Aguilar v. State

• Decision Date: 10 July 2012
• Docket Number: No. 14–11–00227–CR.,14–11–00227–CR.
• Citation: 375 S.W.3d 518
• Parties: Leonardo AGUILAR, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

375 S.W.3d 518

Leonardo AGUILAR, Appellant

v.The STATE of Texas, Appellee.

No. 14–11–00227–CR.

Court of Appeals of Texas, Houston (14th Dist.).

July 10, 2012.

Mark Bennett, Houston, for appellant.

Mandy Miller, Katy, for the State.

Panel consists of Justices FROST, SEYMORE, and JAMISON.

OPINION

MARTHA HILL JAMISON, Justice.

Appellant Leonardo Aguilar appeals from the trial court's denial of his application for writ of habeas corpus. Appellant, a foreign national, contends that his trial counsel in the underlying proceeding failed to apprise him of the adverse immigration consequences of a guilty plea, thus renderinghis plea involuntary under Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Following the dictates of that case, we reverse and remand for further proceedings.

Background

In April 2005, appellant was charged with felony possession of less than a gram of cocaine. In October 2006, appellant pleaded guilty, and the charge was reduced to a class-A misdemeanor. As requested by the State, appellant was sentenced to ten days in jail and ordered to pay a five-hundred-dollar fine.

Appellant filed an application for writ of habeas corpus on December 21, 2010. In an affidavit presented to the court, appellant averred that his counsel in the cocaine possession case only told him that his guilty plea could result in deportation and failed to inform him that the plea would make deportation presumptively mandatory. Appellant further stated that if his counsel had told him that a guilty plea would make deportation presumptively mandatory, he would not have pleaded guilty and would have instead insisted on a trial. He said that residence in the United States was very important to him and was the most important thing to him in respect to the underlying case.

Charles Medlin, appellant's counsel in the underlying case, stated in his affidavit that it was his practice at the time to advise clients that a guilty plea could result in deportation, exclusion of admission, or denial of naturalization, as was also stated in the plea admonishments filed with the court.¹ Medlin further stated that he followed that practice in this case and did not tell appellant whether a guilty plea definitely would or would not have immigration consequences.

Appellant urged the court to grant habeas corpus relief on the ground that Medlin had provided ineffective assistance of counsel by failing to inform appellant that pleading guilty to possession of a controlled substance rendered his deportation presumptively mandatory. At the conclusion of a brief hearing, during which the two affidavits were admitted into evidence, the trial judge denied appellant's application. The judge stated on the record that Medlin had sufficiently counseled appellant pursuant to prevailing professional norms. Neither findings of fact nor conclusions of law were requested or filed.

Habeas Corpus Review

We generally review a trial court's decision on an application for habeas corpus under an abuse of discretion standard of review. See Ex parte Garcia, 353 S.W.3d 785, 787 (Tex.Crim.App.2011). An applicant seeking post-conviction habeas corpus relief bears the burden of establishing by a preponderance of the evidence that the facts entitle him to relief. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex.Crim.App.2002). We consider the evidence presented in the light most favorable to the habeas court's ruling. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App.2006). This deferential review applies even when the trial court's findings are implied rather than explicit and based on affidavits rather than live testimony. Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex.Crim.App.2006); Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App.2004). If the resolutionof the ultimate question turns on an application of legal standards, we review the determination de novo. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.2003), overruled in part on other grounds, Ex parte Lewis, 219 S.W.3d 335, 371 (Tex.Crim.App.2007).

Guilty Pleas, Ineffective Assistance Claims & Padilla

The test for determining the validity of a guilty plea is “whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The two-pronged Strickland v. Washington test applies to challenges to guilty pleas, such as the one in the present case, premised on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Under Strickland, in order to demonstrate ineffective assistance of counsel, a defendant must first show that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness; second, a defendant must affirmatively prove prejudice by showing a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. 466 U.S. at 687–88, 694, 104 S.Ct. 2052;see also Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. In order to satisfy the prejudice prong in a guilty plea case, a defendant or habeas corpus applicant “must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. 366.

In Padilla, the Supreme Court addressed the application of these principles where the voluntariness of a guilty plea is brought into question because a defendant's counsel failed to apprise him or her of the immigration consequences of the plea. 130 S.Ct. 1473. The court determined that “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.” Id. at 1481–82. After reviewing historical developments in immigration law, the court concluded that under current law, “if a noncitizen has committed a removable offense ... his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses.” Id. at 1480. Moreover, preserving the opportunity to remain in the United States might be a more important consideration to a particular defendant in considering a plea offer than the possibility of incarceration. Id. at 1484.

Regarding the advice required of counsel when presented with possible immigration consequences from a guilty plea, the Court acknowledged immigration issues can be complex and indicated that the certainty of the advice could fluctuate depending on the certainty of the adverse immigration consequences. Id. at 1483.²Although the Padilla Court did not reach the prejudice prong of the Strickland test, as such was not before the Court in that appeal, it did note that “to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Id. at 1485.

PadillaApplies Retroactively

Because appellant's conviction occurred before the Supreme Court issued its opinion in Padilla, we must first determine whether that opinion should be applied retroactively in collateral proceedings such at this habeas corpus action. Neither the Supreme Court, the Texas Court of Criminal Appeals, nor this court has addressed this issue. Two of our sister courts, the El Paso Court of Appeals and the First Court of Appeals, as well as a number of courts from other jurisdictions, have determined that Padilla should apply retroactively. See Ex parte De Los Reyes, 350 S.W.3d 723, 728–29 (Tex.App.-El Paso 2011, pet. granted); Ex parte Tanklevskaya, 361 S.W.3d 86, 93–95 (Tex.App.-Houston [1st Dist.] 2011, pet. filed); see also United States v. Orocio, 645 F.3d 630, 641 (3d Cir.2011); McNeill v. United States, No. A–11–CA495 SS, 2012 WL 369471, at *3 (W.D.Tex. Feb. 2, 2012). Other courts in other jurisdictions have disagreed, holding that Padilla does not apply retroactively. See, e.g., Chaidez v. United States, 655 F.3d 684, 694 (7th Cir.2011), cert. granted,––– U.S. ––––, 132 S.Ct. 2101, 182 L.Ed.2d 867 (2012); United States v. Hong, 671 F.3d 1147, 1150–59 (10th Cir.2011). For the reasons stated in the former set of opinions and discussed below, we agree with our sister courts and the other courts holding Padilla applies retroactively.³

The Court of Criminal Appeals has adopted the United States Supreme Court's analysis in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) to determine whether a rule of law applies retroactively in Texas habeas corpus proceedings. E.g., Ex parte Lave, 257 S.W.3d 235, 236–7 (Tex.Crim.App.2008). The threshold issue under Teague is whether the rule in question is a “new rule” or an “old rule.” With two stated exceptions, “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” See Teague, 489 U.S. at 310, 109 S.Ct. 1060.⁴ A rule is considered “new” if it “breaks new ground,” “imposes a new obligation on the States or the Federal Government,” or was not “dictated by precedent existing at the time the defendant's conviction became final.” Teague, 489 U.S. at 301, 109 S.Ct. 1060 (emphasis omitted); see also Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993). “Old rules” are applicable on both direct and collateral review. See Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007) (holding Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (20...