                Filed 11/20/19 by Clerk of Supreme Court

             I N T H E S U P R E M E C O U R T STATE
                      OF NORTH DAKOTA

                                2019 ND 278

State of North Dakota,                                    Plaintiff and Appellee
      v.
George Ludoru Job,                                     Defendant and Appellant

                                No. 20190116

Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Steven E. McCullough, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Justice.

Reid Brady, Fargo, N.D., for plaintiff and appellee.

Samuel Gereszek, Grand Forks, N.D., for defendant and appellant.
                                 State v. Job
                                 No. 20190116

Jensen, Justice.



[¶1] George Job appeals from the denial of his motion to withdraw his 2008
guilty plea to the charge of aggravated assault. Job argues the district court
abused its discretion by determining a manifest injustice did not result from a
2010 resentencing following the revocation of his probation. He contends the
resentencing was illegal and transformed his original non-deportable offense
into a deportable offense. We affirm.

                                        I

[¶2] In 2008, Job plead guilty to aggravated assault, a class C felony, in
violation of N.D.C.C. § 12.1-17-02. During Job’s change of plea hearing, the
district court informed Job of the potential deportation consequences of his plea
of guilty to the aggravated assault charge. After accepting Job’s plea of guilty,
the court sentenced Job to one year of incarceration, all of which was
suspended, and imposed a period of five years of supervised probation.

[¶3] In 2010, the State petitioned for the revocation of Job’s probation. During
the probation revocation hearing, the district court informed Job of the
potential deportation consequences of admitting to the probation violations.
Job admitted the allegations. The court revoked Job’s probation and
resentenced him to 18 months of incarceration.

[¶4] In 2018, Job moved to withdraw his 2008 guilty plea. After a hearing on
Job’s motion, the court denied Job’s motion. The district court found that Job
had failed to prove the withdrawal of his guilty plea was necessary to correct a
manifest injustice.

                                       II

[¶5] Rule 11 of the North Dakota Rules of Criminal Procedure governs a
defendant’s motion to withdraw a plea of guilty. Our review of a district court’s


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denial of a motion to withdraw a plea of guilty is under the abuse of discretion
standard of review. State v. Peterson, 2019 ND 140, ¶ 20, 927 N.W.2d 74. “An
abuse of discretion under N.D.R.Crim.P. 11(d) occurs when the court’s legal
discretion is not exercised in the interests of justice.” Id. “The trial court must
exercise its sound discretion in determining whether a ‘manifest injustice’ or a
‘fair and just reason’ to withdraw a guilty plea exists.” State v. Bates, 2007 ND
15, ¶ 6, 726 N.W.2d 595.

[¶6] A motion to withdraw a plea of guilty subsequent to the plea and
sentencing requires the defendant to prove “the withdrawal is necessary to
correct a manifest injustice.” N.D.R.Crim.P. 11(d)(2). Job contends the
revocation of his sentence and imposition of an eighteen month period of
incarceration transformed his original suspended sentence from a non-
deportable sentence into a deportable sentence. He contends the
transformation compels a finding the withdrawal of his guilty plea is necessary
to correct a manifest injustice.

                                        III

[¶7] Job’s argument depends on the immigration consequences under federal
law arising from convictions of crimes of violence. He asserts that his 2008
sentence did not trigger deportation consequences under federal law, but the
subsequent 2010 illegal resentencing following the revocation of his probation
did trigger deportation consequences under federal law. He contends the 2010
resentencing was illegal because it imposed a sentence greater than the
original suspended sentence, and if the suspended period of incarceration from
the original sentence had been imposed following the revocation of his
probation, there would not have been deportation consequences. His
contention the 2010 sentence is illegal relates to the application of N.D.C.C. §
12.1-32-07(6) and our prior cases allowing resentencing following revocation of
probation to include a period of incarceration greater or lower than a prior
suspended sentence.

[¶8] To prevail in his argument, it would be necessary to conclude that Job’s
2008 sentence did not result in a deportable offense. Under 8 U.S.C. § l
101(a)(43)(F), a noncitizen is deportable for committing the following

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aggravated felony: “a crime of violence . . . for which the term of imprisonment
[is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). Job misinterprets the
minimum imprisonment threshold for triggering deportability under the
aggravated felony provision in two respects. First, he incorrectly replaces the
provision “at least one year” in 8 U.S.C. § 1101(a)(43)(F) with “more than one
year.” Second, he incorrectly excludes the period of suspended incarceration
from the determination of whether the 2008 sentence was for a crime of
violence for which the term of imprisonment is at least one year.

[¶9] First, Job describes the original sentence as including imprisonment of
“that magical year or less, [which] made this a non-deportable plea
agreement.” Job’s original sentence included one year of suspended
incarceration. On the face of the statute, the aggravated felony standard was
met because “one year” qualifies as “at least one year.” Federal courts have
also interpreted the phrase to include one year sentences. E.g., Bayudan v.
Ashcroft, 298 F.3d 799, 800 (9th Cir. 2002). We conclude the phrase “at least
one year” includes sentences of one year.

[¶10] Second, Job argues the suspended portion of his original sentence is not
included in the determination of whether the 2008 sentence was for a crime of
violence for which the term of imprisonment is at least one year. He relies on
the inclusion of a reference to counting periods of suspended incarceration in
the applicable federal law prior to 1996 and the absence of the reference
subsequent to 1996. Job did not provide any citation to authorities supporting
his interpretation. Contrary federal authority exists, however, including the
Second Circuit’s holding that “it is immaterial whether the sentence is
suspended.” Dawkins v. Holder, 762 F.3d 247, 250-51 (citing United States v.
Pacheco, 225 F.3d 148, 153-54). In Pacheco, the Second Circuit noted 8 U.S.C.
§ 1101(a)(48)(B) provides that “[a]ny reference to a term of imprisonment or a
sentence with respect to an offense is deemed to include the period of
incarceration or confinement ordered by a court of law regardless of any
suspension of the imposition or execution of that imprisonment or sentence in
whole or in part.” 225 F.3d at 153-54. We conclude the period of incarceration
does include a suspended period of incarceration.



                                       3
[¶11] Job’s argument relies upon the 2008 sentence not triggering federal
deportation consequences. The one year sentence satisfied the requirement of
being at least one year in length and the suspended periods of incarceration
are included in determining the length of the sentence. The court also informed
Job during both the original change of plea hearing and the probation
revocation hearing that he may be subject to deportation. Under these
circumstances, the district court did not abuse its discretion in finding the 2010
resentencing greater than the original term of suspended sentence was not a
manifest injustice.

                                       IV

[¶12] Job also appears to argue he was not made aware of the potential
deportation consequences during the 2010 probation revocation hearing. In
2010, the United States Supreme Court determined a defendant is entitled to
be informed of the potential deportation consequences arising from a plea of
guilty. Padilla v. Kentucky, 559 U.S. 356, 374 (2010). This Court has recognized
the application of the Padilla decision to guilty pleas to State offenses. Giwa v.
State, 2017 ND 250, ¶ 9, 902 N.W.2d 734. We have also determined the Padilla
requirement for an attorney to advise a defendant of potential deportation
consequences arising from a plea of guilty does not apply retroactively and does
not apply to pleas entered before 2010. Id.

[¶13] Job concedes the requirement to inform him of potential immigration
consequences did not apply to the 2008 sentencing. To the extent that he
asserts he was not informed of the immigration consequences during the 2010
revocation proceedings, his assertion is contrary to the record. The transcript
from the revocation proceeding clearly provides that Job was advised of the
possibility of deportation, and he acknowledged he had sufficient information
about immigration consequences. Under these circumstances, the district court
did not abuse its discretion in finding there was not a manifest injustice for
any alleged failure to inform Job of the potential deportation consequences
during the probation revocation proceeding.




                                        4
                                       V

[¶14] Job’s motion to the district court was limited to withdrawing his 2008
plea of guilty. His motion to withdraw his plea and the accompanying materials
do not contain any references to N.D.C.C. § 12.1-32-07(6) or our prior cases
allowing probation revocation resentencing to include a period of incarceration
greater or lower than a prior suspended sentence. He did not seek resentencing
under his assertion the 2010 resentencing resulted in an illegal sentence, and
the district court has not had an opportunity to consider whether the 2010
sentence was illegal. Because we conclude the 2008 sentence triggered
potential deportation consequences, and Job did not seek to set aside the 2010
sentence as illegal, we decline to address his argument the 2010 resentencing
resulted in an illegal sentence on this appeal.

                                       VI

[¶15] Job has not properly challenged the legality of his 2010 resentencing
following the revocation of his probation. We conclude the district court did not
abuse its discretion in denying Job’s motion to withdraw his 2008 guilty plea
because he has been subject to a deportable offense since 2008. We affirm.

[¶16] Jon J. Jensen
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte

      I concur in the result.
      Gerald W. VandeWalle, C.J.




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