State v. Enriquez-Meza ( 2019 )


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  •                         
    2019 UT App 154
    THE UTAH COURT OF APPEALS
    STATE OF UTAH,
    Appellee,
    v.
    CHEIRA ENRIQUEZ-MEZA,
    Appellant.
    Opinion
    No. 20180258-CA
    Filed September 19, 2019
    Fourth District Court, Provo Department
    The Honorable James R. Taylor
    No. 171403749
    Hakeem Ishola and Mari Alvarado Tsosie, Attorneys
    for Appellant
    Sean D. Reyes and Mark C. Field, Attorneys
    for Appellee
    JUDGE DIANA HAGEN authored this Opinion, in which
    JUDGES KATE APPLEBY and RYAN M. HARRIS concurred.
    HAGEN, Judge:
    ¶1     Cheira Enriquez-Meza pled guilty to one count of
    possession of a controlled substance with intent to distribute, a
    second-degree felony, which carried the consequence of
    deportation based on her non-citizen status in this country. In
    exchange for her guilty plea, the State agreed to dismiss the
    remaining charges against her and recommend five years of
    court-supervised probation and no additional jail time.
    ¶2     Before accepting her guilty plea, the district court
    engaged in a plea colloquy with Enriquez-Meza. Among other
    things, the court asked her whether she had had enough time to
    discuss with her counsel the State’s burden of proof and whether
    State v. Enriquez-Meza
    she was satisfied with counsel’s advice on how to proceed with
    the case. Enriquez-Meza responded in the affirmative. The court
    explained the rights that she would be waiving if she decided to
    plead guilty and the possible punishments. Importantly, the
    court said, “If you’re not a citizen, this would affect your right to
    remain in the country. Do you understand [that]
    consequence[]?” Enriquez-Meza responded, “Yes.” Enriquez-
    Meza pled guilty and signed the written plea agreement, which
    also included an explanation regarding the risk of deportation
    for non-citizen defendants.
    ¶3     Prior to sentencing, Enriquez-Meza obtained new counsel
    and moved to withdraw her guilty plea. Enriquez-Meza argued
    that her guilty plea was not knowing and voluntary, because
    (1) her counsel did not inform her of her risk of deportation and
    (2) she responded “yes” rather than “guilty” when the court
    asked, “[H]ow do you plead?” The court held a two-day
    evidentiary hearing to address Enriquez-Meza’s arguments. At
    the hearing, Enriquez-Meza conceded that her plea counsel
    informed her of the risk of deportation. Nonetheless, she
    maintained that “she was not properly advised of immigration
    consequences” because counsel did not “either discuss strategies
    [Enriquez-Meza] might employ to avoid deportation or seek
    independent counsel with an immigration attorney for that
    purpose.”
    ¶4     In its written ruling, the district court concluded that
    Enriquez-Meza received constitutionally effective assistance of
    counsel in connection with her guilty plea. The court found that
    her counsel properly informed her of the risk of deportation and
    that, under Padilla v. Kentucky, 
    559 U.S. 356
     (2010), counsel is
    “not required . . . to ensure that the client underst[ands] every
    possible immigration strategy to avoid deportation.” Instead,
    Padilla requires only that the defendant understand the risk of
    deportation. See 
    id. at 374
     (holding that “counsel must inform her
    client whether his plea carries a risk of deportation”). Moreover,
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    State v. Enriquez-Meza
    even if counsel’s performance could be characterized as
    deficient, the court found that Enriquez-Meza had “failed to
    establish that the advice or delay to further consult with an
    immigration counsel would have made a difference” because she
    did not explain or demonstrate “that the suggested strategies to
    contest deportation” would have been successful. The court also
    made a factual finding that Enriquez-Meza responded “guilty”
    when asked for her plea. Although the transcript recorded her
    response as “yes,” the court found that this was a transcription
    error based on its review of the audio recording of the change of
    plea hearing and its contemporaneous notes. The court therefore
    denied Enriquez-Meza’s motion to withdraw her guilty plea.
    ¶5      Enriquez-Meza appeals the district court’s denial of her
    motion to withdraw her guilty plea, raising two arguments.
    First, she argues that the court erred in determining that her plea
    counsel did not perform deficiently when he “affirmatively
    misled [her] to believe that she could re-enter the United States
    within five years . . . and was ineligible for other reliefs from
    deportation.” To challenge a guilty plea on appeal, a defendant
    must move to withdraw the plea prior to sentencing. 
    Utah Code Ann. § 77-13-6
    (2)(b) (LexisNexis 2017). If a defendant fails to
    meet this statutory requirement, we are “foreclose[d]” from
    reviewing the issue on direct appeal, even for plain error, see
    State v. Rettig, 
    2017 UT 83
    , ¶¶ 26, 47, 
    416 P.3d 520
    , and the
    defendant “shall” instead pursue the claim under the Post-
    Conviction Remedies Act, see 
    Utah Code Ann. § 77-13-6
    (2)(c).
    ¶6     Recently, this court held that the plea withdrawal statute
    also precludes review when a defendant timely moves to
    withdraw the plea below but then appeals based on a different
    legal theory. See Badikyan, 
    2018 UT App 168
    , ¶ 21, 
    436 P.3d 256
    ,
    cert. granted, 
    436 P.3d 1247
     (Utah 2019). In Badikyan, the
    defendant complied with the jurisdictional requirement by
    moving to withdraw his guilty plea prior to sentencing. But
    rather than “challenge the district court’s factual findings and
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    State v. Enriquez-Meza
    legal conclusions” on the ground he raised below, the defendant
    “assert[ed] an entirely different ground [on appeal] for why he
    should have been allowed to withdraw his guilty plea.” 
    Id.
     As a
    result, the plea withdrawal statute precluded this court from
    reviewing his new argument on appeal, “even under the plain
    error exception to preservation.” 
    Id.
    ¶7     Like the defendant in Badikyan, Enriquez-Meza timely
    moved to withdraw her guilty plea before sentencing but based
    that motion on a legal theory entirely different from that raised
    on appeal. Specifically, Enriquez-Meza argued below that
    counsel was ineffective in failing to advise her of the risk of
    deportation and failing to consider every possible strategy to
    avoid deportation, whereas on appeal she argues that counsel
    “affirmatively misled [her] to believe that she could re-enter the
    United States within five years . . . and was ineligible for other
    reliefs from deportation.” Because she failed to properly
    preserve the legal theory she now advances on appeal, we are
    precluded from addressing it. See 
    id.
    ¶8     Second, Enriquez-Meza argues that her plea did not
    satisfy rule 11 of the Utah Rules of Criminal Procedure because
    she never said that she was “guilty.” We “review the ultimate
    decision to deny a motion to withdraw a guilty plea under an
    abuse of discretion standard.” State v. Stilling, 
    856 P.2d 666
    , 670
    (Utah Ct. App. 1993) (cleaned up). The district court’s findings of
    fact are reviewed for clear error, and its conclusion “regarding
    substantial compliance with constitutional and procedural
    requirements for entry of a guilty plea is . . . reviewed for
    correctness.” 
    Id.
    ¶9     Relying on the transcript from the change of plea hearing,
    Enriquez-Meza contends that she answered “yes” rather than
    “guilty” when asked to enter her plea. But after she moved to
    withdraw her guilty plea on that basis, the district court listened
    to the audio recording of the change of plea hearing, reviewed
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    State v. Enriquez-Meza
    its contemporaneous notes, and found that the transcript was
    incorrect and that her actual response was “guilty.” The court
    also pointed to the next line in the transcript, in which the court
    responds, “I’ll receive and accept the guilty plea.” Enriquez-
    Meza did not inform the court at that time that she was not
    pleading guilty.
    ¶10 Enriquez-Meza challenges the district court’s finding that
    she responded “guilty,” arguing that the court “sua sponte gave
    credence to its recollection over the official transcript” and that it
    would have been “better practice . . . for the court to invite the
    parties to weigh in and/or conduct further investigation of what
    [she] actually verbalized.” But the district court did conduct
    further investigation when it listened to the audio recording,
    reviewed its notes, and reread the transcript in its entirety.
    Further, the court acted within its discretion to correct the
    transcript. Rule 30 of the Utah Rules of Criminal Procedure
    permits district courts to correct “[c]lerical mistakes in . . . the
    record and errors in the record arising from oversight or
    omission . . . at any time and after such notice, if any, as the court
    may order.” Utah R. Crim. P. 30(b). “The purpose of this rule is
    to correct clerical errors so that the record reflects what was
    actually done or intended.” State v. Watring, 
    2017 UT App 100
    ,
    ¶ 13, 
    400 P.3d 1148
     (cleaned up); see also Utah R. App. P. 11(h)
    (providing that “[i]f any difference arises as to whether the
    record truly discloses what occurred in the trial court, the
    difference shall be submitted to and settled by that court and the
    record made to conform to the truth” and that “the parties by
    stipulation, the trial court, or the appellate court, either before or
    after the record is transmitted, may direct that the omission or
    misstatement be corrected and, if necessary, that a supplemental
    record be certified and transmitted”).
    ¶11 Although the court’s factual finding is reviewable for
    clear error, see Stilling, 
    856 P.2d at 670
    , Enriquez-Meza has not
    provided the audio recording of the proceeding in the record on
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    State v. Enriquez-Meza
    appeal. Without an adequate record, we defer to the district
    court’s finding that the transcript was incorrect and that
    Enriquez-Meza did say “guilty” when asked, “[H]ow do you
    plead?” See State v. Morello, 
    927 P.2d 646
    , 649 (Utah Ct. App.
    1996) (explaining that “we do not presume error simply because
    [part of] the record is unavailable”).
    ¶12 We conclude Enriquez-Meza did not preserve the specific
    ineffective-assistance argument she makes on appeal and that
    the district court acted within its discretion to correct the record.
    Accordingly, the denial of Enriquez-Meza’s motion to withdraw
    her guilty plea is affirmed.
    20180258-CA                      6               
    2019 UT App 154
                                

Document Info

Docket Number: 20180258-CA

Filed Date: 9/19/2019

Precedential Status: Precedential

Modified Date: 12/21/2021