State Of Louisiana v. Ronald Sewell

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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #049
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 11th day of December, 2020 are as follows:
PER CURIAM:
2020-KK-00300 STATE OF LOUISIANA VS. RONALD SEWELL (Parish of Orleans
Criminal)
REVERSED. SEE PER CURIAM.
Retired Judge James H. Boddie, Jr., heard this case as Justice pro tempore,
sitting in the vacant seat for District 4 of the Supreme Court. He is now
appearing as an ad hoc for Justice Jay B. McCallum.
Johnson, C.J., dissents and assigns reasons.
Weimer, J., concurs and assigns reasons.

* Retired Judge James H. Boddie, Jr., heard this case as Justice pro tempore, sitting in the vacant seat
for District 4 of the Supreme Court. He is now appearing as an ad hoc for Justice Jay B. McCallum.
12/11/20
S
UPREME COURT OF LOUISIANA
N
o. 2020-KK-00300
S
TATE OF LOUISIANA
v
ersus
R
ONALD SEWELL
O
N WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FOURTH CIRCUIT, PARISH OF ORLEANS
P
ER CURIAM:*
R
onald Sewell, a 20-year-old Jamaican national, pleaded guilty to two counts of
first degree robbery, La. R.S. 14:64.1, in response to charges of armed robbery, La.
R.S. 14:64; and pleaded guilty as charged to possession of a stolen firearm, La. R.S.
14:69.1. The district court sentenced him to serve three years imprisonment at hard
labor without parole eligibility for each first degree robbery, and one year
imprisonment at hard labor for possession of a stolen firearm, with the sentences to run
concurrently. After he served his sentences, the Government commenced removal
proceedings based on these felony guilty pleas. Mr. Sewell filed an application for
post-conviction relief in which he contended the guilty pleas must be set aside because
counsel rendered ineffective assistance by failing to advise him that they would result
in his removal from the United States.
Mr. Sewell’s former counsel testified at the post-conviction evidentiary hearing.
She stated that she was unaware that her former client was not a United States citizen,
and that she would have advised him of the possibility of removal if she had known his

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status as a noncitizen. Former counsel also testified that Mr. Sewell spoke English
fluently and without an accent, and that he never informed her that he was born outside
of the United States. T he judge who presided over the post-conviction evidentiary
hearing also accepted the guilty pleas. The judge indicated that she recalled the case
and agreed that nothing about Mr. Sewell would have prompted anyone to question
whether he was a United States citizen.
Nonetheless, the district court granted Mr. Sewell’s application for post -
conviction relief and ordered that his guilty pleas be withdrawn. The court noted that
no one had advised defendant of the strong likelihood he would be removed from the
United States based on his guilty pleas, the plea form did not contain any place to
indicate citizenship, and therefore the court found it incumbent upon it to grant the
relief requested. The court of appeal granted writs but denied relief. State v. Sewell, 19-
1062 (La. App. 4 Cir. 2/5/20), 290 So.3d 1227. The court of appeal reasoned:
In Padilla v. Kentucky, 559 U.S. 356, 368–74, 130 S.Ct. 1473, 1483–86,
176 L.Ed.2d 284 (2010), the Supreme Court applied this test to a
complaint about counsel’s performance and found that counsel erred by
failing to accurately advise a non-citizen of the clear and certain
immigration consequences of his conviction, including deportation. The
Court observed in pertinent part, “[t]his is not a hard case in which to find
deficiency: The consequences of Padilla’s plea could easily be
determined from reading the removal statute, his deportation was
presumptively mandatory, and his counsel’s advice was incorrect.” Id.
559 U.S. at 368-69, 130 S.Ct. at 1483.

It is undisputed that counsel for Mr. Sewell did not inquire as to his
citizenship status. Mr. Sewell contended that if he knew pleading guilty
would guarantee his deportation, he would have proceeded to trial. “It is
quintessentially the duty of counsel to provide her client with available
advice about an issue like deportation and the failure to do so ‘clearly
satisfies the first prong of the Strickland analysis.’” Padilla, 559 U.S. at
371, 130 S.Ct. at 1484 (quoting Hill, 474 U.S. at 62, 106 S.Ct. at 372)
(White, J., concurring in judgment)). Given these factors, we do not find
that the trial court erred by granting Mr. Sewell’s application for post-
conviction relief.

Id., 19- 1062, pp. 4–5, 290 So.3d at 1230–31. One member of the appellate panel

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dissented on the basis that the present case is distinguishable from Padilla v. Kentucky, 559 U.S. 356, 368–74, 130 S.Ct. 1473, 1483–86, 176 L.Ed.2d 284 (2010), because the
attorney in Padilla was aware of his client’s status but misadvised him. Sewell, 19-
1062, p. 1, 290 So.3d at 1231 (Dysart, J., dissenting).
We granted the State’s application to determine whether the courts below erred
in their interpretation and application of Padilla under the circumstances presented
here. The United States Supreme Court held in Padilla v. Kentucky, 559 U.S. 356, 374,
130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010), that counsel’s failure to advise a client
of the risk that his or her conviction might result in removal was a cognizable basis for
an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Padilla, 559 U.S. at 374, 130 S.Ct. at
1486 (“[W]e now hold that counsel must inform her client whether his plea carries a
risk of deportation”). The Court acknowledged that although removal proceedings are
civil in nature, they are “nevertheless intimately related to the criminal process[,]” as
the American legal system has “enmeshed criminal convictions and the penalty of
deportation for nearly a century,” and because “recent changes in our immigration law
have made removal nearly an automatic result for a broad class of noncitizen
offenders.” Id., 559 U.S. at 365–66, 130 S.Ct. at 1481. On the latter point, the Court
elaborated:
These changes to our immigration law have dramatically raised the stakes
of a noncitizen’s criminal conviction. The importance of accurate legal
advice for noncitizens accused of crimes has never been more important.
These changes confirm our view that, as a matter of federal law,
deportation is an integral part —indeed, s ometimes the most important
part—of the penalty that may be imposed on noncitizen defendants who
plead guilty to specified crimes.

Id., 559 U.S. at 364, 130 S.Ct. at 1480 (footnote omitted). The Supreme Court declined
to determine whether removal was a direct or collateral consequence of a conviction

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(and, on a larger scale, whether such a distinction is necessary in defining the scope of
reasonable assistance required under Strickland ), finding it “uniquely difficult” to
classify. Id., 559 U.S. at 366, 130 S.Ct. at 1482. Instead, the Court concluded that
“advice regarding deportation is not categorically removed from the ambit of the Sixth
Amendment right to counsel.” Id.
A closer look at Padilla suggests it imposed a number of duties on defense
attorneys, which are subsumed in the obligation to inform a client whether his plea
carries a risk of removal. First, while not specifically addressed by Padilla, counsel
must determine the immigration status of the noncitizen client, which may prove
challenging given the several statuses possible under current law. Second, counsel
must scrutinize the elements of the state crime in light of federal immigration law to
identify the likelihood of removal following a guilty plea.
1 Third, counsel must advise
the client accordingly as to the risk of removal.
However, it is not clear that Padilla imposed a duty on defense counsel to
determine whether his or her client is a noncitizen to begin with, such that failure to
make this determination constitutes per se deficient pe rformance. The majority in
Padilla arguably proceeded on the supposition that a defense attorney is aware that his
or her client is a noncitizen. See Padilla, 559 U.S. at 370, 130 S.Ct. at 1484 (“When
attorneys know that their clients face possible exile from this country and separation
from their families, they should not be encouraged to say nothing at all.”). Concurring
in the Padilla judgment, Justice Alito, with whom Chief Justice Roberts joined, agreed

1 The Supreme Court acknowledged the considerable difficulty a criminal defense attorney may
experience in this endeavor, given that immigration law is particularly complex and a specialty in its
own right. Accordingly, the court provided that in situations in which the possible removal
consequences are “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.” Padilla, 559 U.S. at 369, 130 S.Ct. at 1483. On the other hand, the court held that
“when the deportation consequence is truly clear, as it was in this case, the duty to give correct
advice is equally clear.” Id.

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with the Court’s result, but took issue with the scope of its holding, asserting in
pertinent part:
In concluding that affirmative misadvice regarding the removal
consequences of a criminal conviction may constitute ineffective
assistance, I do not mean to suggest that the Sixth Amendment does no
more t han require defense counsel to avoid misinformation. When a
criminal defense attorney is aware that a client is an alien, the attorney
should advise the client that a criminal conviction may have adverse
consequences under the immigration laws and that the client should
consult an immigration specialist if the client wants advice on that
subject. By putting the client on notice of the danger of removal, such
advice would significantly reduce the chance that the client would plead
guilty under a mistaken premise.

Id., 559 U.S. at 387, 130 S.Ct. at 1494 (emphasis added).
In the present case, it is undisputed that former counsel assumed Mr. Sewell was
a United States citizen and did not make any inquiry on the subject. The applicable
immigration statute, which is the same as that in Padilla, 559 U.S. at 368, 130 S.Ct. at
1483, is “succinct, clear and explicit” in defining the removal consequences for these
felony convictions. Former counsel could have easily determined from the statute’s
text alone that Mr. Sewell’s guilty pleas would result in his eligibility for removal, if
she had known he was not a citizen. Moreover, the record is clear that former counsel
failed to inform Mr. Sewell of the removal consequences of his guilty pleas. Thus, the
parties dispute the extent of counsel’s obligation to make such an inquiry in the first
place. The State contends the court of appeal erred in applying a per se rule in which
failure to inquire into citizenship status is always deficient performance. While the
court of appeal did not announce that it was adopting a per se rule, it appears to have
applied one to the extent tha t it assumed error and then proceeded straight to the
question of prejudice under Strickland, without first addressing whether former
counsel’s performance fell below an objective standard of reasonableness.
We do not believe that the United States Supreme Court in Padilla imposed a

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duty on every defense attorney to investigate every client’s citizenship status in all
instances. Instead, the Supreme Court in Padilla answered the question of whether
advice about removal consequences is within the reach of the Sixth Amendment at all.
See Chaidez v. United States, 568 U.S. 342, 349, 133 S.Ct. 1103, 1108, 185 L.Ed.2d
149 (2013) (“Padilla considered a threshold question: Was advice about deportation
‘categorically removed’ from the scope of the Sixth Amendment right to counsel ”).
The Supreme Court in Padilla concluded: “Strickland applied to Padilla’s claim.”
Chaidez, 568 U.S. at 353, 133 S.Ct. at 1110 (quoti ng Padilla, 559 U.S. at 366, 130
S.Ct. at 1482).
Under Strickland, a defendant must show that counsel’s performance fell below
an objective standard of reasonableness under prevailing professional norms. The
nature of the Strickland test allows it to be applied to many evidentiary scenarios
without “breaking new ground or imposing new obligations.” Williams v. Taylor, 529
U.S. 362, 391, 120 S.Ct. 1495, 1512, 146 L.Ed.2d 389 (2000); see also Rompilla v.
Beard, 545 U.S. 374, 381, 125 S.Ct. 2456, 2462, 162 L.Ed.2d 360 (2005) (“A standard
of reasonableness applied as if one stood in counsel’s shoes spawns few hard-edged
rules.”). Under the Strickland reasonableness standard, there may be no obligation to
inquire into immigration status where counsel did not know, and did not have reason to
know, that defendant was a noncitizen. Likewise, there may also be circumstances
under which counsel’s failure to inquire is unreasonable and amounts to error under
Strickland. Nevertheless, the heart of the question under Strickland will always be
reasonableness. To the extent the court of appeal here applied a per se rule rather than
consider whether counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms , the court of appea l erred.
2

2 Cf. Bodabilla v. State, 117 N.E.3d 1272, 1282–83 (Ind. 2019) (finding that failure to ask a client’s

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Similarly, the district court erred in granting relief without first finding that former
counsel’s performance fell below an objective standard of reasonableness.
Nonetheless, Mr. Sewell contends that former counsel’s preparation and
investigation was deficient—i.e. fell below an objective standard of reasonableness—
and argues that if counsel ha d conducted an adequate investigation she would have
discovered her client was not a United States citizen. The record and the district court’s
factual determinations, however, stand as a considerable obstacle for respondent to
overcome here. Former counsel testified, and the district court agreed, that there was
simply nothing to cause counsel (or the court) to question respondent’s citizenship.
While counsel argues that former counsel should have done more in the course of this
representation, which might then have le d former counsel to question her client’s
citizenship, those arguments are speculative, constructed post hoc, and not well
grounded in the testimony presented at the evidentiary hearing and or in the district
court’s findings. The applicant for post -conviction relief has the burden of proving
relief should be granted, La.C.Cr.P. art. 930.2, and respondent here failed to carry that
burden.
3 Because we can find nothing in the record to show that the district court erred
in concluding that former counsel did not know, and did not have any reason to know,
that her client was not a United States citizen, we cannot conclude that former counsel

citizenship status may not be per se deficient and questioning under what circumstances counsel’s
failure to inform a client of removal consequences could be deficient performance); Vogel v.
Director, 95 Va. Cir. 335 (Va. Cir. Ct. 2017) (unpub’d), available at 2017 WL 10966801 (finding
that the imposition of a hard line rule flies in the face of the reasonableness standard set forth in
Strickland, and that the proper inquiry is whether counsel rendered ineffective assistance given that
they did not know, or have reason to know, that the defendant was a noncitizen); State v. Limarco,
235 P.3d 1267 (Kan. App. 2010) (unpub’d), available at 2010 WL 3211674 (“If an attorney did not
know and had no reason to know his client was an alien, then a failure to advise the client about
immigration consequences might not constitute ineffective assistance, even under Padilla”).

3 Although respondent cites decisions in which courts found deficient performance in failures to
advise about the removal consequences of a guilty plea, in none were the essential facts as
undisputed as they are here —where all agree that the client did not reveal his citizenship, the
attorney did not know the client’s citizenship, and there was no reason to question the client’s
citizenship.

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erred under Strickland.
Under the circumstances here, Mr. Sewell failed to carry his burden post -
conviction of showing that his attorney’s failure to inquire into his citizenship fell
below an objective standard of reasonableness under Strickland. Therefore, the district
court erred in granting Mr. Sewell’s application for post -conviction relief and in
ordering that Mr. Sewell’s guilty pleas be withdraw n. Accordingly, we grant the
State’s application. W e reverse the rulings of the courts below. We reinstate Mr.
Sewell’s guilty pleas.4
REVERSED

4 Respondent in this court, the applicant for post-conviction relief in the district court, has now fully
litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see
28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive
application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the
limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251
amended that article to make the procedural bars against successive filings mandatory. Respondent’s
claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, a nd this denial is final.
Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive
application applies, respondent has exhausted his right to state collateral review. The district court is
ordered to record a minute entry consistent with this per curiam.

12/11/20

SUPREME COURT OF LOUISIANA

No. 2020-KK-00300

STATE OF LOUISIANA

VS.

RONALD SEWELL

On Writ of Certiorari to the Court of Appeal, Fourth Circuit, Parish of Orleans

Johnson, C.J., dissenting:
Mr. Sewell was brought to the United States from Jamaica when he was one
year old. He was 17 years old when he was arrested in the instant matter. His counsel
did not ask him whether he was a United States’ citizen before Mr. Sewell entered a
guilty plea. Nor did counsel ask his parents whether Mr. Sewell was a United States’
citizen. Therefore when Mr. Sewell pled guilty, he was unaware of the immigration
consequences of his conviction. Deportation proceedings were subsequently
commenced against him and he remains at the Pine Prairie I CE Processing Center,
pending his deportation to Jamaica.
“When a defendant enters a counseled plea of guilty, this court will review
the quality of counsel’s representation in deciding whether the plea should be set
aside.” State v. Beatty, 391 So.2d 828, 831 (La. 1980); see also State v. Scott, 93 -
0401 (La. 3/17/95), 651 So.2d 1344. The two-part test of Strickland v. Washington,

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466 U.S. 668 (1984) applies to challenges of guilty pleas based on claims of
ineffective assistance of counsel. See Hill v. Lockhart, 474 U.S. 52, 58 (1985); State
v. Washington, 491 So.2d 1337, 1339 (La. 1986). Under that standard, a reviewing
court must reverse a conviction if a defendant establishes : (1) that counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms; and (2) counsel’s inadequate performance prejudiced defendant
to the extent that the proceedings were rendered unfair and the conviction suspect.
Strickland, 466 U.S. at 687–694.
In my view, defens e counsel’s failure to enquire as to her teenaged client’s
immigration status was deficient. An objectively reasonable standard requires a
simple enquiry into a client’s citizenship in order to properly advise the client of the
consequences of a conviction. The American Bar Association’s guidelines for the
performance of defense counsel in criminal cases address this very point directly:
Standard 4 -5.5 Special Attention to Immigration Status and
Consequences

(a) Defense counsel should determine a client’s citizenship and
immigration status, assuring the client that such information is
important for effective legal representation and that it should be
protected by the attorney-client privilege.

(c)
After determining the client’s immigration status and potential
adverse consequences from the criminal proceedings, including
removal, exclusion, bars to relief from removal, immigration detention,
denial of citizenship, and adverse consequences to the client’s
immediate family, counsel should advise the client of all such potential

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consequences and determine with the client the best course of action
for the client’s interests and how to pursue it.

ABA Standards for Criminal Justice 4–5.5 (4th ed. 2017). The Supreme Court “long
ha[s] referred [to these ABA Standards] as ‘guides to determining what is
reasonable.’” Wiggins v. Smith, 539 U.S. 510 , 524 (2003) ( quoting Strickland v.
Washington, 466 U.S. 668, 688 (1984)). And the State provides “no reason to think
the quoted standard impertinent here.” Rompilla v. Beard, 545 U.S. 374, 387 (2005).
Believing that the United States Supreme Court in Padilla v. Kentucky , 559
U.S. 356 (2010) did not impose a duty on every defense attorney to investigate every
client’s citizenship status in all instances, the majority opinion reverses the relief
granted to Mr. Sewell in this case. However, the American Bar Association
standards for the defense function were revised five years after Padilla and added
the standard that counsel ascertain a clie nt’s immigration status. These guidelines
were adopted by the American Bar Association House of Delegates in February
2015; three-and-a-half years before Mr. Sewell pled guilty while represented by
counsel who was unaware that he was not a citizen.
Furthermore, it is not burdensome to require counsel to explain to a client that
they might be deported if they are convicted of certain offenses and then ask the
client if they are a citizen of the United States. It would only take a few minutes.
And it is of no moment that counsel was not on notice that her client was not a
citizen. To be effective, defense counsel is often required to investigate into a client’s

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circumstances that a client may not immediately volunteer or that may not
immediately be apparent. For example, effective defense counsel in a capital case
must investigate their client’s educational and developmental history to ascertain
whether they are intellectually disabled and therefore ineligible to be sentenced to
death under Atkins v. Virginia, 536 U.S. 304 (2002).
Of course, a finding of deficient performance does not warrant vacating a
conviction without a showing of prejudice . In this instance, the record before us is
insufficient to determine whether, even if counsel had made the rele vant enquiry,
determined Mr. Sewell’s immigration status and advised him of the consequences
of the conviction accordingly, there is a reasonable likelihood that the result of the
proceeding would have been different. Therefore I would remand to the trial cour t
for a hearing on the question of whether counsel’s deficient performance prejudiced
Mr. Sewell.
It is notable that many judicial districts in Louisiana now include a question
about citizenship and immigration consequences into a judge’s standard plea
colloquy with a defendant. There is no good reason why every jurisdiction should
not include such a question as an insur ance policy against the type of deficient
performance exhibited by counsel in this defendant’s case.

12/11/20
SUPREME COURT OF LOUISIANA
No. 2020-KK-00300
STATE OF LOUISIANA
versus
RONALD SEWELL
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FOURTH CIRCUIT, PARISH OF ORLEANS
WEIMER, J., concurring.
I respectfully concur in the result to point out that the defendant previously
pled guilty to misdemeanors of simple battery and illegal possession of stolen
things less than $500. At that time, during booking, the defendant was recorded as
informing jail personnel that he was born in Pennsylvania. Consequently, it is
reasonable to believe that the defendant would not necessarily have been
forthcoming about his immigration status, even if he had been asked.