Djoric v. Commonwealth
487 S.W.3d 908
Ky. Ct. App.2016Background
- Djoric, a lawful permanent resident who immigrated from Yugoslavia in 1973, pled guilty (2001) to first-degree possession of a controlled substance; sentenced to two years probated, sentence completed in 2003.
- ICE initiated deportation proceedings in June 2013 based on the 2001 conviction; Djoric was ordered deported.
- Djoric filed a CR 60.02 motion in December 2013 seeking to vacate his conviction, alleging his plea was not knowing, intelligent, or voluntary because he was not informed of deportation consequences.
- Trial court denied relief as not filed within a reasonable time and because the law and facts did not support CR 60.02 relief; this appeal followed.
- Court applied abuse-of-discretion standard for CR 60.02 motions and analyzed timeliness, retroactivity of Padilla, and whether changed circumstances or extraordinary equities warranted relief.
Issues
| Issue | Djoric's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Was the CR 60.02 motion filed within a reasonable time? | Filed ~6 months after ICE custody; timeliness should run from ICE notice (June 2013). | Nearly 13-year delay from conviction is unreasonable; timeliness measured from judgment. | Trial court did not abuse discretion; delay unreasonable. |
| Does Padilla v. Kentucky entitle Djoric to relief? | Padilla imposes duty to advise re: deportation; failure supports vacatur. | Padilla is not retroactive to convictions final before 2010. | Padilla not retroactive; cannot supply relief. |
| Do changed circumstances or equities under CR 60.02(e)/(f) justify vacatur? | Subsequent law (deferred prosecution available in 2011) and harsh immigration consequences support relief. | Immigration consequences were foreseeable at plea; change in law alone is not extraordinary. | No; court found no extraordinary circumstances or equitable basis to vacate. |
| Could failure to warn render plea involuntary under Boykin grounds despite Chaidez? | Plea was not knowing/voluntary because court/counsel failed to advise of collateral immigration consequences. | New rule (Padilla) applies prospectively only; Boykin colloquy carried no retroactive duty. | Chaidez bars retroactive application; Boykin/Padilla obligations not imposed retroactively. |
Key Cases Cited
- Baze v. Commonwealth, 276 S.W.3d 761 (Ky. 2008) (abuse-of-discretion standard for CR 60.02 review)
- Gross v. Commonwealth, 648 S.W.2d 853 (Ky. 1983) (timeliness under CR 60.02 is committed to trial court discretion)
- Reyna v. Commonwealth, 217 S.W.3d 274 (Ky. Ct. App. 2007) (CR 60.02 relief untimely after multi-year delay; discussed deportation context)
- Padilla v. Kentucky, 559 U.S. 356 (2010) (attorney duty to advise re: immigration consequences of plea)
- Chaidez v. United States, 568 U.S. 342 (2013) (Padilla announced a new rule that is not retroactive)
- Al-Aridi v. Commonwealth, 404 S.W.3d 210 (Ky. Ct. App. 2013) (Padilla not retroactive in Kentucky context)
- Commonwealth v. Bustamonte, 140 S.W.3d 581 (Ky. Ct. App. 2004) (immigration consequences generally not an extraordinary reason for CR 60.02 relief)
- Reed v. Reed, 484 S.W.2d 844 (Ky. 1972) (change in law not ordinarily a basis for CR 60.02 relief absent strong equities)