RENDERED: MAY 21, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0047-MR

COMMONWEALTH OF KENTUCKY APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE SUSAN SCHULTZ GIBSON, JUDGE

ACTION NO. 10-CR-001468 

CIANNEH FAHNBULLAH APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: The Commonwealth of Kentucky brings this appeal from a 

December 20, 2019, order of the Jefferson Circuit Court setting aside the guilty 

plea of Cianneh Fahnbullah. We affirm.

On May 13, 2010, Fahnbullah was indicted by a Jefferson County 

Grand Jury upon one count of criminal possession of a forged instrument in the 

second degree (Kentucky Revised Statutes (KRS) 516.060) and two counts of false 
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statements/representations/failure to report change in order to receive public 

assistance benefits (KRS 194A.505). Fahnbullah, who was born in Monrovia, 

Liberia, came to the United States as a young adult. When indicted upon these

charges, she had lived in the United States for approximately nineteen years. 

Ultimately, Fahnbullah and the Commonwealth reached a pretrial 

diversion agreement. Under the pretrial diversion agreement, Fahnbullah was to 

serve a one-year diversionary period, with a possible extension of up to five years,

until restitution of $4,083.91 was fully paid. Upon completion of the diversionary 

period, all indicted charges would be dismissed. Pursuant to the pretrial diversion 

agreement, Fahnbullah entered a guilty plea to the indicted charges on May 8, 

2012. During the plea colloquy, the circuit court inquired if Fahnbullah had any 

further questions. Fahnbullah briefly consulted with her attorney, and her attorney 

had the following peculiar response:

Judge, well, I guess, a few things if I may place on the 

record. Uh, Judge, Ms. Fahnbullah has informed that she 

is a U.S. citizen, uh, refugee status from Liberia, so I 

talked to her about potential immigration consequences. 

I’m obviously not an immigration attorney, don’t practice 

law in that field, but I advised her there’s certainly 

possibilities for immigration consequences, deportation. 

She informed me that is not something she needs to be 

concerned about. She is confident about that.

May 8, 2012, Trial Video at 11:51:44 a.m.
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By a May 9, 2012, order, Fahnbullah was granted pretrial diversion

and ordered to pay restitution of $4,083.91 within five years. See Kentucky Rules 

of Criminal Procedure (RCr) 8.04. By early 2017, Fahnbullah had paid the 

restitution and otherwise fully complied with the pretrial diversion agreement.

On June 5, 2019, Fahnbullah filed a motion to set aside her guilty plea 

pursuant to RCr 11.42 and Kentucky Rules of Civil Procedure (CR) 60.02. The 

basis for Fahnbullah’s motion was that she was not properly informed of the 

immigration consequences of the guilty plea. More particularly, Fahnbullah 

asserted that she and her trial counsel both believed that if Fahnbullah complied 

with the conditions of the pretrial diversion agreement, the indicted charges would 

be dismissed and her immigration status would be unaffected. However, such was 

not the case. After successfully completing her pretrial diversion, Fahnbullah

learned she could not seek United States citizenship and even faced deportation 

due to the guilty plea she entered under the pretrial diversion agreement. Even 

though the diverted charges were deemed dismissed under Kentucky law, federal 

law viewed the diverted charges differently. Pursuant to federal law, the guilty 

plea to the diverted charges prevented her from gaining citizenship and subjected 

her to possible deportation. 
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By order entered December 20, 2019, the circuit court granted 

Fahnbullah’s motion to set aside her guilty plea under CR 60.02(f). In so doing, 

the circuit court reasoned:

[I]t would ordinarily be sufficient that counsel inform a 

client that the guilty plea could have some immigration 

consequences, including deportation, which is what 

[Fahnbullah’s] counsel did. However, in the very 

particular facts of this case, it appears that such advise 

[sic] was given under the belief that [Fahnbullah] was a 

United States citizen. Counsel asserts such to the Court, 

and counsel’s belief would be bolstered by 

[Fahnbullah’s] statements that her status was not 

something to be concerned about, and that she was 

confident about that, statements that counsel apparently 

adopted as true. In hindsight, the fact that [Fahnbullah] 

apparently informed counsel that she is a United States 

citizen with refugee status should have been a red flag to 

everyone, including the Court, because one is either a 

citizen, or in the country legally as a refugee, but not 

both. At a minimum, there should have been further 

inquiry as to what her status was believed to be, which 

might have obviated the need for this current motion. In 

light of the very general caveat to [Fahnbullah], coupled 

with what appears to be an erroneous assumption by both 

[Fahnbullah] and her counsel as to her status, the Court 

finds that there was ineffective assistance of counsel, and 

that the setting aside of the guilty plea is warranted 

pursuant to CR 60.02(f).

December 20, 2019, Order Setting Aside Guilty Plea at 3. This appeal by the 

Commonwealth follows.

Our standard of review upon a circuit court’s order granting or 

denying a motion pursuant to CR 60.02 is for an abuse of discretion. See White v, 
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Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). An abuse of discretion occurs 

if the “decision was arbitrary, unreasonable, unfair, or unsupported by sound legal 

principles.” Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004) (quoting 

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). 

The Commonwealth contends that CR 60.02 is not the proper avenue 

of relief for Fahnbullah as she basically claims trial counsel was ineffective; thus, 

her sole remedy is under RCr 11.42. 

It is true that CR 60.02 is only available to raise claims that cannot be 

brought under RCr 11.42. Sanders v. Commonwealth, 339 S.W.3d 427, 437 (Ky. 

2011); Gross v. Commonwealth, 648 S.W.2d 853, 855-57 (Ky. 1983). 

Nonetheless, to be entitled to relief under RCr 11.42, the movant must be in the 

custody of the Commonwealth either under a sentence of imprisonment or under a 

probated, paroled, or conditionally discharged sentence. RCr 11.42;

1 Parrish v. 

Commonwealth, 283 S.W.3d 675, 677 (Ky. 2009) (quoting Sipple v. 

Commonwealth, 384 S.W.2d 332, 332 (Ky. 1964)).

 

1 Kentucky Rules of Criminal Procedure 11.42 provides, in relevant part:

(1) A prisoner in custody under sentence or a defendant on 

probation, parole or conditional discharge who claims a right to be 

released on the ground that the sentence is subject to collateral 

attack may at any time proceed directly by motion in the court that 

imposed the sentence to vacate, set aside or correct it.
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In this case, Fahnbullah was not in the custody of the Commonwealth 

under a sentence of imprisonment or under a probated, paroled, or conditionally 

discharged sentence. In fact, Fahnbullah was never sentenced upon the indicted 

charges. Rather, Fahnbullah’s charges were diverted by order entered May 9, 

2012. Our Supreme Court has recognized that “pretrial diversion is not a 

sentencing alternative;” rather, pretrial diversion “is an interruption of prosecution 

prior to final disposition.” Commonwealth v. Derringer, 386 S.W.3d 123, 130 

(Ky. 2012) (quoting Flynt v. Commonwealth, 105 S.W.3d 415, 424 (Ky. 2003)). 

Accordingly, Fahnbullah is not entitled to seek RCr 11.42 relief under the plain 

terms of RCr 11.42. In this situation, Fahnbullah’s only remedy was CR 60.02. 

We, thus, reject the Commonwealth’s contention that Fahnbullah should have filed

a motion pursuant to RCr 11.42 alleging ineffective assistance of trial counsel.

The Commonwealth alternatively contends that even if Fahnbullah’s 

claims were properly asserted under CR 60.02, her trial counsel rendered effective 

assistance pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010). 

In this case, the circuit court determined that Fahnbullah was entitled 

to relief under CR 60.02(f). The circuit court carefully considered trial counsel’s 

actions and Fahnbullah’s belief as to the immigration ramifications of the guilty 

plea. In the final analysis, the circuit court was swayed by the confusion about 

Fahnbullah’s alleged status as both a United States citizen and a refugee, which the 
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circuit court correctly acknowledged was a “red flag” to all participants in the 

proceeding, including the court. Although Fahnbullah and trial counsel shared this 

mistaken belief, it is axiomatic that trial counsel possessed a duty to be informed as 

to the facts of the case and to give the proper legal advice to his client concerning 

the guilty plea. And, not only did trial counsel fail to give correct legal advice, he 

also failed to properly assess the facts of Fahnbullah’s case. Considering the 

equities and the unique facts herein, we are unable to conclude that the circuit court 

abused its discretion by granting Fahnbullah’s motion to set aside her guilty plea

under CR 60.02(f). In short, we agree with the circuit court that this case presents 

reasons of an extraordinary nature justifying relief per CR 60.02(f).

The Commonwealth also argues that Fahnbullah’s CR 60.02 motion

was not timely filed. For the following reasons, we disagree. 

CR 60.02 provides, in relevant part:

On motion a court may, upon such terms as are just, 

relieve a party or his legal representative from its final 

judgment, order, or proceeding upon the following 

grounds: . . . (f) any other reason of an extraordinary 

nature justifying relief. The motion shall be made within 

a reasonable time, and on grounds (a), (b), and (c) not 

more than one year after the judgment, order, or 

proceeding was entered or taken. A motion under this 

rule does not affect the finality of a judgment or suspend 

its operation.

CR 60.02 clearly provides that a motion brought pursuant to subsection (f) shall be 

made “within a reasonable time” after the judgment or order is entered. CR 
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60.02(f); Djoric v. Commonwealth, 487 S.W.3d 908, 910 (Ky. App. 2016). It is 

well-established that “[w]hat constitutes a reasonable time in which to move to 

vacate a judgment under CR 60.02 is a matter that addresses itself to the discretion 

of the trial court.” Djoric, 487 S.W.3d at 910 (quoting Gross v. Commonwealth,

648 S.W.2d 853, 858 (Ky. 1983)). And, in exercising that discretion, the trial court 

must consider the particular facts and circumstances of each case. See Gross, 648 

S.W.2d at 858. 

In the case sub judice, Fahnbullah was placed on pretrial diversion 

and ordered to pay restitution on May 9, 2012. Fahnbullah ultimately paid the 

restitution and successfully completed the diversion in early 2017. After 

completing the diversion, Fahnbullah apparently contacted an immigration lawyer 

to assist her in gaining United States citizenship. The immigration attorney 

informed Fahnbullah that her guilty plea pursuant to the pretrial diversion 

agreement prevented her from pursuing citizenship and placed her at risk for 

deportation. 

On June 5, 2019, Fahnbullah filed a motion to set aside the guilty 

plea. Approximately two years passed between Fahnbullah completing her pretrial 

diversion and the filing of the CR 60.02(f) motion. However, the circuit court 

concluded that Fahnbullah filed the CR 60.02 motion within a reasonable time of 

learning of the adverse consequences of her guilty plea on her immigration status 
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in the United States. Again, considering the unique facts and circumstances of this 

case, we cannot say the circuit court’s decision was arbitrary, unreasonable, unfair 

or unsupported by legal principles. See Djoric, 487 S.W.3d at 910. In sum, we 

conclude that the circuit court did not abuse its discretion by determining that the 

CR 60.02(f) motion was filed within a reasonable time. 

In sum, we are of the opinion that the circuit court properly set aside 

Fahnbullah’s guilty plea under CR 60.02.

For the foregoing reasons, the order of the Jefferson Circuit Court is 

affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT:

Daniel Cameron

Attorney General of Kentucky

Frankfort, Kentucky

Jeanne Anderson

Special Assistant Attorney General

Louisville, Kentucky

BRIEF FOR APPELLEE:

Theodore S. Shouse

Louisville, Kentucky