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THE COURT OF APPEALS OF THE STATE OF ALASKA
DZEVID LIMANI, )
) Court of Appeals No. A-4684
Appellant, ) Trial Court No. 3AN-S90-2306CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1369 - September 16, 1994]
Appellee. )
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Rene J.
Gonzalez, Judge.
Appearances: Rex Lamont Butler,
Anchorage, for Appellant. Cynthia M. Hora,
Assistant Attorney General, Office of Special
Prosecu- tions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
In 1990, Dzevid Limani, a Yugoslavian citizen, was
charged with one count of misconduct involving a controlled
substance in the third degree for selling cocaine to an
undercover officer in Anchorage. Limani entered into an
agreement with the state that called for him to plead no contest
to the charge; in return, Limani was to receive a suspended
imposition of sentence conditioned on his completion of thirty-
six months of probation and his performance of eighty-five hours
of community work. The agreement was reduced to writing.
In September of 1990, Limani appeared before Acting
Superior Court Judge David Stewart to change his plea in
accordance with the plea bargain. After reviewing the plea
agreement, Judge Stewart indicated that he would follow it, and
Limani entered a no contest plea. Judge Stewart accepted the
plea after personally addressing Limani in accordance with the
requirements of Alaska Criminal Rule 11.
After the court had accepted Limani's no contest plea,
Limani's counsel for the first time mentioned that a conviction
might expose Limani to deportation; to forestall this
possibility, Limani's counsel requested Judge Stewart to
recommend against deportation. Judge Stewart granted the
request:
[DEFENSE COUNSEL]: Your Honor,
there is one aspect which Mr. Limani
(indiscernible) to address. It is my
understanding that he is currently in the
country pending citizenship, and this is his
first significant contact other than a couple
traffic aspects here in the United States.
And it would -- immigration would find it
favorable or taken into consideration if you
believe it would not -- his conduct is not
one that would be egregious enough to have
him exported for, and therefore, we're asking
that in -- for you to find, in your opinion,
on the basis of what you understand about the
case that he should not be extradited or
deported back to Yugoslavia.
THE COURT: Well, if he complies
with his probationary conditions and
continues to maintain his conduct pursuant to
that I don't see that it's necessary to have
him deported.
Judge Stewart sentenced Limani in accordance with the terms of
the plea agreement in all other respects.
Two years later, in February 1992, a federal
immigration judge ordered Limani deported due to his conviction.
Limani then moved to withdraw his no contest plea, claiming,
first, that the plea was involuntary because Judge Stewart had
failed to inform him that a no contest plea would result in his
deportation and, second, that he had been denied one of the
promised concessions of the plea agreement -- that he would not
be deported if he successfully completed his probationary term.
Limani's motion to withdraw his plea was assigned to Superior
Court Judge Rene J. Gonzalez (Judge Stewart having resigned from
the bench in the interim). Judge Gonzalez denied the motion.
Limani appeals.
Limani's first contention is that his no contest plea
was involuntary because Judge Stewart failed to inform Limani
that the plea would result in deportation. Limani acknowledges
that this precise issue has already been addressed in Tafoya v.
State, 500 P.2d 247, 250 (Alaska 1972), which holds that the
voluntariness of a plea is not vitiated by the court's failure to
apprise the defendant of a collateral consequence of conviction
such as the possibility of deportation. Limani nevertheless
claims that Tafoya is no longer good law. He argues that, under
current federal law, 8 U.S.C. 1251,1 deportation of a foreign
national upon conviction of a drug offense is no longer
discretionary but is instead mandatory. Limani maintains that,
for this reason, deportation is not a collateral consequence of a
conviction but is rather a direct consequence -- a consequence
that should therefore have been explained to him before his plea
of no contest was accepted.
Limani is wrong on three grounds. First, although
Judge Stewart did not affirmatively advise Limani of the
possibility of deportation before accepting his plea, the record
unmistakably establishes Limani's awareness of the possibility:
his own attorney broached the issue by requesting and obtaining a
recommendation against deportation. Under the circumstances, the
court's failure to affirmatively advise Limani that deportation
was a possible consequence of his conviction plainly had no
actual effect on the voluntariness of Limani's plea.
Second, Limani's argument equates a "collateral
consequence" of conviction with a result that is merely possible,
and a "direct result" with one that is inevitable. It appears,
however, that the distinction between a direct and collateral
consequence of a conviction does not turn on whether the
consequence is inevitable or a mere possibility. Rather, a
collateral consequence is one originating outside of the trial
court. Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir.
1976)(citing Michel v. United States, 507 F.2d 461, 465 (2d Cir.
1974). Federal courts addressing the issue since enactment of
current 8 U.S.C. 1251 have thus continued to characterize
deportation as a collateral, not direct, consequence of a
criminal conviction. See, e.g., United States v. Banda, 1 F.3d
354, 356 (5th Cir. 1993); Varela v. Kaiser, 976 F.2d 1357, 1358
(10th Cir. 1992); United States v. Del Rosario, 902 F.2d 55, 58-
59 (D.C. Cir. 1990).
Third, Limani is in any event wrong in his assertion
that deportation is now an automatic consequence of any drug
conviction. The federal courts have uniformly declined to
interpret 8 U.S.C. 1251 as mandatory and have instead held that
the statute leaves deportation to the discretion of the United
States Attorney General. Downs-Morgan v. United States, 765 F.2d
1534, 1538 (11th Cir. 1985); United States v. Nagaro-Garbin, 653
F.Supp. 586, 590-91 (E.D. Mich. 1987), aff'd, 831 F.2d 296 (6th
Cir. 1987).
Limani separately argues that, as an implicit part of
the plea agreement, he was in effect promised immunity from
deportation. According to Limani, under the terms of the plea
agreement, his suspended imposition of sentence should have
resulted in a "total lack of any conviction of record and that
such lack of a criminal conviction eliminated the need for
deportation."
The sentencing record flatly contradicts this
contention. The written plea agreement that led to Limani's
conviction makes no promise against deportation and fails even to
mention the possibility of the recommendation that Limani
eventually requested and received. Neither the transcript of the
change of plea hearing nor the trial court's written order
suspending the imposition of Limani's sentence contains any
suggestion that immigration concessions were contemplated by the
plea agreement. Indeed, Limani's counsel's after-the-fact
request for a recommendation against deportation stands as
convincing evidence that the original plea agreement included no
terms relating to deportation.
In summary, neither the trial court's failure to advise
Limani of the consequences of deportation nor Limani's claim of a
broken promise against deportation amounted to a ground for plea
withdrawal in this case. The trial court's order denying
Limani's motion to withdraw his plea is AFFIRMED.
_______________________________
1. 8 U.S.C.A. 1251 (West Supp. 1994) provides, in
relevant part:
(a) Classes of deportable aliens
Any alien (including an alien
crewman) in the United States shall, upon
order of the Attorney General, be deported if
the alien is within one or more of the
following classes of deportable aliens:
. . . .
(2) Criminal offenses
. . . .
(B) Controlled substances
(i) Conviction
Any alien who at any time
after entry has been convicted of a
violation of (or a conspiracy or attempt
to violate) any law or regulation of a
State, the United States, or a foreign
country relating to a controlled
substance (as defined in section 802 of
Title 21), other than a single offense
involving possession for one's own use
of 30 grams or less of marijuana, is
deportable.
