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

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No. M2019-00761-CCA-R3-PC

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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.

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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 
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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 
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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; 
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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 
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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 
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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 postconviction is affirmed. 

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 J. ROSS DYER, JUDGE