                                                                                                        03/20/2020
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                       January 14, 2020 Session

                   GEORGE OVIASOJIE v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Davidson County
                    No. SCE263556     Angelita Blackshear Dalton, Judge
                          ___________________________________

                                 No. M2019-00761-CCA-R3-PC
                             ___________________________________


The petitioner, George Oviasojie, appeals the denial of his post-conviction petition,
arguing the post-conviction court erred in finding he received effective assistance of
counsel prior to and during his guilty plea hearing. Upon our review of the record,
arguments of the parties, and pertinent authorities, we affirm the denial of the petition.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J. ROSS DYER, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR., and
CAMILLE R. MCMULLEN, JJ., joined.

Manuel B. Russ (on appeal) and William J. Conway (at hearing), Nashville, Tennessee,
for the appellant, George Oviasojie.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior
Assistant Attorney General; Glenn Funk, District Attorney General; and Amy M. Hunter,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                                  OPINION

                                     Facts and Procedural History

       On February 1, 2018, the petitioner pled guilty to theft of property valued at
$1,000 or less.1 He was sentenced to eleven months and twenty-nine days of supervised
probation which was to run consecutive to the petitioner’s prior sentence for a vandalism
conviction. The petitioner later filed a timely pro se petition for post-conviction relief.2
Following the appointment of counsel, the petitioner filed an amended petition for post-
       1
           The transcript of the guilty plea hearing is not included in the record.
       2
           The petitioner’s pro se petition for post-conviction relief is not included in the record.
conviction relief, arguing trial counsel was ineffective for failing to advise the petitioner
of the immigration consequences of his guilty plea. An evidentiary hearing was held on
March 1, 2019, during which trial counsel, the petitioner, and Mary Kathryn Harcombe
testified.

       Trial counsel, who had been licensed for “a little over a year” at the time of the
post-conviction hearing, testified he was initially retained to represent the petitioner on a
petition to reinstate his probation regarding a prior vandalism conviction. However, after
meeting with the petitioner in jail, trial counsel learned the petitioner had recently been
charged with theft and agreed to negotiate a plea deal on his behalf.

        Regarding his knowledge and experience with immigration law, trial counsel
testified he had taken one continuing legal education course that covered the intersection
between criminal and immigration law. However, trial counsel was unable to discuss the
differences between immigration classifications or how a criminal conviction may affect
each classification. Trial counsel was aware that theft is considered a crime of moral
turpitude and would, therefore, have a greater impact on immigration status than a
probation violation.

       When discussing the petitioner’s immigration status, the petitioner informed trial
counsel that he was eligible to become a naturalized citizen in five years, and trial
counsel advised the petitioner that any guilty plea “would very likely have an impact on
his immigration status.” However, trial counsel admitted he did not perform any research
to determine the precise impact the petitioner’s guilty plea would have on his
immigration status because the petitioner did not ask any questions about trial counsel’s
advice. If the petitioner had any questions or concerns about the immigration
consequences of a guilty plea, trial counsel “probably would have passed the case.”

       On cross-examination, trial counsel testified the petitioner’s primary concern was
getting out of jail. Therefore, trial counsel filed a petition to reinstate the petitioner’s
probation for the vandalism charge and negotiated a plea deal for the theft charge that did
not include jail time. Prior to the guilty plea hearing, trial counsel and the petitioner
reviewed the plea petition. However, the petitioner did not ask trial counsel any
questions about the plea offer or how it would affect his immigration status. Trial
counsel testified he did not have any problems communicating with the petitioner in
person but agreed it was hard to understand the petitioner’s accent over the phone.

      Mary Kathryn Harcombe, an immigration specialist with the Metropolitan
Nashville and Davidson County Public Defender’s Office, testified as an expert in
immigration consequences in criminal defense. Because of the complexity of the
immigration field, Ms. Harcombe opined it is difficult for criminal defense attorneys to
                                            -2-
accurately and adequately advise their clients of immigration consequences. When asked
how a misdemeanor conviction would affect the petitioner’s status as a green card holder,
Ms. Harcombe testified that one conviction of a crime of moral turpitude would make the
petitioner “inadmissible” while two convictions would make him deportable. Ms.
Harcombe explained that a person who is “inadmissible” is unable to legally re-enter the
United States or become a naturalized citizen. Ms. Harcombe testified that, although the
law is unclear whether vandalism is a crime of moral turpitude, the law is “clear cut” that
theft is a crime of moral turpitude. In this case, Ms. Harcombe opined it was not
sufficient for trial counsel to merely advise the petitioner that his guilty plea would likely
have immigration consequences. Instead, trial counsel should have advised the petitioner
what consequences he would face, especially regarding the theft conviction.

       On cross-examination, Ms. Harcombe testified trial counsel’s advice that a guilty
plea could hurt his immigration status was “tantamount to saying [he didn’t] know what
[the guilty plea] could do.” While Ms. Harcombe acknowledged that a theft conviction
did not automatically make the petitioner deportable, she testified it did make him
“inadmissible.”

       The petitioner testified that he came to the United States from Nigeria in 2009 on a
student visa, eventually receiving a green card. While on probation for a vandalism
conviction, the petitioner failed to attend mandatory classes and was charged with theft,
violating his probation. Trial counsel was retained to assist the petitioner in reinstating
his probation and negotiating a plea deal for the theft charge. The petitioner testified trial
counsel did not ask the petitioner about his immigration status, and, as an immigrant, any
mention of possible consequences to his immigration status would have “result[ed in]
goosebumps.” Instead, the petitioner testified trial counsel spoke “less than 50 or 60
words” regarding the theft charge and assured the petitioner that the State’s offer was the
best deal available. Although the petitioner acknowledged signing the plea petition, he
denied reviewing it with trial counsel and only signed it because he wanted to get out of
jail. Two weeks after his release, the petitioner began to research the consequences of his
guilty plea and discovered he was no longer eligible to become a naturalized citizen or
legally re-enter the United States. On cross-examination, the petitioner agreed that he
chose to plead guilty because he wanted to get out of jail.

       After its review of the evidence presented, the post-conviction court denied relief,
and this timely appeal followed.

                                          Analysis

       On appeal, the petitioner argues the post-conviction court erred in denying his
petition, alleging trial counsel was ineffective for failing to adequately advise the
                                            -3-
petitioner of the immigration consequences of his guilty plea. The State contends the
petitioner has failed to meet his burden. Upon our review, we agree with the State.

        The petitioner bears the burden of proving his post-conviction factual allegations
by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). The findings of fact
established at a post-conviction evidentiary hearing are conclusive on appeal unless the
evidence preponderates against them. Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.
1996). This Court will not reweigh or reevaluate evidence of purely factual issues.
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate review of a trial
court’s application of the law to the facts is de novo, with no presumption of correctness.
See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of
counsel presents mixed questions of fact and law. Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001). Thus, this Court reviews the petitioner’s post-conviction allegations de
novo, affording a presumption of correctness only to the post-conviction court’s findings
of fact. Id.; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner must show
both that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687
(1984); State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that the
standard for determining ineffective assistance of counsel applied in federal cases is also
applied in Tennessee). The Strickland standard is a two-prong test:

              First, the defendant must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious that
       counsel was not functioning as the “counsel” guaranteed the defendant by
       the Sixth Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the
Strickland test must be satisfied. Id. Thus, courts are not required to even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” Id.;
see also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that “a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

       A petitioner proves a deficiency by showing “counsel’s acts or omissions were so
serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688;
                                           -4-
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the
Strickland test is satisfied when the petitioner shows there is a reasonable probability, or
“a probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. However, “[b]ecause of the difficulties inherent in making
the evaluation, a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)).

       A guilty plea must be knowingly, voluntarily, and intelligently entered in order to
be valid. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010). The court must determine
whether the guilty plea evidences a voluntary and informed decision to pursue a guilty
plea in light of the alternative options available to the defendant. Id. In the context of a
post-conviction challenge to a guilty plea, both prongs of the Strickland test must be met.
Garcia v. State, 425 S.W.3d 248, 256 (Tenn. 2013). Thus, to successfully challenge his
guilty plea, the petitioner must show counsel’s performance was deficient, and he “‘must
show 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.’” Calvert v. State, 342
S.W.3d 477, 486 (Tenn. 2011) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985));
Garcia, 425 at 257 (Tenn. 2013).

        Citing Padilla v. Kentucky, 559 U.S. 356 (2010), the petitioner argues trial counsel
had a duty to properly inform him of the immigration consequences of his plea
agreement. The Padilla Court recognized that “[t]he weight of prevailing professional
norms supports the view that counsel must advise her client regarding the risk of
deportation.” Id. at 367. Because the terms of the immigration statute at issue in Padilla
were “succinct, clear, and explicit in defining the removal consequence for Padilla’s
conviction,” the Court held Padilla’s counsel was deficient because she “could have
easily determined that his plea would make him eligible for deportation simply from
reading the text of the statute.” Id. at 368. However, because “[i]mmigration law can be
complex,” the Court concluded that “[w]hen the law is not succinct and straightforward .
. ., a criminal defense attorney need do no more than advise a noncitizen client that
pending criminal charges may carry a risk of adverse immigration consequences.” Id. at
369. Because Padilla resolved only whether trial counsel has an obligation to advise of
the deportation consequences of a guilty plea, the Court did not address whether trial
counsel also has an obligation to advise a client whether a guilty plea will have an effect
on the client’s future eligibility to legally immigrate to the United States. See Garcia,
425 S.W.3d at 260 (“Padilla neither mandates, nor even suggests, that defense counsel in
a state criminal trial must be able to advise her client of the effect a guilty plea is likely to
                                              -5-
have upon the client’s future eligibility to immigrate legally to the United States.”).
Furthermore, because “[l]egal immigration depends upon many factors, which may
change as a result of Congressional action, executive agency policy choices, or court
decisions,” the Tennessee Supreme Court declined to extend Padilla to require trial
counsel to advise a client regarding a guilty plea’s effect on the client’s future ability to
immigrate legally to the United States. Id.

       In the case before us, trial counsel testified he and the petitioner discussed the
petitioner’s immigration status, and trial counsel informed the petitioner that a guilty plea
“would very likely have an impact on his immigration status.” However, trial counsel
acknowledged he did not research the issue to determine the exact consequences the
petitioner would face. Trial counsel asked the petitioner if he had any questions
regarding this advice, but the petitioner did not inquire further. If the petitioner had
requested more information regarding the consequences to his immigration status, trial
counsel “probably would have passed the case.” Trial counsel also testified the
petitioner’s predominant consideration was getting out of jail as quickly as possible. The
petitioner disputed much of trial counsel’s testimony, insisting trial counsel never asked
the petitioner about his immigration status. Instead, two weeks after his release, the
petitioner researched the immigration consequences he faced for pleading guilty to theft
and discovered he is now inadmissible. However, the petitioner agreed that he chose to
plead guilty because he wanted to get out of jail. Ms. Harcombe testified that, while the
law is unclear whether vandalism is a crime of moral turpitude, the law is clear that theft
is considered a crime of moral turpitude. Therefore, Ms. Harcombe opined it was
deficient for trial counsel to merely inform the petitioner that his guilty plea would
“likely” have immigration consequences.

        The post-conviction court implicitly accredited trial counsel’s testimony and
concluded trial counsel’s performance was not deficient based on “the plea petition,
which bears the [p]etitioner’s signature, [trial counsel’s] testimony that he discussed the
[p]etitioner’s immigration status with him, and the [p]etitioner’s primary concern of
getting out of jail.” Our review of the record mirrors the findings of the post-conviction
court. Although Ms. Harcombe testified the law is clear that theft is a crime of moral
turpitude, she was unable to definitively state whether vandalism was also a crime of
moral turpitude. Therefore, the law was not “succinct, clear, and explicit” as to whether
the petitioner’s guilty plea for theft would result in deportation. Instead, it appears the
petitioner’s theft conviction merely made him “inadmissible.” While the petitioner’s
guilty plea may have resulted in a negative change to his immigration status, Padilla does
not require trial counsel to advise the petitioner what effect a guilty plea would have on
his future ability to immigrate to the United States. See Garcia, 425 S.W.3d at 260.
Accordingly, we conclude the petitioner has failed to establish trial counsel was deficient

                                            -6-
in not fully advising the petitioner of the consequences to his immigration status as a
result of his guilty plea.

       Furthermore, the petitioner did not testify that he would have rejected the plea
offer if he was aware of the ramifications to his immigration status. Instead, the
petitioner testified that he agreed to plead guilty because he wanted to get out of jail.
Therefore, the petitioner cannot establish prejudice and is not entitled to relief. See
Calvert, 342 S.W.3d at 486.

                                      Conclusion

      Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction is affirmed.




                                            ____________________________________
                                            J. ROSS DYER, JUDGE




                                          -7-
