Barajas v. State
| Decision Date | 29 December 1999 |
| Docket Number | No. 33649.,33649. |
| Citation | 115 Nev. 440,991 P.2d 474 |
| Parties | Raul BARAJAS, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Kelly & Sullivan, Ltd., Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
BEFORE MAUPIN, SHEARING and BECKER, JJ.
FACTS
On March 31, 1997, appellant Raul Barajas, a lawful permanent resident alien who had lived in the United States for approximately thirty-seven (37) years, pleaded guilty to possession of a controlled substance, a felony. On September 30, 1997, the district court sentenced Barajas to a maximum term of thirty-two (32) months with a minimum parole eligibility of twelve (12) months. The court suspended the sentence and placed Barajas on probation for an indeterminate period of time not to exceed four (4) years. At some point thereafter, the Immigration and Naturalization Service ("INS") instituted removal (i.e., deportation) proceedings against Barajas based on this conviction. See 8 U.S.C. § 1227(a)(2)(B)(i).
On November 28, 1998, Barajas filed a motion to withdraw his guilty plea pursuant to NRS 176.165. Barajas claimed that his plea was not entered knowingly and intelligently because neither the district court nor counsel advised him that he would be subject to deportation as a result of the conviction. Barajas further claimed that the failure to so advise him constituted manifest injustice as he would not have pleaded guilty had he been made aware of the consequences of his plea.
Following a hearing, the district court denied Barajas' motion. Barajas filed this timely appeal.
Barajas contends that the district court abused its discretion by denying his motion to withdraw his guilty plea. In particular, Barajas contends that his plea was not entered knowingly and voluntarily and resulted in a manifest injustice because neither the district court nor his trial attorney advised him of the possible immigration consequences of his guilty plea. We conclude that both contentions lack merit.
A guilty plea is presumptively valid, and the defendant has the burden to prove that the plea was not entered knowingly or voluntarily. Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986). The district court has the duty to review the entire record and determine whether the plea was valid under the totality of circumstances. Id. This court will not overturn the lower court's decision absent a clear showing of an abuse of discretion. Id.
The possibility of deportation is a collateral consequence which does not affect the voluntariness of a plea. Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir.1976); State v. McFadden, 884 P.2d 1303, 1304-05 (Utah Ct.App.1994). Therefore, the trial court's failure to advise a defendant of the possible immigration consequences of a guilty plea does not render the plea involuntary. United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir.1988); Fruchtman, 531 F.2d at 949; McFadden, 884 P.2d at 1304-05. Similarly, trial counsel's failure to provide such information does not fall below an objective standard of reasonableness and, thus, does not rise to the level of ineffective assistance of counsel.1United States v. Banda, 1 F.3d 354, 356 (5th Cir.1993). We therefore conclude that appellant's contentions lack merit and we affirm the district court's order denying appellant's motion to withdraw his guilty plea.2
1. We acknowledge that some federal courts have recognized...
To continue reading
Request your trial
-
Chaidez v. United States
...S.W.2d 22, 25 (Mo.App.1996) ; State v. Zarate, 264 Neb. 690, 693–696, 651 N.W.2d 215, 221–223 (2002) ; Barajas v. State, 115 Nev. 440, 441–442, 991 P.2d 474, 475–476 (1999) (per curiam ); State v. Chung, 210 N.J.Super. 427, 434, 510 A.2d 72, 76 (App.Div.1986) ; People v. Ford, 86 N.Y.2d 397......
-
Rubio v. State
...her and that her lawyer failed to meet with her to discuss the guilty plea agreement and plea canvass. While we reaffirm our decision in Barajas v. State,1 holding that deportation is a collateral consequence that does not affect the voluntariness of a guilty plea, we take this opportunity ......
-
People v. Kabre
...579 [2000]; Alanis v. State, 583 N.W.2d 573 [Minn. S.Ct. 1998]; State v. Zarate, 264 Neb. 690, 651 N.W.2d 215 [2002]; Barajas v. State, 115 Nev. 440, 991 P.2d 474 [1999]; State v. Dalman, 520 N.W.2d 860 [N. Dak. S.Ct. 1994]; People v. Ford, 86 N.Y.2d at 403-404, 633 N.Y.S.2d 270, 657 N.E.2d......
-
D'Ambrosio v. State
...by counsel to give immigration advice does not render the lawyer's representation constitutionally ineffective"); Barajas v. State, 115 Nev. 440, 991 P.2d 474, 476 (1999) (failure of trial counsel to advise a defendant of possible immigration consequences of a guilty plea "does not fall bel......