v. People , 2020 CO 8 ( 2020 )

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ADVANCE SHEET HEADNOTE
February 10, 2020
2020 CO 8
No. 17SC815, Juarez v. People—Criminal Law—Plea—Effective Assistance—
Immigration
Juarez petitioned for review of the court of appeals’ judgment affirming the
denial of his motion for postconviction relief. With regard to his challenge to the
effectiveness of his counsel, the district court found both that defense counsel
adequately advised his client concerning the immigration consequences of his plea
of guilty to misdemeanor drug possession and that, in any event, there was no
reasonable probability Juarez would not have taken the plea. The intermediate
appellate court similarly found that counsel’s advice fell within the range of
competence demanded of attorneys in criminal cases, but as a result of that
finding, the appellate court considered it unnecessary to address the question
whether counsel’s performance prejudiced Juarez.
The supreme court affirmed, ruling that because Juarez conceded he was
advised and understood that the misdemeanor offense to which he pleaded guilty
would make him “deportable,” defense counsel’s advice concerning the
immigration consequences of his plea correctly informed him of the controlling
law and therefore did not fall below the objective standard of reasonableness
required for effective assistance concerning immigration advice.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 8
Supreme Court Case No. 17SC815
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 13CA1296
Petitioner:
Alfredo Juarez,
v.
Respondent:
The People of the State of Colorado.
Judgment Affirmed
en banc
February 10, 2020
Attorneys for Petitioner:
Megan A. Ring, Public Defender
John Plimpton, Deputy Public Defender
Denver, Colorado
Attorneys for Respondent:
Philip J. Weiser, Attorney General
Carmen Moraleda, Senior Assistant Attorney General
Denver, Colorado
CHIEF JUSTICE COATS delivered the Opinion of the Court.
JUSTICE GABRIEL concurs in the judgment, and JUSTICE MÁRQUEZ joins in
the concurrence in the judgment.
Juarez petitioned for review of the court of appeals’ judgment affirming the
denial of his motion for postconviction relief. With regard to his challenge to the
effectiveness of his counsel, the district court found both that defense counsel
adequately advised his client concerning the immigration consequences of his plea
of guilty to misdemeanor drug possession and that, in any event, there was no
reasonable probability Juarez would not have taken the plea. The intermediate
appellate court similarly found that counsel’s advice fell within the range of
competence demanded of attorneys in criminal cases, but as a result of that
finding, the appellate court considered it unnecessary to address the question
whether counsel’s performance prejudiced Juarez.
Because Juarez conceded he was advised and understood that the
misdemeanor offense to which he pleaded guilty would make him “deportable,”
defense counsel’s advice concerning the immigration consequences of his plea
correctly informed him of the controlling law and therefore did not fall below the
objective standard of reasonableness required for effective assistance concerning
immigration advice. The judgment of the court of appeals is therefore affirmed.
I.
In April 2012, Alfredo Juarez pleaded guilty to one class 1 misdemeanor
count of possessing a schedule V controlled substance, in exchange for the
dismissal of a charge of felony possession. As stipulated in the plea agreement, he
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received a sentence to two years of drug court probation. At the time of his offense
and plea, the defendant was a citizen of Mexico and a lawful permanent resident
of the United States.
A month after his sentencing, the defendant violated the conditions of his
probation, received a suspended two-day jail sentence, and two weeks later, after
violating the conditions of that suspension, served those two days in jail. After he
received an additional three-day jail sentence for again violating his probation,
federal Immigration Customs and Enforcement (“ICE”) officers began removal
proceedings. The defendant was eventually deported to Mexico.
In October 2012 and January 2013, the defendant filed motions for
postconviction relief, challenging the effectiveness of his plea counsel’s
representation and, as a result, the constitutional validity of his guilty plea. Over
a period of three days, the district court heard these motions, including the
testimony of the defendant, taken by video over the internet; the testimony of his
plea counsel; and the testimony of an immigration attorney retained by him in
2011, prior to his acceptance of the plea agreement. Following that hearing, the
court made findings and conclusions and denied the motions. The hearing
revealed the following pertinent facts.
The defendant was charged with a felony following the discovery of cocaine
on his person. After nearly a year of continuances, granted for the specific purpose
3
of allowing him to address potential immigration issues prior to accepting any
plea agreement, the defendant finally agreed to plead guilty to class 1
misdemeanor possession of a controlled substance in exchange for the dismissal
of his felony charge. Prior to the court’s acceptance of the plea, defense counsel
made a record that he had spoken to two immigration attorneys, advised the
defendant to contact an immigration attorney himself after providing him with
several names, and clearly informed the defendant that the misdemeanor offered
by the prosecution was the equivalent of a felony under federal immigration law.
At the postconviction hearing, defense counsel further testified that on a call
with him and the defendant, an immigration attorney explained that the plea offer
was not acceptable because it would likely get him deported, and that the
immigration attorney followed up the call with a letter, reiterating that the
proposed plea would probably result in deportation. Counsel further testified that
he consulted another immigration attorney who gave largely the same advice, and
that he communicated this response to the defendant, who understood that
deportation was the probable outcome of accepting the plea.
The defendant himself also testified that in the process of renewing his
lawful permanent resident status, his own immigration counsel had informed him
that the plea could make him deportable. The defendant further testified that he
spoke to a second immigration attorney, who also informed him that the plea
4
“would” make him deportable. The defendant specifically conceded that
although no one told him that accepting the agreement and pleading guilty would
“automatically” make him deportable or that he actually “was going to get
deported,” nevertheless he understood that pleading guilty to the misdemeanor
“would” make him “deportable.”
The district court reasoned that any distinction between being automatically
or mandatorily deportable and simply being deportable was illusory and in fact
that being so advised would have created a misleading impression of the
probability of deportation. Similarly, it found that the defendant regretted his plea
only after he violated his probation and was deported and therefore there was no
merit in his assertion that had he been told he would “automatically” be deported
he would not have accepted the plea agreement. After agreeing that the defendant
was adequately advised, the court of appeals found it unnecessary to opine
concerning the likelihood that but for inadequate advice, the defendant would
have rejected the plea offer.
II.
For the waiver of fundamental rights inherent in any guilty plea to be
effective, a pleading defendant must understand, among other things, the direct
consequences of his plea. Brady v. United States, 397 U.S. 742, 755 (1970) (for a
guilty plea to be voluntary it must, among other things, be entered by one “fully
5
aware of the direct consequences”); People v. Birdsong, 958 P.2d 1124, 1128 (Colo.
1998) (“[T]he trial court must advise the defendant of the direct consequences of
the conviction to satisfy the due process concerns that a plea be made knowingly
and with a full understanding of the consequences thereof.”). In addition, before
pleading guilty to a crime, a defendant is entitled to advice from his counsel that
falls within the range of competence demanded of attorneys in criminal cases.
Hill v. Lockhart, 474 U.S. 52, 58 (1985) (holding that two-part test from Strickland v.
Washington, 466 U.S. 668 (1984), applies to challenges to guilty pleas based on
ineffective assistance of counsel). Although it appears well settled that a trial court
is not required to advise a defendant sua sponte of potential federal deportation
consequences, People v. Pozo, 746 P.2d 523, 526 (Colo. 1987), defense counsel’s
obligations and the adequacy of his advice concerning the deportation
consequences of his client’s acceptance of a guilty plea have long been the subject
of debate in both state and federal law, compare People v. Soriano, 240 Cal. Rptr. 328,
333–36 (Cal. Ct. App. 1987) (determining that the defendant was denied effective
assistance of counsel because he was not adequately advised of the immigration
consequences of his plea), and People v. Pozo, 712 P.2d 1044, 1047 (Colo. App. 1985)
(determining that the defendant was denied effective assistance where defense
attorney did not research and advise the defendant with respect to deportation
consequences of guilty plea), rev’d, 746 P.2d 523 (Colo. 1987), and People v.
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Padilla, 502 N.E.2d 1182, 1186 (Ill. App. Ct. 1986) (determining that failure to advise
of deportation consequences constitutes ineffective assistance of
counsel), with Tafoya v. State, 500 P.2d 247, 252 (Alaska 1972) (concluding that alien
defendant received effective assistance of counsel despite counsel’s failure to
advise of deportation consequences), and State v. Ginebra, 511 So. 2d 960, 962 (Fla.
1987) (determining that counsel’s failure to advise client of deportation
consequence does not constitute ineffective assistance of counsel), superseded by
rule as stated in State v. De Abreu, 613 So. 2d 453, 453 (Fla. 1993).
More than thirty years ago, in Pozo, this court addressed a challenge to the
effectiveness of counsel for failing to advise of possible deportation consequences,
but unlike the intermediate appellate court considering the question before us, we
expressly declined to determine whether any such duty existed. 746 P.2d at 527.
Instead, relying heavily on then-existing federal law that permitted a sentencing
court to prevent deportation by recommending against it, we found that the
potential deportation consequences of guilty pleas in criminal proceedings
brought against alien defendants were material to critical phases of such
proceedings. Id. at 528–29. Rather than imposing a duty on counsel to advise
specifically of deportation consequences, we relied on the more fundamental
principle that attorneys must inform themselves of material legal principles that
may significantly impact the particular circumstances of their clients. Id. at
7
529–30. In the absence of an existing adequate record, we therefore remanded for
a determination whether defense counsel had reason to know of Pozo’s alien
status but nevertheless failed to conduct appropriate research into federal
immigration law. Id.
Nearly a quarter century later, emphasizing that the “judicial
recommendation against deportation,” or “JRAD,” and the Attorney General’s
authority to grant discretionary relief from deportation had both been eliminated
from federal immigration law, the United States Supreme Court characterized that
law as now making removal “nearly an automatic result” and deportation as now
constituting an integral part of the penalty that may be imposed on noncitizen
defendants who plead guilty to specified crimes. Padilla v. Kentucky, 559 U.S. 356,
363–64, 366 (2010). Expressly finding the collateral versus direct distinction ill-
suited to evaluating a Strickland claim concerning the specific risk of deportation,
and noting that in any event the Supreme Court had never applied the distinction
between direct and collateral consequences to define the scope of constitutionally
reasonable professional assistance of counsel, the Court concluded simply that
advice regarding the unique consequence of deportation is not categorically
removed from the ambit of the Sixth Amendment right to counsel. Id. at 365–66.
After considering various sources of professional responsibility, the Court
ultimately articulated counsel’s duty with regard to the first, or objective-
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standard-of-reasonableness, prong of the Strickland test in the context of this
unique kind of penalty, holding “that counsel must inform her client whether his
plea carries a risk of deportation.” Id. at 374. Acknowledging that immigration
law can be complex and that there will undoubtedly be cases in which the
deportation consequences of a particular plea will be unclear or uncertain, the
Court held that when “the law is not succinct and straightforward,” a defense
attorney need do no more than advise a noncitizen client that pending criminal
charges may carry a risk of adverse immigration consequences. Id. at 369. On the
other hand, when the deportation consequence is truly clear, the duty to give
correct advice is equally clear. Id. In Padilla itself, where federal law classified the
defendant’s particular crime as “deportable,” the Court considered “the terms of
the relevant immigration statute [to be] succinct, clear, and explicit in defining the
removal consequence for Padilla’s conviction.” Id. at 368.
III.
Whether or not our rationale in Pozo retains any force after the elimination
of judicial discretion as a means of affecting deportation, there can be little
question that counsel in the instant case went to substantial lengths to educate
himself and ensure that his client was fully informed of the immigration
consequences of taking the plea in question. The defendant’s counsel not only
secured a number of continuances for the very purpose of ensuring that his client
9
was advised of and understood these consequences, but he also had the defendant
advised by an immigration attorney in his presence, and he personally advised the
defendant to seek further consultation with an immigration specialist, after
providing the defendant with a list of such specialists.
From the record of the providency hearing, as well as the testimony of
defense counsel, the testimony of a separate immigration attorney who advised
him, and his own admissions, it was undisputed that the defendant was advised
and understood that the misdemeanor drug offense offered by the prosecution
would be treated as a felony conviction for purposes of federal immigration law;
that he could not afford to take the plea if he wanted to avoid deportation; and
that by taking the plea agreement he would in fact be made deportable. The
defendant has never asserted that he was affirmatively misinformed that he need
not worry about his immigration status, as was the defendant in Padilla, 559 U.S.
at 359, or that he was not advised that taking the plea in question would make him
deportable, just as would a plea to a felony. He testified only that he was never
advised that his plea would make him “automatically” deportable or that he
actually “was going to get deported.”
The defendant now asserts that merely being advised that taking the plea in
question would make him deportable according to federal immigration law was
insufficient to satisfy the duty imposed upon defense counsel in Padilla to provide
10
advice regarding the risk of deportation. Relying on specific terms used by the
Court in criticizing defense counsel’s erroneous advice in Padilla, the defendant
argues instead that adequate advice required counsel’s use of the terms “automatic
deportation” and “presumptively mandatory deportation,” and that advising him
he would probably be deported was in fact misleading.
In articulating its holding (“we now hold”), the Padilla Court commanded
that “counsel must inform her client whether his plea carries a risk of deportation.”
Id. at 374. Drawing a distinction between immigration law that is not succinct and
straightforward in defining the removal consequence and immigration law that is
succinct and straightforward in defining the removal consequence, the Court
imposed a more limited duty of advice on defense counsel with regard to the
former than the latter. See id. at 369. When “the law” is not succinct and
straightforward, counsel’s duty in this regard is limited to advising a noncitizen
client that pending charges may carry a risk of adverse immigration consequences,
but when the deportation consequence is truly clear, counsel has a duty to give
correct advice. Id.
The “correct advice” that counsel has a duty to give therefore necessarily
refers to a correct explanation of “the law.” The immigration law at issue here is
the very law that the Supreme Court in Padilla found to be “truly clear,” for the
reason that it specified the deportation consequence for conviction of the crime to
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which Padilla was pleading guilty, by one of Padilla’s immigration status. That
consequence was that such an individual would be “deportable.” See 8 U.S.C.
§ 1227(a)(2)(B)(i) (2018) (“Any alien who at any time after admission has been
convicted of a violation of . . . any law or regulation of a State, the United States,
or a foreign country relating to a controlled substance . . . other than a single
offense involving possession for one’s own use of 30 grams or less of marijuana, is
deportable.” (emphasis added)). The “correct advice” concerning the legal
consequence of the defendant’s plea required in the instant case, just as it was in
Padilla, was that the alien defendant would, in the language of the statute, be
“deportable.” Id.; see also State v. Sanmartin Prado, 141 A.3d 99, 126, 128 (Md. 2016)
(holding defense counsel provided correct advice under Padilla by informing the
defendant that his child abuse offense is “deportable” because
8 U.S.C. § 1227(a)(2)(E)(i) defines it as such). That is precisely the advice the
defendant in the instant case was given.
The term “presumptively mandatory” nowhere appears in the Court’s
opinion as a required advisement or as a description of the “correct advice”
required of clear statutes, but rather in an explanation why the advice given by
Padilla’s counsel was incorrect. See Padilla, 559 U.S. at 368–69. As the Court
indicated in its opinion, it was not hard to find counsel’s advice deficient for three
reasons: the consequences of Padilla’s plea could easily be determined from
12
reading the removal statute, his deportation was presumptively mandatory, and
his counsel’s advice was incorrect. Id. Similarly, the Court never used the phrases
“automatic deportation” or “automatically deportable” in describing a required
advisement or “correct advice.” “Subject to automatic deportation” appears only
in an introductory passage of the opinion generally summarizing the Court’s
conclusion that defense counsel’s advice to the effect that the defendant need not
worry about his immigration status was deficient and that the question whether
the defendant would be entitled to relief for ineffective assistance of counsel would
therefore depend upon the second or prejudice prong of the Strickland standard, a
matter the Court for procedural reasons did not propose to address. Id. at 360.
The Court used the phrase “automatically deportable” only in the portion of its
opinion describing historical developments in federal immigration law. Id. at 362.
In fact, the Padilla opinion does not again use the term “automatic
deportation” or suggest in the body of the analysis any requirement for counsel to
predict the likelihood that the law will actually be enforced and the defendant will
actually be deported. Besides undoubtedly being an accurate prediction, the
assessment by the defendant’s counsel, as well as that of the other immigration
specialists advising him, that if he took the offered plea agreement he would
probably be deported did not in any way detract from or minimize the “correct
advice,” which the defendant also received, that the legal consequence of his
13
accepting the agreement would be to make him deportable. Quite the contrary,
being advised that one would probably be deported arguably implies that, as a
matter of law, he would at the very least be deportable.
Whether such an advisement of probable consequences standing alone,
however, could demonstrate reasonable professional competence; whether, even
if so, prejudice could be established in the face of ignoring such an advisement; or
whether even correct advice concerning the legal consequence of such a plea might
nevertheless be deficient in light of other, contradictory advisements, are all
questions we need not answer. In the case before us, it is enough that the
defendant was correctly advised concerning both the legal consequence and the
practical implications of his plea.
IV.
Because Juarez conceded he was advised and understood that the
misdemeanor offense to which he pleaded guilty would make him “deportable,”
defense counsel’s advice concerning the immigration consequences of his plea
correctly informed him of the controlling law and therefore did not fall below the
objective standard of reasonableness required for effective assistance concerning
immigration advice. The judgment of the court of appeals is therefore affirmed.
JUSTICE GABRIEL concurs in the judgment, and JUSTICE MÁRQUEZ joins in
the concurrence in the judgment.
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JUSTICE GABRIEL, concurring in the judgment.
The majority concludes that plea counsel’s advice to defendant Alfredo
Juarez regarding the immigration consequences of Juarez’s guilty plea to a class 1
misdemeanor drug possession count was correct and did not fall below the
objective standard of reasonableness required for effective assistance concerning
immigration advice. Maj. op. ¶ 22. In my view, however, counsel’s advice was
deficient under the standards set forth in Padilla v. Kentucky, 559 U.S. 356, 369
(2010), and People v. Pozo, 746 P.2d 523, 529 (Colo. 1987), because it did not
correctly convey the clear statutory deportation consequences of Juarez’s guilty
plea. Nonetheless, like the majority, I would affirm the judgment here because the
record does not support Juarez’s contention that but for counsel’s deficient advice,
he would not have pleaded guilty and instead would have proceeded to trial.
Accordingly, I respectfully concur in the judgment only.
I. Factual Background
No one disputes that under the applicable immigration statutes, Juarez’s
guilty plea in this case rendered him automatically deportable. See Padilla, 559 U.S.
at 363–64, 366 (noting that under contemporary law, if a noncitizen commits a
removable offense, then his or her removal is “practically inevitable” and that
“recent changes in our immigration law have made removal nearly an automatic
result for a broad class of noncitizen offenders”); United States v. Yansane,
1
370 F. Supp. 3d 580, 586 (D. Md. 2019) (construing the immigration provision at
issue here as “automatically” rendering deportable defendants who are convicted
of any federal law or regulation relating to controlled substances). 1 Indeed, the
majority itself acknowledges the Supreme Court’s view that, under prevailing
immigration law, removal is now “nearly an automatic result” for noncitizen
offenders like Juarez, although the majority goes to some length to try to minimize
the import of the Court’s statement in that regard. Maj. op. ¶¶ 12, 19 (citing Padilla,
559 U.S. at 366).
Plea counsel, however, did not advise Juarez of this applicable law. To the
contrary, counsel appears to have advised Juarez only that (1) his plea “could make
[him] deportable”; (2) if he took the plea offer, he would probably be deported; or
(3) if he took the plea offer, it “very likely [would] result in either deportation or
some type of exclusion from the United States.” (Emphases added.) In addition,
when, prior to accepting the plea offer, Juarez expressed his belief that a felony
might be viewed by immigration authorities as worse than a misdemeanor,
counsel did not correct Juarez’s misimpression, even though counsel knew that,
1 Although current law has changed the terminology from “deportation” to
“removal,” because counsel in this case advised Juarez in terms of “deportation,”
to avoid confusion, I, too, will generally use that term.
2
from an immigration standpoint, Juarez’s plea to the misdemeanor would put him
in the same position as if he had been convicted of a felony. Instead, counsel told
Juarez, “[T]here’s a possibility over the next several years that maybe the law
might change, and if you’re looking at a misdemeanor versus a felony, might that
somehow benefit you [sic].”
The matter proceeded to the providency hearing, and when the court asked
Juarez if he understood that his plea could affect his immigration status, Juarez
replied, “Yeah,” but indicated that he was willing to proceed because there was
nothing else that he could do. Specifically, Juarez made clear that he understood
that his counsel had tried to get a plea deal that would have avoided the possibility
of deportation but that the prosecutor would not make such an offer. Juarez thus
told the court, “[W]e got to go with what . . . we can do now,” and although an
immigration lawyer had told Juarez that the plea offer was unacceptable, Juarez
pleaded guilty.
II. Analysis
I begin by discussing the standards set forth in Padilla and Pozo. I then
address why I believe that plea counsel’s advice in this case was deficient. Last, I
turn to the question of prejudice, and I explain why I do not believe that counsel’s
deficient advice prejudiced Juarez on the facts presented here.
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A. Padilla and Pozo
Addressing counsel’s obligations in a case like this, in Padilla, 559 U.S. at
368–69, the Supreme Court concluded that when “the terms of the relevant
immigration statute are succinct, clear, and explicit in defining the removal
consequence for [the defendant’s] conviction,” counsel must give “correct advice.”
In contrast, when the law is not succinct and straightforward, “a criminal defense
attorney need do no more than advise a noncitizen client that pending criminal
charges may carry a risk of adverse immigration consequences.” Id. at 369.
In so concluding, the Supreme Court reached the same conclusion that we
had reached some twenty-three years earlier in Pozo, 746 P.2d at 529–30. See
People v. Hinojos, 2019 CO 60, ¶ 28, 444 P.3d 755, 761-62 (citing Pozo immediately
after describing defense counsel’s obligations under Padilla); People v.
Chavez-Torres, 2019 CO 59, ¶ 26, 442 P.3d 843, 850 (same); Kazadi v. People, 2012 CO
73, ¶ 31, 291 P.3d 16, 25 (Bender, C.J., dissenting) (equating the obligations of
defense counsel set forth in Pozo, 746 P.2d at 529, with those set forth in Padilla,
559 U.S. at 374).
Specifically, in Pozo, 746 P.2d at 529, we made clear that attorneys practicing
in Colorado who knew or had sufficient information to form a reasonable belief
that their client was a noncitizen had a duty to “investigate relevant immigration
law.” This duty, we said, stems “from the . . . fundamental principle that attorneys
4
must inform themselves of material legal principles that may significantly impact
the particular circumstances of their clients.” Id. Moreover, we noted that in cases
involving noncitizen criminal defendants, “thorough knowledge of fundamental
principles of deportation law may have significant impact on a client’s decisions
concerning plea negotiations and defense strategies.” Id. Accordingly, we
remanded the case to determine, in light of the foregoing principles, whether
counsel’s failure to advise Pozo of the immigration consequences of his plea
constituted constitutionally ineffective assistance of counsel. Id. at 529–30.
B. Deficient Conduct
Applying the foregoing principles here, I believe that plea counsel’s conduct
fell below the constitutionally mandated standards set forth in Padilla and Pozo.
As noted above, in Padilla, 559 U.S. at 368–69, the Supreme Court concluded
that when “the terms of the relevant immigration statute are succinct, clear, and
explicit in defining the removal consequence for [the defendant’s] conviction,”
counsel must give “correct advice.” Here, as in Padilla, the consequences of
Juarez’s plea could “easily be determined from reading the removal statute.” Id.
at 369. Specifically, pursuant to applicable law, his plea made him automatically
deportable, such that his deportation was, in the words of the Padilla Court,
“practically inevitable.” See id. at 363–64, 366; Yansane, 370 F. Supp. 3d at 586.
5
Counsel, however, did not advise Juarez of this applicable law. Instead, he
told Juarez only that (1) his plea “could make [him] deportable”; (2) if he took the
plea offer, he would probably be deported; or (3) if he took the plea offer, it “very
likely [would] result in either deportation or some type of exclusion from the
United States.” (Emphases added.) Moreover, when Juarez expressed his belief
that a felony might be viewed by immigration authorities as worse than a
misdemeanor, counsel did not correct Juarez’s misimpression, even though
counsel knew that, from an immigration standpoint, Juarez’s plea to the
misdemeanor would put him in the same position as if he had been convicted of a
felony. Instead, counsel gave Juarez false hope that the law might change and that
a misdemeanor might be more beneficial than a felony.
In my view, this was not the “correct advice” that Padilla and Pozo required
plea counsel to provide. As the majority correctly observes, those cases require
plea counsel to advise their clients correctly as to what the law is. Maj. op. ¶ 18.
Juarez’s counsel, however, did not so advise Juarez. Rather, he told Juarez, as a
factual matter, what he thought the likely outcome of Juarez’s plea would be. I do
not believe that this was sufficient under Padilla and Pozo.
Nor do I agree with the majority’s apparent view that advising a defendant
that deportation is “probable” or “likely” is the same thing as advising the
defendant what the law is (here, that Juarez’s plea rendered him automatically
6
deportable). Telling a defendant that deportation is probable or likely does not
tell him or her what the law is. It provides, instead, a factual prediction as to the
plea’s likely outcome. Moreover, advising a defendant that deportation is
“probable” or “likely” tends to convey at least some possibility that deportation
might not occur. In my view, giving a defendant in a case like this such a false
sense of hope is contrary to what Padilla and Pozo require because misadvising a
defendant in this way interferes with his or her ability to make the voluntary,
intelligent, and knowing waiver of rights that must accompany a guilty plea.
In contrast to advising a defendant that deportation is “probable” or
“likely,” advising defendants in cases like this that their pleas render them
automatically deportable provides the defendants with the correct statement of
the law that Padilla and Pozo mandate. And so advising a client does not tend to
convey false hope. Indeed, if anything, it tends to suggest a general lack of
discretion under the law.
For these reasons, I would conclude that plea counsel’s advice in this case
was deficient. In my view, counsel’s advice understated the consequences of
Juarez’s guilty plea, and in endorsing such deficient advice, I believe that the
majority’s opinion substantially weakens the important safeguards that both
Padilla and Pozo have provided to noncitizen defendants who are considering
entering guilty pleas.
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C. Prejudice
The question for me thus becomes whether plea counsel’s deficient advice
prejudiced Juarez. On the facts of this case, I cannot say that it did.
In the plea context, to establish the requisite prejudice, a defendant must
show a reasonable probability that but for counsel’s errors, the defendant would
not have pleaded guilty but instead would have insisted on going to trial. Hill v.
Lockhart, 474 U.S. 52, 59 (1985).
Here, the record establishes that in deciding whether to accept the plea offer,
Juarez was principally focused on the offer’s deportation consequences. The
record further shows that Juarez knew that his counsel had tried to get a plea offer
that would have avoided the possibility of deportation but that the prosecutor
would not make such an offer. And the record reveals that Juarez knew that if he
accepted the misdemeanor offer that was on the table, then he would probably be
deported. Notwithstanding all of the foregoing, and although an immigration
attorney had told him that the plea offer was unacceptable, Juarez chose to accept
that offer, telling the providency court, “[W]e got to go with what . . . we can do
now.”
On these facts, I cannot say that but for plea counsel’s deficient conduct,
Juarez would probably have rejected the plea offer and would instead have
proceeded to trial. Although plea counsel did not properly advise Juarez as to the
8
applicable law, as a factual matter, Juarez knew that his deportation was probable
or likely if he pleaded guilty to a misdemeanor, and against immigration counsel’s
advice, he pleaded guilty anyway. In such circumstances, I do not believe that the
record supports a finding that Juarez would have acted differently had he been
told that his plea rendered him automatically deportable, such that his removal
was practically inevitable.
Accordingly, I would conclude that Juarez has not established the requisite
prejudice in this case.
III. Conclusion
For these reasons, although I believe that plea counsel provided deficient
advice regarding the immigration consequences of Juarez’s guilty plea, I do not
believe that Juarez has shown that he suffered any prejudice from that deficient
advice.
Accordingly, like the majority, I would affirm the judgment below, but I
would do so on different grounds. I therefore respectfully concur in the judgment
only.
I am authorized to state that JUSTICE MÁRQUEZ joins in this concurrence
in the judgment.
9