                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                          May 5, 2020

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 53384-7-II

                               Respondent.

        vs.                                                  UNPUBLISHED OPINION

 OLEG VLADIMIROVIC FABYANCHUK,
 aka IGOR V. FABYANCHUK,

                               Petitioner.



       MAXA, J. – Oleg Vladimirovic Fabyanchuk appeals the trial court’s denial of his motion

for a continuance to allow Fabyanchuk’s immigration attorney to obtain his immigration file

from the United States Citizenship and Immigration Service (USCIS). This file was needed

before Fabyanchuk’s immigration attorney could advise him on the immigration consequences of

Fabyanchuk’s pending charges.

       Fabyanchuk argues, and the State concedes, that the trial court erred in denying his

motion for a continuance. We agree. Padilla v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473,

176 L. Ed. 2d 284 (2010) and RCW 10.40.200(2) require defense counsel to ensure that

immigration advice is provided to a noncitizen criminal defendant regarding the potential

consequences of a conviction. If circumstances beyond the control of defense counsel and the

defendant interfere with the defendant’s ability to receive meaningful immigration advice, it is an

abuse of discretion to deny a motion for a continuance until such advice can be provided.
No. 53384-7-II


Accordingly, we reverse the trial court’s denial of the motion for a continuance and remand for

the trial court to reset the trial date.

                                              FACTS

        Fabyanchuk is not a United States citizen. He is a legal permanent resident of the United

States. He came to the United States from Ukraine.

        In October 2017, Fabyanchuk was charged with four counts of first degree possession of

depictions of minors engaged in sexually explicit conduct, first degree dealing in depictions of a

minor engaged in sexually explicit conduct, and first degree internet viewing of depictions of a

minor engaged in sexually explicit conduct.

        In November 2018, defense counsel and Fabyanchuk retained private immigration

counsel to research and provide advice on the specific immigration consequences of the pending

charges. Immigration counsel requested Fabyanchuk’s immigration file from USCIS and

informed defense counsel that USCIS could take about 100 days to respond. Fabyanchuk filed

an unopposed motion for a continuance. The trial court granted the motion and continued the

trial to April 22, 2019. The commencement date for trial was reset at April 1.

        In December 2018, the federal government shut down for a period of 35 days. In early

April, immigration counsel still had not received Fabyanchuk’s immigration file. Fabyanchuk

filed another motion for a continuance based on the inability to obtain the immigration file. In a

supporting declaration, immigration counsel stated that once he received the immigration file, he

could begin an analysis of whether the pending charges had any immigration consequences.

Fabyanchuk requested a continuance of 45 to 60 days and agreed to waive any speedy trial

rights. The State did not oppose this motion.




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No. 53384-7-II


       The trial court denied the motion for a continuance, stating, “I’m not in a position to

continue the trial at this time.” Report of Proceedings (RP) at 16. The court was concerned that

the contents of the immigration file would not make any difference regarding the immigration

consequences of a plea or a conviction. The court stated:

       I’ll need to have some indication from the immigration attorney that you’re
       consulting with as to what possible difference it would make to have his file.
       ...

       So I need something from your immigration lawyer that says these are possibilities
       – that it might make some real difference. In exercising my discretion I have to
       know that I’m not just engaging in something (inaudible). If no matter what he
       does he runs the risk of immigration consequences we don’t need to delay the trial
       for that.

RP at 16, 18. The court stated that Fabyanchuk could renew his motion for a continuance based

on an update from the immigration lawyer.

       Fabyanchuk filed a motion for discretionary review in this court of the trial court’s denial

of his continuance motion. This court stayed the trial court proceedings pending resolution of

the motion. A commissioner of this court acknowledged that the case was now moot because the

immigration file had been obtained but granted review because the case involved a matter of

continuing and substantial public interest. Ruling Granting Review, State v. Fabyanchuk, No.

53384-7-II, at 4-5 (Wash. Ct. App. June 25, 2019). Based on the commissioner’s ruling, we

address this issue on the merits.

                                           ANALYSIS

       Fabyanchuk argues that the trial court’s denial of his unopposed motion for a continuance

was an abuse of discretion because it denied him effective assistance of counsel. Specifically,

the court’s denial of a continuance prevented him from obtaining meaningful immigration advice




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No. 53384-7-II


after immigration counsel obtained and reviewed his immigration file. The State concedes that

the trial court’s denial of the motion constituted an abuse of discretion. We agree.1

A.      MOTION FOR CONTINUANCE

        CrR 3.3(f)(2) states that a trial court may continue the trial date “when such continuance

is required in the administration of justice” and the defendant will not be prejudiced. In general,

the decision to grant or deny a trial continuance rests within the sound discretion of the trial

court. State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). We review a trial court’s

decision to grant or deny a continuance for an abuse of discretion. Id.

        However, the trial court’s “[f]ailure to grant a continuance . . . may deprive the defendant

of a fair trial and due process of the law, within the circumstances of a particular case.” State v.

Purdom, 106 Wn.2d 745, 748, 725 P.2d 622 (1986). To establish an abuse of discretion for

denial of a continuance, an appellant must show that he or she has been prejudiced. State v.

Deskins, 180 Wn.2d 68, 82, 322 P.3d 780 (2014).

B.      EFFECTIVE ASSISTANCE OF COUNSEL AND IMMIGRATION ADVICE

        The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution guarantee criminal defendants the right to effective assistance of

counsel. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). This guarantee applies at

the plea bargaining stage so the defendant can make an informed choice regarding whether to

plead guilty or go to trial. Id. at 464.

        The constitutional guarantee of effective assistance of counsel requires that a noncitizen

criminal defendant be advised of the potential immigration consequences of a guilty plea.




1
 Fabyanchuk also argues that the trial court violated his right to a fair trial and due process.
Because we reverse on other grounds, we do not address those claims.


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No. 53384-7-II


Padilla, 559 U.S. at 374; see also State v. Sandoval, 171 Wn.2d 163, 170, 249 P.3d 1015 (2011).

Where immigration law is clear that the charged offense is deportable, defense counsel must

correctly advise the defendant that pleading guilty would result in deportation. Padilla, 559 U.S.

at 368-69. Where the law is not straightforward, defense counsel “need do no more than advise a

noncitizen client that pending criminal charges may carry a risk of adverse immigration

consequences.” Id. at 369. Both incorrect advice and the failure to give any advice can

constitute ineffective assistance of counsel. Id. at 370-71.

       RCW 10.40.200, enacted long before Padilla, also provides that noncitizen criminal

defendants must be advised of immigration consequences before entering a guilty plea. RCW

10.40.200(2) states:

       Prior to acceptance of a plea of guilty to any offense punishable as a crime under
       state law, . . . the court shall determine that the defendant has been advised of the
       following potential consequences of conviction for a defendant who is not a
       citizen of the United States: Deportation, exclusion from admission to the United
       States, or denial of naturalization pursuant to the laws of the United States.

A defendant who does not receive this advice is entitled to withdraw his guilty plea. RCW

10.40.200(2).

       The Supreme Court in In re Personal Restraint of Yung-Cheng Tsai emphasized that

“RCW 10.40.200’s plain language gives noncitizen defendants the unequivocal right to advice

regarding immigration consequences and necessarily imposes a correlative duty on defense

counsel to ensure that advice is provided.” 183 Wn.2d 91, 101, 351 P.3d 138 (2015). The

failure to ensure that this advice is provided constitutes ineffective assistance of counsel. See id.

at 102-03, 107.

C.     NECESSARY CONTINUANCE TO PROTECT RIGHTS

       Here, Fabyanchuk is not a United States citizen; he is a legal permanent resident.

Defense counsel had a duty under Padilla, RCW 10.40.200, and Fabyanchuk’s constitutional


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No. 53384-7-II


right to effective assistance of counsel to ensure that Fabyanchuk was advised regarding the

immigration consequences of a conviction. To fulfill this duty, defense counsel and Fabyanchuk

retained an immigration attorney to properly advise Fabyanchuk.

        Immigration counsel made it clear that he could not begin his analysis of whether the

pending charges had any immigration consequences until he received Fabyanchuk’s immigration

file. The problem, as defense counsel explained to the court, was that they did not know

Fabyanchuk’s immigration status without seeing the immigration file. Counsel noted that there

are different ways a noncitizen can be admitted into the United States and the different ways may

have different restrictions. The prosecutor also noted that based on the nature of Fabyanchuk’s

status, his immigration status may or may not be affected by convictions of a certain nature.

        The trial court was skeptical about the suggestion that felony convictions might not have

immigration consequences. However, the key here is that RCW 10.40.200(2) “gives noncitizen

defendants the unequivocal right to advice regarding immigration consequences.” Tsai, 183

Wn.2d at 101. And defense counsel had a duty to ensure that such advice was provided to

Fabyanchuk. Id. The record was clear in this case that defense counsel could not fulfill its duty

to provide effective assistance of counsel until the immigration file could be obtained.

        There may be circumstances where obtaining a defendant’s immigration file will not be

required for defense counsel to ensure that a defendant receives proper advice regarding

immigration consequences. But when it is clear that the immigration file is needed to provide

the required advice and procuring the file is delayed through no fault of defense counsel or the

defendant, defense counsel must be allowed the opportunity to obtain that file before the

defendant is forced to enter a plea or go to trial.




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No. 53384-7-II


        Under the facts of this case, the trial court’s order denying the motion for a continuance

was an abuse of discretion. Without a continuance to allow him to obtain the immigration file,

immigration counsel could not advise Fabyanchuk on the specific immigration consequences of

the pending charges. Without immigration counsel’s research and advice, defense counsel could

not discharge his own duties to his client.

        The trial court’s order also prejudiced Fabyanchuk. Without the benefit of his

immigration attorney’s advice, Fabyanchuk would not be able to make an informed or strategic

decision about entering into plea bargain negotiations or going to trial. We hold that the trial

court abused its discretion in denying Fabyanchuk’s motion for a continuance.

                                          CONCLUSION

        We reverse the trial court’s denial of the motion for a continuance and remand for the

trial court to reset the trial date.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      MAXA, J.


 We concur:



 SUTTON, A.C.J.




 GLASGOW, J.




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