Araiza v. State

• Decision Date: 26 January 2021
• Docket Number: SCWC-17-0000695
• Citation: 481 P.3d 14
• Parties: Edelmira Salayes ARAIZA, Petitioner/Petitioner-Appellant, v. STATE of Hawai‘i, Respondent/Respondent-Appellee.
• Court: Hawaii Supreme Court

481 P.3d 14

Edelmira Salayes ARAIZA, Petitioner/Petitioner-Appellant,

v.STATE of Hawai‘i, Respondent/Respondent-Appellee.

SCWC-17-0000695

Supreme Court of Hawai‘i.

JANUARY 26, 2021

Hayden Aluli, Wailuku, for petitioner

Mark R. Simonds, Wailuku, for respondent (Peter A. Hanano on the brief)

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND CIRCUIT JUDGE BROWNING, ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY RECKTENWALD, C.J.

I. INTRODUCTION

Edelmira Salayes Araiza is a citizen of Mexico and a lawful permanent resident (LPR) of the United States. She has lived in Hawai‘i for more than twenty-two years and has two children, both of whom were born in the United States. In 2014, Araiza pleaded no contest in the Circuit Court of the Second Circuit to Theft in the First Degree, an aggravated felony under federal immigration law, 8 U.S.C. § 1101(a)(43), and to Welfare Fraud. Her attorney advised her that pleading no contest would make deportation "almost certain," but that "[his office] had criminal defendants who were convicted of felonies who are not automatically deported" because immigration was "handled by federal authorities who do not oversee state courts."

Here, we are asked to determine whether counsel properly advised his client, Araiza, about the consequences of an aggravated felony conviction. We hold he did not. In order to be effective under the United States and Hawai‘i Constitutions, criminal defense attorneys must advise their clients about adverse immigration consequences that may result from a plea of guilty or no contest. Haw. Const. art. I, § 14 ; Padilla v. Kentucky, 559 U.S. 356, 368, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Despite her attorney's reference to deportation being "almost certain," when taken as a whole, his advice conveyed that there was a realistic possibility Araiza would not be deported. In reality, Araiza was precluded from discretionary relief from deportation because of her conviction. Budziszewski v. Comm'r of Corr., 322 Conn. 504, 142 A.3d 243, 251 (2016) ("If counsel gave the advice required under Padilla, but also expressed doubt about the likelihood of enforcement, the court must also look to the totality of the immigration advice given by counsel to determine whether counsel's enforcement advice effectively negated the import of counsel's advice required under Padilla about the meaning of federal law." (emphasis added)). Araiza is therefore entitled to relief.

In light of our resolution of this issue, we decline to determine whether the Intermediate Court of Appeals (ICA) erred on the other points of error raised by Araiza.¹ However, we offer guidance on one of those issues relating to qualifications of interpreters. When a lower court appoints an interpreter who has not been certified by the judiciary as proficient in the applicable foreign language, it must conduct a brief inquiry to establish that the interpreter is qualified, as required by Hawai‘i Rules of Evidence (HRE) Rules 604 and 702, and the Hawai‘i Rules for Certification of Spoken-Language Interpreters (HRCSLI).

II. BACKGROUND

In March 2014, the State charged Araiza with Theft in the First Degree in violation of Hawai‘i Revised Statutes (HRS) § 708-830.5(1)(a) (2014) and with Welfare Fraud in violation of HRS § 346-34(b) and/or (c) (2015), alleging she had failed to report income, which resulted in a substantial overpayment of Supplemental Nutrition Assistance Program (SNAP) benefits over the course of several years. Araiza had no prior experience with the criminal justice system.

At her arraignment, the circuit court² advised Araiza pursuant to HRS § 802E-4 (2014)³ : "[Y]our case may have severe and irreversible [immigration] consequences, including immediate detention, deportation or exclusion from admission or denial [of] naturalization to the United States. Your attorney must advise you regarding the possible consequences this case may have on your immigration status."

A. Araiza's No Contest Plea

On October 10, 2014, Araiza, who was represented by a deputy public defender (trial counsel), pleaded no contest to both charges and moved for a deferred acceptance of her plea. The plea paperwork, which Araiza and her attorney both signed, specified, "[T]his document has been read to me or has been interpreted for me." It also contained an advisement about immigration consequences:

If I am not a citizen of the United States, whether or not I have lawful immigration status, I have the right to receive advice from my lawyer about the specific impact that this case will have, if any, on my immigration status. The entry of a guilty or nolo contendre (no contest) plea, ... may have the consequences of my immediate detention, deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. In some case[s], detention and deportation from the United States will be required. My lawyer must investigate and advise me about the aforementioned issues prior to ... entry of a guilty or nolo contendere (no contest) plea ... and I acknowledge that I have been so advised. I am not required to disclose my immigration or citizenship status to the court.

(Emphasis added).

The circuit court also read Araiza the immigration advisement from her plea paperwork, informing her that her plea "may have the consequences of your immediate detention, deportation[,] ... [e]xclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States," and that "[y]our lawyer must investigate and advise you about these issues prior to the ... entry of a guilty or no contest plea."⁴ Araiza told the court she did not need additional time to consider her plea, and that she had discussed immigration consequences with her attorney and was satisfied with his advice. Accordingly, the circuit court found she "voluntarily entered a plea of no contest, with the understanding of the nature of the charges and the consequences of her plea."

The circuit court subsequently denied Araiza's motion for a deferral and sentenced her to five years of probation on Count One (Theft in the First Degree), and one year of probation on Count Two (Welfare Fraud), with both terms of probation to run concurrently. Araiza did not appeal her conviction.

Four months later, the U.S. Department of Homeland Security detained Araiza without bond and served her with a Notice to Appear, alleging that she was removable because her conviction for Theft in the First Degree was an aggravated felony conviction.

B. Rule 40 Petition

1. Rule 40 Petition and Hearing

Five months after Araiza's conviction, Araiza filed a Hawai‘i Rules of Penal Procedure (HRPP) Rule 40 petition,⁵ asserting that her trial counsel's failure to advise her of immigration consequences constituted ineffective assistance of counsel and, in turn, prevented her no contest plea from being knowing and intelligent.

Initially, the circuit court summarily denied Araiza's Rule 40 petition without a hearing, finding that her claim of ineffective assistance of counsel had been waived because she failed to raise it on appeal, and that Araiza had not been convicted of an aggravated felony, so "the consequences resulting from [Araiza's] plea were truly unclear." But the ICA reversed and explained that "[c]ontrary to the Circuit Court's assumption, [ ]Araiza's conviction for first-degree theft by deception in violation of HRS § 708-830.5(1)(a) is an aggravated felony under the immigration laws." Salayes-Araiza v. State, No. CAAP-15-0000934, 2016 WL 6948461, at *4 (Haw. App. Nov. 28, 2016). Accordingly, citing Padilla, the ICA concluded that Araiza's "petition sufficiently stated a colorable claim for relief" and remanded for a hearing. Id. at *5.

At the hearing on remand, the parties stipulated to admitting State's Exhibit 1, Araiza's trial counsel's declaration. Araiza's trial counsel stated in his declaration that he discussed immigration consequences with Araiza:

[N]early every conversation with my client centered on immigration concerns, the looming and almost-certain possibility that she'd be deported, and the difficulty in presenting a defense in this case due to the language barrier, the severity of the charge, and the State's evidence, and I remember that she burst into tears or became teary-eyed anytime I brought up this topic, which was every discussion we had prior to pre-trial.

Trial counsel also advised Araiza and her husband that a plea of guilty or no contest "would result in an almost-certain deportation," and he strongly advised them to speak to an immigration attorney. However, he also explained that sometimes defendants convicted of felonies were not deported:

As part of this discussion, I informed her that I had discussed this issue with more senior attorneys in my office, and discovered that there were situations in our own office where people who were found guilty of felony offenses were actually not deported, despite their convictions, and for that reason I could not give her 100% confirmation that she'd be automatically deported for the very reason that the immigration is handled by Federal authorities who do not oversee the State courts and that certain defendants seemed to slip through the grasp of what would [ ] otherwise be an automatic deportation.

(Emphases added).

Overall, trial counsel advised Araiza that she needed to weigh "risking automatic deportation with no jail (upon a plea agreement) versus going to trial and possibly being found guilty, serving jail and then being deported (which would be far worse)[.]"⁶

During the Rule 40 hearing, trial counsel testified on behalf of the State. Consistent with his declaration, trial counsel testified that he advised Araiza she would be subject to almost-certain deportation if convicted. Deportation was not certain because his office "had criminal defendants who were convicted of felonies who are not automatically deported."

When pressed about his advice on...