Opinion issued July 18 , 2013.

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 12
- 00272
- CR

——————————— KODIGBO ODELUGO , Appellant V. THE STATE OF TEXAS , Appellee

On Appeal from the 248th District Court Harris County, Texas Trial Court Ca se No. 1249648

MEMORANDUM OPINION Appellant, Kodigbo Odelugo, without an agreed punishment recommendation from the State, pleaded guilty to the offense of engaging in2 organized criminal activity, namely aggregate theft of over $200,000 , 1 and the trial court assessed his punishment at confinement for fifteen years. In three issues, appellant contends that he received ineffective assistance of counsel and the trial court erred in denying his motion s to withdraw his guilty plea and for a ne w trial. We affirm

. Background On February 8, 2010, appellant pleaded guilty to the offense of engaging in organized criminal activity and stipulated to conspiring with Chukwuma Odelogu, Aghaegbuna Odelugo, and Samuel Ezezue, to appropriate over $200,000 owned by Sharon Thompson, Mark Porter, the Texas Health and Human Services Commission, and the Centers for Medicare and Medicaid Services. The trial court presented appellant with written admonishments, which were signed by appellant and stated, among ot her things, “If you are not a United States citizen, pleading guilty or no contest to a criminal charge may result in removal, denial of naturalization or exclusion from admission into this country.” D uring the plea proceedings , and before the trial court accepted appellant’s plea, appellant’s counsel at the time, Don Becker, told the trial court, “He is competent. We went through everything with a fine

- tooth comb and he’s pleading guilty freely and voluntarily and because he is guilty.”

1 See T EX
. P ENAL C ODE A NN
. § 71.02(a)(1) (Vernon 2011).3 Before the tri al court concluded the subsequently

- held sentencing hearing , appellant, a non

- citizen, on October 11, 2011, filed a motion to withdraw his guilty plea, arguing that his guilty plea was involuntary because his counsel did not apprise him of the mandatory im migration consequences of his plea. 2 At the December 9, 2011 hearing on his motion to withdraw his plea , appellant testified that he was a Nigerian citizen and permanent resident of the United States. His permanent residency was set to be renewed in 2013, and he had applied for American citiz enship as well. Appellant asserted that w hen he pleaded guilty in February 2010, he had not consulted with Becker regarding the immigration consequences of his plea at any time. Approximately two months prior to filing his motion to withdraw his plea, appellant, on the advice of a prosecutor, consulted with an immigration attorney, who informed him that deportation would be a consequence of pleading guilty. Appellant then asserted that he wished to withdraw his plea so that he could take his case to trial. Becker testified that he did not specifically remember speaking with appellant about the immigration consequences of his plea. However, Becker explained that in his initial interview with clients “obviously born in a foreign country,” he would “always discuss immigration consequences.” Specifically, Becker would always inform such defendants that, if they pleaded guilty, they

2 See Padilla v. Kentucky , 559 U.S. 356, 130 S. Ct. 1473 (2010).4 would be deported or removed from the country involuntarily. Becker noted that th is had been his practice since 1996 , he was prepared to take appellant’s case to trial, but appellant chose to plead guilty. Emmanuel Nwuli , an immigration a ttorney , testified that he had consulted with a ppellant and his brother, A g haeg buna Odelugo

. Nwul i explained that he discussed “immigration matters” with both appellant and A g haegbuna after they had been indicted

. A ppellant retained Nwuli for representation during the naturalization process , and Nwuli filed appellant’s naturalization papers , but he did not “specifically” have a discussion with appellant about the consequences of the pending case on appellant’s immigration status. Nwuli did inform appellant, before he entered his plea, that the United States Immigration and Naturalization Service “w ould not make a determination until they know the outcome of this case pending.” Nwuli explained that he did not discuss the immigration consequences of appellant’s guilty plea because he did not represent app ellant “on criminal
matters.” After hearing the evidence, t he trial court denied appellant’s motion to withdraw his plea, stating, You know, if the Supreme Court wanted to make a checklist for the immigration lawyer to fill out before somebody can plead guilty in the criminal court, we’ve gotten to an unreasonable circumstance. I think it’s

— common sense says by the time you go to an immigration lawyer, first lawyer already told you you’re going to be deported and5 then you go to an immigration lawyer, I don’t know what more we could ask for. So . . . I’m denying your motion to withdraw your plea. On March 5, 2012, t he trial court later concluded the sentencing hearing and assessed appellant’s punishment at confinement for fifteen years. Appellant , on March 26, 2012, filed a new

- trial motion, ar guing that he was denied effective assistance of counsel during his plea proceedings because Becker did not “investigate the underlying facts before advising [ him ] to plead guilty” and there existed “exculpatory evidence which counsel could have found if h e had investigated the facts of the case.” Appellant also asserted that Becker did not provide him with “competent legal advice regarding the potential immigration consequences” of his plea, but rather provided him only a “boiler plate” admonishment. Appellant attached to his new

- trial motion his affidavit, in which he testified that Becker did not tell him that his plea of guilty would result in his deportation. Appellant was unable to contact Becker for three months before Becker appeared

on appella nt’s trial date . A lthough appellant requested a trial continuance so that he could discuss the case with Becker, the trial court denied his request. Becker then told appellant he had ten minutes to decide whether to plea d guilty or go to trial

. A nd appellant explained that he decided to plea d guilty after Becker informed him that the trial court would defer adjudication of appellant’s guilt and place him on community supervision

.6 Appellant further testified that he first heard ab out the immigration
consequences of his plea when a prosecutor approached his post

- plea attorney, Vivian King, and asked whether appellant had been informed of the immigration consequences of his plea. When he responded that he had not, King filed a motion to withdraw his p lea, and appellant consulted with an immigration attorney who informed him that his plea “would definitely result” in deportation. Appellant noted that although Nwuli represented him in his naturalization proceedings, Nwuli did not discuss with him the im migration consequences of his guilty plea. Appellant also attached to his new

- trial motion an affidavit from Nwuli, who testified that he “did not discuss any other immigration issues and consequences relative to felony cases to the best of my knowledge w ith [appellant]. ” At the May 14, 2012 hearing on appellant’s new

- trial motion, King asserted that appellant had not been advised of the immigration consequence s of his guilty plea until after he had entered it and she recommended that he speak with an
im migration attorney. King “reurg[ed] the fact [ that appellant] did not know the consequences of the plea” and asked that he be granted a new trial

. T he trial court then denied appellant’s motion. Standard of Review Generally, we review a trial court’s de nial of a motion for a new trial under an abuse of discretion standard. Salazar v. State , 38 S.W.3d 141, 148 (Tex. Crim.7 App. 2001)

. However , “where the trial court ‘is not in an appreciably better position’ than the appellate court to decide the issue, the appellate court may independently determine the issue while affording deference to the trial court’s findings on subs idiary factual questions.” Villareal v. State , 935 S.W.2d 134, 139 (Tex. Crim. App. 1996) (McCormick, P.J., concurring) (citing Miller v. Fenton , 474 U.S. 104, 110

– 17, 106 S. Ct. 445, 450

– 53 (1985) ); see Kober v. State , 988 S.W.2d 230, 233 (Tex. Crim. App. 1999)

. We note that trial court s remain in the best position to “evaluate the credibility” of witnesses and resolve conflicts in evidence

. See Kober , 988 S.W.2d at 233

. And a trial court may choose to believe or disbelieve all or any part of the witnesses’ testimony. Id. at 233

. In determining whether a guilty plea is v oluntary, we consider the record as a whole. F imberg v. State , 922 S.W.2d 205, 207 (Tex. App.

— Hou ston [1st Dist.] 1996, pet. ref’ d) (citing Williams v. State , 522 S.W.2d 483, 485 (Tex. Crim. App. 1975) ). A record that indicates that a trial court properly admonished a defendant presents a prima facie showing that the guilty plea was made voluntarily and knowingly. See Martinez v. State , 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) ; Arreola v. State, 207 S.W.3d 387, 391 (Tex. App.

— Houston [1st Dist.] 2006, no pet.)

. When the record presents a prima facie showing that the plea was entered voluntar il y and knowin g ly , the burden shifts to the defendant to show that he entered the plea without understanding the consequences of the plea

. Edwards v.8 State , 921 S.W.2d 477, 479 (Tex. App.

— Houston [1st Dist.] 1996, no pet.)

. An accused who attests when he enters his plea of guilty that he understands the nature of his plea and that it is voluntary has a heavy burden on appeal to show that his plea was involuntary. Id. However, a guilty plea is not voluntary if made as a result of ineffective assistance of counsel because it does not represent an informed choice. Ex parte Burns , 601 S.W.2d 370, 372 (Tex. Crim. A pp. 1980)

. “Before deciding whether to plead guilty, a defendant is entitled to the effective assistance of competent counsel.” Padilla v. Kentucky , 559 U.S. 356, 130
S. Ct. 1473 , 1480

– 81 (2010)

. Courts have “long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.” Id. at 1486; see also Ex parte Reedy, 282 S.W.3d 492, 500 (Tex. Crim. App. 2009) (“There is no doubt that an accused has a Sixth Amendment right to the effective assistance of counsel in guilty plea proceedings.” ). To provide effective assistance during plea proceedings, “counsel has a duty to render his best judgment to his client about what plea to enter, and that judgment should be informed by an adequate and independent investigation of the facts of the case.” Ex parte Reedy , 282 S.W.3d at 500

. “Specifically, when a person challenges the validity of a plea entered upon the advice of counsel, contending that his counsel was ineffective, the voluntariness of the plea depends on (1) whether counsel’ s advice was within the range of competence demanded of9 attorneys in criminal cases and if not, (2) whether there is a reasonable pr obabil ity that, but for counsel’ s errors, he would not have pleaded guilty.” Ex parte Harrington , 310 S.W.3d 452, 458 (Tex. Crim. App. 2010) (quotations omitted). Plea counsel’ s performance is deficient if counsel fails to advise a noncitizen defendant about deportation consequences that are “truly clear.” 3 See Padilla , 130
S. Ct. at 1483; Aguilar v. State , 375 S.W.3d 518, 524 (Tex. App.

— Houston [14th Dist.] 2012), vacated on other grounds , 393 S.W.3d 787 (Tex. Crim. App. 2013)

. Thus, plea counsel is deficient if counsel merely mentions the possibility of deportation when the relevant immigration provisions are presumptively mandatory. S ee Aguilar , 375 S.W.3d at 524 (citing United States v. Bonilla , 637 F.3d 980, 984 (9th Cir. 2011) ). However, when the law is not clear “a criminal defense attorney need do no more than advise a noncitizen client that pending

3 We note that, since the United States Supreme Court’s ruling in Padilla , the Court has held that its holding does not extend retroactively to “defendants whose convictions became final prior to Padilla .” See Chaidez v. United State s , ___ U.S. ___, 133 S. Ct. 1103, 1 1 13 (2013). The Texas Court of Criminal Appeals has since a dopted the Supreme Court’s ruling in Chaidez

. Ex Parte De Los Reyes , 392 S.W.3d 675, 679 (Tex. Crim. App. 2013). Here, although appellant initially pleaded guilty on February 8, 2010, almost two months before the Supreme Court’s ruling in Padilla , the t rial court had not concluded its sentencing of appellant. Appellant filed a motion to withdraw his plea on October 11, 2011, the trial court sentenced appellant on March 5, 2012, and appellant filed a new

- trial motion on March 26, 2012. And the State has not argued that Padilla would not apply to appellant’s conviction. Thus, we proceed to address the merits of appellant’s Padilla contentions.10 criminal charges may carry a risk of adverse immigration consequences.” Padilla , 130 S. Ct. at 1483. Voluntariness of Ple a In his first issue, appellant argues that the trial court erred in denying his motion to withdraw his guilty plea because it “was not voluntarily and intelligently entered” and “his plea attorney failed to apprise him about the mandatory immigration con sequences of his plea.” In his second and third issues, appellant argues that the trial court erred in denying his new

- trial motion because plea counsel did not provide effective assistance and failed to adequately apprise him of the immigration consequen ces of his plea. 4 A defendant may file a motion to withdraw his guilty plea, asserting that his plea was not freely and voluntarily entered or he was not aware of the consequences of his plea. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 26.13 (b) (Vernon Supp. 2012) . A defendant may withdraw his guilty plea for any reason as a matter

4 A motion to withdraw a guilty plea is functionally indistinguishable from a motion for new trial. Dusenber ry v. State , 915 S.W.2d 947, 949 (Tex. App.

— Houston 1996, pet. ref’d) (citing State v. Evans , 843 S.W.2d 576, 578 (Tex. Crim. App. 1992)). Although appellant challenges the trial court’s denial of his motion to withdraw his guilty plea and his new

- trial m otion in separate issues, all his issues concern whether he entered his plea voluntarily and whether his plea counsel was effective in adequately informing him of the immigration consequences of his plea. Accordingly, we address his issues together. See id. ; see also Scott v. State , No. 01

- 01

- 00726

- CR, 2002 WL 31122165, at * 3 (Tex. App.

— Houston [1st Dist.] Sept. 26, 2002, pet. ref’d) (not designated for publication) (“We review appellant’s motion for new trial as a motion to withdraw a guilty plea, from w hich it is indistinguishable.”).11 of right until judgment has been pronounced or the case has been “ taken under advisement. ” Jackson v. State , 590 S.W.2d 514, 515 (Tex. Crim. App. 1979)

. Howe ver, when a defendant decides to withdraw his guilty plea after the trial judge takes the case under advisement or pronounces judgment, the withdrawal of such plea is within the sound discretion of the trial court. State v. Ellis , 976 S.W.2d 789, 792 (Tex. App.

— Houston [1st Dist.] 1998, no pet.)

. A case is under advisement after each side has concluded its case

- in

- chief, the defendant has entered a plea of guilty, the plea has been accepted, and the necessary admonishments have be en given, even though the issue of punishment remains.
See Thompson v. State , 852 S.W.2d 268, 270 (Tex. App.

— Dallas 1993, no pet.)

. Here, appellant pleaded guilty to committing the offense of engaging in organized criminal activity, namely, aggregate theft of over $200,000, which has a sentencing range of confinement for five years to life

. See T EX
. P ENAL C ODE A NN
. § 31.03(e)(7) (Vernon 2011) ( naming theft of over $200 ,000 as first

- degree fel ony); id. § 12.32(a) (Vernon 2009 ) ( setting punishment range for first

- degree felonies). The United States Immigration and Nationality Act provides that any alien who is convicted of an aggravated felony at any time after admission is deportable. 8 U.S.C . § 1227(a)(2)(A)(iii). A conviction for “aggravated felony” includes a conviction for theft for which the term of imprisonment is at least one
year. Id. § 1101(a)(43)(G). Because the minimum sentence that appellant could12 have received was confinement f or five years, he was convicted of an “aggravated felony” rendering him deportable under the Immigration and Nationality Act. As in Padilla , the deportation consequences of appellant’s conviction were “succinct, clear, and explicit” and trial counsel was required to inform him of those
consequences. See Padilla , 130 S. Ct. at 1483. At the hearing on appellant’s motion to withdraw his plea, appellant testified that neither his plea counsel, Becker, n or any other lawyer, consulted with him regarding the immigration consequences of his guilty plea. Instead, appellant did not learn of the immigration consequences of his plea until after he had entered it and spoke n with an immigration lawyer at the suggestion of a prosecutor. And B ecker admitted that on the day that appellant entered his plea, he “probably” did not consult with appel lant about the immigration consequences “beyond the admonishments” that appellant signed along with his plea

. These admonishments generally stated that a

non citizen’s guilty plea “may result in removal, denial of naturalization or exclusion from admission into this country.” Such general admonishments have been found to be insufficient to discharge plea counsel’s duty. See Padilla , 130 S.
Ct. at 1482

– 8 4, 1486; Enyong v. State , 369 S.W.3d 593, 602 (Tex. App.

— H ouston [1st Dist.] 2012), vacated on other grounds , 397 S.W.3d 208 (Tex. Crim. App. 2013); see also United States v. Bonilla , 637 F.3d 980, 984 (9th Cir. 2011) (“A criminal defendant who faces almos t certain deportation is entitled to know more13 than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty.”) (emphasis in original). However, although Becker testified that he did not specifically recall informing appellant of the immigration consequences of his plea, he explained that, beginning in 1996, his “common procedure” upon first meeting with a client was to “always discuss immigration consequences.” He routinely told his nonc itizen clients that if they entered guilty plea s , then they would be deported or removed from the country involuntarily. Becker gave this information to “all of [his] potential clients [he] might believe have that citizenship issue,” and appellant would h ave “fall[en] under those parameters.” The trial court, as fact

- finder, could have reasonably believe d Becker’s testimony that he “always” discussed the immigration consequences of a plea with non

- citizen clients like appellant and disbelieve d appellant’s testimony that Becker did not so inform him

. See, e.g., Charles v. State , 146 S.W.3d 204, 213 (“[T]he trial judge could have reasonably disbelieved some or all of the affiants’ statements, found them inconclusive, contradictory, internally inconsistent, or ambiguous.”); Fimberg v. State , 922 S.W.2d 205, 208 (Tex. App.

— Houston [1st Dist.] 1996, pet. ref’d) (holding that trial court did not err in denying new

- trial motion because trial court could have believed counsel’s testimony over defendant’s contradic tory testimony). And the14 trial court impliedly found that it believed Becker’s testimony and did not believe appellant’s testimony , stating, I think it’s

— common sense says by the time you go to an immigration lawyer, first lawyer already told you you’re going to be deported and then you go to an immigration lawyer, I don’t know what more we could ask for. So . . . I’m denying your motion to withdraw your plea. (E mphasis added). In support of his argument, appellant relies on Enyong and Ex Parte Tanklevskaya , 361 S.W.3d 86 (Tex. App.

— Houston [1st Dist.] 2011) , vacated , 393 S.W.3d 787 (Tex. Crim. App. 2013) . However, in both Enyong and Tanklevskaya , the defendants’ plea counsel testified that if they consulted with their clients, they would have o nly informed them of the general immigration consequences found in the admonishments that their clients “may” be subject to deportation. Enyong , 369 S.W.3d at 599 ; Tanklevskaya , 361 S.W.3d at 96. Here, however, the trial court could have reasonably belie ved Becker’s testimony that , as a matter of routine, he would have informed appellant that if he entered a plea of guilty, he would in fact be deported or removed from the country involuntarily. In his affidavit testimony , attached to his new

- trial motion , appellant stated further that he could not actually communicate with Becker for three months and he felt pressured into pleading guilty . However, appellant argues that the trial court erred in denying his new

- trial motion only on the ground that he ente red his plea involuntarily because he was not informed of the immigration consequences15 of his plea. Moreover , as noted above, the trial court was entitled to disbel ieve appellant’s affidavit testimony

. See, e.g., Charles , 146 S.W.3d at 213. Accordingly , we hold that the trial court did not abuse its discretion in denying either appellant’s motion to withdraw his guilty plea or his new

- trial motion. We overrule appellant’s first, second, and third issues. C onclusion We affirm the judgment of the trial court.

Terry Jennings Justice Panel consists of Justices Jennings, Brown, and Huddle. Do not publish. T EX
. R. A PP
. P. 47.2( b).