty plea was not made knowingly and
voluntarily because it was induced by counsel’s ineffectiveness. According to
Ayyad, that ineffectiveness came in the form of counsel’s alleged statement to
Ayyad that a guilty plea would not result in Ayyad’s deportation. He directs our
attention to Strickland v. Washington, 466 U.S. 668, 104, S.Ct. 2052, 80 L.Ed.2d
674 (1984), and attempts to distinguish Fuartado from the matter at bar by noting
that Fuartado addressed counsel’s failure to advise a defendant of the potential for
deportation, whereas in the instant case involves the affirmative act of “gross
misadvice” regarding deportation consequences. He also points to the ABA
Standards of Criminal Justice which provides that, where possible, counsel should
advise the defendant as to the possible collateral consequences of a contemplated
plea. Ayyad also claims that he was entitled to an evidentiary hearing, and he
seeks an order vacating his judgment of conviction.
We have closely examined the record and the law, and find no error in
the Fayette Circuit Court’s order denying Ayyad’s motion for relief. The
Kentucky Supreme Court held in Fuartado that defense counsel has no affirmative
duty to give advice as to the collateral consequences of a plea, and that such advice
does not support a claim of ineffective assistance. It stated that,
In cases where defendants are agreeing to plead
guilty in accordance with a plea bargain, this principle of
protecting a criminal defendant’s right to be fairly tried
and justly convicted is extended to include investigating
and advising the criminal defendant on all aspects of the
plea and the direct consequences thereof-such as the
sufficiency of the evidence supporting the plea, the
availability of substantial defenses, the loss of several
fundamental constitutional rights, and the punishment
that may be imposed by the trial court. See Brady v.
United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25
L.Ed.2d 747 (1970) (defendant must be “fully aware of
the direct consequences” of a guilty plea) (emphasis
added); Beasley v. United States, 491 F.2d 687, 696 (6th
Cir.1974) (setting forth standards for effective assistance
of counsel). The existence of collateral consequences is
irrelevant to the determination of a defendant’s guilt or
innocence and completely outside the authority or control
of the trial court. Accordingly, we find, along with the
majority of other courts determining the issue, that the
Sixth Amendment requires representation encompassing
only the criminal prosecution itself and the direct
consequences thereof. Because the consideration of
collateral consequences is outside the scope of
representation required under the Sixth Amendment,
failure of defense counsel to advise Appellee of potential
deportation consequences was not cognizable as a claim
for ineffective assistance of counsel. (Emphasis added).
Fuartado at 386.
Fuartado is dispositive. Ayyad seeks to distinguish Fuartado from
the instant facts by pointing out that while Fuartado addressed non-feasance, his
counsel allegedly engaged in malfeasance by giving misadvice regarding the
possibility of deportation. We see no rational distinction between Fuartado and
the instant case, because the effect of not giving advice regarding the possible
deportation consequences of pleading guilty (i.e., the non-feasance addressed in
Fuartado) is the same as the effect of giving bad advice (i.e., the alleged
malfeasance of Ayyad’s counsel). In either circumstance, Fuartado concluded that
counsel is not responsible for the possible collateral consequences of deportation.
It holds that counsel is responsible for the accused’s criminal defense, but not the
litany of consequences - many of which are not foreseeable - affecting the
accused’s life resulting from a guilty plea.
Having determined that Fuartado is applicable to the instant matter,
and that the Fayette Circuit Court properly so found, we have no authority to
reverse the order on appeal. Since the motion was justiciable by reference to the
record, no hearing on the motion was required. Fraser v. Commonwealth, 59
S.W.3d 448 (Ky. 2001). Accordingly, we affirm the opinion and order of the
Fayette Circuit Court.
GUIDUGLI, SENIOR JUDGE, CONCURS.
COMBS, CHIEF JUDGE, CONCURS, WITH SEPARATE
COMBS, CHIEF JUDGE, CONCURRING: I most assuredly concur
with the sound reasoning of the majority opinion that Fuartado is dispositive of
this case. However, I again lament that such a grave consequence as deportation is
not made apparent to a defendant prior to entering a plea of guilty. RCr 11.42 now
provides no recourse for a non-citizen criminal defendant as to the “collateral
consequence” of deportation. Fuartado was stretched even further to cover not
only absence of advice but even incorrect legal advice. In Commonwealth v.
Padilla, 253 S.W.3d 482 (Ky. 2008), counsel who was unaware of deportation
issues nonetheless offered incorrect advice when asked by his client. Finally, in
Renya v. Commonwealth, 217 S.W.3d 274 (Ky. App. 2007), this Court held that
CR 60.02 was unavailable in such a case.
I again urge that our Supreme Court and/or our General Assembly
scrutinize this issue and direct that the Boykin colloquy by the trial court contain a
clear warning of deportation as a consequence of a guilty plea. It is beyond legal
fiction to believe that a plea could be knowingly, voluntarily, and intelligently
made absent this critical information. It is an absurdity that eviscerates elemental
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Amy Robinson Staples
Wendy Baldridge Graney
Assistant Public Advocate
Department of Public Advocacy
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General