Garcia-Navarro v. State

• Jurisdiction: Oregon
• Parties: Javier GARCIA-NAVARRO, Petitioner-Appellant, v. STATE of Oregon, Defendant-Respondent.
• Citation: 417 P.3d 464,290 Or.App. 587
• Docket Number: A158352
• Court: Oregon Court of Appeals
• Decision Date: 07 March 2018

290 Or.App. 587

417 P.3d 464

Javier GARCIA-NAVARRO, Petitioner-Appellant,

v.STATE of Oregon, Defendant-Respondent.

A158352

Court of Appeals of Oregon.

Submitted September 27, 2016.

March 7, 2018

Dana M. Mitchell filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael S. Shin, Assistant Attorney General, filed the brief for respondent.

Before DeHoog, Presiding Judge, and Hadlock, Judge, and Aoyagi, Judge.

HADLOCK, J.

Petitioner, who lived for many years in the United States as a permanent legal resident, appeals from a judgment denying his petition for post-conviction relief. Petitioner pleaded guilty to crimes including unlawful delivery of methamphetamine. He subsequently pursued post-conviction relief on the ground that he received inadequate assistance of counsel because the lawyer who represented him in the criminal proceeding did not advise him of the immigration consequences that would follow a guilty plea to the drug charges. Petitioner asserted that he would not have pleaded guilty had he been properly advised of those consequences. The post-conviction court denied relief following a trial. For the reasons set out below, we reverse and remand.

In the underlying criminal proceedings, petitioner was arrested and charged with three counts of unlawful delivery of methamphetamine, three counts of unlawful possession of methamphetamine, one count of first-degree child neglect, and one count of endangering the welfare of a minor. Petitioner subsequently entered into a plea agreement that resulted in him pleading guilty to two counts of unlawful delivery of methamphetamine and to endangering the welfare of a minor (the remaining charges were dismissed). The plea agreement permitted petitioner to argue for a probationary sentence and the prosecutor to argue for a sentence of imprisonment. At sentencing, petitioner's lawyer advocated strongly for probation, but the trial court imposed prison sentences on both delivery convictions and a concurrent jail sentence on the child endangerment conviction, resulting in a 28-month term of incarceration. Deportation proceedings subsequently were initiated against petitioner.

Petitioner filed a petition for post-conviction relief in which he claimed that he had received inadequate and ineffective assistance of counsel under both Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. That claim was based on petitioner's allegation that the lawyer who represented him in the criminal proceedings did not inform him that his guilty plea to unlawful delivery of methamphetamine would trigger mandatory deportation proceedings. Petitioner alleged that he would not have entered the plea agreement had he known of those immigration consequences; instead, he asserted, he would have insisted on going to trial if that was the only avenue for possibly avoiding deportation. At the post-conviction trial, petitioner submitted evidence supporting that claim, including his own affidavit and live trial testimony, in which he stated that he did not know before he entered the plea agreement that he would be subject to mandatory removal if he pleaded guilty; he also asserted that he would not have entered the plea if he had had that information.¹

In response to petitioner's inadequate-assistance claim, the state submitted an affidavit from the lawyer who represented petitioner during the criminal proceedings. That lawyer explained that his strategy was to obtain a probationary or work-release sentence for petitioner because, in that lawyer's experience, a sentence that did not involve incarceration "could help him avoid being noticed by federal officials," perhaps with the result that deportation proceedings would not be triggered. The lawyer also stated that he advised petitioner that "the guilty plea * * * could result in deportation, and further that a prison sentence would make deportation proceedings essentially guaranteed." At the post-conviction trial, the lawyer expressed his belief that he had told petitioner "that we could avoid deportation if he were granted probation," because the lawyer had "seen it where a person will plead guilty to an offense that would otherwise trigger deportation, but because they're out of custody, it never happens." The lawyer acknowledged, however, that he had not then known that deportation would be mandatory following petitioner's guilty plea no matter what sentence was imposed. He also acknowledged not having consulted an immigration attorney about petitioner's case, although that is now his practice "on any case where someone is not a citizen."

Relying on the trial lawyer's representations, the state argued that petitioner made a tactical choice to seek a probationary sentence in hopes that he would not come to the attention of federal immigration officials if he were not incarcerated. The state also asserted that petitioner could not demonstrate prejudice.

The post-conviction court denied petitioner's claim for relief. The judgment states that relief is denied on the basis of the "findings of fact and conclusions of law as stated on the record." It also provides that all questions were presented and decided, but the judgment itself does not further explain the basis for the court's ruling. The referenced "on the record" findings include the court's explanation that it was denying relief because petitioner and his lawyer made a tactical decision to pursue a probationary sentence in hopes of staying "under the radar" with immigration authorities. The court further explained that the lawyer clearly was aware of the risk of deportation, and the court "could not think of why an attorney, knowing that, would not at least mention that to his client." See generally Asbill v. Angelozzi , 275 Or. App. 408, 413, 365 P.3d 587 (2015), rev. den. , 358 Or. 794, 370 P.3d 502 (2016) (a judgment denying post-conviction relief can meet the requirement of making the legal bases for denial apparent by incorporating by reference oral findings that the court made on the record).

On appeal, petitioner assigns error to the denial of post-conviction relief, particularly relying on his claim that he was denied effective assistance of counsel under the Sixth Amendment. He contends that Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed. 2d 284 (2010), mandates relief in this case because the evidence establishes that his lawyer did not advise petitioner that his guilty plea would result in mandatory deportation proceedings.²

To establish that he was deprived effective assistance of counsel under the Sixth Amendment, petitioner had the burden to show (1) that the performance of his trial counsel fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for trial counsel's ineffectiveness, the result of the proceeding would have been different, that is, that petitioner was prejudiced by the ineffective representation. Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984).³ We review the post-conviction court's rejection of petitioner's ineffective-assistance claim for legal error. Green v. Franke , 357 Or. 301, 312, 350 P.3d 188 (2015). In conducting that review, we are bound by the court's factual findings if evidence in the record supports them. Id. "If the post-conviction court failed to make findings of fact on all the issues—and there is evidence from which such facts could be decided more than one way—we will presume that the facts were decided consistently with the post-conviction court's conclusions of law." Id.

As noted, petitioner's argument on appeal is premised on the holding in Padilla . In that case, as here, the petitioner was a lawful permanent resident of the United States who pleaded guilty to a state drug offense. 559 U.S. at 359, 130 S.Ct. 1473. His lawyer did not advise him that the crime to which he pleaded guilty was one that—"like virtually every drug offense except for only the most insignificant marijuana offenses"—made the petitioner "deportable" under 8 U.S.C. § 1227(a)(2)(B)(i). 559 U.S. at 359 & n. 1, 130 S.Ct. 1473. Indeed, the petitioner contended, his lawyer had told him that he did not need to worry about deportation because he had been in this country so long. Id. at 359, 130 S.Ct. 1473. The petitioner pursued post-conviction relief on a theory that he would have insisted on going to trial if he had not received incorrect advice from his attorney. Id.

The Court held that the petitioner was entitled to post-conviction relief, explaining that "constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation." Id. at 360, 130 S.Ct. 1473. The Court recognized that there will be circumstances in which "the deportation consequences of a particular plea are unclear or uncertain" and in which, therefore, a lawyer's duty is only to "advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id. at 369, 130 S.Ct. 1473. But, with respect to drug convictions, "the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence * * *." Id. at 368, 130 S.Ct. 1473 (citing 8 U.S.C. § 1227(a)(2)(B)(i) ). Because the petitioner's lawyer could have readily determined that his client's conviction would result in "presumptively mandatory" deportation, the lawyer provided constitutionally inadequate representation by giving contrary advice. Id. at 369, 130 S.Ct. 1473.

The Court emphasized that the duty of criminal defense lawyers to...