Niculai Rumpel appeals from the circuit court's summary dismissal of his postconviction petition filed pursuant to Rule 32, Ala.R.Crim.P. In 1999, pursuant to a plea-bargain agreement, Rumpel pleaded guilty to the following charges for which he had been indicted: three counts of first-degree sexual abuse and two counts of enticing a child for immoral purposes. He also pleaded guilty to a fourth first-degree sexual abuse, a lesser offense included in a first-degree rape indictment. For each sexual-abuse conviction, he was sentenced to 10 years' imprisonment. For each conviction for enticing a child, he was sentenced to five years' imprisonment. The trial court ordered that all sentences are to run concurrently and it split each sentence, ordering Rumpel to serve two years' imprisonment followed by the balance on probation. Rumpel did not appeal these convictions and sentences.
Rumpel contends that the circuit court erred in dismissing his petition without an evidentiary hearing. In his petition, he asserted two grounds: (1) that his counsel were ineffective for failing to advise him that, as an immigrant and a resident alien, he would be subject to mandatory detention by the United States Immigration and Naturalization Service ("the INS") and to deportation proceedings when he has served his sentences if convicted of the charges and that, had counsel so advised him, he would not have pleaded guilty; and (2) that his guilty pleas were not knowing, voluntary, and intelligent because, he argued, neither the trial court nor the "Ireland" form advised him of "the possibility or probability of deportation or other adverse immigration consequences" of pleading guilty, which, he argued, was required by due process and Rule 14.4, Ala.R.Crim.P.1
Because neither the State, in its motion to dismiss Rumpel's petition, nor *401
anything in the record contradicts Rumpel's allegations of fact alleged in his petition, this court must take those factual allegations as true.See Goetzman v. State,
First, Rumpel contends that the circuit court erred in using the procedural bars of Rule 32.2(a)(3) and (5) in dismissing his petition. The court concluded that "the sole issue" in Rumpel's petition was that his pleas had been unlawfully induced or that they were not voluntarily made. It found that this issue was precluded because it could have been, but was not, raised at the plea proceeding, at sentencing, or on appeal. However, Rumpel correctly points out that a challenge in a Rule 32 petition to the voluntariness of a guilty plea is not precluded by the petitioner's failure to have raised the issue at trial or on appeal. Averyv. State,
Thus, we turn to the merits of Rumpel's claims to determine if there is any reason for upholding the circuit court's dismissal. See Reed v.State,
The disposition of the claims in Rumpel's petition depends on whether immigration consequences of a guilty plea are direct or collateral consequences. "`An accused is entitled to information concerning the direct consequences of his plea. He is not entitled to information concerning all collateral effects, or future contingencies that might arise.'" Fearson v. State,
Robinson v. State,"`Collateral consequences of a guilty plea are many. They may include the loss of civil service employment, of the right to vote and travel freely abroad, of the right to a driver's license, and of the right to possess firearms.'
"United States v. Del Rosario,
, 902 F.2d 55 59 (C.A.D.C. Cir.), cert. denied,. . . (1990) (citations omitted). See also Polk v. State, 498 U.S. 942 , 405 So.2d 758 761-62 (Fla.Dist.Ct.App. 1981) (listing ineligibility for parole, loss of good time, and loss of rights of citizenship as collateral consequences of a guilty plea). `"The distinction between direct and collateral consequences of a plea `turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment.'"' State v. Ward,, 123 Wn.2d 488 , 869 P.2d 1062 1075 (1994) (citations omitted) (emphasis added)."
Rumpel acknowledges that the court in Oyekoya v. State,
"`[C]ounsel's failure to advise the defendant of the collateral consequences of a guilty plea, such as deportation, cannot rise to the level of constitutionally ineffective assistance.' United States v. Campbell,
, 778 F.2d 764 768 (11th Cir. 1985). See also United States v. Romero-Vilca,, 850 F.2d 177 179 (3rd Cir. 1988) ('[W]e hold that potential deportation is a collateral consequence of a guilty plea. Accordingly, we find no error in the sentencing court's failure to inform Romero-Vilca in the Rule 11[, Fed.R.Crim.P.,] Colloquy of his possible deportation.'); Annot.,10 A.L.R. 4th 8 (1981)."
However, Rumpel contends that, since this ruling in Oyekoya, Congress has drastically altered immigration laws with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-546, and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214. See United States v. Amador-Leal,
In addition to pointing out that numerous states have enacted legislation requiring *403
that the trial court advise of the possible immigration consequences of a guilty or nolo contendere plea,3 Rumpel relies on caselaw from other jurisdictions, including United States v. El-Nobani,
"Petitioner argues that his lack of awareness of the deportation consequences . . . make[s] his pleas involuntary and unknowing. A `defendant need only be aware of the direct consequences of the plea, however; the trial court is under no constitutional obligation to inform the defendant of all the possible collateral consequences of the plea.' King v. Dutton,
, 17 F.3d 151 153 (6th Cir. 1994)."Petitioner contends that deportation is not collateral because under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 546, the INS has little if any discretion to grant deportation relief for those individuals like petitioner who are convicted of certain crimes. First, although the INS has been restricted in its ability to grant certain discretionary relief in deportation proceedings, `there is no indication that the INS has ceased making this sort of determination on a case-by-case basis.' Reno v. American-Arab Anti-Discrimination Comm.,
, 525 U.S. 471 484 n. 8 . . . (1999). Second, the automatic nature of the deportation proceeding does not necessarily make deportation a direct consequence of the guilty plea. A collateral consequence is one that `remains beyond the control and responsibility of the district court in which that conviction was entered.' United States v. Gonzalez,, 202 F.3d 20 27 (1st Cir. 2000). While this Court has not specifically addressed whether deportation consequences are a direct or collateral consequence of a plea, it is clear that deportation is not within the control and responsibility of the district court, and hence, deportation is collateral to a conviction. United States v. Romero-Vilca,, 850 F.2d 177 179 (3d Cir. 1988) ('[W]e hold that potential deportation is a collateral consequence of a guilty plea.'); United States v. Quin,, 836 F.2d 654 655 (1st Cir. 1988) ('[D]eportation in this context is generally regarded as a collateral consequence.'); United States v. Campbell,, 778 F.2d 764 767 (11th Cir. 1985) ('[D]eportation is a collateral consequence of a guilty plea.'); United States v. Russell,, 686 F.2d 35 39 (D.C. Cir. 1982) (`It has become well settled, however, that Rule 11[, Fed.R.Crim.P.,] does not require informing a defendant of the possibility of deportation.'). Thus, the fact that petitioner was unaware of the deportation consequences of his pleas does not make his pleas unknowing or involuntary."
The court in United States v. Amador-Leal,
"[W]hether an alien will be removed is still up to the INS. There is a process to go through, and it is wholly independent of the court imposing sentence. The Supreme Court has made this clear by describing deportation as a `purely civil action' separate and distinct from a criminal proceeding. INS v. Lopez-Mendoza,
, 468 U.S. 1032 1038 (1984). Removal is not part of the sentence; future immigration consequences do not bear on the `range of the defendant's punishment' imposed by the court, Torrey [v. Estelle], 842 F.2d [234,] 236 [(9th Cir. 1988)], and deportation is not punishment for the crime. See Lopez-Mendoza,. . . . [I]mmigration consequences will not be felt until the court's sentence has been served, the INS assumes control of the defendant, and the process of removal has been initiated and executed. . . . In short, no matter what changes have been wrought by AEDPA and IIRIRA, removal remains the result of another governmental agency's subsequent actions. 468 U.S. at 1038
". . . As the First Circuit explained:
"`What renders the plea's immigration effects "collateral" is not that they arise "virtually by operation of law," but the fact that deportation is "not the sentence of the court which accept[s] the plea but of another agency over which the trial judge has no control and for which he has no responsibility." However "automatically" [the defendant's] deportation — or administrative detention — might follow from his conviction, it remains beyond the control and responsibility of the district court in which that conviction was entered and it thus remains a collateral consequence thereof.'
"[United States v.] Gonzalez, 202 F.3d [20,] 27 [(1st Cir. 2000)] (quoting Fruchtman [v. Kenton,
(9th Cir. 1976)]; internal cites to other cases reasoning the same way omitted). . . . We agree with this analysis, and reaffirm that our decision in Fruchtman remains good law in this circuit as well." 531 F.2d 946
Other courts, having revisited the issue since the changes in immigration law, have reaffirmed their stance that the fact that deportation may result from a conviction is still a collateral consequence that does not bear on whether the defendant's guilty plea was knowing and voluntary. See, e.g., People v. Davidovich,
An indication that this court still considers immigration consequences to be collateral *405
is our citing the ruling in Oyekoya in subsequent cases holding some other consequence to also be a collateral consequence. See, e.g.,Robinson v. State,
Based on the foregoing, we find that Oyekoya is still the rule in Alabama: immigration consequences continue to be collateral consequences of a guilty plea and resulting conviction. Rumpel's attempt to distinguish prior caselaw is unpersuasive. Whether deportation is a possibility or "virtually automatic," the underlying collateral nature of deportation does not change: it remains an indirect consequence of a guilty plea. Pursuant to this rationale, we also reject Rumpel's assertion that due process and Rule 14.4 require that an alien defendant be advised of potential immigration consequences to ensure that his plea is knowing, voluntary, and intelligent.
It follows that trial counsel is not ineffective in failing to so advise a defendant. See United States v. Gonzalez; People v. Davidovich,
Having so ruled, we nevertheless strongly encourage trial courts and defense counsel to ensure that an alien defendant is aware of the possible effects that a guilty plea and resulting conviction may have on his status in this country. See United States v. Amador-Leal,
However, because immigration consequences are collateral, neither Rule 14.4, Rumpel's right to due process, nor his right to effective assistance of counsel was violated. Because taking the facts as stated in Rumpel's petition as true, he was not entitled to postconviction relief as a matter of law, and his petition was properly denied without an evidentiary hearing. Accordingly, the trial court's judgment is affirmed.
The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this court under the provisions of §
AFFIRMED.
McMillan, P.J., and Cobb, Baschab, Shaw, and Wise, JJ., concur.