In Re Pers. Restraint of Yung-Cheng Tsai ( 2015 )


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  •                                                          This opinion was filed for record
    at 8:559
    U.S. 356
    , 
    130 S. Ct. 1473
    , 
    176 L. Ed. 2d 284
    (2010) is an affirmation of an old n1le
    of state constitutional law- the duty to provide effective assistance of counsel
    includes the duty to reasonably research and apply relevant statutes. However,
    language in certain Washington appellate cases made it appear that this well-
    In re Pers. Restraint ofTsai, No. 88770-5
    In re Pers. Restraint ofJagana, No. 89992-4
    established rule did not apply to RCW 10.40.200. In superseding those cases,
    Padilla significantly changed state law.
    Muhammadou Jagana raises a claim that would have been rejected before
    Padilla based on those superseded appellate cases. We therefore reverse the Court
    of Appeals' order dismissing Jagana's personal restraint petition (PRP) and remand
    to the trial court for an evidentiary hearing. However, Yung-Cheng Tsai's claim
    was available before Padilla, and Tsai did in fact raise his claim with the assistance
    of an attorney in 2008. That motion was denied based on an issue of law not
    affected by Padilla, and Tsai did not appeal. We therefore affirm the Court of
    Appeals' order dismissing Tsai 's PRP.
    FACTUAL AND PROCEDURAL HISTORY
    A.     Yung-Cheng Tsai
    On July 27, 2006, Tsai pleaded guilty to one count of unlawful possession of
    a controlled substance with intent to deliver (marijuana). On August 29, 2006, the
    trial court sentenced him to 11 months in jail and 12 months of community
    custody. Tsai did not appeal. On or about October 30, 2007, Tsai received a
    notice to appear from the United States Immigration and Naturalization Services,
    which informed him that he was subject to removal (also known as deportation)
    based on his conviction.
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    In re Pers. Restraint ofJagana, No. 89992-4
    On July 21, 2008, Tsai filed a motion to withdraw his guilty plea under CrR
    7 .8, alleging that his attorney wrongfully advised him he would not be deportable
    if he accepted the State's plea offer and that this erroneous advice was prejudicial.
    The trial court denied Tsai' s motion as time barred. The motion was filed over one
    year after Tsai pleaded guilty, and the trial court held that equitable tolling did not
    apply. The trial court did not transfer Tsai' s motion to the Court of Appeals for
    consideration as a PRP. Tsai did not appeal or otherwise pursue his 2008 motion.
    On May 18, 2011, Tsai again moved to withdraw his guilty plea under CrR
    7.8 based on his attorney's alleged erroneous advice. Tsai argued his motion was
    exempt from the one-year time bar in RCW 10.73.090(1) under RCW 10.73.100(6)
    because Padilla and State v. Sandoval, 
    171 Wash. 2d 163
    , 
    249 P.3d 1015
    (2011)
    (applying Padilla) effected a significant, material change in the law that applies
    retroactively.
    The trial court initially denied Tsai's 2011 motion, holding it was time
    barred. On Tsai' s motion, the trial court vacated its holding and transferred the
    motion to the Court of Appeals to be considered as a PRP. The Court of Appeals
    denied Tsai's PRP as time barred, holding that Padilla and Sandoval do not apply
    retroactively. We granted Tsai's motion for discretionary review and consolidated
    his case with Jagana's. In re Pers. Restraint ofYung-Cheng Tsai, 180 Wn.2d
    1014,327 P.3d 55 (2014).
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    In re Pers. Restraint ofJagana, No. 89992-4
    B.     Muhammadou Jagana
    On June 7, 2006, Jagana pleaded guilty to one count of possession of a
    controlled substance (cocaine). He was sentenced to three months of electronic
    home monitoring. J agana did not appeal.
    On November 4, 2010, Jagana moved to withdraw his guilty plea under CrR
    7.8. Relying on Padilla, Jagana asserted that his attorney failed to investigate
    Jagana's immigration status, did not advise him that his guilty plea could have
    immigration consequences, and did not advise him to speak with an immigration
    attorney. The trial court transferred Jagana's motion to the Court of Appeals to be
    considered as a PRP.
    The Court of Appeals initially filed a published opinion holding Jagana's
    PRP was timely under RCW 10.73.100(6) and remanding the case to the trial court
    for a reference hearing. In re Pers. Restraint ofJagana, 
    170 Wash. App. 32
    , 
    282 P.3d 1153
    (2012). The Court of Appeals reasoned that Padilla was a significant,
    material change in the law and that Padilla should apply retroactively because it
    was not a new rule; it merely applied the standard analysis for ineffective
    assistance of counsel to a new set of facts.
    The State sought discretionary review, and we remanded to the Court of
    Appeals for reconsideration in light of Chaidez v. United States, 568 U.S._, 
    133 S. Ct. 1103
    , 1107, 
    185 L. Ed. 2d 149
    (2013), which held Padilla did announce a
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    In re Pers. Restraint ofJagana, No. 89992-4
    new rule that does not apply retroactively to matters on collateral review. In re
    Pers. Restraint ofJagana, 
    177 Wash. 2d 1027
    , 
    309 P.3d 1186
    (2013). On
    reconsideration, the Court of Appeals withdrew its opinion and dismissed Jagana's
    PRP as time barred. We granted Jagana's motion for discretionary review and
    consolidated his case with Tsai' s. In re Pers. Restraint ofJagana, 180 Wn.2d
    1014,327 P.3d 55 (2014).
    ISSUES
    A.     Are the PRPs exempt from the one-year time bar in RCW
    10.73.090(1) under RCW 10.73.100(6)?
    B.     If the PRPs are not time barred, are the petitioners entitled to relief or
    evidentiary hearings on the merits of their claims?
    ANALYSIS
    A.     As applied to Washington, Padilla did not announce a new rule, but it did
    effect a significant change in the law under RCW 10.73.100(6)
    1.     The unreasonable failure to give any advice about the immigration
    consequences of a guilty plea was already deficient performance in
    Washington under the ordinary Strickland test
    A criminal defendant's right to the assistance of counsel derives from the
    Sixth Amendment to the United States Constitution and article I, section 22 of the
    Washington Constitution. Under these provisions, a criminal defense attorney has
    the constitutional duty to provide assistance that is effective. Strickland v.
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    Washington, 
    466 U.S. 668
    , 686, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984). Where
    a defense attorney makes "errors so serious that counsel was not functioning as the
    'counsel' guaranteed the defendant by the Sixth Amendment," the attorney's
    performance is constitutionally deficient. !d. at 687. Where that deficiency
    deprives the defendant of fair proceedings, the defendant has suffered prejudice
    because there is "a breakdown in the adversary process that renders the result
    unreliable." 
    Id. Unreliable results
    caused by defense counsel's prejudicially
    deficient performance are constitutionally intolerable.
    When determining whether a defense attorney provided effective assistance,
    the underlying test is always one of "reasonableness under prevailing professional
    norms." 
    Id. at 688.
    While simple to state in theory, this test can be complicated to
    apply in practice. The court must engage in a fact-specific inquiry into the
    reasonableness of an attorney's actions, measured against the applicable prevailing
    professional norms in place at the time. 
    Id. at 690.
    It is thus impossible to
    "exhaustively define the obligations of counsel [ ]or form a checklist for judicial
    evaluation of attorney performance." 
    Id. at 688.
    Nevertheless, effective
    representation "entails certain basic duties," such as
    a duty of loyalty, a duty to avoid conflicts of interest[,] ... the
    overarching duty to advocate the defendant's cause and the more
    particular duties to consult with the defendant on important decisions
    and to keep the defendant informed of important developments in the
    course of the prosecution. Counsel also has a duty to bring to bear
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    such skill and knowledge as will render the trial a reliable adversarial
    testing process.
    I d.
    It is against this backdrop that we consider whether Padilla applies
    retroactively under RCW 10.73.100(6) and Teague v. Lane, 
    489 U.S. 288
    , 109 S.
    Ct. 1060, 
    103 L. Ed. 2d 334
    (1989). Under Teague, new constitutional rules of
    criminal procedure usually apply only to matters on direct review, but old rules
    apply to matters on both direct and collateral review. Whorton v. Bockting, 
    549 U.S. 406
    , 416, 
    127 S. Ct. 1173
    , 
    167 L. Ed. 2d 1
    (2007). Because it is impossible to
    exhaustively define a defense attorney's obligations under Strickland, cases that
    merely apply the ordinary test for ineffective assistance of counsel to new facts do
    not announce new rules for Teague purposes. 
    Chaidez, 133 S. Ct. at 1107
    (citing
    Strickland, 
    466 U.S. 668
    ). As applied to Washington law, Padilla is just such a
    case.
    In Chaidez, the Supreme Court held that Padilla did not merely apply the
    ordinary test for ineffective assistance of counsel; it first considered the threshold
    question of whether defense counsel has any constitutional duty to advise
    noncitizen defendants about the immigration consequences of pleading guilty. I d.
    at 1108. The notion that defense counsel has no such duty arose from a distinction
    many courts have drawn between direct and collateral consequences. Padilla, 559
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    U.S. at 365 & n.9. Immigration consequences were usually considered collateral
    and thus outside the scope of defense counsel's constitutional duty to advise. 
    Id. at 364-65.
    Padilla did not fully reject the direct-versus-collateral distinction but held
    it was not appropriate as applied to immigration consequences. 
    Id. at 366.
    This court first explicitly adopted the distinction between direct and
    collateral consequences in a 1980 case holding that habitual criminal proceedings
    were collateral consequences. State v. Barton, 93 Wn.2d 301,305, 
    609 P.2d 1353
    (1980). Within three years of Barton, our legislature did what Padilla ultimately
    did in 2010-it rejected the      direct-versus~collateral     distinction as applied to
    immigration consequences, declaring that a noncitizen defendant must be warned
    about immigration consequences before pleading guilty. 1 LAws OF 1983, ch. 199
    § 1(1), codified at RCW 10.40.200(1). To give effect to this statute, the standard
    plea form in CrR 4.2 was promptly amended to include a statement warning
    noncitizen defendants of possible immigration consequences. That warning
    statement is not, itself, the required advice; it merely creates a rebuttable
    1
    Contrary to the dissent's suggestion, we are not holding that the legislature has the authority to
    define the scope of constitutionally effective counsel. Rather, we are giving effect to our own
    precedent, which holds that a defense attorney has a basic duty to know and apply relevant
    statutes and professional norms, and the unreasonable failure to fulfill that duty is
    constitutionally deficient. E.g., State v. Kyllo, 
    166 Wash. 2d 856
    , 862,
    215 P.3d 177
    (2009); see
    also Kimmelman v. Morrison, 
    477 U.S. 365
    , 385, 
    106 S. Ct. 2574
    , 
    91 L. Ed. 2d 305
    (1986)
    (deficient performance where counsel failed to file a timely suppression motion because he did
    not engage in any pretrial discovery and therefore was not aware of the evidence to be
    presented).
    8
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    presumption the defendant has been properly advised. RCW 10.40.200(2);
    
    Sandoval, 171 Wash. 2d at 173
    .
    RCW 10.40.200's plain language gives noncitizen defendants the
    unequivocal right to advice regarding immigration consequences and necessarily
    imposes a correlative duty on defense counsel to ensure that advice is provided.
    State v. Butler, 
    17 Wash. App. 666
    , 675, 
    564 P.2d 828
    (1977) ("Beyond the
    defendant's power oflmowledge and intelligence, the duty to protect the defendant
    lies first and foremost with his attorney."). While defense counsel's duty to advise
    regarding immigration consequences is imposed by statute, "[r]easonable conduct
    for an attorney includes carrying out the duty to research the relevant law." State
    v. Kyllo, 
    166 Wash. 2d 856
    , 862, 
    215 P.3d 177
    (2009) (citing 
    Strickland, 466 U.S. at 690-91
    ). In many cases 2 defense counsel's failure to fulfill his or her statutory
    duty may be due to an unreasonable failure to research or apply RCW 10.40.200,
    and there is no conceivable tactical or strategic purpose for such a failure.
    Where an attorney unreasonably fails to research or apply relevant statutes
    without any tactical purpose, that attorney's performance is constitutionally
    deficient. See, e.g., 
    id. at 865-69
    (deficient performance where reasonably
    2
    There may be situations where defense counsel's failure to provide the advice required by RCW
    10.40.200 is objectively reasonable and thus not deficient. See People v. Pozo, 
    746 P.2d 523
    ,
    529 (Colo. 1987). And of course, even if deficient, counsel's performance is not constitutionally
    ineffective unless it is also prejudicial. 
    Kyllo, 166 Wash. 2d at 862
    .
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    adequate research would have shown that a former pattern jury instruction
    misstated the law on self-defense); State v. Aha, 
    137 Wash. 2d 736
    , 745-46, 
    975 P.2d 512
    (1999) (deficient performance where reasonably adequate research would have
    prevented the possibility of conviction based on acts predating the relevant
    statute's effective date). Cf State v. Paredez, 2004-NMSC-036, 
    136 N.M. 533
    ,
    
    101 P.3d 799
    , 805 (holding that the failure to advise a noncitizen defendant about
    immigration consequences as required by N.M. CODER. 5-303(E)(5) could be
    ineffective assistance); RPC 1.1 cmt. 2 ("Perhaps the most fundamental legal skill
    consists of determining what kind of legal problems a situation may involve, a skill
    that necessarily transcends any particular specialized knowledge."). Indeed, "[a]n
    attorney's ignorance of a point of law that is fundamental to his case combined
    with his failure to perform basic research on that point is a quintessential example
    of unreasonable performance under Strickland." Hinton v. Alabama, 571 U.S._,
    
    134 S. Ct. 1081
    , 1089, 
    188 L. Ed. 2d 1
    (2014). The unreasonable failure to
    research and apply RCW 10.40.200 is as constitutionally deficient as the
    unreasonable failure to research and apply any relevant statute.
    This resolves Padilla's threshold question as applied to Washington law.
    Padilla thus becomes a "garden-variety application[ ] of the test in Strickland' that
    simply refines the scope of defense counsel's constitutional duties as applied to a
    specific fact pattern. 
    Chaidez, 133 S. Ct. at 1107
    . Because Padilla did not
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    announce a new rule under Washington law, it applies retroactively to matters on
    collateral review under Teague.
    2.     Padilla effected a significant change in Washington law
    Whether a changed legal standard applies retroactively is a distinct inquiry
    from whether there has been a significant change in the law. An old rule whose
    new application significantly changes the law is unusual, but not impossible, as
    this case demonstrates. Padilla's application of the old Strickland test significantly
    changed state law by superseding Washington appellate cases that apparently
    foreclosed the possibility that defense counsel's unreasonable and prejudicial
    failure to fulfill his or her duties under RCW 10.40.200 could ever be
    constitutionally ineffective.
    (a)     A "new" rule under Teague is not always the same as a
    "significant change" in the law under RCW 10.73.100(6)
    There is unquestionably a substantial overlap between "new" Teague rules
    and "significant changes" in state law, but they are two separate inquiries: "RCW
    10. 73.1 00( 6) sets forth three conditions that must be met before a petitioner can
    overcome the one-year time bar: (1) a [significant] change in the law (2) that is
    material and (3) that applies retroactively." In re Pers. Restraint of Gentry, 
    179 Wash. 2d 614
    , 625,316 P.3d 1020 (2014). While we have used the Teague analysis
    and its definition of a "new" rule to determine whether a constitutional rule applies
    11
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    retroactively, 
    id. at 626,
    we have never imported Teague's definition of a new rule
    into our analysis of whether there has been a significant change in the law.
    In fact, we have always defined the two phrases differently. A significant
    change in state law occurs "where an intervening opinion has effectively
    overturned a prior appellate decision that was originally determinative of a material
    issue." In re Pers. Restraint of Greening, 
    141 Wash. 2d 687
    , 697, 
    9 P.3d 206
    (2000).
    By comparison, new rules for Teague purposes "are those that 'break[] new
    ground or impose[] a new obligation on the States or the Federal government
    [or] if the result was not dictated by precedent existing at the time the defendant's
    conviction became final."' State v. Evans, 
    154 Wash. 2d 438
    , 444, 
    114 P.3d 627
    (2005) (alterations in original) (quoting 
    Teague, 489 U.S. at 301
    ). "If before the
    opinion is announced, reasonable jurists could disagree on the rule of law, the
    opinion is new." !d. (citing Beard v. Banks, 
    542 U.S. 406
    , 411, 
    124 S. Ct. 2504
    ,
    
    159 L. Ed. 2d 494
    (2004)).
    Using different definitions for a "significant change" in state law and a
    "new" rule under Teague is not only fully supported by the plain language ofRCW
    10.73.100(6) and our own precedent, it also makes good sense in light ofthe
    different purposes these phrases serve in our analysis. The "significant change"
    language is intended to reduce procedural barriers to collateral relief in the
    interests of fairness and justice. 
    Greening, 141 Wash. 2d at 697
    ("While litigants
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    have a duty to raise available arguments in a timely fashion and may later be
    procedurally penalized for failing to do so ... they should not be faulted for having
    omitted arguments that were essentially unavailable at the time."). Meanwhile,
    Teague's broad definition of "new" rules that usually do not apply retroactively is
    intended to strengthen procedural barriers to collateral relief in the interests of
    finality and comity. Danforth v. Minnesota, 552 U.S. 264,279-81, 
    128 S. Ct. 1029
    , 
    169 L. Ed. 2d 859
    (2008).
    A "significant change" in state law and a "new" constitutional rule of
    criminal procedure are different phrases with different meanings that serve
    different purposes. We will not conflate them. 
    Gentry, 179 Wash. 2d at 625
    ; cf
    Commonwealth v. Sylvain, 
    466 Mass. 422
    , 433-34, 
    995 N.E.2d 760
    (2013)
    (retaining the general Teague framework but declining to adopt the expanded
    definition of a "new" rule that was articulated after Teague).
    (b)     Padilla significantly changed Washington law
    It is true that in most cases simply applying the ordinary Strickland test to
    new facts will announce neither new rules nor significant changes in the law. See
    In re Pers. Restraint ofTuray, 
    150 Wash. 2d 71
    , 83, 
    74 P.3d 1194
    (2003) (Where an
    opinion "simply applies settled law to new facts, it does not constitute a significant
    change in the law."). However, Washington appellate cases issued before Padilla
    apparently foreclosed any possibility that the unreasonable, prejudicial failure to
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    provide the advice required by RCW 10.40.200 could ever be ineffective assistance
    of counsel. Padilla superseded these decisions, significantly changing state law.
    The first appellate case to explicitly consider whether RCW 10.40.200 has
    any implications on the constitutional effectiveness of defense counsel is State v.
    Holley, 
    75 Wash. App. 191
    , 
    876 P.2d 973
    (1994). In that case, the Court of Appeals
    held that a reference hearing was required to determine whether the defendant's
    guilty plea was entered in violation ofRCW 10.40.200. 
    Id. at 200-01.
    Even
    though it decided the case on statutory grounds, Holley chose to address the
    constitutional implications ofRCW 10.40.200 and summarily stated in dictum that
    there were none. ld. at 196-98. To support this proposition, Holley relied on State
    v. Malik, 
    37 Wash. App. 414
    , 
    680 P.2d 770
    (1984). Malik was based on facts
    occurring before RCW 10.40.200's effective date and so did not consider the
    impact of that statute on the duties of defense counsel. State v. Littlefair, 112 Wn.
    App. 749, 767, 
    51 P.3d 116
    (2002). As discussed above, with the enactment of
    RCW 10.40.200, the unreasonable failure to research and apply that statute became
    constitutionally deficient performance. Holley's dictum was thus erroneous.
    The only decision of this court that touches on the issue presented here is In
    re Personal Restraint ofYim, 
    139 Wash. 2d 581
    , 588, 
    989 P.2d 512
    (1999).
    However, Yim dealt with a claim that the defendant received incorrect advice,
    rather than no advice, regarding immigration consequences. !d. Padilla is not
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    limited to incorrect advice; it explicitly holds that providing no advice regarding
    immigration consequences is also deficient. 
    Padilla, 559 U.S. at 370
    . Further, Yim
    discussed only the voluntariness of the defendant's plea without reference to the
    standard for determining ineffective assistance of counsel, and Yim did not
    consider RCW 10.40.200. 
    Yim, 139 Wash. 2d at 588-90
    (citing State v. Ward, 
    123 Wash. 2d 488
    , 512-13, 
    869 P.2d 1062
    (1994); 
    Malik, 37 Wash. App. at 416
    ). Yim's
    analysis does not address the issues presented where a noncitizen asserts his or her
    attorney unreasonably failed to provide any advice about the immigration
    consequences of pleading guilty as required by RCW 10.40.200.
    Nevertheless, Washington appellate courts have routinely rejected the
    possibility that such a failure could ever be ineffective assistance of counsel. Each
    of those decisions relies on cases analyzing guilty pleas entered before the
    effective date ofRCW 10.40.200, Holley's erroneous dictum, or Yim's
    distinguishable analysis. See State v. Jamison, 
    105 Wash. App. 572
    , 591-92, 595, 
    20 P.3d 1010
    (2001) (citing 
    Yim, 139 Wash. 2d at 588
    ; 
    Holley, 75 Wash. App. at 198
    );
    State v. Martinez-Lazo, 
    100 Wash. App. 869
    , 876-77,
    999 P.2d 1275
    (2000) (citing
    
    Yim, 139 Wash. 2d at 588
    ; 
    Holley, 75 Wash. App. at 197
    ; In re Pers. Restraint of
    Peters, 
    50 Wash. App. 702
    , 704, 
    750 P.2d 643
    (1988)), abrogation recognized by
    
    Chaidez, 133 S. Ct. at 1109
    n.8; 
    Holley, 75 Wash. App. at 197
    -98 (citing 
    Malik, 37 Wash. App. at 416
    -17); 
    Peters, 50 Wash. App. at 705
    (noting the guilty plea was
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    entered before RCW 10.40.200's effective date); see generally Littlefair, 112 Wn.
    App. at 766-69 (discussing the history ofRCW 10.40.200, Malik, and its progeny).
    Padilla superseded the theory underlying these decisions--that "anything short of
    an affirmative misrepresentation by counsel of the plea's deportation consequences
    could not support the plea's withdrawal." 
    Sandoval, 171 Wash. 2d at 170
    n.1. This
    was a significant change in Washington law.
    B.     Jagana is entitled to an evidentiary hearing on the merits
    A significant, material, retroactive change in the law exempts a PRP from
    RCW 10.73.090(1)'s one-year time bar for collateral attacks. RCW 10.73.100(6).
    However, in light of the arguments currently presented for our review, only Jagana
    is entitled to an evidentiary hearing on the merits of his PRP.
    J agana alleges that his trial attorney unreasonably failed to ascertain
    Jagana's immigration status and did not provide him with any guidance as to any
    possible immigration consequences of his guilty plea, and further alleges that these
    failures rendered Jagana's plea involuntary. These allegations, if true, would
    establish that Jagana did not receive effective assistance of counsel in deciding
    whether to plead guilty. As discussed above, Washington courts would have
    rejected Jagana's claim before Padilla was issued. Jagana's failure to raise this
    apparently unavailable argument cannot render his PRP procedurally barred.
    
    Greening, 141 Wash. 2d at 697
    . He is entitled to an evidentiary hearing.
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    However, Washington courts have long recognized that where a defendant
    relies on his or her attorney's incorrect advice about the immigration consequences
    of pleading guilty, the defendant's plea may be rendered involuntary and
    withdrawn. 
    Yim, 139 Wash. 2d at 588
    . With the assistance of an attorney, Tsai filed
    a motion to withdraw his guilty plea in 2008, alleging his guilty plea was
    involuntary because his attorney incorrectly advised him about the immigration
    consequences. The trial court denied this motion, not because it was legally
    unav·ailable on the merits, but because the trial court decided it was untimely and
    not subject to equitable tolling. Perhaps the trial court erred in 2008, but Tsai did
    not appeal that decision and neither Padilla nor Sandoval addresses equitable
    tolling. Based on the arguments currently presented for our review, Tsai has not
    shown he is entitled to an evidentiary hearing on the merits of his PRP. See RAP
    16.4(d); 
    Greening, 141 Wash. 2d at 697
    .
    CONCLUSION
    This case is not a faceless one that bears no consequences. Numerous
    noncitizen defendants have benefited from the clear statutory requirement that
    defense counsel has a duty to advise them about the immigration consequences of
    pleading guilty. However, numerous meritorious claims that defense counsel
    unreasonably failed to fulfill this duty have been rejected based on the mistaken
    belief that RCW 10.40.200 has no constitutional implications. Now that this
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    mistaken belief has finally been corrected, holding such meritorious claims are
    procedurally barred would deprive many others of the opportunity to have the
    merits of their constitutional claims reviewed. In light of the legislature's long-
    standing commitment to ensuring noncitizen defendants understand the
    immigration consequences of conviction and this court's long-standing
    commitment to ensuring criminal defendants receive effective assistance of
    counsel, such an outcome would be unjust and fall short of the values underpinning
    our state statutory framework.
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    In re Pers. Restraint ofTsai, No. 88770-5
    In re Pers. Restraint of Jagana, No. 89992-4
    WE CONCUR:
    19
    In re Pers. Restraint ofTsai
    In re Pers. Restraint of Jagana
    No. 88770-5 (consolidated with No. 89992-4)
    OWENS, J. (dissenting) -     In 1992, we adopted the United States Supreme
    Court's method for determining when a constitutional rule that arises out of new case
    law may apply retroactively. In re Pers. Restraint of St. Pierre, 
    118 Wash. 2d 321
    , 326-
    27, 
    823 P.2d 492
    (1992). The Court's method comes from Teague v. Lane, 
    489 U.S. 288
    , 310, 
    109 S. Ct. 1060
    , 
    103 L. Ed. 2d 334
    (1989), and under that method only
    settled constitutional rules apply retroactively. New constitutional rules of criminal
    procedure do not apply retroactively. 
    Id. In this
    case, both Tsai and Jagana ask that
    we apply a constitutional rule that arose out of new case law-Padilla v. Kentucky,
    
    559 U.S. 356
    , 
    130 S. Ct. 1473
    , 
    176 L. Ed. 2d 284
    (2010)-retroactively to them.
    In Padilla, the United States Supreme Court held that if a defendant's attorney
    fails to advise the defendant of the immigration consequences of pleading guilty, it
    violates the defendant's right to the effective assistance of counsel under the Sixth
    Amendment to the United States Constitution. 
    Id. at 374.
    Thus, the question under
    our retroactivity framework is whether that holding constituted a new constitutional
    In re Pers. Restraint ofTsai, No. 88770-5
    In re Pers. Restraint of Jagana, No. 89992-4
    Owens, J., Dissenting
    rule in Washington. To determine that, we must assess whether our courts interpreted
    the Sixth Amendment to require attorneys to advise their clients of the immigration
    consequences of pleading guilty prior to Padilla.
    As I explain below, our case law shows that prior to Padilla, Washington
    courts had held that if an attorney failed to advise his or her client of the immigration
    consequences of pleading guilty, it was not a violation of the defendant's Sixth
    Amendment right to the effective assistance of counsel. Although some may disagree
    with those holdings, that was the law in Washington prior to Padilla. Thus, Padilla
    represented a new constitutional rule of criminal procedure in Washington. The
    United States Supreme Court came to this same conclusion when it resolved this exact
    question in the federal context. See Chaidez v. United States,_ U.S._, 
    133 S. Ct. 1103
    , 1113, 
    185 L. Ed. 2d 149
    (2013). Because Padilla is a new constitutional rule of
    criminal procedure, it cannot be applied retroactively to the petitioners.
    The majority avoids this result by distorting the historical scope of Washington
    constitutional law regarding ineffective assistance of counsel. The majority relies on
    a Washington statute-RCW 10.40.200-to hold that Padilla represented a settled
    constitutional rule in Washington, and that Padilla may therefore be applied
    retroactively. That is mystifying, as Teague requires us to determine whether a
    constitutional rule of criminal procedure is retroactive, not a statutory rule. RCW
    10.40.200 tells us nothing about how the Sixth Amendment was interpreted in
    2
    In re Pers. Restraint ofTsai, No. 88770-5
    In re Pers. Restraint ofJagana, No. 89992-4
    Owens, J., Dissenting
    Washington prior to Padilla. Although the majority may believe that Washington
    courts should have interpreted the Sixth Amendment to require attorneys to advise
    their clients of the immigration consequences of pleading guilty because ofRCW
    10.40.200, that was not the reality of Washington constitutional law prior to Padilla.
    It is understandable why the majority wants to avoid this difficult result, but it
    is compelled by our precedent adopting the Teague analysis. Unless and until we
    overturn our adoption of the Teague analysis, we are bound by it. Padilla represented
    a new constitutional rule of criminal procedure in Washington. Thus, it cannot be
    applied retroactively to the petitioners under Teague. I respectfully dissent.
    1. Under Teague, New Constitutional Rules of Criminal Procedure Do Not
    Apply Retroactively
    Under Teague, "[u]nless they fall within an exception to the general rule, new
    constitutional rules of criminal procedure will not be applicable to those cases which
    have become final before the new rules are 
    announced." 489 U.S. at 310
    . "Only
    when we apply a settled rule may a person avail herself of the decision on collateral
    review." 
    Chaidez, 133 S. Ct. at 1107
    . A rule is new '"when it breaks new ground or
    imposes a new obligation' on the government." Id. (quoting 
    Teague, 489 U.S. at 301
    ). Put differently, "a case announces a new rule if the result was not dictated by
    precedent existing at the time the defendant's conviction became final." 
    Teague, 489 U.S. at 301
    .
    3
    In re Pers. Restraint ofTsai, No. 88770-5
    In re Pers. Restraint of Jagana, No. 89992-4
    Owens, J., Dissenting
    2. As the United States Supreme Court Has Held, Padilla Was a New Rule in
    Jurisdictions (Like Washington) That Previously Held That Advice about
    Immigration Consequences Was Categorically Removed from the Scope of
    the Sixth Amendment
    Prior to Padilla, both federal courts and our courts had concluded that an
    attorney's advice about the immigration consequences of pleading guilty was
    categorically removed from the scope of the Sixth Amendment. As the United States
    Supreme Court said, state and lower federal courts had "almost unanimously
    concluded that the Sixth Amendment [did] not require attorneys to inform their clients
    of a conviction's collateral consequences, including deportation." 
    Chaidez, 133 S. Ct. at 1109
    . Washington was one ofthose states. See State v. Martinez-Lazo, 100 Wn.
    App. 869, 876-78, 
    999 P.2d 1275
    (2000) (holding that Martinez-Lazo did not receive
    ineffective assistance of counsel because "a defendant need not be advised of the
    possibility of deportation," which is merely a collateral consequence). The United
    States Supreme Court recently analyzed whether Padilla created a "'new rule"' under
    Teague in 
    Chaidez. 133 S. Ct. at 1107
    . Because our courts' interpretation of the
    Sixth Amendment was the same as the federal courts, our Teague analysis should
    mirror the United States Supreme Court's Teague analysis in Chaidez.
    In Chaidez, Chaidez pleaded guilty to deportable offenses, but her attorney
    failed to advise her ofthe immigration consequences of pleading guilty. !d. at 1106.
    Her conviction became final in 2004. !d. In 2009, after immigration proceedings
    4
    In re Pers. Restraint ofTsai, No. 88770-5
    In re Pers. Restraint ofJagana, No. 89992-4
    Owens, J., Dissenting
    commenced against her, she filed a writ of coram nobis 1 in federal district court,
    arguing ineffective assistance of counsel under the Sixth Amendment. !d. The Court
    decided Padilla while Chaidez's petition was still pending, and the Court granted her
    petition for certiorari to determine whether Padilla applied retroactively to her. Jd. at
    1106-07.
    In finding that Padilla created a new rule (and thus that it could not be applied
    retroactively), the Court's analysis hinged on the distinction between defense
    counsel's duty to inform clients about deportation consequences as a matter of
    professional competence and defense counsel's requirements under the Sixth
    Amendment. See 
    id. at 1108.
    The Court noted that "had Padilla merely made clear
    that a lawyer who neglects to inform a client about the risk of deportation is
    professionally incompetent," then Padilla would not have created a new rule. !d.
    Indeed, in Padilla, the Court noted that the plea form used by Kentucky trial courts
    already "provides notice of possible immigration consequences" and that many other
    states (including Washington) "require trial courts to advise defendants of possible
    immigration 
    consequences." 559 U.S. at 374
    n.15. However, in Chaidez, the Court
    1
    Chaidez filed a writ of coram nobis instead of habeas relief because she was no longer
    "'in custody"' and therefore could not seek habeas relief. 
    Chaidez, 133 S. Ct. at 1106
    n.l
    (citing 28 U.S.C. §§ 2255, 2241). The Court assumed without deciding that nothing in
    the case turned "on the difference between a coram nobis petition and a habeas petition."
    !d.
    5
    In re Pers. Restraint ofTsai, No. 88770-5
    In re Pers. Restraint ofJagana, No. 89992-4
    Owens, J., Dissenting
    noted that "Padilla did something 
    more." 133 S. Ct. at 1108
    . Padilla considered
    whether "advice about deportation" was "'categorically removed' from the scope of
    the Sixth Amendment right to counsel because it involved only a 'collateral
    consequence' of a conviction, rather than a component of the criminal sentence." 
    Id. (quoting Padilla,
    559 U.S. at 366). In other words, Padilla broke new ground by
    determining that attorneys are required to inform their clients about the immigration
    consequences of pleading guilty under the Sixth Amendment.
    As discussed above, Washington courts, like the federal courts and many other
    state courts prior to Padilla, "concluded that the Sixth Amendment [did] not require
    attorneys to inform their clients of a conviction's collateral consequences, including
    deportation." 
    Id. at 1109;
    Martinez-Lazo, 100 Wash. App. at 876-78
    . Only Colorado
    and New Mexico held that the Sixth Amendment required attorneys to inform their
    clients of a conviction's collateral consequences. 
    Chaidez, 133 S. Ct. at 1109
    & n.9
    (citing People v. Pozo, 
    746 P.2d 523
    , 527-29 (Colo. 1987); State v. Paredez, 2004-
    NMSC-036, 
    136 N.M. 533
    , 539, 
    101 P.3d 799
    ). Since our courts' interpretation of
    the Sixth Amendment was the same as the federal courts, our Teague analysis here
    should mirror the United States Supreme Court's Teague analysis in Chaidez. Thus,
    like the Supreme Court, I would hold that Padilla created a new rule in Washington
    and cannot be applied retroactively under Teague. The majority's conclusion to the
    contrary is erroneously based on statutory authority, as explained below.
    6
    In re Pers. Restraint ofTsai, No. 88770-5
    In re Pers. Restraint of Jagana, No. 89992-4
    Owens, J., Dissenting
    3. The Majority Fundamentally Errs by Conflating Statutory and
    Constitutional Authority
    As discussed above, Washington has long required trial courts and attorneys to
    inform defendants of the immigration consequences of pleading guilty as a matter of
    practice and professional competence pursuant to a statute. However, we never
    required that practice under the Sixth Amendment until we decided State v. Sandoval,
    
    171 Wash. 2d 163
    , 
    249 P.3d 1015
    (2011), in light of Padilla. The majority
    fundamentally errs by giving a statutory attorney practice standard the same legal
    authority as a constitutional attorney practice standard for Teague retroactivity
    purposes. That is simply not correct under Teague. To determine retroactivity under
    Teague, we must assess whether a constitutional rule of criminal procedure is settled
    or new, not whether a statutory rule is settled or new.
    In 1983, our legislature passed a bill requiring that defendants be advised of
    immigration consequences before pleading guilty. LAWS OF 1983, ch. 199, § 1(2)
    (currently codified as RCW 10.40.200(2)). That being said, our courts have
    consistently held "that a deportation proceeding that occurs subsequent to the entry of
    a guilty plea is merely a collateral consequence of that plea." In re Pers. Restraint of
    Yim, 
    139 Wash. 2d 581
    , 588, 
    989 P.2d 512
    (1999). Accordingly, before Padilla and
    Sandoval, our courts had concluded that the Sixth Amendment did not require
    attorneys to inform their clients of a conviction's collateral consequences, including
    7
    In re Pers. Restraint ofTsai, No. 88770-5
    In re Pers. Restraint of Jagana, No. 89992-4
    Owens, J., Dissenting
    deportation. See 
    Martinez-Lazo, 100 Wash. App. at 876-78
    (holding that Martinez-Lazo
    did not receive ineffective assistance of counsel because "a defendant need not be
    advised of the possibility of deportation," which is merely a collateral consequence).
    As discussed above, we did not recognize that the Sixth Amendment required
    attorneys to give competent advice about deportation consequences until Sandoval, in
    light of Padilla. See 
    Sandoval, 171 Wash. 2d at 169-71
    .
    The majority fundamentally errs by asserting that in 1983, "our legislature did
    what Padilla ultimately did in 201 0-it rejected the direct-versus-collateral distinction
    as applied to immigration consequences, declaring that a noncitizen defendant must be
    warned about immigration consequences before pleading guilty." Majority at 8. The
    legislature did not reject the "direct-versus-collateral distinction" in enacting what is
    now RCW 10.40.200 because it did not (and does not) have the constitutional
    authority to declare what the Sixth Amendment means for determining what
    constitutes ineffective assistance of counsel-that is our job. Marbury v. Madison, 5
    U.S. (1 Cranch) 137, 176, 
    2 L. Ed. 60
    (1803) ("It is, emphatically, the province and
    duty of the judicial department, to say what the law is."). Although the legislature can
    set practice standards for attorneys, only Washington courts can determine whether an
    attorney's violation of a legislative standard constitutes ineffective assistance under
    the Sixth Amendment. And in Washington, as discussed above, our courts had decided
    that an attorney failing to give advice about immigration consequences (as required by
    8
    In re Pers. Restraint ofTsai, No. 88770-5
    In re Pers. Restraint of Jagana, No. 89992-4
    Owens, J., Dissenting
    RCW 10.40.200) was categorically removed from the scope of the Sixth Amendment.
    
    Martinez-Lazo, 100 Wash. App. at 876-78
    .
    Despite the existence ofRCW 10.40.200(2), the Court of Appeals' decision in
    Martinez-Lazo accurately reflected the scope of Washington constitutional law prior
    to Padilla. Even Martinez-Lazo "acknowledge[ d) the general rule in Washington that
    deportation is a collateral consequence"; instead, he argued that because "his
    deportation [was] certain, [it was] therefore no longer a collateral consequence." !d.
    at 87 6-77. Martinez-Lazo' s argument eschewing the distinction between direct and
    collateral consequences in the deportation context was not recognized until Padilla
    and Sandoval. Thus, although Washington statutory law provided that attorneys were
    required to inform their clients of immigration consequences, it was not a
    constitutional requirement under our state courts' interpretation of the Sixth
    Amendment. That distinction should be dispositive of our Teague analysis-we are
    determining whether a constitutional rule of criminal procedure is retroactive, not a
    statutory rule.
    It should be evident from the majority's own citations that it has no authority to
    support its holding. The only pre-Padilla case the majority cites that actually held
    that it was ineffective assistance of counsel for an attorney to fail to advise his or her
    client of the immigration consequences of pleading guilty is from New Mexico.
    Paredez, 
    136 N.M. 533
    . As noted above, that is one of the two states the United
    9
    In re Pers. Restraint ofTsai, No. 88770-5
    In re Pers. Restraint of Jagana, No. 89992-4
    Owens, J., Dissenting
    States Supreme Court discussed in Chaidez that did not consider deportation to be a
    collateral 
    consequence. 133 S. Ct. at 1109
    & n.9.
    Thus, I would conclude that Padilla created a new rule in Washington, and I
    would therefore hold that the rule imposed by Padilla is not retroactive under Teague.
    Accordingly, I would find the petitioners' personal restraint petitions time barred.
    CONCLUSION
    I recognize that "[t]his case is not a faceless one that bears no consequences."
    Majority at 17. But we are a court of law, and we are required to faithfully apply our
    precedent. Our cases have consistently applied the Teague analysis to decide whether
    constitutional rules apply retroactively. Under a proper Teague analysis here, we do
    not look to whether our courts should have been interpreting the Sixth Amendment to
    require attorneys to inform their clients of the deportation consequences of pleading
    guilty. Rather, we must assess how our courts actually interpreted the Sixth
    Amendment and then decide whether Padilla broke new ground from our courts' prior
    approach. Prior to Padilla, our courts had concluded that the Sixth Amendment did
    not apply to an attorney's advice about the immigration consequences of pleading
    guilty. Thus, Padilla created a new rule in Washington. I would therefore hold that
    Padilla may not be applied retroactively under Teague. Accordingly, I would find
    Tsai's and Jagana's personal restraint petitions time barred and affirm the Court of
    Appeals.
    10
    In re Pers. Restraint ofTsai, No. 88770-5
    In re Pers. Restraint ofJagana, No. 89992-4
    Owens, J., Dissenting
    11