Find Legal Information

Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Personal               )
Restraint of:                               )       No. 66499-9-I
                                            )
                                            )       DIVISION ONE
ABDIRAHMAN SHEKH SAKAWE,                    )
                                            )       UNPUBLISHED OPINION
                             Petitioner.    )
                                            )       FILED:  June 4, 2012

       Per Curiam.  Abdirahman Sakawe was convicted by a jury of second 

degree robbery, attempted second degree robbery, and second degree assault in 

King County Superior Court No. 08-1-00224-8 KNT.  He has now filed this 

personal restraint petition claiming he received ineffective assistance of counsel.  

To prevail here, Sakawe must establish either (1) actual and substantial prejudice 

arising from constitutional error, or (2) nonconstitutional error that inherently results 

in a "complete miscarriage of justice."  In re Cook, 114 Wn.2d 802, 813, 792 P.2d 

506 (1990); In re Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983).  Bare assertions 

and conclusory allegations are not sufficient to command judicial consideration and 

discussion in a personal restraint proceeding.  In re Rice, 118 Wn.2d 876, 886, 

828 P.2d 1086 (1992). 

       To establish ineffective assistance, Sakawe must show that counsel's 

performance was deficient and that prejudice resulted from the deficiency.  

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674  

No. 66499-9-I/2

(1984); State v. Thomas, 109 Wn.2d 222, 743 P.2d 816 (1987). Among other 

things, Sakawe contends that defense counsel failed to advise him of the 

immigration consequences of pleading guilty versus going to trial.  With his original 

petition, Sakawe provided the affidavit of Ann Benson, Directing Attorney for the 

Washington Defender Association's Immigration Project, stating that 1) Sakawe's 

convictions led to an immigration court's finding that he is deportable; and 2) a 

conviction of either of the offenses listed in the State's two pre-trial plea bargain 

offers would not have rendered Sakawe subject to deportation.  In his sworn 

declaration, Sakawe states that 1) he told defense counsel of his immigration 

status; 2) defense counsel did not advise him of the immigration consequences of 

the State's plea bargain offers; 3) staying in the United States is very important to 

him; and 4) had he known that the offered plea bargains would not have rendered 

him deportable, he would have pleaded guilty to one of the offers.

       The Acting Chief Judge remanded the matter to the trial court for a 

reference hearing to determine whether defense counsel discussed with Sakawe 

the potential consequences to his immigration status of conviction resulting from 

the plea offers or from trial on the original charges and whether Sakawe would 

have pleaded guilty if properly advised regarding immigration matters.  After 

considering sworn testimony of Sakawe's two defense attorneys, Ann Benson, and 

Sakawe, the trial court entered findings of fact.  The trial court found that Sakawe's 

trial attorney incorrectly advised him that he would be subject to deportation if he 

                                           2 

No. 66499-9-I/3

accepted either of the State's two pretrial plea bargain offers.  As to the question of 

whether Sakawe would have pleaded guilty if he had been properly advised 

regarding immigration matters, the trial court found:

              The procedural context of this case makes this question very 
       difficult.  After protesting his innocence, being emphatic with his counsel 
       that he was not interested in any plea offers, and choosing the strategy 
       of going to trial, Sakawe now testifies that had he known about the 
       immigration consequences, his decision would have been different.  
       Although this testimony is inherently suspect, it does not change the fact 
       that Sakawe was never given the opportunity to make the choice given 
       counsel's incorrect legal advice.
              In fact, given his counsel's legal advice, he chose the only option 
       that held out any hope of staying in the United States, proceeding to 
       trial.  If acquitted, he could remain in the United States.
              Sakawe testified that he does not want to return to Somalia.  He 
       has had limited contact with anyone there since his departure from 
       Somalia at six years of age, and is aware of the civil war that continues 
       today.  He testified that he would have accepted either of the plea offers 
       had he known that in doing so he could avoid deportation.
              The Court finds that Sakawe would have pled guilty if he had 
       been properly advised regarding immigration matters.

       Findings of Fact on Reference Hearing, 6.

       Defense counsel has a duty to discuss plea negotiations with a client 

and must "[provide] sufficient information to enable the client to make an 

informed judgment whether or not to plead guilty."  State v. Holm, 91 Wn. App. 

429, 435, 957 P.2d 1278 (1998).  Failure to advise a defendant "of the 

available options and possible consequences constitutes ineffective assistance 

of counsel."  In re Pers. Restraint of McCready, 100 Wn. App. 259, 263, 996 

P.2d 658 (2000).  In McCready, after rejecting a plea bargain, going to trial, 

and being convicted, McCready filed a personal restraint petition claiming he 

                                           3 

No. 66499-9-I/4

received ineffective assistance of counsel because his attorney failed to inform 

him that a firearm enhancement would run consecutive to his sentence on the 

original charge.  Id. at 261-63.  At a reference hearing, the trial court found that 

defense counsel did not inform McCready that his absolute minimum time if 

convicted as originally charged would be 10 years: a five-year mandatory 

minimum plus a consecutive five- year firearm enhancement.  Id. at 262-63.  

This court held that "McCready's rejection of the plea offer was not voluntary 

because he did not understand the terms of the proffered plea bargain and the 

consequences of rejecting it."  Id. at 263.  This court granted McCready's 

petition and remanded for retrial, observing that if McCready had been properly 

advised, "he may have made a different choice . . . decided not to take the 

chance on acquittal . . . and, instead, opted for the plea bargain."  Id. at 265.

       Here, the trial court found that defense counsel properly advised 

Sakawe that he would be rendered deportable if convicted of original charges.  

However, defense counsel gave Sakawe an incorrect statement of the law as it 

applied to his situation, telling him that he would be rendered deportable if he 

accepted the plea bargain offer.  Defense counsel advised Sakawe that he 

would be deportable because the offer involved a "crime of moral turpitude."  

Findings of Fact on Reference Hearing, 4.  But given Sakawe's entrance into the 

United States as a refugee when he was six years old in 1996 and the fact that 

he had since obtained "lawful permanent resident" status deemed to have 

                                           4 

No. 66499-9-I/5

begun in 1996, the trial court found the relevant question was whether he 

would be sentenced to less than a year in confinement.  Finding of Fact on 

Reference Hearing, 2-3.  Each of the two plea bargain offers allowed for a potential 

sentence of less than 12 months.  Sakawe's standard range for the charges for 

which he was tried was 22 to 29 months.  Under these circumstances, defense 

counsel's incorrect statement of the law prevented Sakawe from making an 

informed judgment whether or not to plead guilty.

       Sakawe has also established that he was prejudiced by his attorney's 

deficient performance.  The trial court here specifically found that Sakawe 

would have pleaded guilty if he had been properly advised regarding 

immigration matters.  Under McCready, the proper remedy is reversal and 

remand for retrial.

       Granted and remanded for retrial.

                                 For the court:

                                           5