OPINION
This mаtter is before this Court on discretionary review from the opinion of the Shelby Circuit Court affirming the order of the Shelby District Court denying a motion by Yahiya H. Al-Aridi to vacate his guilty plea pursuant to Kentucky Rules of Civil Procedure (CR) 60.02(e). We havе
Yahiya H. Al-Aridi is a native citizen of Iraq. He entered the United States as a refugee in 2000 and became a permanent resident later that year in Louisville, Kentucky. On July 1, 2001, Al-Aridi was charged with third-degree sexual abuse in violation of Kentucky Revised Statutes (KRS) 510.130, a Class A misdemeanor, when he was accused of touching the buttocks of a 15-year-old boy without his consent. While represented by private counsel, Al-Aridi entered a guilty plea on January 2, 2002, and received a 90-day sentence and costs of $92.35. He served the sentence and was subsequently released.
In October 2010, close to nine years later, Al-Aridi moved to vacate his guilty plea pursuant to CR 60.02(3). The basis for the motion was the denial of his application for U.S. citizenshiр because of his guilty plea to sexual abuse, which made him ineligible for citizenship under federal regulations. Al-Aridi claimed that his attorney was ineffective for failing to properly advise him of the immigration consequencеs of pleading guilty. He maintained that he would not have entered the plea, but would have challenged the charge, had he known he would have been ineligible for naturalization. In support of his claim of ineffective assistance, Al-Aridi cited to Strickland v. Washington,
The district court held a hearing on January 20, 2011, where the parties and the court discussed the effect of Padilla. At the hearing, the Commonwealth disagreed with Al-Aridi that Padilla had any impact on the case at bar as Padilla dealt with deportation, while the рresent case dealt with naturalization. The court concluded that its reading of Padilla revealed that the majority of the Supreme Court focused its ruling on deportation, not anything further than that, and that the ruling was therefore not binding on the case before it. The court found a distinction between being removed from the country and being denied citizenship, and it declined to read Padilla as broadly as Al-Aridi suggested. The district court then denied Al-Aridi’s motion to vacate viа a docket order entered on January 21, 2011.
Al-Aridi appealed the district court’s ruling to the circuit court, arguing in his statement of appeal that the district court’s reading of Padilla was too narrow and that the legal reasoning supporting Padilla supported his case as well. The Commonwealth did not file a counterstatement of appeal. The circuit court ultimately affirmed the district court’s ruling,
On appeal, Al-Aridi argues that the cirсuit court erred in holding that he could not raise his claim for relief under CR 60.02 and that his motion was not brought in a reasonable time. Further, Al-Aridi addresses the merits of the district court’s ruling that the holding in Padilla does not extend to his own situation, but instead is limited to cases involving deportation. He specifically cites to the opinion in Jacobi v. Commonwealth,
Recognizing that there were several cases pending before the Supreme Court of Kentucky related to the apрlication of Padilla, we placed the present appeal in abeyance pending final decisions in those cases. The Supreme Court rendered its decisions on October 25, 2012. The opinion in Stiger v. Commonwealth,
We note that whether Padilla aрplies retroactively to cases already final before it was decided is a viable question, but a question not presently before us and one not herein addressed. See United States v. Orocio,645 F.3d 630 (3rd Cir.2011) (applies retroactively); United, States v. Hong,671 F.3d 1147 (10th Cir.2011) (does not apply retroactively); Leonard v. Commonwealth,279 S.W.3d 151 (Ky.2009) (adopting federal courts’ retroactivity analysis). The United States Supreme Court has granted certiorari in Chaidez v. United States,655 F.3d 684 (7th Cir.2011), cert. granted, - U.S. -,132 S.Ct. 2101 ,182 L.Ed.2d 867 (2012) and presumably will decide this issue this term.
Pridham,
While the petition for rehearing was pending in Pridham,, the Commonwealth filed a motion in the present case seeking leave to cite supplemental authority, and it attached a copy of a recently rendered United States Supreme Court ease, Chaidez v. United States, — U.S. -,
In Chaidez, the U.S. Supreme Court held that Padilla does not have retroactive application:
In Padilla v. Kentucky,559 U.S. 356 ,130 S.Ct. 1473 ,176 L.Ed.2d 284 (2010), this Court held that the Sixth Amendment requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea. We consider here whether that ruling applies retroactively, so that a person whose conviction became final before we decided Padilla can benefit from it. We conclude that, under the principles set out in Teague v. Lane,489 U.S. 288 ,109 S.Ct. 1060 ,103 L.Ed.2d 334 (1989), Padilla does not have retroactive effect.
Chaidez,
So when we decided Padilla, we answered a question about the Sixth Amendment’s reach that we had left open, in a way that altered the law of most jurisdictions — and our reasoning reflected that we werе doing as much. In the normal Strickland case, a court begins by evaluating the reasonableness of an attorney’s conduct in light of professional norms, and then assesses prejudice. But as earlier indicated, see supra, at 1107-1108, Padilla had a different starting рoint. Before asking whether the performance of Padilla’s attorney was deficient under Strickland, we considered (in a separately numbered part of the opinion) whether Strickland applied at all. See559 U.S., at 363-68 ,130 S.Ct., at 1480-1482 . Many courts, we acknowledged, had excluded advice about collateral matters from the Sixth Amendment’s ambit; and deportation, because the consequence of a distinct civil proceeding, could well be viewed as such a matter. See id., at 363-66,130 S.Ct., at 1480-1481 . But, we continued, no dеcision of our own committed us to “appl[y] a distinction between direct and collateral consequences to define the scope” of the right to counsel. Id., at 365,130 S.Ct., at 1481 . And however apt that distinction might be in other contеxts, it should not exempt from Sixth Amendment scrutiny a lawyer’s advice (or non-advice) about a plea’s deportation risk. Deportation, we stated, is “unique.” Ibid. It is a “particularly se*214 vere” penalty, and one “intimately related to the criminal proсess”; indeed, immigration statutes make it “nearly an automatic result” of some convictions. Ibid. We thus resolved the threshold question before us by breaching the previously chink-free wall between direct and collateral consequences: Notwithstanding the then-dominant view, “Strickland applies to Padilla’s claim.” Id., at 366-68,130 S.Ct., at 1482 .
If that does not count as “break[ing] new ground” or “imposing] a new obligation,” we are hard pressed to know what would. Teague,489 U.S., at 301 ,109 S.Ct. 1060 . Before Padilla, we had declined to decide whether the Sixth Amendment had any relevаnce to a lawyer’s advice about matters not part of a criminal proceeding. Perhaps some advice of that kind would have to meet Strickland’s reasonableness standard— but then again, perhaps not: No precedent of our own “dictated” the answer. Teague,489 U.S., at 301 ,109 S.Ct. 1060 . And as the lower courts filled the vacuum, they almost uniformly insisted on what Padilla called the “categorical!] re-mov[al]” of advice about a conviction’s non-criminal consequences — including deportation — from the Sixth Amendment’s scope.559 U.S., at 366-68 ,130 S.Ct., at 1482 . It was Padilla that first rejected that categorical approach — and so made the Strickland test operative— when a criminal lawyer gives (or fails to give) advice аbout immigration consequences. In acknowledging that fact, we do not cast doubt on, or at all denigrate, Padilla. Courts often need to, and do, break new ground; it is the very premise of Teague that a decision can be right and also be novel. All we say here is that Padilla’s holding that the failure to advise about a non-criminal consequence could violate the Sixth Amendment would not have been — in fact, was not — “apparent to all reasonable jurists” prior to our decision. Lambrix [v. Singletary ], 520 U.S. [518], at 527-528,117 S.Ct. 1517 [137 L.Ed.2d 771 (1997)]. Padilla thus announced a “new rule.”
Chaidez,
Turning to the present case, we recognize that by the time Padilla was rendered, Al-Aridi’s conviction had long been final. Therefore, pursuant to the holding in Chaidez, Al-Aridi cannot sustain a claim under Padilla and we must affirm the circuit court’s opinion upholding the district court’s order denying Al-Aridi’s CR 60.02 motion to set aside his conviction, albeit оn a different ground. Because Chaidez is determinative on the main issue before us, we need not address the remainder of the issues Al-Aridi raises in his brief, including whether Padilla extends to naturalization issues, the timeliness of the motion, and whether his claim for rеlief was properly brought pursuant to CR 60.02.
For the foregoing reasons, the opinion of the Shelby Circuit Court is affirmed.
ALL CONCUR.
Notes
. The Supreme Court denied the Commonwealth's motion for discretionary review on June 12, 2013, but ordered the opinion of the Court of Appeals nоt to be published. Commonwealth v. Jacobi, 2011-SC-000319-D .
. The Commonwealth admits that the retroac-tivity issue was not raised below, but asserts that this issue may be raised, citing Bowling v. Commonwealth, 168 S.W.3d 2, 5 n. 2 (Ky.2004) ("a cross-appeal was not required because the result reached by the trial court was nоt adverse to the Commonwealth. Brown v. Barkley, Ky.,
.The Supreme Court of Kentucky rendered a consolidated opinion addressing the cases of Cox v. Commonwealth, 2010-SC-000733-DG, and Commonwealth v. Pridham,