Oral Argument July 23, 2014.
Appeal from King County Superior Court. Docket No: 03-1-06783-7. Judge signing: Honorable Helen L Halpert. Judgment or order under review. Date filed: 11/05/2004.
Neil M. Fox (of Law Office of Neil Fox PLLC ), for petitioner.
Daniel T. Satterberg, Prosecuting Attorney, and Dennis J. McCurdy, Deputy, for respondent.
James E. Lobsenz on behalf of Washington Association of Criminal Defense Lawyers, amicus curiae.
Authored by Ann Schindler. Concurring: Stephen J. Dwyer, Michael S. Spearman.
[184 Wn.App. 609] ¶ 1 In February 2011, Mahendra Sami Chetty filed a motion under RAP 18.8(b) to extend the time to file a direct appeal of his 2004 conviction for possession of cocaine with intent to deliver. Chetty asserted he was denied effective assistance when his trial attorney failed to advise him of the adverse immigration consequences of the conviction and the advantages and disadvantages of filing an appeal. We remanded to King County Superior Court for an evidentiary hearing to determine whether Chetty's trial counsel provided ineffective assistance and whether Chetty waived his right to appeal. After conducting an evidentiary hearing, the court entered detailed findings. On the record before us, we conclude Chetty met the burden of showing ineffective assistance of counsel and the State failed to demonstrate that Chetty knowingly, intelligently, and voluntarily waived his state [184 Wn.App. 610] constitutional right to appeal. We therefore grant his motion to extend the time to file a notice of appeal.
¶ 2 The procedural history is set forth in detail in State v. Chetty, 167 Wn.App. 432, 272 P.3d 918 (2012). In 2003, the State
charged Chetty with possession of cocaine with intent to deliver in violation of former RCW 69.50.401(a)(1)(i) (1998). After Chetty retained attorney Peter Connick in March 2004, Connick negotiated a cooperation agreement with the Seattle Police Department that provided for eventual dismissal of the pending charge. The parties later disputed whether Chetty complied with the terms of the agreement. The trial court found that Chetty breached the terms of the cooperation agreement and found Chetty guilty as charged of possession of cocaine with intent to deliver. Chetty did not appeal the 2004 conviction.
¶ 3 After the United States Department of Homeland Security instituted removal proceedings, Chetty filed a motion in February 2011 to extend the time to file a notice of appeal. Chetty asserted that Connick did not advise him of the adverse immigration consequences of his conviction or discuss the advantages and disadvantages of an appeal. Chetty claimed that because Connick did not provide effective assistance of counsel, he did not waive his right to appeal the 2004 conviction.
¶ 4 We remanded to superior court for an evidentiary hearing to determine whether trial counsel's performance was constitutionally deficient and whether Chetty knowingly, intelligently, and voluntarily waived his right to appeal. Chetty, 167 Wn.App. at 444-45. Criminal defense attorneys Howard Phillips, David Gehrke, and Peter Connick; Chetty; Chetty's sister; and Jay Stansell, an expert immigration attorney, testified at the evidentiary hearing. The testimony at the hearing and the findings of fact support the following summary.
[184 Wn.App. 611] ¶ 5 Following his arrest in May 2003, Chetty retained Howard Phillips. Phillips contacted the Seattle Police Department to suggest a cooperation agreement. Phillips' practice at the time was not to provide any information about immigration consequences unless he first consulted with an immigration expert about the client's case. Phillips could recall few specific details about his representation of Chetty. But he did not believe that he ever discussed immigration issues with Chetty. Phillips did not routinely discuss appellate rights ...