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Aldus v. State

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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.
 
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