[Copyrighted Material Omitted]
Charles Justin Sheeley (argued), Fargo, ND, for petitioner and appellant.
Tristan Jones Van de Streek (appeared), Assistant State's Attorney, and Benjamin J. Sand (argued), Fargo, ND, for respondent and appellee.
[¶ 1] Sulejman Moni Bahtiraj appeals from the district court's order denying his application for post-conviction relief from an April 2011 conviction entered upon his guilty plea to a burglary charge. We hold the district court did not err in denying Bahtiraj's motion for post-conviction relief. Bahtiraj failed to prove the prejudice necessary to satisfy the second prong of the two-prong Strickland test. We affirm.
[¶ 2] In March 2011, Bahtiraj was charged with burglary, a class C felony, for stealing two cash registers from the Peking restaurant in West Fargo. Bahtiraj was also charged with two misdemeanors for the offenses of false report and issuing a check without an account. Counsel was appointed to represent Bahtiraj. Bahtiraj and his counsel met on two occasions,
March 10, 2011, and April 7, 2011, immediately before the preliminary hearing. Bahtiraj is a citizen of Bosnia, and his counsel was aware of that status.
[¶ 3] On April 7, 2011, Bahtiraj waived the preliminary hearing and his right to trial and pled guilty to the burglary charge. He also pled guilty to the two misdemeanors. Before Bahtiraj entered these guilty pleas, the court explained that the maximum sentence for the burglary charge was five years in prison, a $5,000 fine, or both. The court also explained the maximum sentence for the misdemeanors was one year in jail, a $2,000 fine, or both. As to the burglary charge, the State recommended the court sentence Bahtiraj to one year and one day imprisonment due to Bahtiraj's past failures to appear and abscond. Bahtiraj's counsel told the court a sentence of one year and one day would not be conducive to Bahtiraj's situation. Bahtiraj's counsel indicated that Bahtiraj " came clean with the burglary" and gave a complete and accurate statement regarding the burglary when law enforcement questioned him. The court sentenced him to one year and one day for the burglary charge.
[¶ 4] On December 28, 2011, Bahtiraj received a notice to appear regarding removal proceedings under 8 U.S.C. § 1229a. The notice to appear states Bahtiraj is subject to removal based on 8 U.S.C. § 1227(a)(2)(A)(ii), in that he had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal conduct, and based on 8 U.S.C. § 1227(a)(2)(A)(iii), in that he had been convicted of an aggravated felony.
[¶ 5] On July 25, 2012, Bahtiraj petitioned for post-conviction relief. On July 31, 2012, the State responded. On January 4, 2013, the district court heard the petition for post-conviction relief. At that hearing, Bahtiraj's counsel and Bahtiraj's testimony regarding immigration discussions were consistent. Bahtiraj's counsel advised Bahtiraj that a sentence of one year and one day would subject him to possible deportation. His counsel did not advise Bahtiraj that a sentence of one year and one day would result in an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) or that an aggravated felony would result in " automatic and mandatory deportation." Bahtiraj's counsel did not explain to Bahtiraj the distinction between crimes of moral turpitude and aggravated felonies.
[¶ 6] Bahtiraj's counsel testified that Bahtiraj wanted " to attempt to secure a concurrent sentence with the sentence that he was presently serving" and that Bahtiraj was not concerned when the possibility of deportation was discussed. At the time the guilty plea was entered, Bahtiraj testified he was in the process of serving his one-day-under-one-year sentence for a different burglary conviction entered on March 16, 2011. Further, he understood " concurrent sentence" to mean he would get time served and he would not receive a sentence of one year and one day. Bahtiraj claims he was not worried about the possibility of deportation based on this incorrect understanding of " concurrent." Bahtiraj also testified he was sentenced to " 120 some days" for another burglary conviction entered on July 28, 2011. Bahtiraj testified that he applied for waivers but was denied due to the fact waivers are not available for aggravated felonies and he would have been eligible for a waiver but for the aggravated felony. The record did not contain a copy of the denial of waivers or the order to ...