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Kim v. United States

February 28, 2002

KYU HONG KIM, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia (M-15302-97) Hon. Frederick D. Dorsey, Trial Judge

Before Reid and Glickman, Associate Judges, and Belson, Senior Judge.

The opinion of the court was delivered by: Reid, Associate Judge

Argued February 6, 2002

Appellant Kyu Hong Kim appeals from the denial of his motion to withdraw his guilty plea to one count of possession of an unregistered firearm, in violation of D.C. Code §§ 6-2311, -2376 (1995); and carrying a pistol without a license ("CPWOL"), in violation of § 22-3204 (1996). He claims that his lawyer rendered ineffective assistance of counsel by incorrectly advising him of the deportation consequences of his guilty pleas, and that the trial court erred in denying his motion to set aside judgment of conviction and permit withdrawal of plea, without a hearing. Because the record before us does not afford an adequate basis on which to resolve Mr. Kim's main contention, we are constrained to remand this case to the trial court for a hearing and responses to questions specified herein.

I.

The record before us shows that on October 27, 1998, Mr. Kim attended a disposition hearing and entered a guilty plea to two offenses. The trial court asked the prosecutor to indicate "what the government's evidence would show if the case went to trial." The prosecutor responded:

Had this case gone to trial . . ., the government would have established beyond a reasonable doubt that on October 8th, 1997, at approximately 10:20 in the evening, officers of the Metropolitan Police Department arrived at 156 L Street, S.E. . . . . That being the defendant's place of business and met with the defendant. An inspector observed six philly blunt boxes containing various size illegal crack bags under the counter.

Inspector Delgato informed the defendant that these bags were illegal. The store owner [Mr. Kim] stated that he would surrender the bags and in addition stated that he had two handguns that he would also give to the police.

The owner recovered a green gun bag which included a .9 millimeter pistol loaded with one round - - . . . at the time the pistol was submitted and tested and found to function. In addition, a certificate of no record of a license to carry a pistol was submitted and the defendant did not have a license to carry the pistol.

In addition, at the time the defendant gave the police officer the weapons, the pistol was conveniently accessible to the defendant and within his reach. In addition, the pistol was not registered.

The government would have established that beyond a reasonable doubt.

At the beginning of the disposition hearing, the trial judge asked Mr. Kim, through an interpreter, whether he was "born in the United States?" He responded in the negative, and also informed the court that he was not a United States citizen. The following exchange then occurred between the court and Mr. Kim:

THE COURT: Mr. Kim, have you had an opportunity to talk to your lawyer about the possible immigration ...


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