State v. Enriquez-Meza , 2019 UT App 154 ( 2019 )

2019 UT App 154THE 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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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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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
20180258-CA 4 2019 UT App 154State 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
20180258-CA 5 2019 UT App 154State 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