NOT DESIGNATED FOR PUBLICATION No. 121,300 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. JEVANS O. ODHUNO, Appellant. MEMORANDUM OPINION Appeal from Sedgwick District Court; BRUCE C. BROWN., judge. Opinion filed July 24, 2020. Reversed and remanded with directions. David L. Miller, of Ney, Adams & Miller, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee. Before GARDNER, P.J., WARNER, J., and ROBERT J. WONNELL, District Judge, assigned. PER CURIAM: Based on the advice he received from both his criminal and his immigration attorneys, Jevans O. Odhuno pleaded guilty to a level 9 theft. This decision was made after Odhuno was assured that such a plea would not result in deportation. Three months after the court accepted the plea, a detainer was filed for Odhuno related to possible deportation. Odhuno moved to withdraw his plea on the basis of ineffective assistance of counsel. The district court denied his motion, and he has timely appealed. 1 Factual and Procedural Background The State charged Jevans O. Odhuno with a level 7 felony theft and a level 8 felony computer crime. The State later amended the theft charge to a level 9 felony. Odhuno eventually pleaded guilty to the level 9 theft. In return for his guilty plea, the State dismissed the second count. The State also recommended an 11-month sentence. The district court followed the State's recommendation and granted Odhuno 12 months' probation with an underlying 11-month prison sentence. Before entering his plea, Odhuno signed an acknowledgment of rights and entry of plea. The document included a paragraph which stated: "If I am not a United States citizen, I understand that a conviction of a felony offense most likely will result in my deportation from the United States." Additionally, before accepting Odhuno's plea, the district court stated "that if you're not a citizen of the United States, that this felony conviction most likely will result in your deportation from the United States." Odhuno's defense attorney interjected, stating: "Your Honor, we've actually been through this with the prosecutors and with an immigration attorney, just so the Court's aware. We believe that the circumstances of this crime are such that because it's not by deceit or fraud, that's alleged in the complaint, rather by unauthorized control over property, that that will not have a trigger immigration consequences, in addition to the fact that the proposed sentence is going to be less than a year in the guidelines. And having vetted that with both the attorney through the prosecutor's officer and an immigration attorney, we believe that that will not have the result of deportation." After hearing these statements, the district court addressed the issue again, with less certainty by stating: "Okay. And it's a fluid situation, I mean, the law always is, it's 2 subject to change. And it's just case law, the courts require that I have to advise you that this could very ...
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