Filed Washington State Court of Appeals Division Two May 5, 2020 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 53384-7-II Respondent. vs. UNPUBLISHED OPINION OLEG VLADIMIROVIC FABYANCHUK, aka IGOR V. FABYANCHUK, Petitioner. MAXA, J. – Oleg Vladimirovic Fabyanchuk appeals the trial court’s denial of his motion for a continuance to allow Fabyanchuk’s immigration attorney to obtain his immigration file from the United States Citizenship and Immigration Service (USCIS). This file was needed before Fabyanchuk’s immigration attorney could advise him on the immigration consequences of Fabyanchuk’s pending charges. Fabyanchuk argues, and the State concedes, that the trial court erred in denying his motion for a continuance. We agree. Padilla v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) and RCW 10.40.200(2) require defense counsel to ensure that immigration advice is provided to a noncitizen criminal defendant regarding the potential consequences of a conviction. If circumstances beyond the control of defense counsel and the defendant interfere with the defendant’s ability to receive meaningful immigration advice, it is an abuse of discretion to deny a motion for a continuance until such advice can be provided. No. 53384-7-II Accordingly, we reverse the trial court’s denial of the motion for a continuance and remand for the trial court to reset the trial date. FACTS Fabyanchuk is not a United States citizen. He is a legal permanent resident of the United States. He came to the United States from Ukraine. In October 2017, Fabyanchuk was charged with four counts of first degree possession of depictions of minors engaged in sexually explicit conduct, first degree dealing in depictions of a minor engaged in sexually explicit conduct, and first degree internet viewing of depictions of a minor engaged in sexually explicit conduct. In November 2018, defense counsel and Fabyanchuk retained private immigration counsel to research and provide advice on the specific immigration consequences of the pending charges. Immigration counsel requested Fabyanchuk’s immigration file from USCIS and informed defense counsel that USCIS could take about 100 days to respond. Fabyanchuk filed an unopposed motion for a continuance. The trial court granted the motion and continued the trial to April 22, 2019. The commencement date for trial was reset at April 1. In December 2018, the federal government shut down for a period of 35 days. In early April, immigration counsel still had not received Fabyanchuk’s immigration file. Fabyanchuk filed another motion for a continuance based on the inability to obtain the immigration file. In a supporting declaration, immigration counsel stated that once he received the immigration file, he could begin an analysis of whether the pending charges had any immigration consequences. Fabyanchuk requested a continuance of 45 to 60 days and agreed to waive any speedy trial rights. The State did not oppose this motion. 2 No. 53384-7-II The trial court denied the motion for a continuance, stating, “I’m not in a position to continue the trial at this time.” Report of Proceedings (RP) ...
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